Cannabis case on Indigenous lands highlights legal divide – The Journal

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Law enforcement officers from the Office of Indian Affairs inspect a cannabis garden in Picuris Pueblo, NM. (John Pettit via AP)

John pettit

SANTA FE – A federal raid on a domestic marijuana garden on tribal lands in northern New Mexico sows uncertainty and resentment over U.S. drug control priorities on Native American reservations, as more in addition to states are deploying legal markets for the sale of recreational pots.

In late September, officers from the Bureau of Indian Affairs confiscated nine cannabis plants from a family garden in Picuris Pueblo that was tended by Charles Farden, a local resident since childhood who is not Native American. The 54-year-old is enrolled in the state’s medical marijuana program for post-traumatic stress and anxiety relief.

Charles Farden is handcuffed as law enforcement officers from the Bureau of Indian Affairs inspect a cannabis garden in Picuris Pueblo, NM (John Pettit via AP)

John pettit

Farden said he was surprised to be handcuffed as federal agents seized mature plants laden with buds – an estimated personal amount per year.

New Mexico first approved the drug for medical use in 2007, while Picuris Pueblo decriminalized medical pot for members in 2015. A new state law in June broadly legalized marijuana for members. adults and allowed up to a dozen locally grown plants per household for personal use – with no weight limit.

“I was just open with the officer, straight up. When he asked me what I was growing, I replied, “My vegetables, my medical cannabis,” Farden said of the September 29 meeting. “And he said to me, ‘It could be a problem.'”

The raid cast a shadow over cannabis as an economic development opportunity for Indigenous communities, as the tribal governments of Picuris Pueblo and at least one other reservation pursue deals with New Mexico that would allow them to open marijuana companies. The state is home to 23 federally recognized Native American communities. Its goal is to launch retail sales of jars by April.

More than two-thirds of states have legalized marijuana in some form, including four that approved recreational pot in the 2020 election and four more through legislation this year. The US government has avoided cracking down on them, although the drugs remain illegal under federal law to own, use, or sell.

The September raid examined its approach to tribal lands like Picuris Pueblo, where the Bureau of Indian Affairs provides police services to enforce federal and tribal laws in a common arrangement in the Indian country. Other tribes manage their own police forces under contract with the BIA.

In a recent letter to the governor of the Picuris Pueblo tribe, Craig Quanchello, obtained by the Associated Press, a BIA special agent said the agency will not tell its agents to withdraw to the Indian country – and that possession and cultivation of marijuana remains a federal crime. , despite changes in state and tribal laws.

“Prior notification of law enforcement operations is generally not appropriate,” the letter said. “The BIA Office of Justice Services is obligated to enforce federal law and does not require its officers to disregard violations of federal law in the Indian country.”

Officials from the BIA and its parent agency, the Home Office, declined to comment and did not respond to requests from the PA for more details on the raid and its implications. Farden has not been charged and does not know if there will be any other consequences.

President Joe Biden this week ordered several Cabinet departments to work together to tackle 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, although he did say he supported the decriminalization of the drug and the overturning of convictions for cannabis use in the past. He has not embraced the federal legalization of marijuana.

Portland-based criminal defense attorney Leland Berger, who advised the Oglala Sioux tribe last year after passing a cannabis ordinance, notes that the Justice Department’s priorities for marijuana in the Indian country were described in writing under President Barack Obama and then rescinded under President Donald Trump, with little written public guidance since.

Charles Farden, right, is handcuffed as law enforcement officers from the Bureau of Indian Affairs inspect a cannabis garden in Picuris Pueblo, NM. The raid casts a cloud over plans by Picuris Pueblo tribal authorities to open a cannabis business as New Mexico legalizes sales of recreational marijuana. (John Pettit via AP)

John pettit

“It is remarkable for me to hear that the BIA is enforcing the federal Controlled Substances Act on tribal lands where the tribe has issued an ordinance that protects the activity,” he said.

In the United States, tribal businesses have taken a variety of approaches straddling federal and state laws and jurisdictional issues to gain a foothold in the cannabis industry.

In Washington, the Suquamish Tribe played a pioneering role in a 2015 deal with the state to open a marijuana retail store across Puget Sound from Seattle on the Port Madison Reservation. He sells cannabis from dozens of independent producers.

Several Nevada tribes maintain their own enforcement divisions to ensure compliance with state and tribal authorized marijuana programs, including a registry for locally grown medical marijuana. Taxes collected from tribal clinics remain with the tribes and are allocated to community improvement programs.

In South Dakota, the Oglala Sioux in early 2020 became the only tribe to establish a cannabis market without similar state regulation, approving medical and recreational use in a referendum on the Pine Ridge reservation. Months later, a statewide vote legalized marijuana in South Dakota, with an administration challenge from Republican Gov. Kristi Noem pending in the state’s Supreme Court.

The US government recognizes an “inherent and inalienable” right to self-government for Native American tribes. But federal law enforcement agencies still intervene selectively to enforce the cannabis ban, Berger said.

“Tribes are sovereign nations, and they have treaties with the United States, and in some cases there is concurrent jurisdiction. … it’s kind of that hybrid, ”he said.

In late 2020, a combination of state, federal, and tribal law enforcement cooperated in a raid on sprawling marijuana farms with makeshift greenhouses in northwestern New Mexico with the consent of President de the Navajo Nation. Authorities seized more than 200,000 plants. At the time, New Mexico limited the cultivation of marijuana to 1,750 plants per licensed producer of medical cannabis.

At Picuris Pueblo, Quanchello said the cannabis industry is an economic promise for tribal lands too remote to support a full-fledged casino. Picuris operates a smokehouse from a roadside trailer and is set to open a gas station with a sandwich shop and mini-grocery store.

“We are farmers by nature. It’s something we can do here and be good at it, ”Quanchello said. “We don’t want to miss it.”

He described the BIA raid as an affront to Picuris Pueblo, with echoes of federal law enforcement in 2018 uprooting around 35 tribal-grown cannabis plants during a foray into medical marijuana.

State lawmakers in 2019 passed uniform regulations for medical marijuana on tribal and non-tribal lands.

In legalizing recreational marijuana this year, the Democratic-led New Mexico legislature and Governor Michelle Lujan Grisham have underscored the need to create jobs, bolster state revenues, and address concerns about the damage caused to racial and ethnic minorities by the criminalization of drugs.

Judith Dworkin, a Scottsdale, Arizona-based lawyer specializing in Native American Indian law, said tribal cannabis companies were less at risk of interference from federal law enforcement, where states have strong legal markets for the pot.

“It’s much easier for a tribe to take a stand that they want to do something similar” to the state, she said. “It’s always a risk.”

Quanchello said he viewed federal enforcement of cannabis laws in Picuris Pueblo as unpredictable and discriminatory.

“As a tribe, we can end up investing a million dollars in a project, thinking it’s OK. And because of a dishonest officer or someone who doesn’t believe something is right, it could be stopped, ”he said.


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