In 2015, the Pinoleville Pomo Nation in northern California set aside 2.5 acres of their roughly 100 acre reservation for the cultivation of medical marijuana. The tribe, which has fewer than 100 members, partnered with United Cannabis, a Colorado company that develops strains of cannabis to start the venture. Although California law limited medical grows to 25 plants, the tribe opted to invoke its sovereign rights and to start a commercial-scale operation. The turn towards marijuana legalization and large-scale production was intended to help the tribe’s finances. But increasingly, Native American tribes are finding themselves torn between the desire to turn a profit through legalization and at times taxation of cannabis, and fears that loosening restrictions will lead to unintended consequences.
Pinoleville’s story demonstrates the inherent tensions of today’s marijuana policy, as well as the jurisdictional difficulties created by tribal law. The Department of Justice may be committed to enforcing marijuana laws in this country, but native reservations are legally considered independent nations. State governments have no jurisdiction over reservation land and the Federal government’s law enforcement authority is limited to those violations listed in the Major Crimes Act, which include rape, murder, and assault. Traditionally, tribal governments have held the authority to legislate and prosecute civil matters. Drug policy, however, has been a gray area.
Under the Obama administration, the Justice Department did not consider enforcement of drug prohibition a priority in states that have voted to decriminalize marijuana. Additionally, in 2014, the department issued a memo instructing all U.S. attorneys to not pursue prosecution of tribes that choose to legalize and regulate marijuana if they meet priorities laid out in an earlier departmental memo. These priorities included preventing revenue from cannabis sales from flowing to criminal enterprises and ensuring that minors did not have access to drugs.
Over the course of the last decade, marijuana’s cultural acceptability has grown in leaps and bounds. At a tribal conference in 2015, 75 tribal representatives met to discuss forming a tribal cannabis association. The National Indian Cannabis Coalition was formed later that year, with the goal of providing “education and guidance in collaboration with tribal leaders, industry professionals and elected officials relative to the emerging regulated cannabis industry, while advocating for parity on behalf of Indian Country.”
The coalition seeks to examine hemp as a tool for economic development, helping tribes become the first industrial-scale hemp producers in the country. For years, tribes have realized that the possibility of marijuana legalization or hemp production could be a highly-profitable venture.
“The industrial hemp project could probably overtake Indian gaming, not only in terms of employment but also in terms of revenue to the Navajo,” said Al Henderson, a senior Navajo economic adviser after the tribe entered into final talks to begin growing industrial hemp in 2016. A tribal subcommittee gave approval to a proposal to allow economic development through marijuana legalization and cultivation and the growing of hemp in July. The measure, which was proposed last year, remains controversial, but appears slated for passage.
Its legal status is already questionable. Defenders point out that industrial hemp has THC levels of less than 0.3 percent and therefore no psychoactive properties. Since 2014, federal agricultural law has differentiated between industrial hemp and marijuana. Just because the federal government allows for cultivation does not mean that states have agreed to follow along.
After all, New Mexico, the state in which the Navajo reservation is located, has not legalized or decriminalized marijuana. The Menominee Indian Tribe of Wisconsin lost a court case in 2016 when a judge ruled that, although hemp cultivation was legal under federal law, state law still forbade it.
Furthermore, while marijuana legalization and hemp cultivation have the potential to rival gaming for profits, many tribes are wary about fully embracing the cultivation of a narcotic.
“When someone is very sick, that’s when Navajo medicine comes into use, and I think we need to be reminded of that. We are opening the door to something that is foreign,” said Delegate Steven Begay of the Navajo tribe. “We need to incorporate what the Navajo public wants and we need to allow them the opportunity to provide feedback on this topic. Some may find this drug invasive and addictive.”
Native tribes have had mixed experiences with marijuana. Already they have the highest rates of alcohol use disorders of any ethnic group and the fetal alcohol syndrome rate for certain tribes is 3-7 times higher than the general population. As a result, the prospect of increasing the availability of a federally-controlled narcotic has been greeted warily.
More recently, tribes have been grappling with a decision they feel has largely been taken out of their hands.
“The state legalized this. It was brought to our doorstep by a neighboring government,” said Suquamish Chairman Leonard Forsman after the tribe voted in favor of marijuana legalization two years ago.
In part, the decision reflected practical realities. Enforcing marijuana prohibition on a 7,600 acre reservation would have been complicated, particularly when landowners are not themselves members of the tribe. Additionally, some tribal leaders thought that it would be difficult to continue to enforce prohibition with drugs legally available just off of the reservation. Still, many tribal members are wary of embracing regular recreational use.
“Because it’s legal, adults 21 and older get to make that choice [of whether to use cannabis]. But that doesn’t mean we endorse it,” said Tribal Council Member Robin Sigo, former director of the tribe’s wellness center. “We’ve really moved away from the ‘just say no’ model and are now focused on giving youth and families information about how it might affect them, so they can get to make the decision themselves.”
At this point, legalized hemp has yet to be fully implemented on any reservation. Even so, many tribes are moving towards decriminlization. Twelve out of the 29 federally-recognized tribes in Washington either established or are in the process of establishing contact with the state government to allow for cannabis sale on their land. This cheers leaders who are hoping for a burst of tax revenues. However, given the history of substance abuse on reservations, the decision has not been without its detractors.
“If it was never part of our culture or values, why would we want to be introducing [cannabis] into our communities in the first place,” asked Robin Carneen, of the Swinomish tribe. “I think it is a mixed message if we are trying to keep our communities drug- and alcohol-free.”
