Tribes who have attempted to pursue cannabis cultivation and have taken steps necessary to avoid the eight enforcement priorities of the Cole Memorandum are finding out that those eight priorities are not deterring federal enforcement to the extent anticipated. In April 2015 article 40 Questions Tribal Governments Should Consider When Discussing Whether to Undertake a Cannabis Business, the blog included this question: “Does Department of Justice (DOJ) Policy Statement mark a permanent shift in policy that you can rely on?” Recent raids in Indian Country may answer that question in the negative.
It is well understood that the Cole Memorandum did nothing to legalize marijuana cultivation on Indian reservations. However, its intent seemed to put tribes on an equal footing with the states in terms of the DOJ’s hands-off approach for certain operations, while diverting federal resources to those operations that pose more significant threats to public health and safety, such as those that involve or fund criminal organizations.
Rather than limit discretionary enforcement, the Cole Memorandum is being used as a basis for enforcement. Several tribes have attempted to cultivate marijuana for recreational use or even industrial hemp for research purposes, only to be confronted with significant opposition by federal and state authorities. Most recently, the federal government raided the Menominee Reservation in Wisconsin for allegedly growing marijuana, despite the tribe’s insistence it was growing industrial hemp in accordance with the Farm Bill of 2014. Whether it was marijuana or hemp, the raid offers insight into the Drug Enforcement Administration’s (DEA) concerns regarding marijuana cultivation on reservations and the effect, if any, of the Cole Memorandum.
Despite tribes’ best efforts to comply with the Cole Memorandum, DEA officials seem willing to stretch those enforcement priorities to encompass any conceivable scenario, giving them the broadest possible interpretation, and raising doubts about the purpose and effectiveness of the memorandum. DEA officials pointed to two priorities under the Cole Memorandum within the affidavit in support of the warrant to search the Menominee operation. The first was a reference to health and safety concerns stating: “All points of ventilation were closed except the front door which Brian Goldstein advised that it needs to stay shut. Workers hanging up the green leafy substance up in the drying facility had no protective equipment on nor had breathing apparatus. This is a health and safety concern for the community and individuals associated with the operation, which is in violation of one of the enumerated priorities listed in Cole Memorandum regarding adverse public health concerns of marijuana cultivation.” The application of the Cole Memorandum Priorities to worker health and safety is surprising considering the priority actually reads: “preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use.”
The second priority identified was “preventing the diversion of marijuana from states where marijuana is legal in some form to other states.” Relying on this priority, the DEA officials repeatedly pointed out that the consultant for the operation was a white, non-tribal member from Colorado. According to the DEA, his non-native status and his Colorado citizenship triggered the Cole Memorandum priority “regarding the diversion of marijuana from states where marijuana is legal in some form to other states, [in] this case Wisconsin where marijuana cultivation is illegal in all forms.”
The rationale for the search and seizure creates additional questions for tribes considering cannabis cultivation: Must they only hire Native Consultants and/or must those consultants be from a state where marijuana is legal in some form to avoid enforcement action by the DEA? What standards of health and safety for workers should be followed? The uncertainty of enforcement action has led one tribe, the Flandreau Sioux Tribe, to suspend its operation—burning its crop rather than risk a raid by federal law enforcement.
The DOJ Policy Statement is part of a larger discussion on the legalization of cannabis and hemp. It application, however, should be seen for what it is—a prioritization of enforcement. As such, it is important for tribes to be aware of the evolving standards and applications of the Cole Memorandum Priorities by federal law enforcement to better assess the potential risk to the tribe and to protect future cannabis ventures.
Gabriela is a citizen of the Cahuilla Band of Indians and currently clerking for Procopio. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and is awaiting July California bar results.