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Tribal Marijuana Pitfalls: Shysters, Smugglers & States

Since the Department of Justice's unexpected policy announcement in December regarding marijuana in Indian Country, many tribes are carefully considering the unintended consequences of addressing their approach to marijuana. At the same time, tribes are entering into relationships or accepting advice from shysters who may be leading them down the garden path.

At a recent conference in Santa Fe, one "consultant" (whose professional profile describes him as an "infection preventionist" at a regional medical center) advised that tribes "are able to get into this industry with complete immunity,” according to an article in the Daily Beast. Nothing could be further from the truth. Regardless of marijuana's legal status in a given state, marijuana remains illegal under federal law, although enforcement priorities will be directed toward the activities outlined in the "Cole Memorandum," which include keeping marijuana away from minors and out of jurisdictions where it's not legal; preventing driving while high (on anything); and ensuring that marijuana cultivation and sales doesn't enrich gangs or cartels, endanger public safety or engender violent crime.

This approach may work fine for states, and even for cities, but seems unimaginably complex for tribes already struggling with law enforcement issues such as recruitment and retention or patrolling large areas. Tribes should take note that the DEA has shown no hesitation in conducting raids and arrests on individual operations and businesses that violate the Cole Memorandum, even in states with broad legalization laws.

Even such a straightforward approach could take a lot of negotiation, and impact existing collaborative agreements. While the Northeast regional medical marijuana market might look appealing to the Mohegan tribe, they are also right to be concerned about how any changes in tribal code might impact the certification agreement they signed with the Connecticut state police to enforce state law within reservation boundaries. A change in tribal law would raise all sorts of questions regarding the role of state police and tribal police in enforcing the points of the Cole Memorandum.

A number of tribes in Arizona, the Northeast, Minnesota and Nevada find themselves in the same position as the Mohegan: considering the economic benefit of aligning with existing state laws, but concerned about endangering the collaborative agreements that currently support tribal law enforcement. However, many more tribes live in states that do not allow marijuana possession, distribution and cultivation of any sort. One of these states is South Dakota, where the Oglala Sioux Tribe nearly held a referendum to legalize marijuana earlier this year, in part to generate revenue from "marijuana tourism." Now the recent policy change, has OST tribal officials having to consider the issues in the Cole Memorandum, particularly regarding keeping legal marijuana out of jurisdictions where it's not legal.

Tribes who pursue legalization in spite of opposition from their surrounding states may see tribal members—or even tribal leaders—mired in court cases stemming from disagreements about jurisdiction and authority. Because the DOJ memo makes it clear that the government reserves the right to enforce federal law in Indian Country, if access to minors is not restricted, or the pot is trickling off the reservation into places it wouldn't be legal, serious criminal penalties could be involved.

The allure of having an "edge" in an emerging industry is appealing for some tribes, but the reality is that the additional burden of regulation and enforcement—not to mention health and social services—may outstrip possible revenue. The Pinoleville Pomo Nation is the first tribe to dip a toe into this market, and they are discovering that aligning contradictory and confusing laws might result in their not being able to realize a profit on their grow operations.

Other tribes may soon discover the difference between the promise of untold wealth from legal marijuana and the reality of navigating the legal maze that it entails. A number of for-profit firms have declared themselves experts in the field, despite the fact this industry never existed, and are happy to accept fees from tribes seeking economic development. The example of the consultant who breezily promised "complete immunity" to tribes should be a chilling reminder that advice is only as good as the intentions of the person giving it. In the end, these self-proclaimed tribal marijuana experts are the first to make a buck on tribal marijuana, and it's unlikely they care much if they leave behind a pile of problems for tribes to deal with.

What's lost in the hubbub over whether tribes should pursue legalization is to what extent the DOJ will support tribal enforcement of current marijuana bans. The fact of the matter is that many tribes don't think marijuana cultivation and distribution is ethical, healthy or desirable in any way. Indeed, one of the biggest issues for tribes, like the Yurok and the Hoopa in the "Emerald Triangle" of northern California, is how to get more help combatting smuggling and illegal grows that threaten tribal lands and waters. The Yakama would appreciate legal support from the DOJ over the issue of prohibiting marijuana cultivation on ceded lands. Alaskan Native leaders are concerned about retaining enough drug-free workers, now that legalization of recreational marijuana is moving forward.

The promise of the memo is that the DOJ will coordinate with each individual tribe to structure policy, a pledge that some find ironic in light of the fact that this policy change was made without any consultation. Others find little weight behind a promise made by an outgoing attorney general under a lame duck president. As tribal leaders sit down with each other in the months to come, they have lots to consider, not the least of which are the hucksters perfecting their pitch.

Walter Lamar, Blackfeet/Wichita, is a former FBI special agent, deputy director of BIA law enforcement and is currently president of Lamar Associates. Lamar Associates' Indian Country Training Division offers culturally appropriate training for Indian country law enforcement and service professionals with both on-site and online courses.