Cannabis bust in Aboriginal lands highlights legal divide
Santa Fe, New Mexico A federal raid on a home marijuana garden on tribal land in northern New Mexico has sowed uncertainty and resentment about US drug enforcement priorities on Native American reservations, as more states introduce legal markets for recreational pots.
In late September, Bureau of Indian Affairs officers confiscated nine pots of cannabis from a home garden in Pecores Pueblo that had been cared for by Charles Varden, a childhood local resident who is not a Native American. The 54-year-old was enrolled in the state’s medical marijuana program to relieve post-traumatic stress and anxiety.
Varden said he was surprised to be put in handcuffs as federal officers seized mature plants laden with buds — an estimated year’s worth of personal supplies.
New Mexico first approved the medicinal use of the drug in 2007, while Pecoris Pueblo decriminalized the medicinal pot of members in 2015. A new state law in June legalized widespread use of marijuana for adults and authorized up to a dozen locally grown plants per household For personal use – with no weight limit.
“I was straight with the officer, and frankly. When he asked me what I was growing, I said, ‘My vegetables, medical cannabis,'” Fardeen said of the September 29 meeting. “And he was like, ‘That could be a problem.'”
The raid has cast a shadow over cannabis as an opportunity for economic development for Indigenous communities, as tribal governments in the Picuris Pueblo and at least one other reservation seek agreements with New Mexico that would allow them to open their marijuana business. The state is home to 23 federally recognized Native American communities. It aims to launch retail sales by April.
More than two-thirds of states have legalized marijuana in some form, including four states that approved recreational pot in the 2020 election and four others under the legislation this year. The US government has avoided cracking down on them, even though the drug remains illegal under federal law to possess, use, or sell it.
The September raid has some scrutiny in its approach to tribal lands such as the Picuris Pueblo, where the Bureau of Indian Affairs provides police to enforce federal and tribal laws in an arrangement common in India. Other tribes operate their own police forces under contract with the BIA.
In a recent letter to Pecoris Pueblo Governor Craig Quancello obtained by the Associated Press, a senior British intelligence agent said the agency would not tell its officers to step down in the Indian country — and marijuana possession and growing remains a federal crime, despite changes in state and tribal laws. .
The letter states that “Advance notification of law enforcement operations is generally not appropriate.” “The BIA is obligated to enforce federal law and does not direct its officers to ignore violations of federal law in the Indian state.”
Officials at the BIA and its parent agency, the Home Office, declined to comment and did not respond to AP requests for details of the raid and its aftermath. Varden has not been charged and it is not known if there will be other consequences.
President Joe Biden this week ordered several Cabinet departments to work together to combat human trafficking and crime on Native American lands, where violent crime rates are more than double the national average.
He did not specifically address marijuana, though he said he supports decriminalizing the drug and erasing previous convictions for pot use. He has not adopted the federal legalization of marijuana.
Portland criminal defense attorney Leland Berger, who advised the Oglala Sioux tribe last year after they passed a law on cannabis, points out that the Justice Department’s priorities on marijuana in India were set in writing under President Barack Obama and then overturned under President Donald Trump, with little From general guidance written since then.
“It is great for me to hear that the BIA is implementing the Federal Controlled Substances Act on tribal lands where the tribe has decreed that protects the activity,” he said.
Across the United States, tribal companies have taken a variety of approaches as they span state, federal law, and judicial cases to gain a foothold in the cannabis industry.
In Washington, the Sukamish tribe has forged a lead role under a 2015 agreement with the state to open a retail marijuana outlet across Puget Sound from Seattle on the Port Madison Preserve. It sells cannabis from dozens of independent producers.
Many Nevada tribes operate their own enforcement department to help ensure compliance with state and tribal licensed marijuana programs, including a locally grown medical marijuana registry. Taxes collected at tribal clinics stay with the tribes and go toward community improvement programs.
In South Dakota, the Oglala Sioux in early 2020 became the only tribe to establish a cannabis market without comparable government regulations, and endorsed medicinal and recreational use in a referendum at Pine Ridge Reservation. Months later, a statewide vote legalizing marijuana in South Dakota, with a challenge from the administration of Republican Governor Kristi Noem now pending in the state Supreme Court.
The US government recognizes the “inherent and inalienable” right to self-government by Native American tribes, but federal law enforcement agencies still selectively step in to enforce a cannabis ban, Berger said.
“The tribes are sovereign states, they have treaties with the United States, and in some cases there is condominium jurisdiction. … It’s kind of that hybrid,” he said.
In late 2020, a group of state, federal, and tribal law enforcement joined forces on a raid on sprawling marijuana plantations with temporary greenhouses in northwest New Mexico with the approval of the Navajo Nation chief. Authorities confiscated more than 200,000 plants. At the time, New Mexico limited marijuana cultivation to 1,750 plants per licensed medicinal cannabis product.
In Picuris Pueblo, Quanchello said the cannabis industry holds economic promise to tribal lands too remote to support a full-fledged casino. Picuris operates a smoke shop from a roadside trailer and is close to opening a gas station with a sandwich shop and a convenience store.
“We are natural farmers. It’s something we can do here and be good at,” Quanchillo said. “We don’t want to miss it.”
He described the BIA raid as an affront to the Pecoris pueblo, with echoes of federal enforcement in 2018 uprooting about 35 cannabis plants grown by the tribe in the medicinal marijuana invasion.
State legislators in 2019 adopted uniform medical marijuana regulations in tribal and non-tribal lands.
In legalizing recreational marijuana this year, the legislature led by New Mexico Democrats and Governor Michael Logan Grisham emphasized the need to create jobs, bolster state revenue and address concerns about harm to racial and ethnic minorities through the criminalization of the drug.
Judith Dworkin, an attorney in Scottsdale, Arizona who specializes in Native American law, said tribal cannabis companies face lower risks of interference by federal law enforcement as states have strong legal markets for pot.
“It is much easier for a tribe to take a position that they want to do something similar” to the state, she said. “There is still danger.”
Quanchello said he sees federal enforcement of cannabis laws in Picuris Pueblo as discriminatory and unexpected.
“We as a tribe could end up investing a million dollars in a project, thinking it was okay. And because of a rogue officer or someone who doesn’t think something is right, it can be stopped.”
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