Tuesday, March 28, 2023

Pueblos and Pot—Will Feds Abide?

Tribes Face Federal Intervention


New Mexico has signed an intergovernmental agreement with Picuris and Pojoaque Pueblos reinforcing the Tribes’ sovereignty in developing their own cannabis policies. Under the 10-year agreement, the pueblos will be able to operate cannabis production, manufacturing and retail businesses as well as apply for state licenses for operations conducted outside of Tribal lands. The governor says the agreement will protect the Pueblos from federal interference, but will the feds cooperate?

Providing a Financial Boon

New Mexico’s Tribal lands are home to some of the most economically disadvantaged individuals in the nation. According to the January edition of the New Mexico Kids Count Data Book, 40.1 percent of Native children in the state are currently living in poverty.

The biggest industries in Picuris Pueblo are bison ranching and farming—two areas that have been hit especially hard by droughts and pandemic shortages. Allowing the Pueblos to gain access to the adult-use cannabis market—a right given to all other residents in New Mexico—could greatly help to improve living conditions on Tribal lands.

The intergovernmental agreement between the state and the two pueblos should make this an instant success story, but the threat of federal intervention still looms. A measure that is regularly attached to the federal funding bill bars the Department of Justice (DOJ) from spending money to prosecute cannabis companies in states and territories that have legalized the drug. That measure doesn’t protect Tribes, however. And it doesn’t apply to entities like the Department of the Interior, which oversees the Bureau of Indian Affairs (BIA). This distinction means the Pueblos don’t have the same protections as states do.

Will Feds Respect Agreement?

“I can’t prevent the feds or the DOJ from acting any number of ways,” Lujan Grisham told reporters. “We’re actively working on getting them to reinstate their memos, which is basically guidance telling the DOJ that the sovereign nations’ independence on these issues, related to state law, should prevail.”

The Cole Memorandum was issued in 2013 and instructed U.S. district attorneys to avoid prosecuting federal cannabis crimes that are deemed lawful under local laws. The memo told prosecutors to pursue only cases against violators who were suspected of selling cannabis to minors, distributing the drug across state lines or a number of other egregious infractions.

The Wilkinson Memorandum was issued a year later. It clarified how federal prosecutors were to respond to Tribal cannabis regulation, noting the previous guidance from the Cole Memo. “The eight priorities in the Cole Memorandum will guide United States Attorneys’ marijuana enforcement efforts in Indian Country, including in the event that sovereign Indian Nations seek to legalize the cultivation or use of marijuana in Indian Country.” The memo also notes that attorneys should “consult with the affected tribes on a government-to-government basis” before pursuing prosecutions.

But both the Cole and Wilkinson memos were rescinded by former Attorney General Jeff Sessions in 2018 under the Trump administration. Current Attorney General Merrick Garland’s made comments during his confirmation hearings in 2021 that seemed to signal that he was willing to consider a return to an Obama-era approach. Senator Cory Booker (D-NJ) asked Garland if he planned on bringing the Cole Memo back, and he answered that “This is a question of the prioritization of our resources and prosecutorial discretion … . It does not seem to me a useful use of limited resources that we have, to be pursuing prosecutions in states that have legalized and that are regulating the use of marijuana, either medically or otherwise. I don’t think that’s a useful use.”

However Garland came short of saying he would reinstate the memo, and he has yet to do so. Last week the attorney general was once again asked about the Cole memo and he said his stance hasn’t changed. “The Justice Department has almost never prosecuted use of marijuana, and it’s not going to be,” he said. The status of the Wilkinson Memo is unclear, but it doesn’t appear to be returning any time soon.

The Picuris Raid

A disheartening episode that occurred in September 2021 has clarified that the BIA is uninterested in letting the pueblos decide their own cannabis policies. Agents with the BIA raided the home of Charles Farden, a 54-year-old non-native Picuris resident who has lived there since childhood. Farden was allegedly growing cannabis plants in his home under the impression that the practice was legal under Picuris law.

Picuris Pueblo Gov. Craig Quanchello told The Paper that Farden was right when it came to Tribal law. “In 2016 we, as a Tribe, created an ordinance which decriminalized cannabis, and we created our own medical cannabis code, and we issued members our cards,” said Quanchello. “In addition to that, we have reciprocity … . So there was no violations with us.”

But the BIA provides policing duties for Picuris Pueblo. In a letter to Quanchello written after the bust, a special agent with the BIA said the agency would not stop prosecuting cannabis crimes on Tribal lands.

“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.”

In a previous Picuris raid in 2017 conducted by BIA and Division of Drug Enforcement (DDE), agents shut down a small medical cannabis operation. “The U.S. attorney asked if we had any kind of agreement with the state. And at that point, we didn’t have any kind of written agreement,” Quanchello told The Paper.

It is hoped that the BIA will finally give in to Tribal sovereignty and stop prosecuting cannabis offenses on Picuris and Pojoaque Pueblos, but only time will tell.


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