Pubdate: Sun, 08 Mar 2015
Source: Milwaukee Journal Sentinel (WI)
Copyright: 2015 Journal Sentinel Inc.
Contact: http://www.jsonline.com/general/30627794.html
Website: http://www.jsonline.com/
Details: http://www.mapinc.org/media/265
Author: Cary Spivak

DOES LAW OPEN DOOR TO TRIBAL POT OPERATIONS?

Cannabidiol Rule, Federal Memo Raise Questions

In 1991, U.S. District Court Judge Barbara Crabb ruled that the 
creation of the Wisconsin lottery meant Indian tribes here could open 
gaming halls on their reservations - a ruling that paved the way for 
the explosive growth of tribal casinos in the state.

Today, some tribal leaders are betting that legal lightning could 
strike again. This time they're hoping that lawmakers may have 
unintentionally opened the door for tribes to grow and sell marijuana 
last year when Gov. Scott Walker signed a bill legalizing a 
derivative of marijuana for limited medical use.

"The issue is there, yes, absolutely," said James Santelle, U.S. 
attorney for the Eastern District of Wisconsin. "That's the kind of 
thing that needs to be resolved."

The tribes are studying a law that legalized the used of cannabidiol 
to treat children who have frequent seizures. Cannabidiol is a 
marijuana byproduct. It contains a small amount of THC, so it does 
not make users high.

Even though using cannabidiol is a far cry from smoking a joint, 
lawyers may argue the law gives tribes a green light to grow and sell 
marijuana on their reservations - just as the lottery led to the 
creation of Indian casinos offering craps, roulette and thousands of 
slot machines.

"Wisconsin has decriminalized what appears to be a very narrow usage 
of marijuana for these seizures," said Matthew Fletcher, a Michigan 
State University Law School professor who heads the school's 
Indigenous Law and Policy Center. "The question is whether this 
apparently narrow state law is sufficient to serve as an entree into 
broader tribal decriminalization."

Indian country has been abuzz since December, after the release of a 
U.S. Department of Justice memo telling federal prosecutors not to 
prevent tribes from growing or selling pot on their reservations - 
even in states such as Wisconsin where it is illegal.

The memo, which provided scant details on how tribes and prosecutors 
should proceed, followed up on a 2013 Justice Department memo. The 
earlier memo said that when enforcing marijuana laws the department 
would use "its limited investigative and prosecutorial resources to 
address the most significant threats in the most effective, 
consistent and rational way."

Adding to confusion in Wisconsin is that 10 of the state's tribes are 
covered by PL 280, a law that gives state, local and tribal 
authorities the power to enforce criminal law on reservations.

The Menominee tribe, however, is not covered by PL 280, after it lost 
and later regained federal recognition. As a result, criminal laws on 
its reservation are prosecuted in tribal court or by federal 
authorities. Menominee leaders last month said they were 
investigating whether to grow and sell marijuana on its reservation 
near Shawano.

Some tribes investigating

Though Indian law experts acknowledge the Menominee are in the best 
position of any Wisconsin tribe to turn a profit off pot, several 
others are looking into ways to cash in.

David Armstrong, who heads the Indian law office for Wisconsin 
Judicare in Wausau, said: "There is considerable interest in Indian 
country" about getting into the marijuana business.

"Federal and state laws and policies can change," Armstrong said. 
"Tribes are kind of smelling the grass in the wind."

Howard Bichler, an attorney for the St. Croix Chippewa, agreed 
Wisconsin tribes other than the Menominee could look at marijuana for 
business opportunities.

"There is a potential for PL 280 tribes - I wouldn't discount it," 
Bichler said. "But I also wouldn't discount the obstacles."

The St. Croix Chippewa was one of at least four Wisconsin tribes that 
recently attended a conference in Washington state dealing with how 
tribes could enter the marijuana business. Officials of several other 
state tribes, such as the Ho-Chunk and Potawatomi, say they have no 
interest in pot enterprises.

Indian tribes have long been known for pushing the envelope to take 
advantage of economic development opportunities. Wisconsin tribes, 
for example, were using unregulated gray-market slot machines in 
illegal casinos for years before Crabb's ruling that led to the 
legalization of tribal casinos throughout the state.

"Almost nothing comes easy for Indians," said Robert Porter, an 
Indian law attorney and former president of New York's Seneca tribe. 
"It's not like the federal government is going to open their 
checkbook. . . . If they can't give us the money for our needs, then 
please get out of our way, so we could make it ourselves."

Porter said that as more states legalize marijuana for medical use, 
tribes will be able to take advantage of growing and selling the product.

Meanwhile, some Wisconsin tribes are quietly looking at the 
cannabidiol law as providing them with a more immediate opportunity.

"Wisconsin has opened the door just a tiny crack," said one source 
with ties to several Wisconsin tribes. "Will that be enough to drive 
a truck through?"

Some, such as Armstrong, said the crack may be big enough to allow 
Wisconsin tribes to grow marijuana to make cannabidiol but not large 
enough allow them to sell other medical or recreational marijuana.

Other Indian law experts say, however, tribes may be able to mount a 
court fight aimed at allowing them to sell all types of marijuana on 
their reservations.

"The argument is out there, and there are a lot of folks who are pro 
(tribal) economic development who are going to be pressing the 
issue," said Skip Durocher, cochair of the Indian law practice group 
at Dorsey & Whitney in Minneapolis.

Fletcher, the Michigan State professor, noted that courts have ruled 
that tribes can engage in activities regulated by the state. "Hence, 
we have gaming, so long as the state allows any forms of gambling, 
such as charity poker nights at the church," Fletcher, who edits 
Turtle Talk, an Indian law blog, added in an email.

At the least some tribes can be expected to use the Justice 
Department memo and the 2014 state law to justify production of cannabidiol.

Santelle, who has been meeting with tribal leaders, said that 
officials at the Sokaogon (Mole Lake) Chippewa tribe told him they 
were considering making and selling cannabidiol. The tribe, however, 
did not discuss using the cannabidiol law as an opening to sell other 
pot products, Santelle said.

John Vaudreuil, U.S. attorney for the Western District of Wisconsin, 
acknowledged the argument could be made.

"It does present a different issue," said Vaudreuil, who, like 
Santelle, is meeting with tribal leaders about the marijuana memo. He 
doesn't, however, see cannabidiol opening the door for pot growing 
and sales by Wisconsin tribes. "Federal law regarding marijuana has 
not been repealed," he noted.

Pot remains illegal

Vaudreuil and Santelle said they have stressed to tribal officials 
that despite the memo, the drug remains illegal and federal and state 
prosecutors can and will continue to enforce marijuana laws on and 
off reservations.

The U.S. Justice Department memos listed eight enforcement priorities 
to guide prosecutors in deciding what cases to focus on. The 
priorities include preventing tribes from transporting marijuana to 
states where the drug is illegal - a restriction that would likely 
keep any Indiangrown marijuana on reservation grounds in Wisconsin. 
Other restrictions include ensuring that the marijuana is not to be 
sold to minors and that funds from the sales not go to "criminal 
enterprises, gangs, and cartels."

Santelle warned that PL 280 tribes must be wary of state and local 
prosecutors since the memo provided guidelines only for federal 
prosectors. A spokeswoman for Attorney General Brad Schimel declined 
to respond to questions about the issue.

"We're in a state where it is still illegal to possess and transport 
marijuana," Santelle said. "It's still going to be our decision on 
whether to investigate and prosecute individual cases."
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MAP posted-by: Jay Bergstrom