Alexander Bencore
- May 9, 2022

Senators Protecting Tribal Sovereignty Over Cannabis

Let's start here today: “Senators Urge Biden Attorney General To Respect Indian Tribes’ Marijuana Policies” from the very fine industry publication Marijuana Moment.

“A coalition of nine U.S. senators on Monday sent a letter to Attorney General Merrick Garland, (hoping to wake him up from his 2-year slumber) urging [Garland] to direct federal prosecutors to not interfere with marijuana legalization policies enacted by Native American tribes.

“The letter, led by Sen. Martin Heinrich (D-NM), requests that the Justice Department “respect the inherent sovereignty of Tribal governments and cease the enforcement of the Controlled Substances Act on Tribal land as it pertains to the growth, possession, and use of cannabis for medicinal, agricultural, and recreational purposes, where those Tribes have legalized this activity for its own members and those acting in compliance with Tribal law.”

“Tribal governments that have chosen to legalize cannabis have determined what is best for their members and residents on their land, and how best to prioritize their law enforcement resources,” it says. “The Department of Justice should respect these sovereign decisions and reallocate their investigative and prosecutorial resources accordingly.”

Beside Heinrich, the letter was also signed by Sens. Jeff Merkley (D-OR), Ben Ray Lujan (D-NM), Catherine Cortez Masto (D-NV), Jacky Rosen (D-NV), Tina Smith (D-MN), Elizabeth Warren (D-MA), Ron Wyden (D-OR) and Cory Booker (D-NJ).

THE DEEPER DIVE

The letter notes that there was previous Obama-era DOJ guidance on prosecutorial discretion for tribal governments that opted to legalize cannabis, but that was rescinded by then-Attorney General Jeff Sessions in 2018, along with a separate memo urging prosecutors not to go after states that established regulated cannabis markets.

That memo was called the Wilkinson Memo, and it “… rightfully recognized the inherent sovereignty of Tribal governments to regulate their own affairs.”

By allowing and following the Wilkinson Memo, “Beyond respecting tribal sovereignty, the [memo] allowed the Department of Justice to prioritize and focus its resources in ways that address violent crime, including the missing and murdered Indigenous women and girls epidemic,” the senators’ letter says.

AN EXAMPLE OF FEDERAL OVERREACH WAS INCLUDED IN THE LETTER: “Last year, a federal agency raided a small, home cannabis garden of a medical cannabis patient living on territory of the Pueblo of Picuris in New Mexico.”

I remain convinced that whoever approved that raid has some old-school white supremacist axe to grind, seeing as how it was launched from the Bureau of Indian Affairs, which is under the Department of the Interior. The Secretary of the Interior is a native American woman named Deb Haaland, and I suspect the raid was done to embarrass her.

THE LOOP BACK

To that end, in a related story, “New Mexico’s governor has signed two intergovernmental agreements with the Pueblo of Pojoaque and the Pueblo of Picuris to support the tribes’ participation in the state’s legal cannabis industry. The agreements, signed March 25 by New Mexico Gov. Michelle Lujan Grisham … will “support the Pueblos taking part in the recreational cannabis industry, driving economic development and setting guidelines for the safe production and sale of cannabis while preventing federal enforcement on their tribal lands,” according to a press release from Lujan Grisham’s office.

You will recall that New Mexico just launched its adult use market in April. To give you a sense of the scope of the opportunity there, there were $5.2 Million in cannabis sales in the first weekend, and it’s expected to generate $300 Million annually.