In what some view as a sort of second coming of gaming for native reservations, tribes from Wisconsin to Washington have said yes to marijuana.
In South Dakota, where marijuana is still illegal, the Flandreau Santee Sioux will build what has been dubbed as the nation’s first “marijuana resort.” The Menominee and Ho-Chunk Nations in Wisconsin, where weed is also illegal, are pursuing legalization. They can do this because reservations constitute sovereign indigenous nations, with their own governments and laws. In December of 2014, the Department of Justice released guidelines for legalization on reservations that mirrored a process already in place for states.
But in the rush to cash in on the budding industry, indigenous nations have exposed themselves to policing by local, state and federal authorities. The ongoing “war on drugs”– which for decades has played a central role in the rise of a system of mass incarceration that has caged generations of people of color and the poor – is getting a new life as a war on indigenous sovereignty even as both the president and Congress have expressed political courage to end it.
A prominent example of this is a spate of pot-related federal incursions onto native land. The first one happened in the early hours of 8 July, when dozens of agents from the Bureau of Indian Affairs, the Federal Drug Enforcement Agency and state and local law enforcement descended on two pot farms on the sovereign lands of the Pit River Tribe and Alturas Indian Rancheria in Northeastern California, the state’s largest show of force on California Native land since the Native rights standoffs of the 1970s. One tribal member said that “it felt like the cavalry coming in.”
Though agents seized more than 12,000 plants and 100 pounds of processed marijuana, no charges resulted from the massive raid, which the US Attorney’s Office described as part of an ongoing investigation into the financing and management of the grow operations. It was also a result of state and local hostility towards indigenous communities, overlapping jurisdictions on reservations and tribal leaders’ misunderstanding December’s DOJ memo, which many native people thought meant that weed would be legal as soon as it was issued.
Although tribes are sovereign entities, legally distinct from the states that surround their lands, they face unique, complicated and unresolved legal and political barriers to legalizing marijuana.
Tribes are in some cases still policed by state and local law enforcement. Although tribes are sovereign and can create and enforce their own laws governing tribal members on sovereign land, non-tribal members are subject to state laws even on that land, so if pot is illegal in the state, it may still be illegal for a non-tribal member to buy marijuana there. States also maintain jurisdiction over roads, often even on the reservation, which makes the movement of crops and production implements potentially illegal. Water presents yet another challenge as the Bureau of Reclamation has stated that it will not deliver water to pot producers – even legal ones.
And most crucially, tribes depend on funding from the federal government, which could be jeopardized if they participate in an activity that is illegal under federal law, which still classifies marijuana as a schedule 1 controlled substance.
With legal and political issues aplenty, more pot raids and violent incursions into sovereign Indian land could be looming on the horizon. In the few months since July’s raid on Pit River and Alturas, law enforcement raided another California pot farm operated by the Pinolville Pomo Nation.
To avoid the raids and to legalize weed in line with how the 2014 guidelines will be interpreted by state and local authorities, indigenous nations will have to sign compacts and non-prosecution agreements with state and local governments. These compacts, the first of which was signed between the Suquamish Tribe and the state of Washington in September, will reel sovereign tribes in under the jurisdiction of state and local law enforcement, authorities and review boards long hostile to indigenous sovereignty.
To set up shop, pot farms and dispensaries will likely be required to mirror state tax schemes and regulations, as is the case with the Suquamish tribe’s compact. This will eliminate any tax advantages for marijuana businesses operating on reservations, thus undermining structural competitive benefits that might have given native pot farmers an edge.
And these compacts will force tribes to emulate pre-existing state and local governmental structures regulating marijuana, essentially depriving them of the opportunity to define their own governance models and policies related to the marijuana business. The more compacts tribes sign, the more they start to look like they are subjects of the states and the more hollow their sovereignty becomes.
After centuries of attempts to “civilize” Native Americans by forcing them to cultivate the soil, it will be pot farms that bring the feds and the iron fist of their law onto native lands again.
This article was originally published on The Guardian, and was written by Julian Brave NoiseCat, a Native Issues Fellow at The Huffington Post. He is an enrolled member of the Canim Lake Band Tsq’escen in British Columbia, where he was nominated to run for Chief in 2014. Julian is a graduate of Columbia University, and received a Clarendon Scholarship to study global and imperial history at the University of Oxford. He can be reached at email@example.com or on Twitter at @jnoisecat.
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