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New Federal Bill Protects Native American Cannabis Industries, With a Catch

· Jun 22, 2022
These protections have been rolled into a new draft of an appropriations bill that will fund the Department of the Interior for the next fiscal year. Specifically, the bill will prohibit the Bureau of Indian Affairs, Office of Justice Services, and the Interior and Justice Departments from u

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Federal lawmakers have updated an annual budget bill to include protections for Native American nations that have legalized cannabis within their sovereign territories.

These protections have been rolled into a new draft of an appropriations bill that will fund the Department of the Interior for the next fiscal year. Specifically, the bill will prohibit the Bureau of Indian Affairs, Office of Justice Services, and the Interior and Justice Departments from using federal funds to enforce cannabis prohibition laws “against any person engaged in the use, distribution, possession, or cultivation of marijuana” in any  indigenous nation that has legalized cannabis.

For the past decade, Congress has added a similar amendment protecting medical cannabis programs into annual federal budget bills. This rider, initially known as the Rohrabacher-Farr amendment, prohibits the Department of Justice from using federal funding to prosecute state-legal medical marijuana businesses or patients. And the Obama-era Wilkinson memo also instructed federal prosecutors to de-prioritize the enforcement of cannabis laws on indigenous lands.

The language added to the current appropriations bill is similar in scope to these earlier protections, but also creates several new restrictions. The bill would still allow the feds to take action against Native nations that sanction pot farms on federal land or allow weed to be sold to minors. Tribes will also be required to enact laws that ensure that “marijuana is not diverted to states or tribes where marijuana is prohibited by state or tribal law,” or “used as a means for trafficking other illegal drugs or used to support organized crime activity,” according to Marijuana Moment.

But on top of these common-sense regulations, the bill also imposes a serious restriction on tribal sovereignty. Federal law enforcement will still be allowed to raid and destroy cannabis farms on tribal lands that are located in states that continue to prohibit weed. Indigenous nations have the sovereign authority to create laws independent of the states they are located in, though, and many tribes have used their rights to create their own legal, independent cannabis programs.

Fortunately, the nations that have legalized adult-use sales are already located in states that have also legalized weed. In New York, several tribes started selling weed long before the state's official adult-use industry will open for business, but state officials have agreed not to interfere with these sales. Tribes in Montana, Michigan, and other adult-use states have also kicked off their own retail cannabis markets.

Some Native nations in prohibition states have legalized medical marijuana, though, which could prove to be a thorny situation. The Flandreau Santee Sioux Tribe, for example, opened their own medical cannabis dispensary in South Dakota, a state that voted to legalize weed in 2020. State politicians and cops conspired to have the voter-approved legalization law overturned in court, though, and cops have been arresting people for buying medical pot at the Sioux dispensary.

So far, the feds have thoroughly respected the amendment that prevents them from taking action against state-legal medical marijuana programs. The Trump administration rescinded the Wilkinson memo in 2018, though, and in 2020, the FBI raided the Navajo Nation in New Mexico, seizing and destroying 60,000 pounds of cannabis authorities claimed was “disguised” as hemp. And last year, the feds also raided the home of a man living in another New Mexico tribal territory for growing only 9 medical pot plants. 

The present restrictions included in the new bill suggest that the feds may still continue enforcing prohibition laws against some tribal nations, even while they choose to leave state-sanctioned weed businesses alone.