The Path to Pot: Federal law could exclude tribes from NY's marijuana market

Dec 19, 2018

As New York heads perhaps towards a future of regulated recreational marijuana, it calls into question the unique status of Native American reservations. States can pass marijuana laws, but can tribes do the same?

“It is illegal to manufacture or distribute marijuana in the United States and in Indian country, to the extent Indian country is subject to the laws of the United States, which it is,” said U.S. Attorney for the Western District of New York James Kennedy.

U.S. Attorney James P. Kennedy
Credit Ryan Zunner/WBFO News

As states have legalized the drug, tribes are seemingly left in the dust. Kennedy says at one point, tribes had some leeway thanks to a 2014 Department of Justice memo.

“That’s referred to commonly within the Department of Justice as the Cole Memo, which essentially stepped down, for lack of a better term, enforcement of the marijuana laws in Indian country,” Kennedy said.

But Kennedy says since then, things have changed.

“In January of 2018, Attorney General (Jeff) Sessions issued a one-page memo which rescinded the Cole Memo and basically returned to federal prosecutors, U.S. Attorneys, the authority to determine how to best use our resources in enforcing the law,” he explained.

Several tribes across the country have tried to enter the marijuana industry to varying degrees. The Menominee Tribe of Wisconsin had its hemp facilities raided by federal agents in 2015 after the plants were revealed to have contained more than the legal amounts of THC.

That same year in Western New York, the Seneca Nation passed a referendum to explore creating a medical marijuana program, but a Seneca spokesperson says those plans are moving slowly.