When voters in Washington state and Colorado voted to legalize marijuana for recreational use in 2012, the states became the first places in the world, let alone the U.S., to legally allow adults 21 years of age and older to buy and consume marijuana within the state’s jurisdiction.
The keyword is “state’s jurisdiction,” as the end of prohibition has not made its way to Native American reservations in either state. And according to some tribe members, state residents should not expect legalization to occur on tribal-owned land any time soon, citing concerns of substance abuse.
Figuring out which laws do and do not apply to American Indian reservations has long been confusing, as some tribes only have to follow their own laws and that of federal law, while others are required to follow state law. That doesn’t seem to be the case in Colorado and Washington.
Tribal leaders of the Yakama tribe in Washington for instance said they don’t want anyone growing or selling marijuana on their land, including territory it used to occupy and has since ceded to the state.
While there is no question that tribal leaders have every right to prohibit the use and sale of marijuana on their land, what’s currently being questioned is if tribal leaders can prevent marijuana sales on land they used to own, since the federal government promised the tribes would retain certain rights to the lands when they ceded the land.
If the tribes do have the legal authority to block marijuana sales and cultivation, about one-third of Washington state would be affected by the marijuana ban.
News of tribal resistance to legalizing marijuana has been disappointing to many in the two states, including tribal members who say they want to enjoy the same freedoms others in the state have been granted.
Those residents who don’t live on reservations “are moving forward with this massive experiment,” said Troy Eid, chairman of the Indian Law and Order Commission, a national advisory body focused on criminal justice in Indian territory. “And, once again, these tribes are getting screwed.
“Capital is flowing in here from all over the world,” Eid added. “The tribes are going to be left behind, because there’s been no change in state law that applies to them … These are some of the poorest areas in the country. They could be involved in this business as well, but instead they’re being prohibited from being part of what’s happening.”
In Washington, the state’s Liquor Control Board that has been tasked with implementing and regulating the newly legalized industry. The group is currently sifting through the more than 7,000 marijuana-business license applications it has received so that it can begin to issue licenses in March, and has been asked to deny licenses to those living on the ceded land.
George Colby, attorney for the Yakama tribe, stressed members of the tribe have sent “several hundreds” of letters objecting to the board’s decision to grant licenses to those who want to farm marijuana or run a marijuana dispensary on land that the tribe currently occupies or once did.
“Citizens of the state of Washington don’t get to vote on what happens” in those areas, he said. “The federal government wasn’t supposed to let alcohol come on the Yakama reservation, and thousands of people have died. We’re not going to let that happen again.”
Though Eid supports legalizing marijuana even on tribal lands, the tribal law expert said he believes the Yakama does have the ability to object to growing and selling marijuana on ceded lands, and that other tribes may throw support behind the Yakama to protect their own ceded lands rights.
Although it appears the law isn’t on their side, the liquor board indicated it plans to issue licenses to those in affected areas anyway.
“Objections are made all the time to licenses,” said the state’s liquor board spokesman Brian Smith. “You want to make sure you’re operating within the law as you know it, and that’s what we’ll be doing here.”
If the two sides end up fighting in court, the Washington attorney general’s office said it would defend the liquor board, but added that “the Liquor Control Board is still in the process of issuing licenses so it would be premature to speculate on the issue of how a court might rule on the issue of licenses on ceded lands.”
The federal government may be asked to get involved as well, and determine once and for all what rights tribes have on when it comes to ceded lands.
“This is one of so many of the issues that we are pushing through,” Smith said. “We’re sort of the pioneers here. But we continue onward, into some unknown territory.”