The Murky Part of the STATES Act: Tribal Rights

As individual states pass more lenient cannabis laws, the federal government has failed to keep pace. This just might change with the STATES Act. First introduced by Senators Elizabeth Warren and Cory Gardner on June 7th 2018, the bipartisan bill would help untangle the myriad conflicts between the federal government and the states that have chosen to legalize cannabis.

On April 4, the bill—fully titled the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act—was reintroduced in Congress. While the bill certainly doesn’t end federal cannabis prohibition, it essentially carves out an exception for state-legal entities, and this narrow focus is being touted as a no-brainer solution to various issues faced in these states, for example, the lack of access to banking.

“The STATES Act simply says, ‘If you are operating in conformance with your state laws, what you are doing is legal under the federal law,’” said Earl Blumenauer, a Democratic Representative from Oregon, in the announcement of the reintroduction of the bill.

The simplicity of the bill also comes with a notable drawback: While the bill helps resolve the relationship between state and federal cannabis laws, it does little to untangle the thorny relationship between state and tribal cannabis laws. In that realm, the Act raises more questions than it answers.

Last June Elizabeth Warren described the STATES Act as “legislation that would let states, territories, & tribes decide for themselves how best to regulate marijuana—without federal interference,” yet legal experts agree that it is not so straightforward. The bill, as originally introduced and as re-introduced, specifies that only tribes “located within a state that permits, respectively, manufacture, production, possession, distribution, dispensation, administration, or delivery of marihuana” will able to decide how to regulate cannabis. In other words, tribes can only set their own laws if they are in a state that has legalized cannabis, explained Omar Figueroa, a California lawyer who specializes in cannabis law. “It makes tribal sovereignty contingent on state legalization,” Figueroa told Cannabis Wire, “And that’s not the way tribal sovereignty works.”

The goal of tribal sovereignty over cannabis operations was put forth in 2015 in a resolution by the National Congress of American Indians, an organization representing the interests and communities of American Indians and Native Alaskans. The resolution views tribes as “sovereign governments with the inherent right to set local laws addressing marijuana, including its medical and industrial uses, according to the public health and economic needs of their unique communities.”

Despite the fact that it does not grant tribes the unrestricted right to regulate cannabis, Figueroa sees the STATES Act as an improvement upon the status quo and a strategic way forward for the industry. “I fully understand that political compromise, that this will probably not make it through Congress if tribes are allowed to opt out of state law,” he said.

Michael Liszewski—a lawyer and medical cannabis expert who helped draft the original bill—said that its original sponsors wanted to “let tribes set their own sovereign marijuana policies regardless of state law.” But, he said, those sponsors “got pushback” from members who would only support the bill if it was limited to states that have legalized.

As a result, the bill leaves the possibility for conflict between state and tribal cannabis laws. The most obvious tension would be when a tribe wants to legalize cannabis in a state that does not want to legalize it, yet more issues could arise. “My assumption is that anytime you run into something where there’s a difference between the way the tribes regulate and the way the state regulates, then you really got some serious problems,” Chris Lindsey, a legal counsel with the Marijuana Policy Project, told Cannabis Wire.

Franklin Snyder, a lawyer who teaches a course on cannabis law at Texas A&M School of Law, pointed out some of the many questions the bill leaves unresolved: “If a state allows the manufacture of medical marijuana products, could a tribe allow recreational manufacture? If the state requires state licenses to be legal, would tribal producers have to get state licenses as well? If the state allows marijuana but the tribe doesn’t, could the tribe punish non-Indians marketing to tribal residents?”

“I don’t see a clear answer to questions like that in the text, and it’s very possible that no one has really thought about those issues,” said Snyder.

However, the STATES Act would notably resolve a longstanding area of confusion and fear: federal enforcement. In 2018, the National Congress of American Indians passed another resolution, this time seeking a legislative solution that would provide more clarity. The resolution specified that tribes in states that have legalized cannabis still “lack legal clarity necessary to engage in marijuana activities and effectively regulate marijuana because marijuana activities remain illegal under federal law.”

The STATES Act would help resolve these fears, going beyond Obama era policies—the Cole memo and Wilkinson memo—in fully ensuring that tribes are protected from federal enforcement. Both memos suggested a hands-off enforcement approach toward states with legal cannabis, assuming their industries didn’t violate the Department of Justice’s priorities, such as preventing diversion and underage sales. The Wilkinson memo is often considered the Cole memo for tribes, granting tribes in principle what the STATES Act does legally: freedom from federal oversight. Yet despite the memos, raids on tribal cannabis operations, such as at the Menominee reservation in Wisconsin, still happened during the Obama era. Both memos were rescinded by the Justice Department on January 4th 2018.

“The STATES Act basically says if it’s legal under state or tribal law, it’s not illegal at the federal level. So it would eliminate those raids, so long as the growers and distributors are acting in accord with state law,” said Snyder. For tribes in particular, fear of such raids has in some cases prevented tribes from deciding to start cannabis operations, even when it was legal in the state.

Laurie Danzuka, the Cannabis Coordinator for the Confederated Tribes of Warm Springs in Oregon, says that federal raids are their primary worry. Even though her tribe has developed tribal code and intergovernmental agreement with the state, clearly outlining the parameters of its cannabis operations, a strong fear remains that federal intervention could dismantle their work. “‘Are they going to come in and shut us down? Take all our product? We’ll lose everything’—That’s first and foremost the highest concern we hear from leadership,” she told Cannabis Wire.

In giving tribes more certainty, said John Dossett, Senior Counsel at the National Congress of American Indians, the bill also offers some progress toward ending the unjust criminalization of Native American youth, at least in those states where cannabis is legal. “A lot of tribal members have criminal histories for smoking marijuana, right? And it restricts their ability to find jobs,” he told Cannabis Wire. “Just like other persons of color, Native American people tend to get arrested for that stuff while your Caucasian high school kid, they just let them go.”

Jefferson Keel, the president of the National Congress of American Indians, acknowledged the STATES Act as a step forward. “We appreciate the re-introduction of the STATES Act, which would bring certainty in federal law for tribal nations as separate jurisdictions,” he said in a statement. “Tribal nations, as sovereign governments, and in the spirit of self-determination, must be able to make independent  decisions about their own economic, cultural, and social futures at the local, tribal level.”

Some tribes have built successful cannabis operations over the years by forming mutual relationships with the state, as well as strong tribal-based regulatory systems. The states of Washington and Nevada, for example, have both passed laws permitting the negotiation of state-tribal compacts to legalize medical and recreational cannabis on tribal lands. To date, the cannabis retailers have been left alone by federal and state law enforcement.

The Confederated Tribes of Warm Springs is another example of tribes working with a state, in this case Oregon, to first change the language in the state cannabis law to include tribes, and later to develop a compact with the state. The tribes’ cannabis operations are now fully realized legally and they are only waiting on securing a bank account. The tribes decided to fully self fund the business, in part because they feared relinquishing some of their control over the operations if funding came from  outside sources. “We want to say we did it for ourselves. We funded it. We built it. We started it from the ground up and we did it on our own,” says Danzuka.

It should be noted that not all tribes, even in places where it is legal, will want to legalize cannabis on their lands, often because of a fear of its impact. While 86% of the Confederated Tribes of Warm Springs voted in favor of cannabis operations, there is still a smaller contingent of tribal members who Danzuka described as “anti everything that has to do with cannabis.”

The reasons for the support of the cannabis operations on the Confederated Tribes of Warm Springs vary, she said, but increased revenue is the primary goal, particularly after a mill that employed eighty people on the reservation closed down.

Danzuka also argues that the onus should not just be on tribes to advocate for the cannabis operations, but states, too, need to make an active effort to include tribes in the cannabis conversation. That presumably includes the conversation about the tribal implications of the STATES Act.

“The most important thing is just to make sure that when the state makes these decisions,” she said, “that tribes need to be included from the beginning. Not as an afterthought.”

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Cannabis Wire
Cannabis is rich territory for serious journalism. Legalization raises urgent questions about regulation and law, technology and taxation, science and business, criminal justice and individual liberties. It stands at the intersection of a booming billion-dollar industry and promising advances in medicine, all while remaining federally illegal.

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