Marijuana Jurisdictional/Regulatory Challenges for Tribes - PowerPoint Presentation

Slide1

Marijuana Jurisdictional/Regulatory Challenges for Tribes & Tribal Businesses—A National Perspective

Christine M. Masse

NITA 17th

Annual Tax Conference

September 17, 2015Slide2

The Current AdministrationPresident Obama"I smoked

pot as a kid, and I view it as a bad habit and a vice, not very different from the cigarettes that I smoked as a young person up through a big chunk of my adult life. I

don't

think it is more dangerous than alcohol

."

-

The

New Yorker, January

2014Slide3

The Current AdministrationFormer Attorney General Eric HolderComments about racial disparities in criminal justice system

Comments about potentially rescheduling

2013 DOJ Cole Memo

2014 DOJ Wilkinson MemoSlide4

The Current AdministrationSlide5

The Current Administration2014 DOJ/Wilkinson Memo (cont'd)

"Nothing in the Cole Memorandum alters the authority or jurisdiction of the United States to enforce federal law in Indian Country. Each United States Attorney must assess all of the threats present in his or her district, including those in Indian Country, and focus enforcement efforts based on that district-specific assessment. The eight priorities in the Cole Memorandum will guide United States Attorneys' marijuana enforcement efforts in Indian Country, including in the event that sovereign Indian Nations seek to legalize the cultivation or use of marijuana in Indian Country."Slide6

The Current Administration2014 DOJ/Wilkinson Memo (cont'd)

8 federal priorities

Preventing distribution to minors;

Preventing revenue from going to criminal enterprises;

Preventing diversion of marijuana from states where it is legal to states where it is illegal;

Preventing legal marijuana activity from being a cover for other illegal activity;

Preventing violence and gun use;Slide7

The Current Administration2014 DOJ/Wilkinson Memo (cont'd)

8 federal priorities (cont'd)

Preventing DUI and exacerbating other public health problems;

Preventing growing marijuana on public lands; and

Preventing marijuana possession on federal property.Slide8

The Current AdministrationCurrent Attorney General Loretta Lynch Confirmation

hearings

Administration

formally weighing in on

Nebraska and Oklahoma v. ColoradoSlide9

United States Supreme CourtNebraska & Oklahoma v. Colorado, filed Dec. 2014

Jurisdiction per

Article III, Section 2, Clause 2 of the

U.S.

Constitution

NE

and OK alleging

CO's

legalization laws are preempted by federal law and unconstitutional and unenforceable under the Supremacy Clause

WA

and OR have filed amicus briefs urging Court to reject case

Solicitor General invited

to file brief on May

4,

2015Slide10

DOJ and Native American Issues SubcommitteeTim Purdon (North Dakota) and Brendan Johnson (South Dakota

) resigned February 2015

Michael

Cotter (Montana) and Damon Martinez (New Mexico

) appointed March 2015Slide11

What Does the DOJ Memo Mean?

Initial press

Presentations

by DOJ, including John Walsh, US Attorney, District of Colorado

Letters

from DOJ in specific

casesSlide12

DOJ LettersSlide13

DOJ LettersFrom Randolph J. Seiler, Acting US Attorney, District of South Dakota (cont'd)

"

But

nothing in the August 29 Memorandum or the October

28

th

Guidance alters the

authority or jurisdiction of the United States

to enforce

federal

law in

Indian Country

or elsewhere

. Accordingly

, the

U.S.

Attorney's

Office…will

apply the

eight factors…to the cultivation

, distribution

, or possession of marijuana

,

including hemp, on the Pine Ridge Reservation

."Slide14

DOJ Letters

Slide15

DOJ LettersFrom Benjamin Wagner, US Attorney, Eastern District of

California (cont'd)

"Recently

, the [BIA] provided my office with a copy of a memorandum

purportedly written

by you...I am writing to express my concern regarding the misleading

and incorrect

content of that memorandum…Specifically, the first sentence of that memorandum states,

'On

December 11, 2014, the Federal Government released a memorandum to

the Justice

Department stating that it would not prosecute Native American Nations

for cultivating

and selling marijuana on their sovereign land

.'

That statement is categorically untrue

."Slide16

DOJ Press Release

FEDERAL AND LOCAL LAW ENFORCEMENT EXECUTE SEARCH WARRANTS AT LARGE-SCALE COMMERCIAL MARIJUANA CULTIVATION FACILITIES ON TRIBAL

LANDSSlide17

DOJ Press ReleasePit River (cont'd)

"Consistent

with Department of Justice guidelines and the federal

government's

trust relationship with recognized tribes, the U.S.

Attorney's

Office consulted with members and representatives of both tribes on multiple occasions before

today's

action. The U.S.

Attorney's

Office reminded the tribes that the cultivation of marijuana is illegal under federal law and that anyone engaging in such activity did so at the risk of enforcement action. The U.S.

Attorney's

Office also expressed concern that large-scale commercial marijuana grows on tribal lands have the potential to introduce

quantities of

in a manner that violates federal law, is not consistent with

California's

Compassionate Use Act, and undermines locally enacted marijuana regulations

."Slide18

CongressNo movement on re- or de-schedulingVarious bills introduced that are silent as to

tribes

Sen

. James Lankford (R-Okla

): Keeping

out Illegal Drugs Act of 2015 (

S.1984)

(KIDs Act)

on August 5,

2015

Ties

a

tribe's

CSA compliance to federal

appropriationsSlide19

StatesHistory of compacts (gaming, cigarettes, fuel)Tribal marijuana compacts

States with

illegal marijuana

States with

legal marijuanaSlide20

Washington's HB 2000"The legislature finds that these agreements will facilitate and promote a cooperative and mutually beneficial relationship between the state and the tribes regarding matters relating to the legalization of marijuana, particularly in light of the fact that federal Indian law precludes the state from enforcing its civil

regulatory

laws in Indian country

."Slide21

Washington's HB 2000Subjects(a) Criminal

and civil law enforcement;

(b) Regulatory

issues related to the commercial production, processing, sale, and possession of marijuana, and processed marijuana products, for both recreational and medical purposes;

(c) Medical

and pharmaceutical research involving marijuana; Slide22

Washington's HB 2000Subjects (cont'd)(d) Taxation

in accordance with subsection (2) of this section;

(e) Any

tribal immunities or preemption of state law regarding the production, processing, or marketing of marijuana; and

(f) Dispute

resolution, including the use of mediation or other nonjudicial process.Slide23

Washington's HB 2000TaxesState tax

(excise, sales, and use) does

not apply to commercial

activities related to the production, processing, and sale of marijuana covered by an agreement

Tribal tax

parity, but no restrictions on use of proceedsSlide24

Washington's HB 2000Taxes (cont'd)Exemptions from tribal tax:

Sales

to tribes,

tribal businesses

,

tribal member-owned businesses, and tribal members;

On marijuana grown, produced, or processed within Indian country (value-generated);

On activities otherwise exempt under state or federal law; or

Medical marijuana products used in course of treatment by a health facility owned by tribe.Slide25

First Tribal-State Marijuana Compact

http

://lcb.wa.gov/publications/Marijuana/Compact-9-14-15.pdfSlide26

Thank You

Christine M. Masse

christine.masse@millernash.com