Early this Spring I joined others who spoke in a marijuana conference in San Diego, California, titled: — “Marijuana: The Next Big Thing in Native American Economic Development?” Our panel lectured on what was perceived by some Indian Tribes to be a Policy Shift by the Federal Government related to the enforcement of the Controlled Substances Act and other drug enforcement laws on native lands.
The federal government and Indian Tribes have a unique legal relationship that is deeply rooted in American history. It is generally recognized that tribes are self-governing sovereign entities. However, this sovereignty is subject to the regulatory powers of Congress. So the power to deal with and regulate the tribes is entirely federal; meaning that the states do not have power to regulate the tribes unless Congress delegates power to them. With this regulatory power, the federal government has a responsibility for protecting the tribes, including protecting them from encroachment by the states and the citizens of the United States. Because of the federal government’s unique relationship with the tribes and the desire of some states to partner with some of the tribes for financial gain related to the cannabis industry; it will be interesting to see how these business relationships evolve. The Department of Justice (Monty Wilkinson) issued a memorandum to US Attorneys, various Chiefs and all Tribal Liaisons, on October 28, 2014, making a federal government policy statement regarding “Marijuana Issues in Indian County.” In essence the memorandum permits Indian Tribes to be cannabis purveyors despite state law. The memorandum cautions only that Indian Tribes must concern themselves with the same eight concerns the federal government has articulated to the states, e.g. preventing the distribution of marijuana to children, preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels, a prohibition on firearms at locations where cannabis is cultivated and distributed, etc.
In a Huffington Post Blog1 published on February 4, 2015, it was revealed that “More than 100 Native American tribes have reached out to FoxBarry Farms, a management firm building the nation’s first marijuana facility on tribal land, over the past month to express interest in the cannabis industry.” While many tribes are cautious; the recent numbers in attendance at the various conferences around the country exploring the financial possibilities in cannabis, make it clear that some tribes are seriously considering whether or not cannabis (or hemp) production could be their very own “green rush”. The interest in working with the tribes comes as no surprise, especially where we see such financial potential in this industry and many states and local governments within many states are not taking a progressive approach to this industry, mainly because of the federal posture on cannabis. If the Tribes are successful, the states prohibiting or unreasonably stifling commercial opportunity, could find themselves in an unenviable position. The conference I was a part of, included a showing of top name sponsors and investors, clearly poised to do business with entrepreneurial tribes entering this “budding” industry.