Native American Tribes Are Seeking Equity in Legal Cannabis

Since Native American tribes are seeking equity in legal cannabis, could this be a win for both social and economic justice?
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As California’s legal adult-use pot laws go into effect, Native American tribes are seeking equity in legal cannabis. More than 100 federally recognized Indian tribes call the state home. Now some of them want into the lucrative marijuana market created by voters when they passed Prop 64 in 2016.

Native American Sovereignty

Under state regulations, all cannabis products sold in the state must be produced by licensed growers and manufacturers. The new rules require license holders to submit to strict regulations and pay steep taxes. Only the state can issue those licenses.

Tribal lawyer Mark Levitan told a national news outlet that this is an affront to Native American sovereignty. “They have to give up their rights to act as governments, with regard to cannabis,” he said.

Instead, tribes would have to agree to “submission of all enforcement” under state rules. They would also be forced to include a waiver of “sovereign immunity” in applications for licenses.

Tribes and the state attempted to come to an agreement before the new rules went into effect on January 1. When they were not able to make a deal, a trade group warned the state that tribes may take things into their own hands.

In December, the California Native American Cannabis Association sent a letter to state regulators. In it, they warned the government that the tribes “may engage in commercial cannabis activities through our own inherent sovereign authority.”

If that happens, “the state will have no jurisdiction to enforce its cannabis laws and regulations on tribal lands,” the letter said.

But that would mean tribes would have to restrict their cannabis growing and sales to their own lands. Their products would not be able to enter the state’s licensed market.

Is There a Solution in Sight?

In an effort to avoid that scenario, tribes are now seeking to create compacts between the state and Native American tribal governments. These agreements would allow tribes access to the legal market for their goods. Also, the state would affirm that tribes would retain “exclusive authority” for the regulation of cannabis operations on their lands.

Such an agreement would be similar to one that was struck between tribes and the State of Washington. Since pot was legalized in that state, seven tribes have come to terms with the government. Even more are still in talks to do so.

In California, lawmakers are working on a similar pact. “Everyone agrees conceptually there should be an even playing field, a level playing field,” said  Rob Bonta, a Democratic state assemblymember from Oakland. But hammering out an agreement will take time. It may take until the end of 2018 for them to reach a deal.

Of course relations with the federal government are another matter entirely. Previously, prosecutors were instructed not to act against people and firms complying with state cannabis laws.

Those protections extended to tribal lands. But when Jeff Sessions rescinded the Cole memo earlier this year, all operators, including Native American ones, are again at risk.

In the end, it all comes down to fairness. Paul Chavez, a former chairman of the Bishop Paiute tribe, said that California’s Native Americans “just want to be able to do business in the state of California and elsewhere, just like anybody else.”

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