Should Tribes Be Free From Federal Punishment if They Legalize Marijuana? (H.R. 1416)

What is H.R. 1416?

(Updated October 24, 2019)

This bill — the Tribal Marijuana Sovereignty Act of 2019 — would protect Native American tribes from federal punishment if they choose to legalize marijuana. It’d prohibit the federal government from withholding funds or making tribes ineligible for contracts, grants, and other benefits for ending the prohibition on cannabis possession, sale, or cultivation.

It’d also authorize Indian Health Services (IHS) physicians to make medical recommendations to their patients with regard to marijuana and to complete forms reflecting such recommendations.

For tribes that oppose marijuana legalization, this bill would also clarify that they can continue prohibiting marijuana possession, production, and sale regardless of the laws of the states surrounding their borders.

Argument in favor

Tribes are rightfully considered sovereign governments with the authority to make many of their own laws. This includes drug policy and marijuana legalization. The federal government shouldn’t interfere with this authority or punish tribes for exercising it.

Argument opposed

Marijuana remains illegal at the federal level, and the provision of funds and services by the federal government should be contingent upon tribes’ compliance with federal laws, including the federal marijuana prohibition.

Impact

Native American tribes; tribal lands; tribal reservations; cannabis businesses on tribal lands; IHS physicians; and U.S. Attorneys.

Cost of H.R. 1416

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Don Young (R-AK), co-chair of the Congressional Cannabis Caucus, reintroduced this bill from the 114th Congress to ensure self-determination for Indian tribes to decide how to best govern themselves in regard to marijuana.

In 2016, Rep. Mark Pocan (D-WI), who sponsored this bill in the 114th Congress, said:

“I strongly believe states should be allowed to enact their own marijuana laws, and have consistently supported attempts to ensure federal laws do not interfere with them. I’m also an ardent supporter of tribal sovereignty, which is why I introduced this bill forbidding the federal government from considering marijuana production, possession, or sale as an adverse factor when disbursing federal funds."

The National Congress of American Indians (NCAI) — an American Indian and Alaska Native indigenous rights organization that lobbies the federal government on behalf of natives’ rights — argues that tribes are sovereign governments with the inherent authority to set their own policies regarding marijuana use:

“Indian tribes are sovereign governments with the inherent right to set local laws addressing marijuana, including its medical and industrial uses, according to the public health and economic needs of their unique communities.”

This bill doesn’t have any cosponsors. In the 114th Congress, Rep. Mark Pocan (D-WI) introduced this bill with the support of four bipartisan cosponsors, including three Democrats and one Republican, but it didn’t receive a committee vote. Rep. Young was a cosponsor of Rep. Pocan’s bill in the 114th Congress.

Of Note: Many people in the tribal business community view marijuana as a potential cash crop that’d generate revenue for a population that’s generally impoverished. Duke Rodriguez, a former Secretary of Health Services in New Mexico who founded a company specializing in operating dispensaries and helping with cannabis cultivation for medical use, is convinced the legal cannabis could improve both the physical and economic health of American Indians on tribal land.

Under the Wilkinson Memorandum, a 2014 policy statement, the Dept. of Justice’s current position recommends non-enforcement of the federal prohibition of marijuana-related activities to U.S. Attorneys serving tribes that have legalized those activities under tribal law. However, NCAI contends that the application of this policy has been inconsistent due to “confusion over federal public lands vs. federal Indian lands” and lack of “adequate government-to-government consultation,” creating a lack of clear guidance for tribes and law enforcement on marijuana.

Media:

• Alaska Cannabist
  
• Marijuana Moment