Alert
Alert
By Blaine I. Green,
04.02.15
This article was published in Law360 on April 21, 2015.
In December 2014, the Department of Justice (DOJ) released a policy statement regarding enforcement of marijuana laws in Indian Country. While some media have reported the Department’s statement as carte blanche for tribes to legalize marijuana, the policy statement raises more questions than it answers, posing uncertainty and challenges—as well as opportunities—for tribes.
The Pinoleville Pomo Nation plans to break ground on a $10 million, 100,000-square-foot marijuana greenhouse just outside of Ukiah, Calif.1 The project will be the first of its kind on tribal lands in California and comes on the heels of the DOJ’s widely reported memorandum regarding the cultivation, sale, possession, and use of marijuana on tribal lands.2 The 2014 memorandum is the latest development in the DOJ’s evolving policy regarding marijuana prosecutions and has drawn the interest of tribes and investors looking to capitalize in a rapidly growing, but risky industry.
From Doing Something to Doing Nothing: The Federal Legal Background
Marijuana use, cultivation and possession remain illegal under federal law.3 However, in response to several states’ legalization of medical and recreational marijuana, the DOJ has relaxed its policy on federal prosecution of marijuana crimes.
In October 2009, the DOJ issued the Ogden Memorandum, advising U.S. attorneys to de-prioritize prosecuting individuals whose actions were “in clear and unambiguous compliance with existing state laws providing for medical use of marijuana.”4 The DOJ extended this policy in 2011 and again in 2013 with the Cole Memorandum.5 In the final Cole Memorandum, the DOJ said it would focus its prosecution efforts on those marijuana-related activities which threatened the following enumerated federal priorities:
The DOJ found as a matter of policy that state-authorized marijuana activities were less likely to threaten the enumerated federal priorities than unauthorized activities. Individuals and businesses that complied with rigorous state marijuana laws were therefore less likely to be prosecuted than those who were not operating under the auspices of state law.
While the DOJ has elected—pursuant to the Cole Memorandum—to de-prioritize federal prosecutions, states are still free to enforce their own laws. Most states have not legalized marijuana at all. Some have legalized the drug only for medical purposes. Only four states have legalized recreational use and, even then, the cultivation and sale is highly regulated.
In December 2014, the DOJ issued a memorandum from Monty Wilkinson, Director of the Executive Office for U.S. Attorneys, extending the Cole Memorandum policy to marijuana activities on tribal lands. The 2014 Indian Country Memorandum directs U.S. Attorneys to use the Cole Memorandum priorities as a guide when enforcing federal law in Indian Country. In doing so, the 2014 Indian Country Memorandum recognizes tribal sovereignty by treating tribal legalization decisions with the same deference afforded to state decisions.
While marijuana activities remain illegal under federal law, the DOJ is less likely to prosecute on tribal lands when those activities are authorized by a strong and effective tribal regulatory system. As with states, the likelihood of prosecution increases if the marijuana activities threaten the Cole Memorandum priorities. However, the Cole Memorandum priorities remain unchanged in the 2014 Indian Country Memorandum. As explained below, this poses unique challenges for tribes.
The 2014 Indian Country Memorandum differs from the Cole Memorandum in two ways. First, the DOJ requires U.S. Attorneys to consult with affected tribes on a government-to-government basis when evaluating enforcement activities in Indian Country. Second, before determining whether to commence prosecution, the U.S. Attorney must inform the Executive Office for U.S. Attorneys, the Office of Tribal Justice and the Office of the Deputy Attorney General. These conditions precedent to federal law enforcement are unique to Indian Country.
Like the Cole Memorandum, the 2014 Indian Country Memorandum does not alter federal law or eliminate the federal government’s ability to prosecute federal marijuana crimes. It does, however, telegraph where federal efforts will be focused.
Impact of 2014 Indian Country Memorandum in the States: Three Scenarios
The 2014 Indian Country Memorandum must be considered and understood in the context of the complexities of Indian law—and, in particular, the unique interplay between state, federal and tribal law on reservation lands.
Tribes are domestic dependent nations with sovereign powers; like each state, each tribe may choose the extent to which marijuana is criminalized, permitted or regulated, as a matter of tribal law, on tribal lands.6 While subject to federal law, state and local laws generally do not apply on tribal lands, meaning state and local marijuana prohibitions do not reach Indian Country. This general rule comes with an important caveat. In 1953, Congress passed P.L. 280 which grants certain state governments jurisdiction over tribal lands, including criminal jurisdiction over offenses committed by or against Indians within Indian Country. In P.L. 280 states, state marijuana laws may have force and effect in Indian Country.7 Depending on the legality of marijuana under state law, this interplay creates at least three different scenarios for tribes to consider.
Marijuana is totally illegal under state law
In the first scenario, the state has not legalized marijuana for any purpose. This scenario presents the greatest market advantage for tribes, but also the greatest risk. Because there is no legal state market, tribes choosing to engage in marijuana development would have the least amount of competition. However, the legality of a tribal marijuana enterprise under state law would depend on whether P.L. 280 applies. In P.L. 280 states, the state may enforce its criminal laws on tribal lands. Even if the state in question is not a P.L. 280 state, marijuana activity in states where all marijuana is illegal would potentially threaten the Cole Memorandum’s federal priorities, and thus risk federal prosecution. Whether or not P.L. 280 applies, this scenario carries the greatest risk of prosecution.
Medical marijuana is legal under state law
This scenario is the middle ground. Tribes choosing to legalize marijuana for all purposes may have a market advantage. Risk, while still present, is somewhat reduced, even in P.L. 280 states. In those states, the critical and unanswered question is whether legalizing medical marijuana transforms what is typically a criminal statutory scheme to a regulatory one. Under Cabazon v. Cabazon Band of Mission Indians,8 state P.L. 280 jurisdiction does not extend to regulatory matters, which may include marijuana statutes. If a court finds that state marijuana laws are regulatory in nature, those laws would not extend onto tribal lands.9 That said, marijuana, even medical marijuana, remains illegal under federal law. Even if the state may not prosecute, the federal government may choose to do so if Cole Memorandum priorities are threatened.