European colonization of the Americas screwed a lot of people over, and of those people, many were Native American peoples who had been living on the Western hemisphere anywhere from 12,000 to 30,000 years ago, well before Columbus “discovered” the Americas or the Pilgrims celebrated the first Thanksgiving after slaughtering 700 Pequot Indian men, women, and children. Europeans essentially invaded tribal lands, instigated violence on tribes and between tribes, enslaved tribal peoples, introduced alcohol and diseases, forcibly removed tribal peoples from their homes, and demonized and attacked the most sacred aspects of tribal cultures. By the end of the nineteenth century, Indian nations were tired. They began to shift from militant resistance to an attempt at assimilation. It wasn’t until the 1960’s that federal policy began to slowly return rights to tribal governments, and it’s still a work in progress.
Native Americans and the Federal Government
Tribal sovereignty is complicated. The treaties and policies that decimated American Indian nations have culminated in an astronomical poverty level—as of 2014, approximately 30% of American Indians and Alaskan natives live in poverty, a rate the supersedes any other race group’s. So while on the one hand, the federal government has ceded its control over education, housing, and health services to the tribal authorities, on the other, tribes are dependent on federal funding, which forces them to act as special interest groups, mitigating their clout as sovereign nations. Numerous studies have indicated that when given control over their own decisions about their development, Native nations consistently outperform those that relinquish that sovereignty to the federal government. For example, in the 70’s and 80’s, Phillip Martin, tribal leader on the Mississippi Choctaw Reservation, brought the unemployment rate down to 4% through several manufacturing opportunities at a time when the rest of the country was in a recession.
Cannabis and its Economic Opportunity
This is why cannabis presents an economic opportunity for the tribes. Because of sovereignty treaty rules, tribes have way more freedom when it comes to cannabis cultivation. They are able to exercise control over civil and criminal law, zoning, and other licensed and regulated activities. The cannabis industry has a lot of support on Indian reservations because of the much-needed jobs and revenue it could bring in. The nascent industry is growing, gaining momentum, and could be extremely lucrative for reservations with few other options. The tribes on the Warm Springs Reservation in Oregon, an incredibly impoverished area with over 30% of its residents living below the poverty line, has turned to cannabis as a possible solution to its financial woes.
In a 2016 referendum, 1,252 residents voted for the idea of growing cannabis on the reservation while only 198 voted against it
In Nevada, the Paiute Nation tribe, a tribe struggling to overcome alcoholism, poverty, and depression, has been working with the Arizona based medical cannabis company, Ultra Health, to establish a lucrative, robust medical marijuana industry. The partnership is almost three years old, and according to CEO of the Ultra Health, Duke Rodriguez, it took a lot of work to solidify. In an interview with Vice, Rodriguez said, “you have to overcome 85 years of prohibition—of being told ‘just say no,’ of the tribe not having economic independence, and of their sovereignty being violated. It’s not an easy process for them to overcome, and they’re doubtful sometimes. They wonder what’s really in it for them—is this going to be another venture taking advantage of the tribe?” Despite the difficulties that make such a partnership challenging to forge, it can be worth it. According to Rodriguez, Native peoples have numerous advantages when it comes to succeeding in the cannabis industry.
“They own land, they have water and access to power, and they have a historical and cultural tie to cannabis and natural healing. They also have a distribution network—smoke shops, reservations, and casinos across the country”
Despite these advantages and sovereignty rules, tribes still face legal barriers. For example, the 2017 High Times Cannabis Cup is scheduled to take place on the Moapa Band of the Paiutes reservation in Nevada. US Attorney David Bogden has sent two warning letters to the tribe reminding leaders that cannabis is federally illegal and that the tribe’s interpretation of the Cole Memo and Wilkinson statement is incorrect. The tribe has decided to move forward with their plans to host the event, but these letters could be what Sean Spicer meant when he implied that the federal government would increase enforcement of federal cannabis law.
The Future of Cannabis and Native American Tribes
So what are tribes to do? Vince Sliwoski, attorney for Harris Bricken and leading practitioner in Oregon’s cannabis industry has 4 pieces of advice: read the Cole Memo and the Wilkinson statement carefully, play nice if your tribe is subject to Public Law 280, communicate with the federal government, and stay flexible. The Cole memo and Wilkinson statement both provide 8 priorities meant to “guide United States Attorneys’ marijuana enforcement efforts in Indianan County,” and where “sovereign Indian Nations seek to legalize the cultivation or use of marijuana in Indian County.” For the most part, attorneys have left tribes cultivating cannabis on their land alone, but as exemplified by the 2017 High Times Cannabis Cup drama, the feds aren’t super supportive of festival like activities taking place on tribal lands. Public Law 280 can make things more complicated for tribes that are subject to its provisions. The Act required the transfer of federal law enforcement to the states within which tribes exist. That means that a tribe in a state that has no legalized cannabis is subject to that state’s laws. The following states have authority over tribes within them because of Public law 280 or a similar provision: California, Minnesota (except the Red Lake Nation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin (except the Menominee Indian Reservation), Alaska, Nevada, South Dakota, Washington, Florida, Idaho, Montana, North Dakota, Arizona, Iowa, and Utah.
Even when tribes are not subject to Public Law 280, it behooves them to have a good relationship with the local and state governments and US attorneys
Laws are constantly changing, and that couldn’t be truer than when it comes to cannabis law. Although the cannabis industry and sovereign Indian nations will face obstacles, the mutually beneficial relationship they offer each other is worth the fight.