Tribes and Cannabis

July 14, 2015 Judith M. Dworkin Indian Law

The enforcement of marijuana laws in Indian Country involves a complex relationship among federal, state and tribal laws.

Criminal enforcement of marijuana laws in Indian Country[1] will depend on whose law is being applied: federal law (e.g., the Controlled Substances Act), state or local law, or the law of the tribe.

In the case of criminal law, jurisdiction also depends on whether the offender is Indian or non-Indian; whether there are victims; if so, whether the victims are Indian or non-Indian; and whether the state has been granted jurisdiction to enforce crimes in Indian Country.

Tribal jurisdiction may also depend on whether the tribe relies solely on criminal law or there is a civil infraction law available.

FEDERAL JURISDICTION AND THE WILKINSON MEMORANDUM

On December 14, 2014, the U.S. Department of Justice released a policy statement, known as the “Wilkinson Memorandum,” regarding enforcement of federal drug laws as it applies to marijuana[2] in Indian Country. This policy statement does not allow Indian Tribes to legalize cannabis; it is merely an interpretation of the August 29, 2013, “Cole Memorandum” from the Deputy Attorney General regarding guidance on enforcement priorities to federal prosecutors as it applies to Indian Country.

The Wilkinson Memorandum reiterates the authority and jurisdiction of the United States to enforce federal law in Indian Country. It provides that, with respect to Indian Country, the federal government’s limited investigative and prosecutorial resources should be focused on the eight priorities of marijuana enforcement described in the Cole Memorandum. It notes that, with respect to federal law enforcement of marijuana within an Indian tribe, the relevant U.S. Attorney should consult with the tribe and should provide notice to certain Washington D.C. officials. The Wilkinson Memorandum does not change federal law, does not provide a defense to prosecution, can be revoked at any time, and does not provide a safe harbor.

Federal Enforcement of Marijuana Laws in Indian Country. Marijuana is a Schedule 1 Controlled Substance, and federal laws related to marijuana are considered laws of general applicability. Possession, distribution, manufacture and cultivation are illegal under federal law in Indian Country, just as they are anywhere in the United States.[3] It is unlawful to knowingly lease any place for the purpose of distributing a controlled substance.[4] Property involved in the sale and distribution of marijuana may be subject to seizure by and forfeiture to the federal government.[5] There is, however, immunity for state or local officers lawfully engaged in the enforcement of law or municipal ordinance related to controlled substances.[6] In addition to federal laws of general applicability, federal jurisdiction in Indian Country exists under the Major Crimes Act[7] and the General Crimes Act.[8]

The Eight Enforcement Priorities. The priorities for enforcement of federal marijuana laws are directed at preventing:

  1. distribution of marijuana to minors,
  2. the influence of criminal enterprises in the marijuana business,
  3. transportation from states that allow marijuana to states that do not allow marijuana,
  4. the use of marijuana as a cover for other illegal activity,
  5. violence and the use of firearms,
  6. driving under the influence and other public health consequences,
  7. growth of marijuana on public lands, and
  8. possession and use on federal property.

Priorities 3 and 8 create significant ambiguity in their application to Indian Country.

Priority 3. The reservations of certain tribes include portions of more than one state. By example, the Navajo Nation includes portions of Arizona, New Mexico and Utah and borders Colorado. Arizona, New Mexico and Utah each permits some use of marijuana for medicinal purposes. Arizona and New Mexico allow cultivation of marijuana, while Utah allows importation of cannabis extract but does not allow cultivation within the state. Colorado permits adult recreational use of marijuana. Reservation boundaries may complicate the application of this Priority.

Priority 8. The term “federal property” includes tribal or allotment trust land.[9] If U.S. Attorneys were to prioritize enforcement of marijuana violation of federal law based on this priority, there would be no limitations on enforcement, as most of Indian Country would come under this priority.

Consultation and Notification. The Wilkinson Memorandum diverges from the Cole Memorandum with regard to its emphasis on consultation and notification. U.S. Attorneys are encouraged to engage in government-to-government consultations with tribes within the U.S. Attorney’s territorial jurisdiction. In addition, in the event that a U.S. Attorney identifies enforcement issues, the Wilkinson Memorandum provides that the Executive Office for United States Attorneys, the Office of Tribal Justice, and the Office of the Deputy Attorney General shall be notified “in advance of any determination of how to proceed.”

STATE MARIJUANA LAWS AND STATE JURISDICTION

Twenty-three states[10] and the District of Columbia allow for some medicinal uses of marijuana. Further, the states of Washington, Colorado, Oregon, Alaska, and the District of Columbia have enacted laws that permit recreational, adult use. Under the Indian law doctrine established in Worcester v. Georgia, 31 U.S. 515, 561 (1832), the laws of the state in which the tribe is located has no force or effect within the territory occupied by the tribe, and the state has no jurisdictional authority within the reservation boundaries without federal delegation.

Public Law 280 Confers State Criminal Jurisdiction in Indian Country. Public Law 83-280 (PL 280) was enacted in 1953 in order to address a perceived lawlessness in Indian Country by transferring responsibility to certain states rather than increasing federal funding to improve tribal criminal justice systems. PL 280 was enacted during the federal Indian policy known as the Termination Period.[11] PL 280 conferred state criminal jurisdiction over Indian Country under a mandatory regime and an optional regime. Five states – California, Minnesota, Nebraska, Oregon and Wisconsin – and later Alaska are considered mandatory PL 280 states, and tribes within those states were immediately subject to state criminal jurisdiction. In mandatory PL 280 states, PL 280 law provides that federal jurisdiction under the Major Crimes Act and the General Crimes Act does not apply.[12]

Public Law 280 also permitted other states to assume criminal jurisdiction over Indian Country within their state borders. Washington, in addition to states such as Idaho and Florida, asserted jurisdiction over criminal activity in Indian Country and are referred to as “optional” PL 280 states. The PL 280 law is silent as to whether concurrent federal law, under the Major Crimes Act and the General Crimes Act, continues to co-exist with state jurisdiction in optional PL 280 states.

As enacted in 1953, PL 280 did not require the consent of the affected Indian tribes. In signing the legislation, President Eisenhower had grave concerns regarding the lack of tribal consent, and he urged Congress to amend the legislation to include a tribal consent provision. However, it was not until the Indian Civil Rights Act was passed in 1968 that a tribal consent was added to PL 280. The tribal consent was only effective prospectively. The 1968 amendments did not displace jurisdiction previously assumed under PL 280.[13] PL 280 currently affects 370 tribes in the six mandatory states and 42 tribes in optional PL 280 states.[14]

Criminal Jurisdiction versus Regulatory Jurisdiction. Even when a tribe is subject to full PL 280 jurisdiction, that does not resolve the question of whether a state may enforce its marijuana laws in Indian Country.

First, one must determine whether the state marijuana law is criminal or regulatory in nature. If the intent of the statute is to prohibit certain conduct, then the statute would be enforceable in those Indian tribes that are subject to the full PL 280 jurisdiction. If the intent of the statute is to regulate conduct, then the state may not enforce its marijuana laws within the tribal boundaries.

In Bryan v. Itasca County, 426 U.S. 373, 388 & n.14 (1976), the U.S. Supreme Court held that application of a state’s general regulatory power would undermine or destroy tribal governments and values. A decade later, the Supreme Court considered whether California, a PL 280 state, could impose restrictions on a tribe’s bingo and other gaming operations.[15] The Court considered whether California’s law was criminal or regulatory in nature and concluded that California regulated rather than prohibited gaming activities. California had the lottery, pari-mutuel horse race betting, charitable bingo, and hundreds of card rooms within the state. It found that California regulates rather than prohibits gaming, even though the sanctions under California’s laws were penal in nature.

CONCLUSION

Tribes considering whether to participate in the developing cannabis industry are advised to proceed cautiously.

Consideration should be given to the position of the state or states in which the tribe is located; whether to participate in the state program or to offer an alternative to the state program; and whether to participate as a cultivator or distributor or both.

No single approach will have universal applicability throughout Indian country.

[1] The term “Indian Country” is defined by 18 U.S.C. § 1151 as “(a) all land within the limits of an Indian reservation, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (b) all dependent Indian communities whether within the original or subsequently acquired territory, and (c) all Indian allotments, and including rights-of-way running through the allotment.”

[2] The terms “marijuana” and “cannabis” are used interchangeably in this article, although “cannabis” is the botanical or scientific name referring to either “cannabis sativa” or “cannabis indica.”

[3] 21 U.S.C. § 841(a).

[4] 21 U.S.C. § 856.

[5] 21 U.S.C. § 881(a).

[6] 21 U.S.C. § 885(d).

[7] The Major Crimes Act is codified at 18 U.S.C. § 1153 and provides “(a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, a felony assault under section 113, an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States” and “(b) Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.”

[8] The General Crimes Act is codified at 18 U.S.C. § 1152 and provides that the “general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United states, except the District of Columbia . . . extend to the Indian country.” The Assimilative Crimes Act, 18 U.S.C. § 13 is included in the “general laws” extended to Indian Country by 18 U.S.C. § 1152 and allows the borrowing of state law when there is no applicable federal statute.

[9] See, e.g. 20 U.S.C. § 7713(5)(A)(“the term ‘federal property’ means real property that is not subject to taxation by any State or any political subdivision of a State due to Federal agreement, law, or policy, and that is . . . held in trust by the United States for individual Indians or Indian tribes . . . .”).

[10] California, Alaska, Oregon, Washington, Maine, Colorado, Hawaii, Nevada, Montana, Rhode Island, New Mexico, Vermont, Michigan, Arizona, New Jersey, Delaware, Connecticut, Massachusetts, New Hampshire, Illinois, Maryland, Minnesota, and New York.

[11] The goal of the Termination Period (1953-1968) was aimed at terminating federal obligations to Indian tribes and “as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, [and] to end their status as wards of the United States . . . .” H.Con.Res. 108, 83rd Cong., 1st S3ess, 67 Stat. B132 (1953). During this period more than 100 tribes were terminated. W.C. Canby, Jr., American Indian Law in a Nutshell, 6th ed., pp.27, 59 (2015).

[12] 18 U.S.C. § 1162.

[13] Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng’g, 467 U.S. 138 (1984).

[14] Leonhard, 47 GONZ. L. REV. at 703 and n.325 (the Cowlitz, Jamestown-S’Kkallam, Nooksack, Samish, Sauk-Suiattle, Snoqualmie, Stillaguamish and Upper Sakit reservations of Washington were restored or first recognized after 1968 and never consented to Washington’s assertion of jurisdiction).

[15] California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

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