Happy New Year!

Friends,

Yesterday President Obama issued “A Renewed Era of Federal-Tribal Relations”, a progress report on the activity his Administration undertook during his eight years.  During his tenure, President Obama met annually with tribal leaders at the White House – this has never happened before.  He signed Executive Order 13,647 on June 26, 2013 creating the White House Council on Native American Affairs whose purpose is to bring together Federal Departments and Agencies to break down the siloes in order to better serve Indian Country.

The report “intends to set a baseline of progress for Tribal nations to reference in their ongoing work with the federal government” and “shares priorities that the WHCNAA will continue to work on as a result of Tribal leaders’ recommendations.”  The WHCNAA is a product of an Executive Order which could be rescinded by the incoming President as could  Executive Order 13, 175 on Tribal Consultation.  These Executive Order’s have been critical to achieving the successes we have seen under President Obama.  However, it is incumbent on us to remain vigilant in continuing to advocate for the type of progress we saw under President Obama.  In 16 days, we will have a completely new Administration with new people to educate while advocating on behalf of our communities.

I attended the President-Elect’s Tribal Listening Session in Washington, D.C. before Christmas and was encouraged by the number of tribal leaders and representatives present at the meeting.  But we cannot afford to lose any  momentum gained under President Obama.  This means being present and vocal in Washington D.C.

2016 was a real roller-coaster.  Here’s hoping 2017 is smooth sailing….

In peace with hope for good year,

L

In my capacity as general counsel for the National Indian Cannabis Coalition, I (and the rest of the industry) have been closely tracking the President-Elect’s Cabinet nominations.  Cannabis legalization is perched precariously on the two prongs of (1) states’ rights; and (2) the Department of Justice’s policy position allowing United States district attorneys to decline to enforce cannabis-related violations of the Controlled Substances Act.  Congress doubled down by passing legislation withholding funding for the prosecution of marijuana crimes when the activity is legal under state law.

Those thinking about this issue and trying to gaze into the crystal ball to see past January 19, 2017 generally think that the costs associated with infringing on a state’s right to make its own laws by federal enforcement of federal marijuana laws may be to high to be realistic.  The fact that over half the states have some form of legalized marijuana, the number of potential unhappy constituents, loss of tax revenue from a $7 billion dollar industry and number of jobs lost if the marijuana violations were prosecuted also creates a political reality that would be difficult to overcome.

However, the DOJ’s policy is just that – a policy, not a law.  It can be changed with the stroke of an Attorney General Session’s pen.  And while I believe the states’ rights argument may protect the states from federal enforcement, I am concerned that same argument might not apply to tribes.

The Wilkinson Memo allows a United States District Attorney the discretion to determine whether to expend resources prosecuting marijuana violations in Indian Country located within their district.  Indian Country is federal land.  Given his previous statements on marijuana, I can see how an Attorney General Sessions might leave the states legalization alone while taking a hard line position on enforcement and prosecution of marijuana violations on all federal land, including Indian Country.  After all, “good people do not smoke marijuana”.  

For now, we do not know whether the Senate will even confirm Sen. Sessions or if this will be an issue that the Trump Administration will care anything about.  What is clear, however, is that for there to be stability in the industry and for tribes to be able to participate in this booming economic development opportunity without fear of losing their investment or other federal funding, Congress will need to act.

“trying to see the future”

Lael