US Senate Holds Listening Session on Cannabis in Indian Country

In 2013, months after Obama’s Cole Memorandum gave the nation’s Federal Prosecutors guidelines on what to prioritize when enforcing the country’s cannabis laws in states that had legalized, the Wilkinson Memo did the same for the nation’s indigenously held sovereign territories. Like Cole, the Wilkinson Memo gave greater leniency towards cannabis use, manufacture, cultivation and commerce in territories nested in states that had legalized, giving space to develop the industry in these areas. While only so much has moved on the federal level since then, various tribes spoke about the assistance they would need from the federal government to grow their businesses in a listening session hosted by the Bureau of Indian Affairs’ Senate Affairs Indian Committee in June. All told, the discussions provided a snapshot of the aspirations Native Americans have towards what’s needed for tribes to take advantage of cannabis on their sovereign lands, and what federal and state governments should do to help them towards this goal.

The listening session was not a formal hearing; no US Senator attended. Rather, this was a fact-finding mission which asked respondents to answer four questions as a springboard for discussion and guidance for lawmakers working on cannabis reform. Tribes were asked to describe their cannabis operations as well as their operational and legal problems and what may be keeping would-be cannabis operators out of the business. Finally, they were asked about what tribal-state-federal framework would be most helpful. While responses were broad ranging, several themes reverberated through the session.

Legalize Transportation to and from Indian Territories

Speaking on behalf of the Seneca Nation, Native American lawyer Lee Redeye requested the ability to trade cannabis products freely with other reservations on non-contiguous lands. Dean Seneca, a Canadian cannabis tech entrepreneur, concurred, asserting indigenous businesses should also be permitted to trade with First Nations tribes in Canada and Mexico.

The issue of legal transportation is a crucial one for Indian Nations, as many reservations are located in remote areas. Shere Wright-Plank, a tribal council representative from the Rosebud Sioux tribe, mentioned 20 Lakota communities scattered throughout South Dakota. Because of this, the only businesses that thrive on Indian reservations are those which rely on federal subsidies. A cannabis industry fully-integrated with aligned indigenous operators, she asserted, therefore represented “a great opportunity for Indian Country.”

No Interference from State Governments

In response to the government's questions, most tribes agreed that the best regulations were no regulations, or at least as little as possible. As a staffer for a cannabis business owned by the Jamestown S'Klallam tribe, Michael Blacksmith spoke about the difficult relationship his tribe has had with the Washington State Liquor and Cannabis Board. Indigenous Cannabis Coalition Founder Mary Jane Oatman echoed these sentiments and argued for a model which would not force them into revenue-sharing compacts with their neighboring states.

Indian tribes working in the cannabis industry are at a disadvantage from their state counterparts, according to one of the Seneca speakers. "We don't have economies; we have businesses," he said. He explained that states are the primary beneficiary of all Indian businesses, and that all economic development must come from outside the tribal lands. For this reason, local businesses and economies always benefit the most, regardless of whatever surface advantages Indian tribes might possess. Overall, the industry argued for greater self-determination, in line with similar demands made over the centuries.

Reinstatement of Cole/Wilkinson Memos

The Cole/Wilkinson Memos memos provided guidance to federal prosecutors on how to avoid federal prosecution for cannabis commerce in states that had legalized the drug. However, in 2018, then-DOJ head Jeff Sessions rescinded the memos, causing confusion and uncertainty for cannabis operators across the country. By and large, indigenous cannabis operators want to see the Cole/Wilkinson Memos reinstated for the time being. The memos, they explained provided much needed clarity and certainty for Indian Tribes operating in the cannabis industry. However, they don’t reassure every tribe. Judge Frank Demolli of the Santa Clara Pueblo tribe, for instance, mentioned how his tribe has not participated in any cannabis reform because of the “legal quicksand” surrounding the issue, and argued that nothing short of full decriminalization or legalization would give that clarity.

Of all the suggestions made in the session, this may be closest to being realized this year. The House Appropriations committee released a bill that if passed would forbid not only the Department of Justice but other affiliated agencies from spending federal funds to enforce cannabis law in Indian Country. Exceptions would be made for those that didn’t “take reasonable measures” to prevent illegal activities, such as distributing cannabis to minors or growing on federal lands, prohibited in the Cole/Wilkinson memos. However, these protections would not apply for reservations in illegal states

Support for a Regenerative Industry

Several speakers referred to high levels of unemployment in many Native American communities, along with problems with abuse of methamphetamine and fentanyl. However, some tribes are hopeful that cannabis can help redevelop their land and provide much-needed employment.

With proper technical support and soil practices, cannabis can be a lucrative crop that helps Native American communities thrive, argued Jill Wheaton-Abraham of the Kootenai Tribe in Oregon. In particular, she called for federal funding to create new incentives for regenerative agricultural methods and called for a move away from industrial-scale operations. Moreover, she called for additional education to dispel years of misinformation that surrounds the plant.

The Committee will continue to accept written suggestions until July 9th by email.