Congress Reconsiders Regulating Cannabis Use

By: Theodore J. Griswold | Partner | ted.griswold@procopio.com
Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com

Bipartisan legislation introduced this week in the U.S. Senate initiates a change to federal law, S.B. 683, would regulate the medical use of marijuana without fear of prosecution. The CARERS Act which stands for the The Compassionate Access, Research Expansion, and Respect States Act joins a similar House bill introduced in February, the Regulate Marijuana Like Alcohol with a similar intent.

The CARERS Act authorizes physicians to prescribe cannabis for veterans receiving care in Veteran’s Administration (VA) medical facilities. Because these sites are federal, medical marijuana use is currently prohibited at the VA even in states that allow cannabis use by prescription or for recreational uses. This would give veterans another option for seizures and pain management. Congressional staffers say this provision could secure additional bipartisan support.

The bill is silent on its impact on Indian Health Service policies.

One major aspect of the Senate bill, S.B. 683, is to remove cannabis from a Schedule I classified drug on the Controlled Substances Act. The reclassification to Schedule II, shifts cannabis from a federally-criminalized substance to one that has recognized medical uses.

The Senate bill also empowers the financial industry to conduct business with dispensaries, growers, and manufactures that are currently without viable options in banking because of the Bank Secrecy Act of 1970. Without such empowerment, there are major logistical issues for those involved in the industry because of the copious amount of cash that cannot be deposited because of federal regulations prohibiting the banking industry for working with those in the cannabis sector. However, this bill would create a safer environment for the public. Currently there are cannabis businesses keeping large amounts of cash on hand because of bank depositing limitations, or move large amounts of money by private cars from point A to point B, creating public safety issues for citizen in case of targeted robberies.

The full text of S.B. 683 is available here.

Indian Country will have to lobby Congress for similar treatment to the VA and it is unclear how Congress will treat Indian Country. However, the inclusion of tribal governments within states that eased regulation for cannabis use aligns with the 2014 Department of Justice Memorandum addressing enforcement in Indian Country.

Procopio is in a position to assist tribal governments work through these questions.

Please subscribe to our blog and you will be notified of an upcoming blog post on the: Social, Political and Cultural Ramifications of Marijuana Legalization in Indian Country.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Stephanie Conduff, a tribal citizen, works with tribal governments and citizens on Capitol Hill on issues of regulation, self-governance, and self-determination.

Who is Responsible for Road Maintenance of Non-BIA Roads in Indian Country?

By: Rachel Giubilato | Law Clerk
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Jurisdictional issues on public, state maintained roads located in Indian country can be problematic for tribal governments.   This issue was recently emphasized where the Navajo Nation Tribal Court sought jurisdiction over a tort suit between tribal members and an off-reservation corporation for an automobile accident which occurred on a state highway located within Indian reservation boundaries. (EXC Inc. v. Jamien Jensen (No. 12-16958, 9th Cir. 2014))

The EXC Inc. court ruled that, pursuant to Strate v. A-1 Contractors (520 U.S. 438 (2011)), tribal court jurisdiction is only appropriate if an exception under Montana v. United States applies. (450 U.S. 544 (1981)). Under Montana, tribal courts have jurisdiction if:

(1) the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements; or

(2) when nonmember conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

Under Strate, and now again under EXC Inc., the courts have held “a tort suit arising out of a state highway accident does not implicate the second Montana exception” and thus precludes tribal court jurisdiction. So if a tortious act on a road crossing tribal lands does not satisfy the second maintenance prong, what hope do tribes have in gaining jurisdiction over hazardous conditions on these roads? It is undeniable that the safety of roads on reservations is critical to the health and welfare of tribal members. This decision does little to help situations where state and county roads through Indian lands are poorly maintained.

The finding is unfortunate, as the courts continue to hold a hard line against tribal jurisdiction on state highways located within Indian reservations; however, issues with poor maintenance of these same roads and illegal dumping from the roads persists. Decisions like those in EXC Inc. have left tribes without jurisdiction to rectify the situation. At the same time, county and state governments are not always responsive in correcting dumping or maintenance situations.

It is time to ensure that roads crossing reservations are getting appropriate attention from state and local jurisdictions, or those entities need to cede jurisdiction to tribes. Until tribes are provided better control over poor conditions or unlawful acts occurring on roads crossing or abutting reservations, they will need to report such activities to state and municipal authorities. Should your tribe encounter issues of dumping, poor maintenance or criminal activity on a non-tribal road crossing your reservation, here are the responsible parties that you will want to contact:

•      San Diego County Illegal Dumping from County Roads | 858.694.3850
•      San Diego County Road Maintenance Needs | 877.684.8000
•      Emergency or Criminal Activity and Reporting | 858.565.5262
•      Additional contacts for specific problems are found here.
•      California Department of Transportation (Caltrans – state highways) | 916.654.2852

Assistance from the State of California, Department of Transportation for maintenance on any state highway may be requested via e-form here.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.