In a memo made public yesterday, the United States Department of Justice revealed that US Attorneys around the country have been instructed to treat any Indian Nation choosing to legalize marijuana consistent with the priorities DOJ previously outlined exness for all states in the August 2013 Cole Memorandum.  By treating Indian Country the same as states, the DOJ is recognizing the inherent right of tribes to make their own decision whether to participate in the marijuana industry.  The Cole Memorandum indicated that DOJ would focus its resources on the following eight law enforcement priorities:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence exness trade and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

For Tribes Considering Whether to Enter the Marijuana Industry
The decision to enter into the marijuana industry should not be taken lightly.  There are a number of policy issues to be evaluated, such as the impact on the tribal court system, Indian Child Welfare programs and employment.  Compliance with exness trading other federal grants for housing, foster care funding and 638 contracts also needs to be considered.  Robust regulatory systems must be implemented and enforced.  Tribes should also consider entering into MOU’s with the Department of Justice and the U.S. Attorney Office.

As in any other emerging area of law and industry, these first steps are the most important and should be carefully evaluated before taking action.

Warning Regarding Federal Law: The possession, distribution, and manufacturing of marijuana is illegal under federal law, regardless of state law which may, in some jurisdictions, decriminalize such activity under certain circumstances. Federal penalties for violating the federal Controlled Substances Act (the “CSA”) are serious and, depending on the quantity of marijuana involved, can include criminal penalties of up to 20 years in prison and/or a fine of up to $2,000,000. 21 U.S.C. § 841. The penalties increase if the sale or possession with intent occurs within 1,000 feet of a school, university, playground, or public housing facility. 21 U.S.C. § 860. In addition, the federal government may seize, and seek the civil forfeiture of, the real or personal property used to facilitate the sale of marijuana as well as the money or other proceeds from the sale. 21 U.S.C. § 881. Although the U.S. Department of Justice has noted that an effective state regulatory system, and compliance with such a system, should be considered in the exercise of investigative and prosecutorial discretion, its authority to prosecute violations of the CSA is not diminished by the passage of state laws which may permit such activity, including Initiative 502 in the State of Washington.