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DOJ Enforcement Regarding Marijuana Laws and Indian Tribes

December 16, 2014

The U.S. Department of Justice has released a memo regarding DOJ enforcement of federal laws prohibiting marijuana in the context of federally recognized Indian tribes.  Here’s the memo:

Download (PDF, 141KB)

By this memo, DOJ seems to be claiming that it has “opened the door” to Tribal self-regulation of marijuana, but in fact the memo includes “Preventing marijuana possession or use on federal property” among its “eight federal law enforcement priorities.”

Tribal trust land, which is what all Indian reservations and Rancherias are, is owned by the US in trust for the Tribe.  That’s not “federal property?” Ordinarily, a trustee is the owner, albeit on behalf of the beneficiary.

DOJ needs to clarify this immediately: does the DOJ memo apply to Tribes’ reservation land (their sovereign territory) or doesn’t it?  This is potentially a real trap for the unwary.

Another troubling provision in the DOJ memo declares another “federal law enforcement priority” to be “Preventing state-authorized marijuana activity from being used as cover or pretext for the trafficking of other illegal drugs or illegal activity.”

In California and many other states, marijuana is civilly regulated, not criminally prohibited.  In other words, in California, under some circumstances (you have a note from your your doctor) possession, use, cultivation, etc. are legal.  Under the U.S. Supreme Court’s Cabazon decision, ( state civil regulatory laws, like California’s medical marijuana law, do not apply at all on Indian lands.  They therefore may not be considered at all in the determination by DOJ of how to treat marijuana on tribal trust land in California because doing so is a breach of the fiduciary duty of the United States to protect Tribes from intrusions by states into Tribal self-governance.

What is DOJ thinking?  (Assuming they are . . .)  What are they trying to accomplish?