Department of Justice Memorandum Regarding Legalization of Marijuana in Indian Country Raises More Questions Than Answers

On Thursday December 11, 2014, the press was abuzz about a just released Department of Justice memorandum titled “Policy Statement Regarding Marijuana Issues in Indian Country.”¹ Some news outlets heralded the memorandum as a pathway for Indian tribes to enact laws to legalize use of recreational marijuana on their reservations. Much of what has been stated in the press, though, is overblown. The memorandum does not explicitly ordain a policy authorizing tribal legalization of recreational marijuana. In fact, the memorandum raises more questions than it offers answers regarding federal marijuana policy in Indian Country.

The memorandum announces the following eight law enforcement “priorities” for marijuana: (1) preventing distribution of marijuana to minors, (2) preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels, (3) preventing the diversion of marijuana from states where it is legal under state law in some form to other states, (4) preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or illegal activity, (5) preventing violence and the use of firearms in the cultivation and distribution of marijuana, (6) preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use, (7) preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands, and (8) preventing marijuana possession or use on federal property. The memorandum also makes clear, however, that the growing and selling of marijuana remains illegal under the federal Controlled Substance Act strictly speaking, and that the authority or jurisdiction of the United States to enforce federal law in Indian Country is not altered. The memorandum does call for U.S. Attorneys to consult on a “government-to-government” basis with Indian tribes that legalize the cultivation or sale of marijuana under tribal law. The memorandum also requires U.S. Attorneys to inform the Executive Office for United States Attorneys, the Office of Tribal Justice, and the Office of the Deputy Attorney General of Indian Country marijuana issues before making a determination to prosecute.

The greatest impact of the memorandum will likely be on tribes situated in states that have already legalized the recreational use of marijuana (currently Washington and Colorado, with Alaska and Oregon starting in 2015). The memorandum expressly refers to an August 29, 2013 memorandum from Deputy Attorney General James M. Cole (the “Cole Memorandum^”2). The Cole Memorandum was authored in reaction to the ballot initiatives in Washington and Colorado legalizing recreational marijuana. The Cole Memorandum stresses the importance of state and local law enforcement and regulations. The references to the Cole Memorandum make the Department of Justice’s most recent memorandum on marijuana policy in Indian Country most applicable to tribes in those states. Previously, uncertainty existed regarding the extent to which those tribes could participate in the marijuana industry given federal prohibitions. While some uncertainty continues to exist, the memorandum creates a more equal playing field in those states for tribes that wish to legalize marijuana under tribal law. The factors of the Cole Memorandum will apply to both state and tribal industries.

Outside of the several states that have already legalized recreational marijuana, the impact of the memorandum remains highly uncertain. In order to avoid federal prosecution, tribes would nearly certainly be required to enact strict regulations regarding each of the eight factors delineated in the memorandum. The application of the third factor in particular—preventing the diversion of marijuana from states where it is legal under state law in some form to other states—is uncertain and could be a difficult obstacle for tribes looking to legalize marijuana under tribal law. In particular, if a tribe wished to allow non-members to buy marijuana (and derive the tax benefits from such a transaction), could those sales be viewed as diversion (particularly in Public Law 280 states)? This in turn raises a host of other questions. For example, would the civil/regulatory test from cases such as California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), apply in determining what counts as diversion from Indian Country within a state to the remainder of the state (i.e., if nonmembers can play bingo on an Indian reservation without running afoul of civil/regulatory gambling laws, could nonmembers buy or use marijuana on an Indian reservation without running afoul of civil/regulatory marijuana laws?)? Would a state’s marijuana laws be civil/regulatory if medical marijuana is allowed? Even if the civil/regulatory test does not apply, would the federal concerns with respect to diversion apply if marijuana is legal in some form (as will soon be the case in Minnesota) although different from the form authorized by tribal law?

In addition to uncertainty regarding diversion, additional uncertainty exists with respect to the consultation process called for in the memorandum. In practice, U.S. Attorneys are reticent to give prospective legal advice regarding a course of conduct—yet, the memorandum states that U.S. Attorneys “should” consult with tribes legalizing marijuana on a government-to-government basis. What form will this required consultation take in practice? One can expect that such consultation will differ markedly from state to state.

These are but a few of the many questions raised by the memorandum which, ironically, was authored after tribes requested clarifying guidance on these issues. In light of these questions, involvement in the marijuana industry remains a risk for interested tribes, even if the door to legalization (and its concomitant tax revenues) continues to open wider.

Any questions regarding this article may be directed to Forrest Tahdooahnippah, (612) 492-6876, or Skip Durocher, (612) 340-7855.