DOJ Issues A Policy Statement Regarding Marijuana Issues In Indian Country

On December 11, 2014, the United States Department of Justice (DOJ) released its "Policy Statement Regarding Marijuana Issues in Indian Country" (2014 Tribal Policy Statement). Following the release was a lot of sensationalized and inaccurate press coverage generally proclaiming that marijuana was now legal on tribal lands.[1] Such press coverage greatly oversimplified the policy implications of the memo, ignored DOJ's respect for tribal self-governance and marginalized the complexity of tribal issues in an era of changing state marijuana laws.

Regardless of any dramatic headlines in the press, the 2014 Tribal Policy Statement certainly did not legalize or condone marijuana in Indian Country. It did not support marijuana legalization, however it was very supportive of tribal sovereignty and strongly promoted tribes' authority to ban or legalize marijuana on their own lands. Despite any changes to tribal or state laws, or the issuance of the 2014 Tribal Policy Statement, Marijuana remains a Schedule I Controlled Substance under The Controlled Substances Act, P.L. 91-513, and the possession, use, production and cultivation of marijuana are prohibited by federal law. Misdemeanor violations are punishable by up to one year in prison and felony violations can be punishable by up to life in prison.

Tribes who are considering the economic opportunities presented by the marijuana industry must carefully consult with law enforcement regarding their specific circumstances. Also, tribes in states with evolving marijuana laws should consider developing tribal laws that ban or otherwise address marijuana after considering the state law impacts to their communities, membership, allottees and the environment.

Analysis

Prior to the 2014 Tribal Policy Statement, in 2013 DOJ had issued a "Guidance Regarding Marijuana Enforcement" (Cole Memo) in response to the ballot initiatives in Colorado and Washington that legalized under state law the production, processing, sale and possession of marijuana. The 2013 Memorandum, known as the "Cole Memo" for Deputy Attorney General James Cole, articulated the enforcement priorities that had previously and would continue to guide DOJ enforcement of federal marijuana laws, regardless of state law. Those priorities were restated in the 2014 Tribal Policy Statement and include;

Preventing the distribution of marijuana to minors; Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and...