A little over a year ago, the Department of Justice released the infamous “Wilkinson Memo” containing DOJ policy guidance to U.S. Media and industry began shouting “Marijuana is legal in Indian Country!” from the rooftops.
As the debris settles, we look back at a year with several tribes attempting to enter into the industry. The truth is that there is just too much uncertainty in the law for most tribes to confidently enter into the industry. HHS Secretary Burwell promised that tribes engaged in the cannabis industry will not lose their federal funding so long as they do not use HHS funds in those endeavors.
Suquamish and Squaxin Island open and operate (successfully) two retail marijuana stores on their reservations. Congressional legislation protecting federal funding for tribes engaged in the cannabis industry.
Development of a single federal policy regarding legalization of cannabis in Indian Country. There have been a couple tribes who have tried unsuccessfully to open marijuana operations within states that have no form of legalized marijuana. We are still in the infancy of this industry, both in Indian Country and the “outside” world.
Tags: cannabis policy development, Department of Justice, DOJ policy guidance, Farm Bill, Indian Country, marijuana legalization, Menominee v. On October 23, 2015 federal DEA agents raided a Menominee ?hemp grow destroying approximately 30,000 plants. As I have been saying since the release of the DOJ Policy Guidance aka Wilkinson Memo, there are ?very real legal hurdles that need to be overcome before a tribe should invest resources in developing an operation or allow industry access to tribal lands.
I’ve been preaching the merits of hemp cultivation as a major economic opportunity for tribes. At this point, it is clear that unless a tribe is located in a state with some form of legalized marijuana, engaging in this industry (even hemp) is very risky.
An October 12 LexBlog article examines the possible implications of the federal government giving Native American Tribes the right to legalize, cultivate and distribute marijuana on their lands. We recently saw the signing of the Suquamish Marijuana Compact—the first tribal marijuana compact in the nation. While I like the tried-and-true compact model, I also believe that if tribes get involved in legalization efforts early on in the process in their states, some of the concessions made by the Washington tribes will not need to be replicated elsewhere. House Bill 2000 allows the tribes to participate in the State industry while preserving tribal sovereignty BUT Tribes utilizing these compacts must agree to a tax rate equal to the State.
The Suquamish Tribe attempted to break the internet on Friday with the announcement that the Tribe and State of Washington signed the first Marijuana Compact.
After legalization of marijuana in Washington State, the State quickly locked down the fledgling industry by issuing a limited number of licenses and establishing a strict canopy limit. The Compacts do several things – First, the Tribe can open retail stores as well as processing and production centers. Second, the State agreed to withhold granting a license to any person or business applying for a license within Suquamish territory without the express written permission of the Tribe. Third, while the Tribe cannot impose a tax that is less than the current State tax (which might create a business advantage to Tribal MJ businesses), the Tribe will nonetheless receive 100% of any tax imposed. Fourth, the Tribe can use its own traceability system and is not required to only use the State’s and there is a specific tax exemption for transactions involving medical marijuana used in the course of medical treatments at a medical facility owned and operated by the Tribe.
Besides providing a template for how a Tribe might participate in a state-regulated MJ industry, I believe this Compact serves as another example of how Tribes and States can work collaboratively together to provide economic opportunities for both governments. Last week, a federal court held that the Oneida Wisconsin Tribe was immune from a class action lawsuit for printing confidential information on? credit card receipts in violation of the Fair and Accurate Credit Transaction Act.
In an earlier blog post, I wrote about the need for tribes and their enterprises to be developing robust comprehensive data privacy and consumer protection laws.
The tribe does have a torts claims ordinance and the customer could have sued the tribe for damages under that framework — provided they were given notice of that process. Yes, some of our codes need work, but so do many of the states and local municipalities’ codes.
Finally, as part of these comprehensive consumer protection policies, every tribe should have insurance coverage to cover these types of claims.
Maybe I’m channeling Henny Penny, but we cannot expect to raise sovereign immunity every time a patron is harmed and then be surprised and outraged when the Courts or Congress come down on us.
Working with Law Seminars International, I’ve helped put together a program on how Tribes can effectively use their commercial operations in a way that preserves their tribal sovereignty with respect to Internet consumer protection regulations. By attending this program, Tribal leaders, their attorneys, and IT professionals will gain the knowledge and understanding necessary to begin to undertake essential steps to safeguarding their sovereignty and financial resources. For registration and information: Tribal Online Consumer Protection, Information Security, and Privacy. Whenever I mention that little factoid to people, their response is inevitably, “Well states are doing it, so why not tribes?” Here’s the thing – states are actually NOT doing it. Having worked in DC off and on my entire career, I know that the whims of politics and policy can change quickly (or slowly depending on what you are looking for).  But, I do think that tribes could use this Directive as precedent to seek a similar directive from federal agencies such as the Small Business Administration, Bureau of Indian Affairs, Health and Human Services, Department of Agriculture and so on.
Warning Regarding Federal Law: The possession, distribution, and manufacturing of marijuana is illegal under federal law, regardless of state law which may, in some jurisdictions, decriminalize such activity under certain circumstances.
As I’ve continued to delve into the issue of cannabis in Indian Country, I’ve also learned more about the possibilities that hemp provides.  I’m reserving judgment on whether marijuana, medical or recreational, will actually produce the big bucks that industry is promising. Hemp is a more long term proposition, but one that, as an industry insider recently said to me, is the billion-dollar industry (with a “B:”).
Bottom line – Marijuana is still controversial in our community and in the United States generally.  Hemp, however, could be the much less controversial and possibly much larger economic driver option for Indian Country. I’m at the Federal Bar Association’s 40th Annual Federal Indian Law Conference occurring this week. If you follow this blog, you know that for the past several months, I’ve been spending an inordinate amount of time talking about Marijuana in Indian Country.
In other words, the cannabis industry is viewing partnerships with tribes as a positive not a negative. The question that is plaguing me is how to translate this remarkable change of perception of Indian Country into bringing other businesses out into Indian Country. Economic development and entrepreneurship in Indian Country is possible, but requires creativity, innovation and good legal minds to implement that agenda. Lael’s goal is simply to develop a practice group that represents Tribes, Alaska Natives and Native Hawaiians in a good way. About Lael Echo Hawk Lael’s goal is simply to develop a practice group that represents Tribes, Alaska Natives and Native Hawaiians in a good way. I bet you’re here because you’re ready to try your hand at something that actually works? So here is a jump-start to a blogging business plan that will work RIGHT NOW for YOU and YOUR BLOG!
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Create Your Business Card is the easiest way to design and print professional looking business cards. Based on our internal quality systems, this software could be either potentially malicious or may contain unwanted bundled software. Tribal leaders were swarmed by tribal members demanding that marijuana be immediately legalized. The federal government either closed down their operations or the tribes shut down their operations themselves. But there does seem to be economic opportunity available and some tribes will be able to take advantage of that. Congress has been paying attention to the concern in Indian Country that dabbling in the cannabis industry could lead to the termination of federal grants or other funding. While other tribes were being raided, these tribes in Washington were quietly negotiating with the State and preparing to open their retail stores. DEA and DOJ determining whether a tribal college is an “institute of higher learning” for the purposes of growing hemp under the Farm Bill. The logistics of ‘legalization on an island’ are at this point, in my opinion, too difficult to overcome. While the Tribe is claiming that the plants were all industrial hemp containing less than 3% THC, the DEA alleges that the plants were in fact marijuana. These recent raids illustrate that if anything, the Wilkinson Memo simply opened a can of worms.
It appears that the Menominee Tribe was in contact with the state and federal authorities regarding the grow which begs the question – what must a tribe do in order to participate in this emerging industry?
And for tribes even in states with legalized medicinal or recreational marijuana, careful evaluation and coordination of the state regulations is a necessity. We have seen the economic benefits provided by the Indian Gaming Regulatory Act of 1988 (IGRA), which is underscored by tribal gaming’s 116 percent revenue growth between 2001 and 2013. For example, by the time the Tribal DOJ policy guidance was released, Washington State had already locked down the recreational marijuana industry and allocated all the licenses.
For obvious reasons, industry was concerned that Tribes would do what we have done with gas and cigarettes and impose a smaller tax on the products sold thus creating incentive for customers to come to the reservation in order save money.
HB 2000 provides a mechanism for tribes to participate in the industry without their non-tribal partners risking their state-issued license by entering into a compact regarding marijuana issues. We all know how invasive and damaging identity theft can be and as Indian Country continues to draw more non-Native customers, we must provide these basic protections.
Unfortunately, tribes are often reluctant to publish their laws so that the public can view them .
We should be investing the resources to update and refine our codes rather than hiding them until some bad decision is made as a direct result of poorly written or simply outdated law and outraged tribal members are beating down tribal council’s door for legislative changes. And the insurance company must NOT be allowed to raise sovereign immunity when there has been legitimate harm caused by our action or inaction. We have seen in the context of payday lending that if tribal enterprises are unable to protect their customers, then the federal government will intervene on the customers? behalf.
Cannabis is being touted as the next “green buffalo” and the cure to all our economic woes. Instead, they are performing the governmental functions of licensing, regulating, enforcing and taxing.
For clarity’s sake, those in Indian Country looking to participate in the industry need to be working Congress and the Administration for better guidance. Hemp is produced by the cannabis plant, but without the high levels of THC that cause the “intoxicating effects.”  The potential to use hemp as food, a textile, to build homes or cars or for use as bio-fuel.
Hordes of “ndn” lawyers show up with our braids glistening and cowboy boots polished to a high sheen. After googling how to spell “entrepreneurship,” I started to think about what economic development and entrepreneurship mean in Indian Country, and more to the point, how Indian law practitioners can assist in its development.
What is particularly interesting about the cannabis issue is that for the first time since the gaming boom, Indian Country is being bombarded by commercial industry. Wasn’t it just six months ago that we were bemoaning the fact that it is nearly impossible to coax businesses into Indian Country?
A Look At The Bottom 1% said, “Companies and investors are often reluctant to do business on reservations … because getting contracts enforced under tribal law can be iffy. Not a single thing – except that this “emerging industry” is seeing those issues that were formerly viewed as a detriment as a positive.
Cities like Seattle, San Jose, and Denver have developed strong reputations as good “start-up” cities. For example, tribes can develop relationships with colleges and universities to provide on reservation or online business classes to their tribal members. You should want to get paid when you’re adding value for your readers and working your head off. You still haven’t downloaded your FREE Blogging Business Plan Cheat Sheets & Training??!? With wide industrial experience under the shelf, the company also provides cost effective solutions to hoard the finance costs, energy costs, custom duties and other operational costs.  The company also helps in availment of export incentives, capital subsidies and grants from government bodies available to the industries. The term “reasonable assurance” is important because no matter how well-designed and operated, internal control cannot provide absolute assurance that agency objectives will be met. An SOP provides employees with a reference to common business practices, activities, or tasks.
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State and local jurisdictions were worried about the impact of legalization on their jurisdictions. NICC’s mission is to educate tribal leaders and elected officials on the emerging regulated cannabis industry while advocating for parity on behalf of Indian Country. House representatives drafted a bill that would clarify that tribes would not lose federal funding if they were engaged in economic development in the cannabis industry.
Now I hear that several other tribes are in negotiations with Washington State to do the same.
Instead, the focus should be on developments within states with some form of marijuana legalization.
What is both encouraging and frightening is that for the first time since gaming, non-Native businesses are coming to Indian Country. If the plants are truly hemp, then it is clear that the feds are not going to allow tribes to participate in an agricultural project for a crop that, according to a Congressional Research Service report, has the potential to earn the second highest revenue? per acre (after tobacco). Stay clean and I believe that investment could be very lucrative provided you are doing so within the framework provided by the 2014 Farm Bill.

Yes, I know, we are sovereign governments but we can be both sovereign and smart… particularly when the risks are so high. While I am skeptical that marijuana alone will bring the same level of economic growth as gaming, it is becoming clear that there is some economic benefit to be derived if only from the tax collected. A tribe trying to get into the market would have to agree to State enforcement – which was a non-starter. I do not think this has to be the case in other jurisdictions so long as Tribes participate in the legislative and rulemaking process from the beginning.
I may be slightly biased, but the tribes in the Northwest continue to demonstrate a willingness to work collaboratively with their respective states while requiring the state governments to acknowledge and respect tribal sovereignty. However, Section V.E specifically allows the Tribe to purchase marijuana products from or sell marijuana products to State Licensees without any potential citation, fine or adverse licensing action against any State License as a result of that transaction. While Washington is not yet perfect, State politicians must acknowledge the importance of the Native vote and deal with Tribes on a government-to-government basis. As a result, consumers simply sue in state or federal court and blow the timeframes provided in the torts ordinance. Until then, develop a policy to ensure that all your employees know to provide notice of the torts process anytime there is an alleged injury. If you are unsure about your policies, contact someone who does tribal insurance like the friendly folks at Brown & Brown Brokerage or Tribal First insurance. In the instant litigation, the plaintiffs’ attorneys have committed to appealing the decision that will cost the tribe valuable resources.
I think that tribes engaged in legalizing and then performing those governmental functions do not risk their federal funding the same way they are if they engage as an industry participant.
I believe this Directive provides valuable precedent for tribes seeking guidance from federal agencies. NNABA and NNALSA hold their annual meetings and hundreds of Indian law practitioners cram into conference rooms to talk story and commiserate about the Supreme Court’s latest jabs at the fundamental principles of Indian law that guide our practice.
Indian nations can be small and issues don’t come up that often, so commercial codes aren’t well-developed and precedents are lacking.
Sovereign immunity is now viewed as an asset, gaps in tribal legislation are viewed as an opportunity to develop cutting edge legislation outside of state politics, tribal history of co-regulation with the federal government is a benefit to ensuring federal cooperation and non-enforcement of federal law. They did this by creating a favorable business environment and supplying resources to the businesses that either start or move there.
Once a tribal member reaches a point of opening their own company, tribes can use their own legal counsel to provide the tribal member with assistance incorporating the business and reviewing contracts and proposals. This proposed change would directly affect participation in the 8(a) BD program by tribally-owned concerns. SBA would like to develop a form to be used by all tribally-owned 8(a) Participants in reporting such benefits.
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Then explain why this person – as opposed to anyone else with similar skills and experience – is on the team. Her domestic and international network of 18- to 24-year-olds provides excellent access to our target market. Use the organizer to take notes, then pull the most relevant Whys and Hows to use in the narrative. Our business card software comes with many pre-designed templates to choose from so you can create your card, start to finish, in minutes. It will store an unlimited amount of contact information, so you never have to re-type, regardless of how many times you alter or create a new design. We also share information about your use of our site with our social media, advertising and analytics partners. Some tribes immediately announced their intent to open large marijuana operations; other tribes issued strong statements against legalization, and lawyers all started scratching our heads.
NICC has been on the forefront of cannabis policy development in Indian Country, speaking at conferences around the country and weighing in on policy development at the Congressional and Administrative level. I understand that this means that tribes in restrictive states without other forms of economic development will lag behind others – but cannabis remains a schedule 1 Controlled Substance carrying severe penalties for those convicted of possession, intent to manufacture or distribute. A word of caution – be careful who you work with – the sharks are circling and while they can leave and change their name, we are tribal people and members of our tribal nations from the beginning of time to the end of time and these businesses will remain part of our tribal history forever.
Provide them basic consumer protections and recourse if they are harmed, and we will only continue to grow.
While I agree that there could be economic benefit to participating in the industry in some form (see my earlier post Economic Development), my swan-dive into tribal cannabis has left me scratching my head as to how tribes can participate in this pseudo-legal industry as anything more than a governmental body. Every contract and grant and self-governance compact that is executed with the federal government states that the recipient of federal funding will comply with federal law. And Indian defendants have a home court advantage.” As a tribal attorney I can’t tell you how many times I would talk to a vendor interested in doing business with the gaming operation and hear them say that tribal courts cannot be trusted. They provide access to venture capital, business friendly tax structures, access to real estate, beneficial zoning and permitting processes, good infrastructure and access to universities and research centers. Internal control is very broad and encompasses all controls within an organization, covering the entire mission and operations, not just financial operations.
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It is just not worth the risk unless you KNOW your intergovernmental agreements are strong and protect tribal people and tribal investments.
Make sure that history tells a good story of developing cutting edge industries in a good way. Had the plantiffs’ attorneys pursued this avenue, they would have resolved the issue for their clients without the significant litigation expense already incurred.
Explicit or implicit in that agreement is that failure to comply with federal law could result in the loss of those funds. The penalties increase if the sale or possession with intent occurs within 1,000 feet of a school, university, playground, or public housing facility.
And yet today, I’m fielding non-stop emails and calls from non-Indian businesses interested in both learning about their “Indian grandmother princess” heritage and asking me to facilitate meetings with tribes about the opportunities in the Cannabis industry. Pursuing a minor in journalism, Caroline’s covered innovative medical research at the university.
In other words, a tribe’s participation in the cannabis industry could result in the loss of their federal funding. Her major and minor give her the experience and context to research and write promotional and educational materials for the conference without a lot of training and staff resources. As we vote in our local elections and that influence filters up, we will see more States, like Washington, to begin to work together WITH us instead of against us. Caroline is a strong writer with direct experience interviewing international sources and working in a deadline-driven environment.
In addition, the federal government may seize, and seek the civil forfeiture of, the real or personal property used to facilitate the sale of marijuana as well as the money or other proceeds from the sale.
A bonus: Carolina is fluent in French, the language spoken by 115 million people in 31 African nations, many of which are involved in the conference.
Department of Justice has noted that an effective state regulatory system, and compliance with such a system, should be considered in the exercise of investigative and prosecutorial discretion, its authority to prosecute violations of the CSA is not diminished by the passage of state laws which may permit such activity. Indeed, due to the federal government’s jurisdiction over interstate commerce, when businesses provide services to marijuana producers, processors or distributors located in multiple states, they potentially face a higher level of scrutiny from federal authorities than do their customers with local operations.

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