Tribes enjoy sovereignty to make and enforce their own rules for cannabis activities, according to a “Policy Statement Regarding Marijuana Issues in Indian Country” issued by the US Department of Justice. The memo advises US attorneys to apply the Cole Memo enforcement priorities to ensure tribal nations regulate cannabis in a manner consistent with federal objectives.
- See Policy Statement Regarding Marijuana Issues in Indian Country, from Director Monty Wilkinson, Oct. 28, 2014.
US Constitution says Indian Tribes are Sovereign Nations
The US Constitution demands that Indian Tribes be regarded as sovereign independent governments. As such, they enjoy power to make and enforce their own laws for marijuana and other activities on their territory, just like Canada, the UK, or any other country. Indian nations can even make laws which are different from the laws of a state that envelopes their land.
Article I, Section 8 of the US Constitution controls American government’s relationship with tribes:
Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.
The Constitution regards Indian tribes as entities that are different from foreign countries and the 50 states. The Constitution also decides that the federal government– but not the state governments– has authority to negotiate and perform commercial relations with sovereign tribes. It’s also important to note that Congress, rather than the executive branch, holds the power to engage the Indian tribes.
Generally, the 50 states do not have power to make or enforce laws against tribes. So for example, even if a sovereign tribe were located entirely within the territorial borders of Texas, the laws of Texas would not affect people and places on tribal territory any more than would the laws of Louisiana or Oklahoma.
DOJ’s Wilkinson Memo: Marijuana Issues in Indian Country
Director Monty Wilkinson’s Memorandum recognizes the tribal sovereignty enshrined in the US Constitution and applies these basic rules to the issue of cannabis regulation on Indian reservations. The Memo has no force of law, but it provides sound guidance to agents of the federal government about how they should behave in certain situations.
US Attorneys should apply Cole Memo priorities
The Wilkinson Memo advises US Attorneys to apply the eight federal enforcement priorities of the Cole Memo.
Each United States Attorney must assess all of the threats present in his or her district, including those in Indian Country, and focus enforcement efforts based on district-specific assessment. The eight priorities listed in the Cole Memorandum will guide the United States Attorneys’ marijuana enforcement efforts in Indian Country, including in the event that sovereign Indian Nations seek to legalize the cultivation or use of marijuana in Indian Country.