Federal Drug Laws Come into Conflict with Tribal Laws on Indian Land

As more and more states pass legislation removing legal prohibitions on medical marijuana use, or decriminalizing marijuana altogether, the federal government has, to put it bluntly, struggled to keep up. Marijuana remains a Schedule I controlled substance under federal law, as well as a controlled substance under Texas law. The Department of Justice (DOJ) has, on several recent occasions, revised its enforcement guidelines for jurisdictions that have, to various extents, legalized marijuana. In late 2014, the DOJ addressed the enforcement of federal marijuana laws on Indian land. At the time, the memorandum was taken to mean that the federal government would not interfere with Indian tribes that chose to legalize marijuana. Subsequent actions, however, have shown that the legal landscape remains as murky as it has been for some time.

The U.S. federal government shares sovereignty with state governments, other subnational entities like Puerto Rico, and the country’s 567 federally recognized Indian tribes. 80 Fed. Reg. 1942 (Jan. 14, 2015), 80 Fed. Reg. 39144 (Jul. 8, 2015). Federally recognized Indian tribes, defined to include Native Americans within the continental U.S. and Alaska, are considered “domestic dependent nations” within the U.S. 25 C.F.R. § 83.1; Cherokee Nation v. Georgia, 30 U.S. 1, 2 (1831); Worcester v. Georgia, 31 U.S. 515, 583 (1832).

Indian tribes have sovereignty over their members and their land. United States v. Mazurie, 419 U.S. 544 (1975). They are considered subordinate to the federal government but parallel to the state governments in terms of sovereignty. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980). The U.S. Department of the Interior oversees the tribes through the Bureau of Indian Affairs. Texas is home to three federally recognized Indian tribes:  the Alabama-Coushatta, the Kickapoo, and the Ysleta del Sur Pueblo.

Since state governments began decriminalizing marijuana, first for medical use only and then, in a few states, for recreational use, the DOJ has issued several memoranda revising its enforcement guidelines on marijuana. They have not clarified the situation in any meaningful way. The Ogden Memorandum, issued in October 2009, stated that prosecuting medical marijuana providers or patients “is unlikely to be an efficient use of limited federal resources.” The DOJ walked this back, however, in the June 2011 Cole Memorandum, which stated that the earlier memo “was never intended to shield such activities from federal enforcement action and prosecution.” Finally, it attempted to clarify its enforcement priorities in an August 2013 memo, also called the Cole Memorandum. Its stated priorities include protection of minors and opposition to “criminal enterprises, gangs, and cartels.”

A memorandum issued in October 2014, but made public that December, addresses how federal prosecutors should handle Indian tribes that legalize marijuana on their own land. It reiterates the priorities stated in the second Cole Memorandum and states that nothing in that memo “alters the authority or jurisdiction of the United States to enforce federal law in Indian Country.” Some reporting on the memo interprets it as allowing Indian tribes to legalize marijuana on their own land, but it only states that federal prosecutors should assess their own jurisdiction’s needs when making enforcement decisions. This could result in a decision not to interfere with tribal decisions. It could also, however, result in federal crackdowns, such as when federal law enforcement officials raided several groups in California this summer to seize marijuana plants.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified drug crimes attorney Michael J. Brown has more than 20 years of experience defending people in west Texas against charges in state and federal courts. To schedule a confidential consultation with a member of our team, contact us today online or at (432) 687-5157.

More Blog Posts:

Jury Acquits Medical Marijuana User of Felony Possession Charges, Texas Criminal Lawyer Blog, October 30, 2015

Texas Becomes (Very Slightly) More Accepting of Marijuana, While the White House Commutes Sentences of Nearly Fifty Non-Violent Drug Offenders, Texas Criminal Lawyer Blog, October 30, 2015

Legal Status of Marijuana Under Review by Texas Legislature, Texas Criminal Lawyer Blog, April 10, 2015


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