Legal Update: Marijuana Law IN - PowerPoint Presentation

1. Legal Update:Marijuana Law IN Indian CountryWagenlander & Heisterkamp, LLCSylvia WirbaJonathan TsosieDecember 6, 2022NAIHC Legal SymposiumLas Vegas, Nevada

2. IntroductionsWagenlander & Heisterkamp, LLCLocated in Denver, ColoradoWe represent TDHEs across U.S. and PHAs in ColoradoColorado first state to implement legalization of recreational marijuana use

3. Summary of PresentationLegalization Federal and State Legalization IssuesWill Discuss Current Examples of Types of Legalization and Implementation at the Tribal LevelTribal Case Studies TDHE ChallengesNot Advocating For or Against Legalization

4. Cannabis in u.s. Historically Federal Law-Use and possession illegalControlled Substances ActSchedule I substanceGreat potential for abuseNo exceptions for medicalMedical Use1996-California first state to approve for medical use by ballot measure2014-Rohrabacher-Farr Amendment prevents Justice Department from spending funds to interfere with the implementation of state MMJ laws. Currently effective until December 16, 2022. Recreational Use2012-Washington and Colorado first to legalize by ballot measure2014-Colorado first to implement licensed sales

5. Cannabidiol (CBD) Cannabidiol (CBD) is a compound found in marijuanaCBD can be derived from hemp or marijuana Cannabis Sativa PlantHemp and marijuana are two different varieties Both naturally produce CBD, along with other cannabinoids They look the sameDifference is the level of tetrahydrocannabinol (THC)

6. CBD and Hemp THC is the compound that causes people to get “high.Marijuana plants contain a much higher amount of THC, which can be as high as 30%Hemp has a nearly non-existent amount of THC Less than 0.3% THC CBD is marketed in many consumer products:FoodsOilsLotionsCapsulesCosmeticsAs with other cannabis types, legality will vary from state to state depending on level of THC

7. Federal farm bills2014-Allowed states to implement pilot programs growing hemp for academic or agricultural research2018-Allows hemp cultivation with some restrictions. Allows for the transfer of hemp-derived products across state lines for commercial or other purposes. It also puts no restrictions on the sale, transport, or possession of hemp-derived products, so long as those items are produced in a manner consistent with the law. (Hemp CBD) 2019-USDA clarified applicability to Tribes

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9. Current National StatisticsAs of November, 2022Recreational 21 states and D.C. (Maryland and Missouri November 2022)Medical39 states and D.C, Decriminalized27 states have partially or fully decriminalized some offenses for possessionCBD with THC Only7 statesFully illegal6 states

10. TribesFor more than 10 years, tribes have been making changes to tribal laws related to cannabis.Recreational MedicalCBDDecriminalizationState Compacts

11. October 6, 2022 White house announcementPresident Biden directed the Attorney General to pardon all prior federal convictions of simple possession of marijuana (federal only)Urged State Governors to do the same for state offensesCalled for a review of how marijuana is scheduled under the Controlled Substances ActEmphasized that prohibitions on trafficking, marketing, and under-age sales to stay in place

12. Numerous bills introduced in congressMarijuana in Federally Assisted Housing Parity Act of 2021 H.R. 3212This bill specifies that (1) an individual may not be denied occupancy of federally assisted housing on the basis of using marijuana in compliance with state law, and (2) the Department of Housing and Urban Development may not prohibit or discourage the use of marijuana in federally assisted housing if such use is in compliance with state law.Referred to House Committee on Financial Services in 2021No further progress

13. Bills Introduced RecentlyMarijuana Opportunity Reinvestment and Expungement Act (MORE Act)H.R. 3617Would decriminalize marijuanaWould remove from list of Controlled Substances Act scheduled substancesWould eliminate criminal penalties for manufacture, distribution, or possessionWould create tax on imports and occupational tax on cannabis production facilitiesOpen SBA loans and services to legitimate cannabis-related businesses

14. More act continuedWould prohibit the denial of federal public benefits to a person on the basis of certain cannabis-related conduct or convictionsWould prohibit the denial of benefits and protections under immigration laws on the basis of a cannabis-related event (e.g., conduct or a conviction)Would Establish a process to expunge convictions and conduct sentencing review hearings related to federal cannabis offensesWould direct numerous agencies to conduct relevant studiesPassed in the House April 1, 2022Received in the Senate April 4, 2022Read twice and referred to Committee on Finance

15. Fy 2023 spending billDraft language in House Bill in June, 2022Language added to protect tribes from federal prosecution when the tribe has legalized marijuanaMay only apply to tribes located in states where marijuana has been legalizedFederal funds appropriated to agencies within Interior, Justice Department, Bureau of Indian Affairs or Office of Justice Services could not be used to “enforce federal laws criminalizing the use, distribution, possession, or cultivation of marijuana against any person engaged in the use, distribution, possession, or cultivation of marijuana in Indian country” where such activity is authorized.

16. Other language in draft FY23 billTribes would be required to take “reasonable measures under tribal marijuana laws to ensure that marijuana is prohibited for minors; marijuana is not diverted to states or tribes where marijuana is prohibited by state or tribal law; marijuana is not used as a means for trafficking other illegal drugs or used to support organized crime activity; and marijuana is not permitted on Federal public lands.”Congress has until December 15, 2022 to pass spending bill or CR (to avoid shutdown)Unknown whether the above provision will make it into final bill.

17. Cole and Wilkinson memorandumsFrom the Department of Justice Cole Memorandum (2013)Emphasized that marijuana still illegal under federal lawProvided examples of when the Federal Government would enforce lawPolicy Statement onlyWilkinson Memorandum (2014)Cole Memorandum as it would be applied to TribesPriorities of Cole would guide U.S. Attorneys MJ enforcement in Indian CountryPolicy Statement only

18. Current status of CM & WMJanuary 2018Rescinded by Attorney General Jeff SessionsFebruary 2021During confirmation hearings, Merrick Garland (current Attorney General)Provided written answers that he did not find it worthy of DOJ time to pursue cases against “those who are complying with the laws in states that have legalized and are effectively regulating marijuana.”Also noted that federal marijuana enforcement example of racial bias (and harmful impact)As of now, no new version of Cole Memorandum or alternative has been issued

19. Enforcement in Indian CountryComplex jurisdictional issuesConflicts of law between jurisdictions (Tribal, State, & Federal)Jurisdictional analysis different for Public Law 280 statesState jurisdiction over P.L. 280 TribesTribal/State relationships

20. Enforcement in Indian countryFederal enforcement policy may change with each new Presidential administrationCongress could pass legislation to address jurisdictional issuesFederal policy for federal enforcement in states and in Indian CountryUnclear how States where MJ is still illegal in some way will enforce their own or differing laws if a Tribe in their state legalizes MJ in some form

21. Early example of Conflicts of law between State jurisdictionsStates of Nebraska and Oklahoma v. State of ColoradoNebraska and Oklahoma filed briefs in the U.S. Supreme CourtAsserted that the marijuana language in the Colorado Constitution is preempted by federal law and therefore unconstitutional and unenforceable under the Supremacy Clause of the U.S. Constitution.That Colorado should be enjoined from all application and implementation of legalization provisions of the Colorado Constitution and any accompanying statutes or regulationsThat legalization in Colorado has placed a heavy burden on neighboring stateU.S. Supreme Court declined to hear the lawsuit in March, 2016Nebraska and Oklahoma also moved to intervene in Safe Streets Alliance v. Hickenlooper, which was consolidated with another case, Smith v. Hickenlooper, in the 10th Circuit (case also dismissed)

22. Suquamish TribeWashington StateRecreational and medical marijuana legal in the state 2015-first Tribal Compact with State (Washington State Liquor and Cannabis Board)1st Tribal marijuana retailerEssentially complies with state retailer for MJ regulationshttps://lcb.wa.gov/publications/Marijuana/Compact-9-14-15.pdf

23. Other tribes in Washington Signing state CompactsSquaxin Island TribeAlso signed a compact with WashingtonPuyallupGrow, test, and sellAlso: Colville Confederated TribesJamestown S'Klallam TribeTulalipMuckleshootPort Gamble S'klallam TribeList not exhaustive

24. Menominee TribeRecreational use illegal state-wide WisconsinMenominee Tribe is Wisconsin’s only non-Public Law 280 Tribe.May 2015-Tribal Members approved legalization of both recreational and medical marijuana on its 360-acre reservation near Shawano.

25. Menominee TribeIn May 2015, Tribe voted to legalize cultivation of low-THC hemp (Farm Bill)October 2015-Federal agents destroy 30,000 plants on the reservationTribe asserts plants were intended for lawful research into growing industrial hemp (2014 Farm Bill)DEA asserted that the plants were marijuana.

26. Menominee TribeNotable Points from the 2015 Search and Seizure WarrantCole Memorandum pointsWorkers hanging up plants were observed not using any protective equipment nor any breathing apparatus-Health and Safety concern enumerated in ColeConcerns that the weapons used for security may also have been in violation of the Cole Memorandum factors.

27. Menominee TribeAgents determined that non-Natives from Colorado were the main cultivators of the hemp operation and were subject to federal jurisdiction.The warrant also identified a non-Native consultant from Colorado and concludes that another Cole factor was triggered regarding the diversion of marijuana from states where legal to state where prohibited

28. U.S. District Court Case Menominee Indian Tribe of Wisconsin v. DEA and DOJ. Filed 11/18/15Action arises from Tribe’s attempt to cultivate industrial hemp on the reservation pursuant to tribal law and Agricultural Act of 2014 (2014 Farm Bill)Tribe requested:Declaration that Tribe acting as a State as described in Farm BillDeclaration that cannabis laws of Wisconsin do not apply to industrial hemp cultivation by Tribe on reservationDeclaration that the Menominee College is an institution of higher education as described in the Farm Bill

29. U.S. District Court Case Menominee Indian Tribe of Wisconsin v. DEA and DOJ Case dismissed May 2016Judge held that Menominee could not grow industrial hemp on its reservationRejected that Tribe should be treated as a state under Farm BillCompared situation to Indian Gaming Regulatory Act (IGRA) which permits a tribe to engage in some gaming activities if gaming is allowed under state law, even though the state would not regulate tribal gaming activitiesShows that individual state law could have impact on the federal approach to tribes and cannabis

30. Current Status-Menominee Tribe2019-USDA states that Tribes could enter into agreements with states to grow hemp for researchHempstead Project HEART working to promote hemp cultivation and products.

31. Flandreau Santee Sioux-South DakotaSouth Dakota-Recreational marijuana illegalNon P.L. 280 TribePlanned to create a resort for recreational marijuanaWorked closely with state and federal officials to ensure all concerns addressedEarly November 2015, tribe burned crop due to concerns about a raidResort opening and cultivation put on hold until jurisdictional issues clarified

32. flandreauHighlights problem when non-Natives travel to a reservation for marijuanaCity of Flandreau Police Chief Anthony Schrad“…[W]e could essentially arrest everyone who is non-Native” South Dakota Attorney General Marty JackleyFor non-Native Americans, “it’s against the law everywhere in South Dakota on tribal land or otherwise” to smoke marijuana…“[A]ny changes in tribal laws wouldn’t affect any non-Indians or non-tribal lands.”

33. flandreauTwo Non-Tribal member Consultant/Advisors who worked with Flandreau Santee Sioux have been criminally charged in South DakotaOne pleaded guilty to count of drug conspiracyTo be sentenced later in December, 2016Another pleaded not guilty to charges of conspiracy to possess, possession and attempt to possess more than 10 pounds of marijuanaAsserts that marijuana was owned by the Tribe

34. Current status at FlandreauMedical marijuana now legal in South Dakota2021-Medical marijuana dispensary and cultivationEmploys at least 50 employees2022-2 new cultivation facilities for medical marijuana Current cultivation in a 10,000-square-foot facility yielding estimated 80 pounds per weekCustomers limited to buying 4 grams of medical cannabis per day

35. Current status at FlandreauBUTMore than 100 people who had tribal medical marijuana cards have been arrested since 2021About 8000 cards issues (members and non-members)State AG and Department of Public Safety assert cards are not valid for non-tribal membershttps://tribalbusinessnews.com/sections/economic-development/13902-after-amazing-10-months-flandreau-santee-sioux-plans-to-expand-cannabis-operations

36. Oglala Sioux tribe2020-Members voted to legalize recreational and medical marijuanaTribe issuing licenses to tribal business owners for cultivating, processing, sales Pine Ridge currently has one dispensary openAlcohol still illegal on reservationhttps://www.keloland.com/keloland-com-original/south-dakotas-first-recreational-marijuana-dispensary/?fbclid=IwAR05EKth9xRvjw988ocHSlxb0byaELLFjiBc9l9ekVpNPVk8WSBZ1ry9d_0

37. Oglala Sioux TribeSD-Recreational illegal, medical legalOwner of dispensary in Pine Ridge estimates that half of the customers come from off the reservation, including nearby Nebraska.Potential risk taking purchased items home when they leave reservations, risk greater if the customer does not have SD medical card.

38. California tribesRecreational and medical legalAlturas Indian Rancheria/Pit River ReservationPrior to legalization of recreational MJEnrolled population small.DOJ received information about large scale marijuana cultivationRaid conducted by BIA/DEA/State and County officialsSeized over 12,000 plants and over 100 pounds of processed marijuana

39. California tribesPinoleville Pomo NationGrow and manufacture MMJ on tribal lands, operation was to sell to authorized users and dispensaries in accordance with CA state lawSmall tribal populationMendocino County Sheriff’s Office conducted raid in September, 2015382 MJ plants destroyed“Sheer size of the operation.”Sheriff asserted aim was financial gain not allowed under state law

40. CaliforniaSan Ysabel TribeConverted unused casino to cannabis cultivation and processingCalifornia does not currently allow Tribes to participate in state cannabis programs.No compact systemTribes considering an in-state intertribal exchange

41. New MexicoPueblo of Picuris and Pueblo of Pojoaque sign intergovernmental agreements with New StatePrevents federal enforcement on tribal landJuly, 2022-Pueblo of Pojoaque opens first cannabis dispensary on tribal lands located in New Mexicohttps://www.santafenewmexican.com/news/local_news/new-mexico-signs-agreement-to-let-2-pueblos-engage-in-cannabis-activities/article_c271f03e-ac61-11ec-81c1-ffa52b018fc9.htmlhttps://www.politico.com/news/2022/04/05/tribes-marijuana-laws-00022899

42. Las Vegas Paiute TribeNevada-Recreational legal since 2016June 2017-Nevada SB375 authorizes agreements between the Governor and Indian Tribes related to the use of marijuanaOctober 2017-Tribe opens 15,800 square foot NuWu Cannabis MarketplaceAlso have cultivation and production facilities

43. Other Tribal ActivityOmaha Tribe of Nebraska and Winnebago Tribe-HempYakama Nation-ban on MJ grows and sales on tribal and ancestral lands, but cultivation, processing and distribution of hemp now legalNavajo Nation-hemp pilot project with NM State University, but recreational and medical marijuana still illegal

44. Tribal legalizationWe recommend that TDHEs provide input and try to be involved if their Tribe considers legalization. Revenue to Tribe—advocate to put some $$ to Housing.Be prepared to reconsider and revise some policies and/or practicesTDHEs will be impactedhttps://www.projectcbd.org/culture/showdown-navajo-nation

45. Tdhe management issuesDetermine what will be allowed in units (use, sale, cultivation)Establish a uniform standard to enforceSmoking violationsOdors and other nuisancesBehaviorImpact on Unit Private Cultivation (increased water and electricity usage, weight, wiring issues) Impact on communitiesCommercial Activity in Units

46. Hud’s position so farSeptember 24, 1999 MemoMedical Use of Marijuana in Public HousingJanuary 20, 2011 MemoMedical Use of Marijuana and Reasonable Accommodation in Federal Public and Assisted HousingFebruary 10, 2011 MemoMedical Marijuana Use in Public Housing and Housing Choice Voucher ProgramDecember 29, 2014 MemoUse of Marijuana in Multifamily Assisted Properties

47. Hud’s position so farManufacture, distribution or possession of marijuana is a federal criminal offenseNone of the opinions specifically cover NAHASDA HUD relies on Quality Housing and Work Responsibility Act of 1998 (QHWRA) as authority

48. QHWRA and AdmissionPublic Housing Authorities (PHAs) required to deny admission to any household with a member who the owner determines is illegally using a controlled substance, including marijuanaNo discretion for PHAsMMJ costs cannot be used as part of medical deduction when calculating rentNo similar language in NAHASDA

49. QHWRA and Continued OccupancyPHA must establish policies which allow for the termination of tenancy for illegal use of marijuanaEnforcement is discretionaryCannot have lease provisions or policies that affirmatively permit occupancy by any member who uses marijuana NAHASDA allows for discretionary termination for drug-related criminal activity

50. Examples from Colorado Public Housing AuthoritiesWe represent a diverse group of PHAs who have differing approaches to marijuana in their units. Client in a small and conservation community prohibits all marijuana in their units, including medical. Client in metro area will evict only when it interferes with the health, safety and right to peaceful enjoyment of other residents.Client with no smoking policy where smoking marijuana would be a violation that could lead to eviction.

51. Employment issuesNAHASDA requires TDHEs to be Drug Free WorkplacesPotential ConflictsBetween Tribal Law and TDHE Employment PolicyDiffering standards for employees and tenantsHarder to enforce because of testing issuesColorado Supreme Court caseCoats v. Dish NetworkColorado Supreme Court held that employer zero-tolerance policy can override Colorado MMJ laws

52. 2023 and beyondFederal LawChanges to Controlled Substances ActNew version of Cole MemorandumHouse and Senate bills would need to be re-introduced to move forwardState LawState legalization likely to continue

53. Thank you!Wagenlander & Heisterkamp, LLC1700 Broadway, Suite 710Denver, CO 80290sylviaw@wagenlander.comjonathant@wagenlander.com