Discriminatory federal enforcement of cannabis policy

by DGO Staff

Why President Biden needs to do what it takes to protect Native American cannabis markets

When it comes to solidifying cannabis protections, there are some moves that the federal government should make — but hasn’t yet.

For starters, we all know that the state markets would like a few more federal protections in case of some overzealous administration trying to dismantle the legal markets in the future. Plus, researchers would almost certainly like to have a bit more access to the plant in order to find out how exactly
it could be of medical benefit to people who need it. And if you want to get really deep, there are lots of people out there who sure would appreciate federal legalization of the cannabis plant, which could open up certain, err, more conservative states to legal weed.

But there’s one area that’s often overlooked, and that’s tribal market protections. While sovereign nations are able to create their own cannabis markets on tribal land, they aren’t always protected in these efforts. In fact, they can be downright contentious avenues for Native American tribes to take — and it’s not unheard of for overzealous federal agents to raid tribal cannabis markets, destroying crops and wreaking general havoc for no dang reason at all. (It’s not particularly legal, either, but that’s neither here nor there to agents.)

And it’s time something is done about it, accodding to two unlikely politicians. Right now, there are two GOP congressmen, Reps. Dave Joyce (R-OH) and Brian Mast (R-FL), who are rallying for President Joe Biden to protect tribal cannabis markets.

In a surprising move, the duo — which are members of the more conservative party — recently sent a letter to President Biden to address “discriminatory” federal marijuana enforcement issues in tribal territories. They are asking for Biden to direct the appropriate agencies to stop going after cannabis on tribal lands, and to instead focus their efforts on more serious crimes, like human trafficking, while respecting tribal sovereignty.

The two Republican lawmakers sent the letter seeking administrative action in regard to the Bureau of Indian Affairs’ cannabis policy shortly after Biden’s proclamation pardoning those who have been found guilty of federal marijuana possession.

The lawmakers are requesting that the president use his federal authority to ensure that the Bureau of Indian Affairs and other related agencies, like the National Indian Gaming Commission, are able to focus their efforts toward more pressing matters rather than cannabis. This includes issues like missing and murdered indiginous women — which is a widespread and devastating problem on tribal land across the nation — and other issues, like human trafficking, which are more important than enforcing federal cannabis laws on tribal lands.

After all, cannabis markets are profitable avenues to pursue in Native American communities, yet they are constantly in fear of federal imposition, despite the fact that numerous states have legalized cannabis. These lawmakers essentially feel that federal enforcement is wrong and needs to stop — and also find it to be discriminatory.

In their letter to President Biden, the congressmen cited the Bureau of Indian Affairs’ raid on the garden of a member of the Pueblo of Picuris, in which the agents destroyed nine plants that were being grown for therapeutic purposes — and were in compliance with both state and Tribal law.

The member of the Pueblo of Picuris whose plants were destroyed has since filed a claim declaring his intention of suing the government for $3.5 million in damages in what he and other see as a double standard of racially discriminatory cannabis criminalization.

The tribal government also addressed the raid in a letter to the Bureau of Indian Affairs, stating that the raid was “a gross invasion of the Pueblo’s sovereign authority over its members and other persons residing on its land.”

Pueblo of Picuris Gov. Craig Quanchello also weighed in, stating that he feels the raid constituted racial discrimination.

According to a recent press release by the two congressmen, the lawmakers feel that “enforcing Federal cannabis laws on Tribal land, especially in cases where the Tribe and the State have legalized cannabis use, is wrong and it needs to stop.”

“Tribes are sovereign nations, and they have just as much of a right to enact and enforce their own laws as States do,” Joyce said in the press release. “I urge the President to take action to prevent the misguided prioritization and unjust enforcement of federal marijuana laws only on reservations.”

Congressman Joyce helped secure fiscal-year 2023 appropriations language in the Interior Base Bill, which would provide protections for Indian tribes against federal prosecution due to the legalization of marijuana within their territory.

The congressmen said in regard to the bill that “tribes are sovereign nations, and they have just as much of a right to enact and enforce their own laws as States do.”

Back in June, a Senate committee held a listening session that broadly addressed cannabis issues for tribes, in which they discussed relevant legislation and the importance of tribal sovereignty with respect to cannabis. Members of the Senate Indian Affairs Committee heard testimony from representatives of Tribes from across the country, including the Suquamish Tribe, Pueblo of Laguna, Kumeyaay Nation, Puyallup Tribe and Santee Sioux Tribe.

Earlier this year, a group of senators sent a letter to U.S. Attorney General Merrick Garland, which urged him to direct federal prosecutors not to interfere with marijuana legalization policies enacted by Native American tribes. The letter requested that the Justice Department “respect the inherent sovereignty of Tribal governments and cease the enforcement of the Controlled Substances Act on Tribal land as it pertains to the growth, possession, and use of cannabis for medicinal, agricultural, and recreational purposes, where those Tribes have legalized this activity for its own members and those acting in compliance with Tribal law.”

While there were once protections against these types of actions, an Obama-era DOJ guidance on prosecutorial discretion for Tribal governments that opted to legalize cannabis was rescinded by the Attorney General Jeff Sessions back in 2018.

The senators are now urging Garland to “reinstate prosecutorial discretion and allow U.S. Attorneys to deprioritize cannabis enforcement where states and Tribes have legalized cannabis.”

Aside from the BIA raid in the Pueblo of Picuris, the federal government has generally taken a hands-off approach to enforcement in states that have legalized cannabis.

Ultimately, it is imperative that President Biden act quickly to guarantee the protection of tribal territories from federal raids concerning cannabis. Protection from these discriminatory raids is essential to allowing Native communities to benefit from cannabis sales on tribal lands — just as others can do in legal markets.

After all, the sales from tribal cannabis markets help to fund the local economies and allow them to prosper. And, the proven medical benefits from cannabis must not be overlooked when it comes to these communities, which are disproportionately at risk of issues like alcoholism, diabetes, cancer, and opioid abuse.

Ultimately, cannabis sales on native land will only serve to benefit the residents and needs to be federally protected — and with any luck, Biden will do so immediately.

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