Farmers on reservations are caught between state and federal laws.
The road to legalizing recreational cannabis use in the United States has been a long and winding one, with plenty of bureaucracy-sized bumps along the way. Not only do states have to build out the infrastructure for licensing and regulation, as well as determine standards for growth and cultivation, they also have to contend with the country’s history of criminalizing underprivileged populations for marijuana-related offenses. Even as cannabis laws are being passed, it’s clear that black and brown people are not only still being arrested and incarcerated for such offenses at higher rates, they’re also being marginalized within the legal marijuana industry.
[quote position="full" is_quote="true"]We pre-date the United States, so we plan on lasting longer than the United States government. So we have to think in long terms.[/quote]
At first, it seemed likely that Native Americans would benefit from the legal marijuana industry. According to the 2012 Census, Native American farmers are responsible for over 50 millions acres of land and sold over $1 billion in agricultural business. Because they are located within sovereign borders, they’re not subject to the same income tax laws that U.S. citizens are subject to. Indian reservations have to comply by federal laws, but not by state ones. And a 2014 memo from the Department of Justice briefly permitted tribal nations to regulate the production and sales of cannabis products within their sovereign borders.
CannaNative co-founder Cedric Black Eagle. Photo courtesy CannaNative.
The conditions stipulated in that memo have since been revoked by Attorney General Jeff Sessions, and Native cannabis entrepreneurs have found themselves with a unique challenge. Although many states, like Colorado and California, have passed laws for recreational marijuana use, federal regulations still outlaw it. Which is trouble, because it’s the latter that tribes must comply with, says Anthony Rivera. He’s the CEO of CannaNative, a company that is helping Native American tribes develop economic and regulatory policies for localized cannabis industries.
“To have states legalize the cannabis and marijuana in different states causes a complex situation for us because we do not necessarily comply with state laws,” says Rivera. “And as the federal government refuses to get up to speed with the rest of the country, we have to deal with the federal side.”
Even before the DOJ memo was rescinded by Sessions, says Rivera, tribes were still challenged by interventions from the federal government. “We have the ability to pass our own laws and regulate ourselves, but we have to be very careful because in the past, tribes that have tried to do that ... have been [subject to] raids by federal agencies, the DEA, and federalmarshals,” he says. “We don't want to have that again. We're trying to avoid that.“
In one notable incident in 2015, the DEA raided the Wisconsin reservation of the Menominee tribe, and seized 30,000 cannabis plants. The tribe pursued a lawsuit against the DEA for the raid, but it was summarily dismissed.
Photo courtesy of CannaNative.
Rivera says CannaNative is approaching the challenge from two sides: policy change and local development. He’s lobbying to insert language in the latest farm bill that would include Native American reservations in its amendments on the cultivation and sale of industrial hemp. The current 2014 Farm Bill allows the growth of industrial hemp for the purposes of educational and scientific research.
But he’s also working with tribal leaders to help them prove to the federal government that they have the resources and infrastructure in place to manage its own cannabis industry.
“With gaming, in the mid-80s, we had the same problem and we had to demonstrate that we could regulate ourselves,” says Rivera. “We took that issue all the way to the Supreme Court, and Indian tribes won, and that's what we have an exclusive right to regulate Indian gaming.”
The Indian gaming industry set a precedent that Rivera hopes they will be able to replicate with legalized cannabis. “We're following that same model, if you will, of self-governance and self-regulation, to demonstrate that we're responsible and accountable to do that with these industries,” he says.
“We've been around for centuries, and we plan on being around for many more centuries,” he says. “We pre-date the United States, so we plan on lasting longer than the United States government. So we have to think in long terms.”