An Indigenous American tribe is fighting for its right to sell cannabis, after voting in favor of legalization last fall. Despite the tribe being entitled to self-government under United States law, two federal lawmakers are attacking its plan. The situation spotlights injustices around both the drug war and Indigenous rights.
The Eastern Band of Cherokee Indians (EBCI) is located in the western region of North Carolina. In September 2023, the tribe voted to legalize cannabis for adult use on its reservation lands, which include the Qualla Boundary land trust and other smaller territories. On February 28, the tribe announced that it plans to launch cannabis sales on 4/20.
But that caught the eye of North Carolina’s two Republican Senators, Tom Thillis and Ted Budd. They wrote a letter on March 1, addressed to the federal Drug Enforcement Administration, the departments of treasury and interior, state and local law enforcement, and the National Indian Gaming Commission.
“As our nation is facing an unprecedented drug crisis that is harming our communities, it is vital to learn what measures your departments and agencies are taking to uphold current federal and state laws,” they wrote.
They claimed that the Band has a cannabis cultivation facility outside of its lands, does not have a testing lab for products, and will sell to both tribal members and other citizens. They also implied that youth access would be a concern.
“This matter raises multiple questions on how North Carolina communities will be kept safe,” the Senators wrote, citing federal prohibition and banking laws, as well and state laws in North Carolina and neighboring Tennessee that criminalize cannabis. “With unclear guidance, it makes it difficult for state and local officials to uphold the rule of law in our communities.”
Their implications that cannabis sales to adults might be unsafe in the context of the overdose crisis, or boost youth access, are contradicted by the reality of legalization in many states.
“To question a sovereign nation is disappointing to see at this juncture.”
Representatives of Eastern Band of Cherokee Indians did not respond to Filter‘s request for comment by publication time, but advocates focused on cannabis and Indigenous sovereignty reject the senators’ framing of the ECBI plan.
“It’s disappointing to see state representatives come in and disregard the due diligence the ECBI has put forth in creating this entire program, from their start up and planning through developing regulations that are above board in every respect,” Rob Pero, founder and president of the Indigenous Cannabis Industry Association (ICIA), told Filter. Pero is a tribal member of the Bad River Band in Wisconsin, which is part of the Ojibwe Nation and conducts notable harm reduction work.
“To question a sovereign nation is disappointing to see at this juncture,” he continued, “when there’s a lot of work and relationship building that has gone in for their opening on 4/20.”
Mary Jane Oatman, the ICIA’s executive director, echoed this, and stressed that the ECBI has worked hard to put together a responsible plan for cannabis sales.
“Their comprehensive preparation for this venture reflects deeply on their commitment to have public safety through sound regulatory and compliant cannabis systems for the welfare of everyone involved,” she told Filter. A tribal member of the Nez Perce in Idaho, Oatman said she was inspired to become an activist after her grandmother was arrested for a marijuana charge on tribal land and sent to federal prison.
Federal lawmakers and agencies setting their sights on Indigenous nations’ cannabis laws is a familiar issue that in theory, shouldn’t be happening.
In 2013, the year after Colorado and Washington State passed historic legalization measures, the Obama administration’s justice department released a document known as the Cole Memorandum. This gave some guidance for tribal nations that wanted to pursue legalization: It basically said that as long as they worked to prevent underage sales, involvement of gangs or trafficking organizations, cannabis-impaired driving or diversion of products to non-legalized jurisdictions, the federal government would not enforce the Controlled Substances Act against them.
President Trump’s justice department repealed the memo, though it didn’t take much action to shut down cannabis businesses in jurisdictions that had legalized. But in 2021 President Biden’s Attorney General Merrick Garland stated that his department would essentially follow the Obama policy by not going after cannabis businesses, though did not formally reinstate the policy.
“A federally recognized tribe should be having nation-to-nation conversation, but in most cases the feds have deferred to the state to regulate.”
Regardless, the past decade has seen repeated cases of federal authorities and state police agencies taking action to restrict or even shut down cannabis operations in Indigenous territories. In 2015, for example, federal agents raided the Menominee Indian tribe’s reservation in Wisconsin, seizing 30,000 cannabis plants the tribe said were lawful hemp research. In 2021, federal agents raided a New Mexico resident who was growing his own cannabis plants for medical use on Picuris Pueblo tribal lands.
There are also examples of tribes successfully launching dispensaries, even in the context of conservative states that haven’t legalized cannabis for adult use. In 2020, South Dakota voters approved both adult-use and medical legalization. The state’s supreme court ultimately struck down the adult-use law, but medical stayed in place. Without waiting for formal state approval, the Flandreau Santee Sioux Tribe went ahead and opened the state’s first medical marijuana dispensary. After just 10 months it had 50 employees and announced it was expanding with two new grow facilities.
The current situation in North Carolina is similarly noteworthy because of the tribe getting ahead of the state.
“A federally recognized tribe should be having nation-to-nation conversation, but in most cases the feds have deferred to the state to regulate,” Pero said. “ECBI has done their diligence in regards to the collaborations they needed to work through to make this happen. This was the litmus test that all the other tribes were looking at. This was the tribe that didn’t wait for the state to go first. We support this endeavor based on their inherent right of sovereign self-determination.”
“What we’re noticing is tribes want to be good neighbors in this endeavor because it is still so taboo.”
Oatman explained that because of recent history of feds and states interfering in tribes’ cannabis initiatives, many tribes are keeping a low profile as they explore different forms of regulation—including hemp, hemp-derived cannabinoids, or medical or adult-use cannabis.
“A lot of times when it comes to tribal sovereignty, they’re not shouting from the rooftops and creating a lot of attention around their projects,” she said. “We usually hear about a launch of a tribal dispensary or brand after the fact because of this issue … What we’re noticing is tribes want to be good neighbors in this endeavor because it is still so taboo and you have to have community buy-in for an authentically successful cannabis venture.”
The current federal approach to Indigenous tribes and cannabis is subject to the whims of changing administrations. In Congress, lawmakers have similarly made efforts in opposite directions.
In response to EBCI’s September legalization vote, Representative Chuck Edwards (R-NC) introduced the “Stop Pot Act,” which would punish tribes by slashing their federal highway funds if they sell cannabis.
But other federal lawmakers have tried to pass protections for tribes that legalize, so they don’t face retaliation from the feds. In 2022, Reps. Dave Joyce (R-OH) and Brian Mast (R-FL) wrote to President Biden urging he use his executive authority to protect tribes’ rights, and direct agencies like the Bureau of Indian Affairs and National Indian Gaming Commission to focus not on cannabis, but on human trafficking and missing and murdered Indigenous women.
“Legal, thriving cannabis programs are economic engines for Tribes,” they wrote. “Enforcing federal cannabis laws on Tribal land, especially in cases where the Tribe and the State have legalized cannabis use, is wrong and it needs to stop. Not only is it not right, but it is discriminatory.”
“You’re seeing the tribes get organized and start supporting each other.”
Pero said that he is determined to help the Eastern Band of Cherokee Indians stick to its goal of launching sales on 4/20, but anticipates more resistance to come in the near future. He hopes that as the legal cannabis industry grows, Indigenous nations in different regions will work as a unified coalition, to demand their rights to regulate cannabis as they wish.
“It really has become the tribal nations taking it upon themselves to build the toolkit to fight the battles,” he said, “knowing that the feds aren’t moving quick enough with how quickly the industry is growing across the country. The tribes are arming up their legal toolkit to fight the battles, but do it [together]. You’re seeing the tribes get organized and start supporting each other as opposed to competing, which has been the nature of the beast.”
Photograph of a cannabis greenhouse by Cannabis Tours via Wikimedia Commons/Creative Commons 4.0
