Yesterday, the Department of Justice, in considering the implications of marijuana sales on tribal lands in states where recreational marijuana is legal, said that the decision to sell marijuana on tribal lands would be left up to the tribes themselves.
The decision was related to questions by Oregon tribes as recreational marijuana becomes legal in those states. After all, possession and sale of marijuana on federal lands is a federal crime, and Indian tribes fall under federal jurisdiction. The tribes asked, if it is legal to sell marijuana in Oregon, is it legal for tribes to sell marijuana in Oregon? Or is that still a violation of federal law despite its legality in the rest of the state.
Taking a hands-off approach, the Department of Justice issued the following statement regarding the sale of marijuana on tribal lands:
"Indian Country includes numerous reservations and tribal lands with diverse sovereigngovernments, many of which traverse state borders and federal districts. Given this, the UnitedStates Attorneys recognize that effective federal law enforcement in Indian Country, includingmarijuana enforcement, requires consultation with our tribal partners in the districts andflexibility to confront the particular, yet sometimes divergent, public safety issues that can existon any single reservation.
Nothing in the Cole Memorandum alters the authority or jurisdiction of the United Statesto enforce federal law in Indian Country. Each United States Attorney must assess all of thethreats present in his or her district, including those in Indian Country, and focus enforcementefforts based on that district-specific assessment. The eight priorities in the Cole Memorandumwill guide United States Attorneys' marijuana enforcement efforts in Indian Country, includingin the event that sovereign Indian Nations seek to legalize the cultivation or use of marijuana inIndian Country. Consistent with the Attorney General's 2010 Indian Country Initiative, inevaluating marijuana enforcement activities in Indian Country, each United States Attorneyshould consult with the affected tribes on a government-to-government basis. When in thejudgment of a United States Attorney, significant issues or enforcement decisions arise that mayimplicate this policy statement, each United States Attorney should keep the Executive Office forUnited States Attorneys, the Office of Tribal Justice, and the Office of the Deputy AttorneyGeneral informed of those matters, in advance of any determination on how to proceed, in orderto keep the Department's leadership apprised of significant issues and to maintain consistencythroughout the Department."
In short, it appears that the DOJ will allow tribes to decide for themselves whether or not to legalize the sale of marijuana on their lands, as long as they comply with existing standards, mandatory infrastructure, and the eight priorities set forth in the Cole memorandum.
So does that mean that pot could soon be legal in Oklahoma, if only on tribal lands? Not so fast. Because marijuana is illegal throughout the state, the implications for law enforcement and the sale of marijuana within federal regulations makes the point moot.
According to U.S. Attorney Sanford Coats of the Western District of Oklahoma in Oklahoma City, "We've had no indication from our tribes, in the western district, at least, that they have any interest in this. Practically, I can't see how that would even be possible in Oklahoma because we don't have any legalized sale of marijuana here, medical or otherwise. . . . Part of the policy...contemplates a well-regulated state system for marijuana cultivation and sale and, for obvious reasons, we don't have that here in Oklahoma."
In other words, legal pot in Oklahoma isn't likely to happen any time soon.
