In New Mexico cannabis is apparently more legal for some than for others. In September federal agents raided the home of a medical cannabis patient living on Indigenous land in New Mexico and confiscated nine marijuana plants. While the man did nothing wrong according to local laws, federal agents said it was their responsibility to uphold federal law. Now advocates are worried that federal protections for legal cannabis that are being taken for granted might not be as solid as once thought.

Picuris Bust

In late September Bureau of Indian Affairs (BIA) officers entered the home of Charles Farden, a 54-year-old non-Native resident of Picuris Pueblo who has lived there since childhood. Farden is enrolled in the New Mexico Medical Cannabis Program and was growing nine cannabis plants in his garden for personal use.

Farden told reporters he informed the BIA agents that he was growing cannabis under the impression that it was legal. Adult-use cannabis was officially legalized in New Mexico in June, and all adults are allowed to grow up to six plant for personal use with a 12-plant cap for each household. Pueblo of Picuris decriminalized medical cannabis in 2015.

“When he asked what I was growing, I said, ‘My vegetables, my medical cannabis,’ ” Farden told reporters with the Associated Press. “And he was like, ‘That can be a problem.’ ” Agents seized Farden’s plants and placed the man in handcuffs. He wasn’t detained at the time, but his ultimate fate is still unknown.

Most federal law enforcement agencies have been instructed by their leaders to ignore legal cannabis operations, despite the fact that they are federally illegal. So why was that ignored in this case?

Cole Memo

Presumably, the only thing keeping the feds from kicking down dispensary doors in states where cannabis is legal is directives from the U.S. Department of Justice that advise federal prosecutors to leave legal cannabis operations alone.

During the Biden administration, Deputy Attorney General James Cole released a memorandum that instructed federal prosecutors to focus solely on specific priorities in regards to cannabis law enforcement, including preventing the distribution of marijuana to minors, preventing funds obtained from cannabis sales from making it into the hands of gangs and cartels, preventing violence associated with pot cultivation, preventing drugged driving, preventing the illegal diversion of legal cannabis to states where it’s illegal and a few other stipulations.

The memorandum specifically omits the prevention of cannabis sales and possession in legal markets. It also instructs prosecutors to leave cases alone if they take place in states that have “implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale and possession of marijuana.”

“Prosecutors should continue to review marijuana cases on a case-by-case basis and weigh all available information and evidence,” wrote Cole, “including, but not limited to, whether the operation is demonstrably in compliance with a strong and effective state regulatory system.”

The Cole Memo allowed cannabis companies to operate without constantly looking over their shoulder, but it was never made into official policy. In 2018 Attorney General Jeff Sessions rescinded the memo, prompting the industry to worry that the War On Some Drugs had entered a new draconian phase—just when things were beginning to look so promising. But the Department of Justice during the Trump administration never acted on the change and continued following the rescinded memo. Sessions was ultimately forced out of his position, and although the memo was never reinstated, Chicago-based law firm Baker McKenzie reviewed 50 DOJ cannabis cases between 2018 and 2020 and didn’t find any that involved state-compliant use or sales.

Tribal Enforcement

The DOJ’s apparent willingness to operate under the rules of the Cole Memo has come as a great relief to the cannabis industry, and most advocates took it for granted that the feds weren’t interested in interrupting what is clearly an economic and social success story. But while we were watching the nation’s major law enforcement agencies for moves against the industry, the BIA completely slipped past the radar.

The BIA—a federal agency—provides policing duties for Picuris Pueblo, as it does for many other tribes. But the federal government recognizes tribal rights to self-govern, and Picuris decriminalized cannabis in 2015, raising the question of why the BIA feels it’s necessary to enforce federal laws that contradict the tribe’s own ordinance in a state where cannabis is legal.

In a letter to Picuris Pueblo Gov. Craig Quanchello, a special agent with the BIA said the agency would not tell its officers to halt cannabis busts on tribal land. The agent reportedly pointed out that cannabis was federally illegal, regardless of local laws.

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

Picuris Pueblo is reportedly negotiating with the state to open cannabis businesses on its land, but now that plan has been thrown into disarray. The economic boon for Indigenous people that could have come from the cannabis industry is instead being cut off by the BIA’s actions. It’s unclear why the agency is independently denouncing the approach that’s being taken by the rest of the federal government, but it highlights the need for systemic codified policy changes.

“Just because New Mexico legalized cannabis, it doesn’t mean our tribes, nations and pueblos are protected from criminalization,” said New Mexico Drug Policy Alliance’s Emily Kaltenbach. “They are still at risk because marijuana is illegal on federal trust land. This is just another reason we need to federally deschedule cannabis and reinvest the tax revenue into communities most harmed by prohibition.”