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Native Tribes Assert Sovereignty Over CA Pot Laws

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By Chris Roberts

As “domestic dependent nations,” Native American tribes have their own state sovereignty… to a point. Though it takes a meeting of law professors to sort out the exact relationship between the U.S. federal government and the Native Americans living on reservations — and even the professors would disagree — what is clear is that tribes are allowed to have their own courts and their own criminal codes. This is partially why most casinos in America are on tribal land (or in Nevada, a state with uniquely permissive gambling laws).
So shouldn’t tribes also be allowed to grow cannabis, if they want, and don’t they have the right to grow it and sell it outside of state law, which sometimes-but-not-always doesn’t apply to them?

A group of California tribes have publicly said that setting up their own system for legal cannabis sales is within their legal purview, and so that’s what they might do — and there’s nothing California can do about it, aside from grant them the right to do so, as many other states have done.

Last fall, the California Native American Cannabis Association pushed California Gov. Jerry Brown to include specific and separate rules for sovereign Indian nations in the state’s new commercial cannabis regulations, which went into effect on Jan. 1.

Brown didn’t, and the state’s $7 billion cannabis industry rolled out adult-use sales without any special rules for what could happen on reservations. Under California’s temporary rules for the regulated cannabis market, tribes wishing to sell cannabis need to surrender their “sovereign immunity,” and sign a waiver that attests to the state of California’s right to regulate all marijuana activity on tribal lands.

According to the Native American Cannabis Association, that amounts to a violation of what limited rights they enjoy. Since they are legally allowed to set some of their own rules, obeying California state marijuana law amounts to little more than a courtesy — one they are not required to provide — and they can and might start growing their own, outside of the state’s still-young recreational marijuana laws.

This is a big deal in California, which is the country’s most populous state, the country’s biggest cannabis market and the state with the most federally recognized indigenous tribes. There are more than 100 native nations in the state. As many as 20 are interested in growing cannabis, as the Associated Press reported.

With California’s legal recreational marijuana taxed so heavily, the prospect of an alternate market on tribal land with lower taxes is enticing for consumers and aggravating and concerning for regulators.

But California tribes say they want an agreement similar to the one in place between tribes in Washington and that state’s governor. There, tribes signed a compact with the state saying that they would operate under their own sovereign regulatory system, but would also enact the same tax rate as the state.

In this way, a tribe can grow and sell cannabis on its own terms on the reservation — as one tribe, the Suquamish, has done with its Agate Dreams dispensary, a successful operation that’s set for expansion.

It’s not clear why Brown hasn’t inked such deals with his state’s tribes, but either way, a compromise could come via the state legislature. Further complicating matters is the fact that what limited protections from federal marijuana law tribes enjoyed appear now to be gone.

In January, Attorney General Jeff Sessions announced the revocation of a series of memos that gave state-legal cannabis operations some measure of protection. Among the Obama-era policies that no longer apply was a provision that limited the federal government’s ability to crack down on cannabis operations located on tribal land.

However, it’s not certain the memo had much value in the first place.

In 2015, a combined state and federal drug task force raided the Pit River XL Ranch Reservation near Alturas in Modoc County, in California’s remote northwestern corner. Agents seized 12,000 plants and more than 100 pounds of processed cannabis — an operation run by some members of the tribe, dimed out by other members who didn’t like it.

The threat of enforcement would seem to be enough to keep investors away from reservations. But would tribes be subject to drug raids if they went ahead with their threats? You could ask a law professor. For now, the question is still academic.

Original Publication in CannabisNow.