During the Obama administration, the United States Department of Justice (DOJ) issued a series of memos stating that the federal government would not interfere with state laws legalizing cannabis. The United States Attorney General later expressly extended this policy to Indian Country. As a result, tribes began debating potential advantages and disadvantages of participating in the cannabis market. Then, in January 2018, the DOJ rescinded the memos and publicly recommitted itself to prosecuting the possession, cultivation, and distribution of marijuana. Consequently, tribes should approach “The Green Rush” as an exercise of their sovereignty; when a tribe decides to legalize or criminalize cannabis within its territory, the tribe protects its dominion vis-à-vis both federal and state governments. This assertion of sovereignty will, in turn, encourage the federal government to decisively clarify its cannabis policy in Indian Country.

Several articles exist already discussing the intersection of tribal, state, and federal law, and how the three conflict in the cannabis market. This paper introduces a missing element to the analysis: the tribal debates about whether legalizing cannabis presents economic opportunity or a grave threat to Native communities. This lens gives insight into two points. First, the federal government’s undefined policy regarding cannabis products in Indian Country created the environment for tribes to make their own decisions regarding legalization. Second, tribal debates and decisions regarding participating in the cannabis market are opportunities for tribes to exercise and protect their sovereignty against interference from both state and the federal governments. This study brings tribal perspectives on cannabis in Indian Country to the forefront.



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