Dear Pot Lawyer,
Are the local tribes going to start selling weed?
Yes, I think so. Recently, in the Cannabis Law and Policy class I teach, we hosted Pi-Ta Pitt from the Confederated Tribes of Warm Springs. This particular tribe owns land in Central Oregon and Mr. Pitt is its Cannabis Project Coordinator. He told us the story of what the tribe has been up to regarding weed. It was fascinating.
To start, it’s worth noting that tribes are in a similar position to states when it comes to dealing with federal prohibition. Like the states, the tribes received a memo way back when (the 2014 “Wilkinson Memo”), which is a flimsy policy statement to local US attorneys. It tells them that tribes can be left to experiment with weed if they follow federal priorities: keeping weed from kids, cartels, inter-state commerce, etc. And it gives many cheerless warnings that this policy could be reversed at any moment.
In the past few years, federal attorneys have watched warily as tribes have explored the cannabis space. State-level officials have also been watching, but their ability to meddle is different. This goes back to Public Law 280, a federal statute allowing certain states to “assume jurisdiction over reservation Indians.” The statute transferred federal law enforcement authority within tribal nations to six state governments, including Oregon, but somehow exempted Warm Springs. Why? Nobody really knows, but there are many alluring theories. One is that everyone felt bad for screwing up the Warm Springs border back in the day (the border does not accord with the relevant treaty).
The upshot here is that unlike many tribes, Warm Springs doesn’t have to worry about the state attempting to shutter its cannabis program. Still, the tribe is well served to talk to Oregon, for many reasons. The primary one is that the Tribe wants to sell its pot off the reservation, and needs state permission to do so. (It received that.) A related issue, which is still being talked through, is how the whole sales tax part might work.
Warm Springs took a prudent approach by also approaching the feds. The feedback from US attorneys seems to have been this: What you are doing is illegal, and unlike Oregon, which at least had Measure 91, it also seems illegitimate. According to Pitt, the tribe took this to heart and held a referendum on growing pot. Everyone turned out in a winter storm, and it passed—with 86 percent approval.
Recently, the tribe broke ground on a grow facility, but it has taken some lumps along the way. One was the closure of its bank account. Pitt rightly pointed out that large banks still work with Oregon and accept pot money, but will not do so from the tribe. Both the tribe and state are sovereigns, so that seems very unfair.
This story is still being written, but keep your eyes out for Warm Springs weed next year. It will be a cool story when it finally comes together.