Senate Committee On Indian Affairs Hosts Historic Indigenous Listening Session

On Friday, June 17, the Senate Committee on Indian Affairs (SCIA) held its first-ever listening session on Indigenous communities and issues surrounding the cannabis industry, called “Cannabis in Indian Country.” The virtual listening session was open to comments from tribal leaders, their designees, and other experts from Native communities on tribal cannabis commerce and related equities. It was a well-attended event, with over a hundred tribal cannabis advocates and experts speaking on behalf of concerns as well as solutions to ensuring tribal communities greatly impacted by the War on Drugs are not left out of federal decriminalization efforts by Congress.

“Cannabis In Indian Country”: A Bipartisan Listening Session

Jennifer Romero, Staff Director and Chief Counsel to Senate Committee on Indian Affairs Chairman Brian Schatz (D-HI), opened the “Cannabis in Indian Country” listening session framing an evolving political and economic landscape for tribes. The feedback was guided by four questions provided to tribal stakeholders ahead of time. Romero stated that due to the “overwhelming response to this listening session,” participant comments were limited to three minutes.

The bipartisan listening session lasted nearly two hours, with SCIA staff encouraging written comments to be provided to tribal_cannabis@indian.senate.gov by July 8th. Staff representatives introduced themselves and included council and policy advisors for Senator Schatz and Senator Lisa Murkowski’s (R-AK) offices. The listening session started with a glitch as a few of the participants encountered technical issues with audio, but ended with many of the participants being allowed to speak beyond the allocated three minutes.

Seneca Nation’s Unique Position And Sovereignty In Tribal Cannabis

Overall, the session focused on themes of the U.S. government’s non-interference with tribal cannabis economies, transportation and regulation at all levels - federal, state and local. Seneca Nation Council member Josh Jimerson and tribal attorney Lee Redeye provided the opening remarks and comments and the Nation’s position on cannabis decriminalization. According to Redeye, the Seneca Nation holds a unique position in Indian Country, having “absolute and exclusive title to its lands as recognized by treaty between the Seneca Nation and the United States government.” With this position and legal foundation, the Seneca Nation sees cannabis compacting with the State of New York as a violation of the 1794 Canandaigua Treaty. The treaty affirmed the sovereignty of the indigenous Six Nations residing in western New York, and even as recently as March of this year, state regulators had agreed that tribal sovereignty would allow indigenous nations to open cannabis operations on their own lands before adult-use retail began for the rest of the region. Any attempt for regulators to interfere now would certainly be a violation of those agreements.

Tribal Cannabis Autonomy: Reinstating The Cole Memorandum?

Many speakers brought up the issue of tribal autonomy, free from state intervention or federal language mandating any authority in cannabis development. Several of the comments were related to protections for Nation-to-Nation transportation and included references to current federal language in the 2018 Farm Bill related to transportation and state non-interference.

Several participants, including Mississippi Choctaw Band of Indians Don Kilgore, who serves as Counsel to the Council, mentioned reinstating the Cole Memorandum. Originally issued in 2013 during the Obama administration, the Cole Memorandum directed that the Department of Justice would not enforce federal cannabis prohibitions in states which had legalized some form of the plant. The memo was unfortunately rescinded in 2018 under then-Attorney General Jeff Sessions during the Trump administration. In February 2021, Attorney General Merrick Garland went on the record saying that he intended to reinstate some form of the Cole Memorandum, although there has been no action taken yet.

During Kilgore’s remarks at the SCIA session, he stated that the Choctaw tribe had reached out to Garland and the Biden Administration requesting that they reinstate the Cole Memorandum and other protective measures, but “had not heard back from them. That would be a big help to us in addressing the federal concerns about cannabis on reservation lands.”

Indigenous Opposition To Cannabis: Santa Clara Pueblo’s Statement

Frank Demolli, an attorney and judge for the Santa Clara Pueblo Tribal Government for the past 26 years, sent his regards on behalf of Governor J. Michael Chavarria, who was traveling and could not attend the session. Demolli commented that the Santa Clara Pueblo does not participate in any form of cannabis legalization because “Santa Clara Pueblo does not want to step into the legal quicksand right now.” Demolli requested that the SCIA enact legislation ending the U.S. government’s discriminatory practices regarding possession, use and sales of marijuana within Indian Country. “All of these promises about not prosecuting… any Judge or attorney knows they do not hold water. It’s very nice, but they can’t be used as a defense. So, apparently right now DOJ’s unwritten policy is to ignore the illegal possession, use and sale of marijuana in the states. However, they do prosecute the citizens of Indian Country for the same thing. And so, we would like the committee to consider passing some kind of legislation to end this discriminatory prosecution.”

Mary Jane Oatman Of The Indigenous CANNabis Coalition On Legislative Solutions

Mary Jane Oatman, Executive Director of the Indigenous CANNabis Coalition (ICANNC) and member of the Nez Perce Tribe, commented on a history of adversarial tribal-state relationship in Idaho, with concerns for an overarching political landscape that is opposed to tribal cannabis economic development. She stated that her tribe has not moved forward with cannabis due to fears of “interference of state and federal agencies in Indian Commerce in cannabis.” Oatman provided comments for legislative solutions, stating “We have many robust and compliant tribal operations that we need to look to… The biggest legislative solution that we have as our battle cry for the Indigenous CANNabis Coalition is deference to tribal sovereignty and non-intervention and non-interference from states. We need to do everything that we can to keep states at arm’s length in cannabis economies because Tribes know how to do these things for the public health and safety of our communities.”

No State-Tribal Cannabis Compact: The Special Case Of The Bay Mills Indian Community

Whitney Gravelle, President of the Bay Mills Indian Community, introduced her tribe as being active participants in the state of Michigan and one of few tribal operators in the United States that functions without a state-tribal cannabis compact in the operation of the Northern Lights Cannabis Company. “Bay Mills Indian Community licenses, regulates and oversees the operations of our facility as a sovereign nation. It is extremely important that tribal nations are treated with respect because we are more than capable of regulating cannabis, just as much as we regulate many of the other complex legal jurisdictional schemes within our reservations.” She mentioned transportation and taxation concerns, as well as the existence of federal Indian case law that determines taxation which could be addressed in cannabis reform. Gravelle additionally raised another concern hindering tribal participation, stating that “many tribal law enforcement agencies go through great hurdles to achieve their SLEC [Special Law Enforcement Commission] cards and those should not be threatened to be taken away or jeopardized because their tribal nation has decided to engage in economic diversity and supporting their tribal operations by entering the cannabis industry.”

Barriers To Entry And Banking Needs

Jyl Wheaton-Abraham, a member of the Kootenai Tribe of Idaho and owner of Medical Grade Inc., is one of the first Native women to have owned and licensed hemp farms in the U.S. A business owner with over two decades of experience, she spoke about how she has to live and operate her business 550 miles away from her tribal community because of Idaho’s hostile views on cannabis. Wheaton-Abraham noted that the greatest barrier to safe and legal cultivation and transportation of raw cannabis and cannabis products by tribes is the plant’s current Schedule 1 listing on the Controlled Substances Act. “By misrepresenting cannabis as a dangerous substance with a high potential for abuse and with no medical use… creating a huge educational gap in tribes considering any kind of cannabis business simply because the Schedule 1 listing mischaracterizes the plant.”

Wheaton-Abraham also spoke about the need for banking solutions, as small business owners and marginalized groups face great obstacles in trying to operate legitimate cannabis businesses. “Federal funding for small businesses like mine who practice sustainable regenerative agricultural methods. As tribal communities get into farming cannabis, I would like to see less emphasis on large scale, industrial farming practices which promote soil erosion and soil degradation, water loss and contamination and more of an emphasis on soil building methods.”

With more proposals currently being reviewed for federal cannabis legalization than ever before, it’s telling that the SCIA has picked this moment to start in-depth conversations with indigenous nations about the business of the plant. One can only hope this historic event is a pathway toward greater progress and destigmatization.