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.