Marijuana Law Updates in Indian Country
This legal update covers the evolving landscape of marijuana laws in Indian Country, with a focus on federal and state legalization issues, tribal case studies, and challenges faced by Tribally Designated Housing Entities. It also delves into the historical context of cannabis in the U.S., including medical and recreational use, as well as the distinctions between CBD and hemp. Presented by Wagenlander & Heisterkamp, LLC, the informative session provides insights into the changing regulations and implementation at the tribal level.
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LEGAL UPDATE: MARIJUANA LAW IN INDIAN COUNTRY Wagenlander & Heisterkamp, LLC Sylvia Wirba May 9, 2023 Amerind/NAIHC Annual Convention and Tradeshow Waikoloa, Hawaii 3/22/2024 Wagenlander & Heisterkamp LLC
INTRODUCTIONS Wagenlander & Heisterkamp, LLC We represent Tribally Designated Housing Entities (TDHEs) across the country and Public Housing Authorities (PHAs) in Colorado. Colorado first state to implement legalization of recreational marijuana use Wagenlander & Heisterkamp LLC 3/22/2024
SUMMARY OF PRESENTATION Update on Legalization Overview of some Federal and State Legalization Issues Will Discuss Some Examples of Types of Legalization and Implementation at the Tribal Level Tribal Case Studies TDHE Challenges Not Advocating For or Against Legalization Wagenlander & Heisterkamp LLC 3/22/2024
CANNABIS IN U.S. HISTORICALLY Federal Law-Use and possession illegal Controlled Substances Act Schedule I substance Great potential for abuse No exceptions for medical Medical Use 1996-California first state to approve for medical use by ballot measure 2014-Rohrabacher-Farr Amendment prevents Justice Department from spending funds to interfere with the implementation of state MMJ laws. Currently effective until September 30, 2023. Recreational Use 2012-Washington and Colorado first states to legalize by ballot measure 2014-Colorado first to implement licensed sales Wagenlander & Heisterkamp LLC 3/22/2024
CANNABIDIOL (CBD) Cannabidiol (CBD) is a compound found in marijuana CBD can be derived from hemp or marijuana Cannabis Sativa Plant Hemp and marijuana are two different varieties Both naturally produce CBD, along with other cannabinoids They look the same Difference is the level of tetrahydrocannabinol (THC) Wagenlander & Heisterkamp LLC 3/22/2024
CBD AND HEMP THC is the compound that causes people to get high. Marijuana plants contain a much higher amount of THC, which can be as high as 30% Hemp has a nearly non-existent amount of THC Less than 0.3% THC CBD is marketed in many consumer products: Foods Oils Lotions Capsules Cosmetics As with other cannabis types, legality will vary by jurisdiction depending on level of THC Wagenlander & Heisterkamp LLC 3/22/2024
FEDERAL FARM BILLS 2014-Allowed states to implement pilot programs growing hemp for academic or agricultural research 2018-Allows hempcultivation with some restrictions. Allows for the transfer of hemp-derived products across state lines for commercial or other purposes. It also puts no restrictions on the sale, transport, or possession of hemp-derived products, so long as those items are produced in a manner consistent with the law. (Hemp CBD) 2019-USDA clarified applicability to Tribes Wagenlander & Heisterkamp LLC 3/22/2024
Wagenlander & Heisterkamp LLC 3/22/2024
CURRENT NATIONAL STATISTICS (STATES) As of April, 2023 Recreational 22 states, 2 territories, and D.C Medical 38 states, 3 territories, and D.C, Decriminalized 27 states have partially or fully decriminalized some offenses for possession CBD with THC Only 7 states Fully illegal 6 states Wagenlander & Heisterkamp LLC 3/22/2024
TRIBES No current data available Changes happening rapidly For more than 10 years, tribes have been making changes to tribal laws related to cannabis. Recreational Medical CBD Decriminalization State Compacts Wagenlander & Heisterkamp LLC 3/22/2024
OCTOBER 6, 2022 WHITE HOUSE ANNOUNCEMENT President Biden directed the Attorney General to pardon all prior federal convictions of simple possession of marijuana (federal only) Urged State Governors to do the same for state offenses Called for a review of how marijuana is scheduled under the Controlled Substances Act Emphasized that prohibitions on trafficking, marketing, and under-age sales to stay in place March 3, 2023, Justice Department Announces Application Form to receive certificate of proof of pardon. Wagenlander & Heisterkamp LLC 3/22/2024
NUMEROUS BILLS INTRODUCED IN CONGRESS PREPARE Act of 2023 H.R. 2598 To establish a Commission on the Federal Regulation of Cannabis to study a prompt and plausible pathway too the Federal regulation of cannabis, and for other purposes. Introduced April 13, 2023 Wagenlander & Heisterkamp LLC 3/22/2024
VETERANS To allow veterans to use, possess, or transport medical marijuana and to discuss the use of medical marijuana with a physician of the Department of Veterans Affairs as authorized by a State or Indian Tribe, and for other purposes. Introduced in House, April 18, 2023 H.R. 2682 Veterans Medical Marijuana Safe Harbor Act. Introduced in Senate, April 19l 2023 S. 1204 Wagenlander & Heisterkamp LLC 3/22/2024
MORE VETERANS RELATED BILLS Veterans Equal Access Act Introduced in House, March 30, 2023 H.R. 2431 Veterans Cannabis Use for Safe Healing Act Introduced in House, January 17, 2023 H.R. 394 Wagenlander & Heisterkamp LLC 3/22/2024
BANKING SAFE Banking Act of 2023 To create protections for financial institutions that provide financial services to State-sanctioned marijuana businesses and service providers for such businesses, and for other purposes. Introduced in House, April 26, 2023 H.R. 2891 Safe and Fair Enforcement Act Secure And Fair Enforcement Banking Act of 2023 or the SAFE Banking Act of 2023 . Introduced in Senate, April 26, 2023 S. 1323 Wagenlander & Heisterkamp LLC 3/22/2024
MORE 2023 BILLS Marijuana 1-to-3 Act of 2023 Introduced in the House on January 27, 2023 H.R. 610 This bill moves marijuana to a lower schedule of the Controlled Substances Act. Numerous research related bills introduced this year VA Medicinal Cannabis Research Act of 2023 (House) Medical Marijuana Research Act (House) Wagenlander & Heisterkamp LLC 3/22/2024
HEMP 2023 Free to Grow Act of 2023 Introduced in House, March 7, 2023 H.R. 1428 This bill repeals a federal provision barring individuals with certain felony drug-related convictions within the past 10 years from obtaining a license to grow hemp. Hemp is a variety of Cannabis sativa (the same plant as marijuana) which is grown to produce nonpsychoactive food, beverage, and consumer products. In 2018, Congress legalized hemp production. Wagenlander & Heisterkamp LLC 3/22/2024
MORE ACT Marijuana Opportunity Reinvestment and Expungement Act (MORE Act) Previously H.R. 3617 Likely to be reintroduced, but not as of today s date Would decriminalize marijuana Would remove from list of Controlled Substances Act scheduled substances Would eliminate criminal penalties for manufacture, distribution, or possession Would create tax on imports and occupational tax on cannabis production facilities Open SBA loans and services to legitimate cannabis-related businesses Wagenlander & Heisterkamp LLC 3/22/2024
MORE ACT CONTINUED Would prohibit the denial of federal public benefits to a person on the basis of certain cannabis-related conduct or convictions Would prohibit the denial of benefits and protections under immigration laws on the basis of a cannabis-related event (e.g., conduct or a conviction) Would Establish a process to expunge convictions and conduct sentencing review hearings related to federal cannabis offenses Would direct numerous agencies to conduct relevant studies Previously passed in the House April 1, 2022 Likely to be reintroduced in 2023 Wagenlander & Heisterkamp LLC 3/22/2024
FY 2023 SPENDING BILL Draft language from 2022 did not make it into the final bill Language added to protect tribes from federal prosecution when the tribe has legalized marijuana May only apply to tribes located in states where marijuana has been legalized Federal funds appropriated to agencies within Interior, Justice Department, Bureau of Indian Affairs or Office of Justice Services could not be used to enforce federal laws criminalizing the use, distribution, possession, or cultivation of marijuana against any person engaged in the use, distribution, possession, or cultivation of marijuana in Indian country where such activity is authorized. Wagenlander & Heisterkamp LLC 3/22/2024
COLE AND WILKINSON MEMORANDUMS From the Department of Justice Cole Memorandum (2013) Emphasized that marijuana still illegal under federal law Provided examples of when the Federal Government would enforce law Policy Statement only Wilkinson Memorandum (2014) Cole Memorandum as it would be applied to Tribes Priorities of Cole would guide U.S. Attorneys MJ enforcement in Indian Country Policy Statement only Wagenlander & Heisterkamp LLC 3/22/2024
CURRENT STATUS OF CM & WM January 2018 Rescinded by Attorney General Jeff Sessions February 2021 During confirmation hearings, Merrick Garland (current Attorney General) Provided written answers that he did not find it worthy of DOJ time to pursue cases against those who are complying with the laws in states that have legalized and are effectively regulating marijuana. Also noted that federal marijuana enforcement example of racial bias (and harmful impact) As of now, no new version of Cole Memorandum or alternative has been issued Wagenlander & Heisterkamp LLC 3/22/2024
ENFORCEMENT IN INDIAN COUNTRY Complex jurisdictional issues Conflicts of law between jurisdictions (Tribal, State, & Federal) Jurisdictional analysis different for Public Law 280 states State jurisdiction over P.L. 280 Tribes Tribal/State relationships Wagenlander & Heisterkamp LLC 3/22/2024
ENFORCEMENT IN INDIAN COUNTRY Federal enforcement policy may change with each new Presidential administration Congress could pass legislation to address jurisdictional issues Federal policy for federal enforcement in states and in Indian Country Unclear how States where MJ is still illegal in some way will enforce their own or differing laws if a Tribe in their state legalizes MJ in some form Wagenlander & Heisterkamp LLC 3/22/2024
EARLY EXAMPLE OF CONFLICTS OF LAW BETWEEN STATE JURISDICTIONS States of Nebraska and Oklahoma v. State of Colorado Nebraska and Oklahoma filed briefs in the U.S. Supreme Court Asserted that the marijuana language in the Colorado Constitution is preempted by federal law and therefore unconstitutional and unenforceable under the Supremacy Clause of the U.S. Constitution. That Colorado should be enjoined from all application and implementation of legalization provisions of the Colorado Constitution and any accompanying statutes or regulations That legalization in Colorado has placed a heavy burden on neighboring state U.S. Supreme Court declined to hear the lawsuit in March, 2016 Nebraska and Oklahoma also moved to intervene in Safe Streets Alliance v. Hickenlooper, which was consolidated with another case, Smith v. Hickenlooper, in the 10th Circuit (case also dismissed) Wagenlander & Heisterkamp LLC 3/22/2024
TRIBES IN WASHINGTON SIGNING STATE COMPACTS Suquamish Tribe First Tribal Compact in State Squaxin Island Tribe Also signed a compact with Washington Puyallup Grow, test, and sell Also: Colville Confederated Tribes Jamestown S'Klallam Tribe Tulalip Muckleshoot Port Gamble S'klallam Tribe List not exhaustive Wagenlander & Heisterkamp LLC 3/22/2024
MENOMINEE TRIBE Recreational use illegal state-wide Wisconsin Menominee Tribe is Wisconsin s only non-Public Law 280 Tribe. May 2015-Tribal Members approved legalization of both recreational and medical marijuana on its 360-acre reservation near Shawano. Wagenlander & Heisterkamp LLC 3/22/2024
MENOMINEE TRIBE In May 2015, Tribe voted to legalize cultivation of low-THC hemp (Farm Bill) October 2015-Federal agents destroy 30,000 plants on the reservation Tribe asserts plants were intended for lawful research into growing industrial hemp (2014 Farm Bill) DEA asserted that the plants were marijuana. Wagenlander & Heisterkamp LLC 3/22/2024
MENOMINEE TRIBE Notable Points from the 2015 Search and Seizure Warrant Cole Memorandum points Workers hanging up plants were observed not using any protective equipment nor any breathing apparatus-Health and Safety concern enumerated in Cole Concerns that the weapons used for security may also have been in violation of the Cole Memorandum factors. Wagenlander & Heisterkamp LLC 3/22/2024
MENOMINEE TRIBE Agents determined that non-Natives from Colorado were the main cultivators of the hemp operation and were subject to federal jurisdiction. The warrant also identified a non-Native consultant from Colorado and concludes that another Cole factor was triggered regarding the diversion of marijuana from states where legal to state where prohibited Wagenlander & Heisterkamp LLC 3/22/2024
U.S. DISTRICT COURT CASE Menominee Indian Tribe of Wisconsin v. DEA and DOJ. Filed 11/18/15 Action arises from Tribe s attempt to cultivate industrial hemp on the reservation pursuant to tribal law and Agricultural Act of 2014 (2014 Farm Bill) Tribe requested: Declaration that Tribe acting as a State as described in Farm Bill Declaration that cannabis laws of Wisconsin do not apply to industrial hemp cultivation by Tribe on reservation Declaration that the Menominee College is an institution of higher education as described in the Farm Bill Wagenlander & Heisterkamp LLC 3/22/2024
U.S. DISTRICT COURT CASE Menominee Indian Tribe of Wisconsin v. DEA and DOJ Case dismissed May 2016 Judge held that Menominee could not grow industrial hemp on its reservation Rejected that Tribe should be treated as a state under Farm Bill Compared situation to Indian Gaming Regulatory Act (IGRA) which permits a tribe to engage in some gaming activities if gaming is allowed under state law, even though the state would not regulate tribal gaming activities Shows that individual state law could have impact on the federal approach to tribes and cannabis Wagenlander & Heisterkamp LLC 3/22/2024
CURRENT STATUS-MENOMINEE TRIBE 2019-USDA states that Tribes could enter into agreements with states to grow hemp for research Hempstead Project HEART working to promote hemp cultivation and products. Wagenlander & Heisterkamp LLC 3/22/2024
FLANDREAU SANTEE SIOUX-SOUTH DAKOTA South Dakota-Recreational marijuana illegal Non P.L. 280 Tribe Planned to create a resort for recreational marijuana Worked closely with state and federal officials to ensure all concerns addressed Early November 2015, tribe burned crop due to concerns about a raid Resort opening and cultivation put on hold until jurisdictional issues clarified Wagenlander & Heisterkamp LLC 3/22/2024
FLANDREAU Highlights problem when non-Natives travel to a reservation for marijuana City of Flandreau Police Chief Anthony Schrad [W]e could essentially arrest everyone who is non-Native South Dakota Attorney General Marty Jackley For non-Native Americans, it s against the law everywhere in South Dakota on tribal land or otherwise to smoke marijuana [A]ny changes in tribal laws wouldn t affect any non-Indians or non-tribal lands. Wagenlander & Heisterkamp LLC 3/22/2024
FLANDREAU Two Non-Tribal member Consultant/Advisors who worked with Flandreau Santee Sioux have been criminally charged in South Dakota One pleaded guilty to count of drug conspiracy To be sentenced later in December, 2016 Another pleaded not guilty to charges of conspiracy to possess, possession and attempt to possess more than 10 pounds of marijuana Asserts that marijuana was owned by the Tribe Wagenlander & Heisterkamp LLC 3/22/2024
CURRENT STATUS AT FLANDREAU Medical marijuana now legal in South Dakota 2021-Medical marijuana dispensary and cultivation Employs at least 50 employees 2022-2 new cultivation facilities for medical marijuana Current cultivation in a 10,000-square-foot facility yielding estimated 80 pounds per week Customers limited to buying 4 grams of medical cannabis per day Wagenlander & Heisterkamp LLC 3/22/2024
CURRENT STATUS AT FLANDREAU BUT More than 100 people who had tribal medical marijuana cards have been arrested since 2021 About 8000 cards issues (members and non-members) State AG and Department of Public Safety assert cards are not valid for non-tribal members https://tribalbusinessnews.com/sections/economic- development/13902-after-amazing-10-months-flandreau-santee- sioux-plans-to-expand-cannabis-operations Wagenlander & Heisterkamp LLC 3/22/2024
OGLALA SIOUX TRIBE 2020-Members voted to legalize recreational and medical marijuana SD-Recreational illegal, medical legal Tribe issuing licenses to tribal business owners for cultivating, processing, sales Pine Ridge currently has one dispensary open Owner of dispensary in Pine Ridge estimates that half of the customers come from off the reservation, including nearby Nebraska. Alcohol still illegal on reservation https://www.keloland.com/keloland-com-original/south-dakotas-first-recreational- marijuana- dispensary/?fbclid=IwAR05EKth9xRvjw988ocHSlxb0byaELLFjiBc9l9ekVpNPVk8WSBZ1ry 9d_0 Wagenlander & Heisterkamp LLC 3/22/2024
CALIFORNIA TRIBES Recreational and medical legal No current compact system Association formed California Native American Cannabis Association https://www.law360.com/articles/1581624/absent-federal-action- tribal-cannabis-laws-remain-in-limbo?copied=1 Wagenlander & Heisterkamp LLC 3/22/2024
NEW MEXICO Numerous Pueblos have signed intergovernmental agreements with State Prevents federal enforcement on tribal land July, 2022-Pueblo of Pojoaque opens first cannabis dispensary on tribal lands located in New Mexico https://www.santafenewmexican.com/news/local_news/new- mexico-signs-agreement-to-let-2-pueblos-engage-in-cannabis- activities/article_c271f03e-ac61-11ec-81c1-ffa52b018fc9.html https://www.politico.com/news/2022/04/05/tribes-marijuana-laws- 00022899 Wagenlander & Heisterkamp LLC 3/22/2024
USING GAMING FUNDING ? May 8, 2023 The principal chief of the Eastern Band of Cherokee Indians has vetoed the North Carolina tribe's plan to invest another $64 million to open a medical marijuana cultivation site and dispensary, citing cost overruns and concerns that its gambling revenue cannot go toward cannabis. https://www.law360.com/nativeamerican/articles/1605264?nl_pk=64aaf230- 2a87-4add-9511- c2326c3a9933&utm_source=newsletter&utm_medium=email&utm_campaig n=nativeamerican&utm_content=2023-05-09&nlsidx=0&nlaidx=0?copied=18 Wagenlander & Heisterkamp LLC 3/22/2024
OTHER TRIBAL ACTIVITY Yakama Nation-ban on MJ grows and sales on tribal and ancestral lands, but cultivation, processing and distribution of hemp now legal Navajo Nation-hemp pilot project with NM State University, but recreational and medical marijuana still illegal Wagenlander & Heisterkamp LLC 3/22/2024
TRIBAL LEGALIZATION We recommend that TDHEs provide input and try to be involved if their Tribe considers legalization. Revenue to Tribe advocate to put some $$ to Housing. Be prepared to reconsider and revise some policies and/or practices TDHEs will be impacted Wagenlander & Heisterkamp LLC 3/22/2024
TDHE MANAGEMENT ISSUES Determine what will be allowed in units (use, sale, cultivation) Establish a uniform standard to enforce Smoking violations Odors and other nuisances Behavior Impact on Unit Private Cultivation (increased water and electricity usage, weight, wiring issues) Impact on communities Commercial Activity in Units Wagenlander & Heisterkamp LLC 3/22/2024
HUDS POSITION SO FAR September 24, 1999 Memo Medical Use of Marijuana in Public Housing January 20, 2011 Memo Medical Use of Marijuana and Reasonable Accommodation in Federal Public and Assisted Housing February 10, 2011 Memo Medical Marijuana Use in Public Housing and Housing Choice Voucher Program December 29, 2014 Memo Use of Marijuana in Multifamily Assisted Properties Wagenlander & Heisterkamp LLC 3/22/2024
HUDS POSITION SO FAR Manufacture, distribution or possession of marijuana is a federal criminal offense None of the opinions specifically cover NAHASDA HUD relies on Quality Housing and Work Responsibility Act of 1998 (QHWRA) as authority Wagenlander & Heisterkamp LLC 3/22/2024
QHWRA AND ADMISSION Public Housing Authorities (PHAs) required to deny admission to any household with a member who the owner determines is illegally using a controlled substance, including marijuana No discretion for PHAs MMJ costs cannot be used as part of medical deduction when calculating rent No similar language in NAHASDA Wagenlander & Heisterkamp LLC 3/22/2024
QHWRA AND CONTINUED OCCUPANCY PHA must establish policies which allow for the termination of tenancy for illegal use of marijuana Enforcement is discretionary Cannot have lease provisions or policies that affirmatively permit occupancy by any member who uses marijuana NAHASDA allows for discretionary termination for drug-related criminal activity Wagenlander & Heisterkamp LLC 3/22/2024
EMPLOYMENT ISSUES NAHASDA requires TDHEs to be Drug Free Workplaces Potential Conflicts Between Tribal Law and TDHE Employment Policy Differing standards for employees and tenants Harder to enforce because of testing issues Possible Workman s Compensation issues Drug testing post incident Colorado Supreme Court case Coats v. Dish Network Colorado Supreme Court held that employer zero-tolerance policy can override Colorado MMJ laws Wagenlander & Heisterkamp LLC 3/22/2024
