On December 11, 2014, the Department of Justice released a memo from October 28, 2014, advising U.S. Attorneys and Tribal Liaisons on the applicability of the “Cole Memo” from August 2013 in Indian Country.  In a nutshell, the Tribal Marijuana memo says is that each U.S. District Attorney is required to consult with the tribes in its district, discuss whether the tribe wants to legalize marijuana and then the U.S. Attorney can decide (despite the wishes of the state or tribe) whether it will enforce federal marijuana laws on the tribal lands within that district.

In short, while a tribe may decide to legalize marijuana on its land, their particular U.S. Attorney may decide to enforce (a.k.a. arrest and charge) marijuana laws on Indian (a.k.a. federal) land which would gut the tribe’s decision.  For example, tribes located in states that border Canada or Mexico may have difficulty convincing their District U.S. Attorney to decline to enforce federal marijuana laws in their district.

 *  Tribes should engage their District U.S. Attorney in meaningful consultation and request a decision to be made regarding enforcement in their district as soon as possible.  Find your U.S. Attorney here.

Now, tribes report having been contacted by potential business partners who are interested in tribal partners.  As tempting as it may be to move quickly on such an important policy decision, especially if new revenue is implicated, Tribes should take a step back to consider what is best for their communities.

*  Avoid committing funds or entering into partnerships until there is certainty in the federal position in your District or at the National level.

States that have legalized marijuana have encountered a number of road blocks, delays, and certainly have made mistakes implementing their laws; challenges from which Tribes might learn a great deal.  While taxing the industry is a viable way to develop a new stream of governmental revenue, but the taxation should not be so burdensome as to constrain the development of the industry.

Regardless of the position a tribal community decides to take with regard to marijuana production, processing, sale and/or use within in its jurisdiction, the tribe must take decisive action to protect its sovereignty and its lands.  Laws and regulations implementing the decision (including a decision to oppose legalized marijuana on their lands) must be carefully crafted and enacted prior to jumping into the industry, agreements between local and federal law enforcement agencies must be reached, and an independent regulatory agency could be considered.  Bottom Line – Tribes must be proactive in order to ensure the safety of their community.

 *  Ensure your decision is supported by appropriate tribal laws and regulations.  In other words, if you decide to legalize marijuana, then develop a robust regulatory system for regulating and taxing the industry.

In essence, tribes need to be fully informed of all implications before making the decision to legalize marijuana or not.

Bottom line is this:  the Memo is not – repeat – not federal approval for tribes to allow marijuana on their lands.  This is but the first step of a process.  Tribes must be deliberate and careful in their analysis of the issue and make an informed decision on how to move forward.  There are many ways to participate in this industry, but finding the right option for your individual tribe will be crucial to success.

*Tracie Stevens, Stephanie Boehl and I will be hosting a webinar on January 14, 2015 at 10am PST/1pm EST on this issue.  Register here.  Bring your questions.  After registering, you will receive a confirmation email containing information about joining the webinar.

I recently had the opportunity to discuss this issue with Colin O’Keefe of LXBN.  In the interview, I explain the basics of the announcement and the positives and negatives that legalization could bring for tribes.

Guest Blogger, Tracie Stevens, is a consultant who works with Indian tribes regarding governmental relations and regulatory matters.

Warning Regarding Federal Law: The possession, distribution, and manufacturing of marijuana is illegal under federal law, regardless of state law which may, in some jurisdictions, decriminalize such activity under certain circumstances. Federal penalties for violating the federal Controlled Substances Act (the “CSA”) are serious and, depending on the quantity of marijuana involved, can include criminal penalties of up to 20 years in prison and/or a fine of up to $2,000,000. 21 U.S.C. § 841. The penalties increase if the sale or possession with intent occurs within 1,000 feet of a school, university, playground, or public housing facility. 21 U.S.C. § 860. In addition, the federal government may seize, and seek the civil forfeiture of, the real or personal property used to facilitate the sale of marijuana as well as the money or other proceeds from the sale. 21 U.S.C. § 881. Although the U.S. Department of Justice has noted that an effective state regulatory system, and compliance with such a system, should be considered in the exercise of investigative and prosecutorial discretion, its authority to prosecute violations of the CSA is not diminished by the passage of state laws which may permit such activity, including Initiative 502 in the State of Washington.