Pubdate: Sun, 19 Apr 2015
Source: Oklahoman, The (OK)
Copyright: 2015 The Oklahoma Publishing Co.
Author: Gerald Jackson
Page: 2C


While the picture is still blurry, legal marijuana could be coming to
Indian country in Oklahoma. Such a possibility may seem far-fetched,
but recent policy pronouncements by the U.S. Department of Justice are
making the once unthinkable a real possibility.

While marijuana is still illegal in all of its forms in Oklahoma, more
than 20 states have legalized it for either medical or recreational
use. Nonetheless, it is still illegal in all states under federal law
to manufacture, distribute or dispense marijuana.

Federal banking and money laundering laws also make activities
connected with selling or distributing marijuana a federal crime.

However, beginning in 2009, the Justice Department issued a series of
policy statements announcing that the federal government will not use
its scarce resources to prosecute activities that comply with state
marijuana laws so long as the state implements strong and effective
regulatory enforcement systems to control the distribution, sale, and
possession of marijuana and the access of minors to marijuana.

In October 2014, the Justice Department issued another policy
statement acknowledging tribal governments' right of
self-determination and extending its policy for state marijuana
legalization to lands within tribal governments' jurisdiction.

Interest is high among tribes to explore the possibility of legalizing
marijuana and reaping the economic benefits experienced by states that
have blazed the legalization trail. Nonetheless, tribes must be
cautious as there are many issues to consider, including:

Policy statements, such as those on marijuana, do not have force of
law and can be changed at any time. Tribal authorities and employees
that rely on current Justice Department policy could be prosecuted
under federal marijuana laws if those policies change, even for
activities occurring under the old policy favoring legalization. This
risk is increased because Attorney General Eric Holder recently
resigned and his replacement may have different views. Also, the new
administration after the 2016 presidential election could change or
completely rescind current marijuana policy.

Implementing adequate regulatory enforcement systems for marijuana
legalization to satisfy the current policy requires a great deal of
resources and expertise in areas many tribes may not have much experience.

These areas include preventing involvement of criminal enterprises in
the marijuana trade, preventing the export of marijuana to states or
areas outside of tribal lands where it is not legal, and preventing
drugged driving. These are not activities tribes have historically

Legalizing marijuana on tribal lands within the border of a state such
as Oklahoma that has not legalized marijuana may set off political or
legal battles between the two sovereigns. In most instances, legalized
marijuana on tribal lands will require transportation across
non-tribal areas and sales networks will use banking systems regulated
by the state. Oklahoma's recent lawsuit against Colorado over its
legalization effort indicates Oklahoma will likely oppose any
legalization effort on tribal lands located within the state.

The potential social consequences to tribal members may not justify
the potential economic benefit. Many tribes already suffer the
devastating consequences of substance abuse rates that, according to
the 2013 National Survey on Drug Use and Health, are higher among
Native Americans than the population at large. Legalizing marijuana
may increase difficult social problems already facing many tribes.

A lot of legal, structural and practical concerns are rolled into the
question of whether a tribe should legalize marijuana on tribal lands.
Even with these many questions, however, the economic benefits might
be too tempting for some Oklahoma tribes to pass up. Gerald Jackson is
an attorney with Crowe & Dunlevy and a member of the firm's Indian Law
& Gaming practice group.
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