What did Indians smoke? Cannabis is not an indigenous plant. It was brought to America by Europeans. Early tribes smoked either Nicotiana Rustica, a wild tobacco, or kinnikinnick, an herbal mixture of leaves and barks.
The United States government recognizes 568 tribes as sovereign nations and their lands as sovereign lands. Of these tribes there are 333 living in 33 states and the remainder living in Alaska.
In November 2012 Colorado and Washington voted to legalize the sale and possession of cannabis, which are violations the federal Controlled Substance Act (CSA). This prompted the U.S. Justice Department to issue a policy statement regarding enforcement guidelines for U.S. Attorneys in these states with legalized marijuana.
The Justice Department policy, known as the Cole Memorandum, was published August 29, 2013 telling federal prosecutors and law enforcement to not obstruct state marijuana laws if the drug is regulated to insure key federal priorities. Federal enforcement priorities were distribution to minors, DUI, sales by gangs and cartels, possession or use on federal property, transfers to non-legalized states, drug trafficking, or violence.
Several American Indian tribes were concerned about marijuana legalization and asked the Justice Department to clarify its position for marijuana on tribal lands.
The DOJ followed with the Wilkinson Memo, "Policy Statement Regarding Marijuana Issues in Indian Country," dated October 28, 2014. It parallels the Cole Memo by defining and limiting the conditions for U.S. Attorneys to enforce federal marijuana laws on tribal lands. Tribes will not be prosecuted for growing, processing and selling marijuana inside states that have legalized the drug. This includes medical marijuana per the DOJ's 2009 Ogden Memo.
There remains great uncertainty of enforcement on tribal lands in other states where the drug is illegal. Several tribes are exploring these opportunities and legalities and waiting for further guidance from the federal government.
On January 4, 2018 Attorney General Sessions announced the repeal of all department regulatory memorandums that attempt to supercede Congressional legislation. This include these specific DOJ marijuana policies:
Cole Memo 2013: "Guidance Regarding Marijuana Enforcement" Cole Memo (PDF)
Wilkinson Memo 2014: "Policy Statement Regarding Marijuana Issues in Indian Country" Wilkinson Memo (PDF)
Ogden Memo 2009: "Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana" Ogden Memo (PDF)
The Cole Memorandum in 2013 set guidelines for non-enforcement of the the Controlled Substance Act (CSA) in states that legalize marijuana. The Wilkinson Memorandum 2014 gave similar guidelines for marijuana on American Indian reservations.
The rescinded memoranda were department and not federal law passed by Congress and signed by the president.
The repeal action was issued as a DOJ Memorandum titled "Prohibition on Improper Guidance Documents", dated November 16, 2017. Session Memo (PDF)
The immediate reaction from state officials and industry figures was shock and defiance. Governor John Hickenlooper of Colorado made this statement in response to the policy rescission:
"Thirty states comprising more than two-thirds of the American people have legalized marijuana in some form. The Cole memo got it right and was foundational in guiding states' efforts to regulate the production and distribution of marijuana."
"Colorado has created a comprehensive regulatory system committed to supporting the will of our voters. We constantly evaluate and seek to strengthen our approach to regulation and enforcement. Our focus will continue to be the public health and public safety of our citizens. We are expanding efforts to eliminate the black market and keep marijuana out of the hands of minors and criminals. Today's decision does not alter the strength of our resolve in those areas, nor does it change my constitutional responsibilities."
Jan 5, 2018
The federal policy change has tribes seeking more DOJ information and guidance regarding their business future.
Tribal Cannabis Consulting works with Nevada tribes to develop their marijuana sales. Cassandra Dittus, co-founder and president of the group, said tribal businesses are in a "holding pattern."
"We would hope that the tribal programs that are up and running in the state of Nevada would not be an enforcement priority for the Department of Justice's resources as the programs are very robustly regulated and not a threat or a danger to the community."
"The community desires this, the voters approved this and the tribal program is extremely regulated."
Some tribes have banned marijuana on their reservations. Some tribes are evaluating potential business opporutnities. Other tribes have already started marijuana businesses. For information on these tribes, select a state below:
|9 states and Washington, D.C., have legalized marijuana for recreational and medical use.|
|20 states have legalized marijuana for medical purposes.|
|Illegal in 22 states.|