Gavel to Gavel: Marijuana and Tribes

February 2015

The Journal Record

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Since Colorado and Washington began legalizing and regulating the commercial production of marijuana, other governments have been exploring whether to legalize and regulate marijuana. Revenue reports from Colorado and Washington suggest that regulating the production and sale of marijuana could significantly increase revenue for cash-strapped governments. In 2014, Colorado reported more than $6.3 million per month in governmental revenue related to marijuana. Washington is seeing even bigger revenue gains. Colorado and Washington impose a variety of excise and sales taxes on marijuana. Producers and retailers must also pay licensing fees to legally produce and sell products containing marijuana.

In Oklahoma, state legalization and regulation appears unlikely in the near term, but one of Oklahoma’s 38 federally recognized Indian tribal governments could push the issue.

Marijuana is an unlawful substance under the federal Controlled Substances Act. Traditionally, the federal government has relied on state and local agencies to enforce the ban against individuals possessing small amounts of marijuana. In a 2013 guidance memo, the U.S. Department of Justice announced it would exercise its discretion not to enforce the federal ban in states that legalize marijuana if the states establish and implement strong regulatory and enforcement measures governing its production, processing, sale and possession. To prevent federal enforcement actions against its citizens and licensed producers, a state must demonstrate compliance with DOJ’s guidance. Indian tribal governments were not specifically mentioned in the memo.

In October 2014, DOJ issued a policy statement regarding marijuana in Indian Country. The policy statement recognized that an Indian tribe may legalize the cultivation or use of marijuana within its jurisdiction. The policy statement did not say whether DOJ would stop enforcing the CSA in those areas. The DOJ simply expressed its intent to consult with those tribes on a government-to-government basis based on the same guidelines applicable to states. A tribe would need to show it can effectively regulate production, processing, sale and possession within its jurisdiction. That may prove difficult. Given the checkerboard nature of most of Indian Country in Oklahoma, the transportation of marijuana or products containing marijuana from one location to another would require entering Oklahoma’s jurisdiction. Even if DOJ declined to prosecute in Indian country, Oklahoma could prosecute anyone possessing marijuana on its roads or highways.

Klint A. Cowan is an attorney at Fellers Snider. He focuses his practice on federal Indian and gaming law.

This article originally appeared in the February 25, 2015 issue of The Journal Record. It is reproduced with permission from the publisher.© The Journal Record Publishing Co.