A Justice Department memo sets the stage for Indian tribes to grow and sell marijuana, but do they even want to?
There may be no better friend to Native Americans than President Barack Obama, who has gone out of his way to foster economic development by extending gaming and energy development rights, among many other benefits, to the impoverished community. But in an odd twist, his administration’s latest entreaty—to allow marijuana crops and sales on reservations—is being viewed by some tribes as not very friendly at all.
"We actually have no idea what’s going on here," said Troy Eid, a Denver attorney and chairman of the Indian Law and Order Commission, which advises Obama and Congress on tribal criminal justice issues. "What we do know is that, for unknown reasons, there has been no consultation between the administration and tribes as to what they want to do. It’s a very unusual gap in how this president has approached things."
The Justice Department said last week that it will treat tribal lands—and there are 300 in 30 states—as it does the four states that have legalized marijuana. In its memo, the department said it was responding to the request of "some tribes" that had asked for guidance.
“We actually have no idea what’s going on here.”
Troy Eid, presidential adviser on Indian criminal justice issues
"No idea," responded Jacqueline Pata, executive director of the National Congress of American Indians, when asked which tribes made the request.
Eid, whose firm represents more than 70 tribes, said that while some of his clients might be interested in exploring their marijuana options, many more are upset and worried that this DOJ memo gives the federal government, which handles prosecution of crimes that occur on reservations, an excuse to not enforce drug laws. Lots of tribes want robust prosecution, he said. Indians have struggled with addiction, so many are sensitive to making it easier to obtain drugs of any kind.
Wyn Hornbuckle, a DOJ spokesman, said the agency will deal with tribes as individual governments. The policy statement recognizes that "some tribes are very concerned with public safety implications, such as the impact on youth, and the use of tribal lands for the cultivation or transport of marijuana, while others have explored decriminalization and other approaches," he said, noting that marijuana remains illegal under federal law.
So far the Mohegan Indian Tribe of Connecticut is one of the few to publicly express interest in marijuana as a cash crop. They also were trailblazers in the gaming industry, though their receipts have been flagging in recent years. As Eid points out, the Justice memo makes no mention that it took this step as a way to bolster tribal finances. "Maybe it looks like they’re doing something good, but I don’t think that’s clear," he said.
That being said, Obama has had far better relations with Indian country than previous presidents, Eid and Pata said.
"He has been the best president for Indian country," Pata said. Obama set the stage for this on the campaign trial in 2008, visiting reservations and making promises to respect tribes as the independent nations that are. He also made it personal a year after his historic election. “Over the last few years, I’ve had a chance to speak with Native American leaders across the country about the challenges you face, and those conversations have been deeply important to me,” Obama said in an address to Indian leaders in November 2009. “I get it. I’m on your side. I understand what it means to be an outsider.”
In a three-part series last year, Bloomberg News explored the friendly relationship between Obama and Indian country through the lens of gambling. He has tried to usher more tribes into this $28 billion industry, to the delight of many Native Americans and the irritation of Senator Dianne Feinstein, a fierce opponent of gambling. Under President George W. Bush, new licenses for tribal casinos on off-reservation lands had all but stalled. Obama’s Bureau of Indian Affairs not only began approving long-dormant projects, but redefined what counts as highly regulated, taxed slot machines, opening up new cash flows for tribes. And when a U.S. Supreme Court ruling questioned the sovereignty of at least 50 tribes, some of which want to open casinos, the Obama administration found a work-around.
The economic benefits of vice are hotly debated. Legalized pot in the states is too new for assessment. Economists who have studied the Indian gaming industry have found mixed results. Casinos help some individual tribes, but not the demographic as a whole. One in four American Indians was living in poverty in 2012. It’s far higher at some reservations. At one that Obama visited this year, Standing Rock Sioux Tribe in South Dakota, nearly half of the inhabitants live in poverty.
The DOJ’s marijuana decision has the potential to be lucrative, especially because crops would likely not face the high taxes imposed by the states. And maybe some tribes will go for it, Eid said. "But we’re far from that," he said. "At this point the administration needs to start over, and start with some serious tribal consultation."