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Native American Reservations Can Legalize Weed Now, but Will They?

Not many tribes appear to want to go the way of Colorado and Washington state.
Photo via Flickr user Jimmy Emerson, DVM

The Department of Justice announced last week it would no longer enforce federal marijuana laws on Native lands, which theoretically opened the door for tribes to pass the same sort of progressive pot legislation that some states have. But some are asking why the DOJ took that step when it's not clear that the tribes themselves want to legalize the stuff.

"It's almost proactive," said Anton Treuer, director of the American Indian Resource Center at Bemidji State University in Minnesota, of the DOJ decision. Treuer, a member of the Ojibwe Band of Chippewa and the author of several books on Native Americans, was at a bit of a loss over the new turn of events when we talked over the weekend. "Honestly, as a political matter, it makes the Department of Justice look like revisionists," he said. "It's just kind of an incremental, creeping normalization kind of thing."


While the DOJ move may have been headline news, if weed is to be sold alongside cigarettes at roadside stands, it'll have to overcome the same opposition as it has elsewhere.

"When it comes down to it, culturally and politically, a lot of tribal people are opposed to the use of marijuana," Treuer told me. "The fact of the matter is we have real substance abuse issues in Indian country. That is a reality. Those who are working in tribal government—not all, but many—are really strongly opposed to anything that would normalize an addictive substance."

Located four hours north of Minneapolis deep in Minnesota's northwoods, Bemidji is a regional hub for three Indian reservations—White Earth, Leech Lake, and Red Lake. All are bands of Ojibwe, but only Red Lake is a closed reservation—meaning the tribe has increased autonomy.

Red Lake's closed status is important to note because Minnesota, like several other states with large Native populations, operates under Public Law 280. The act means the state—not individual tribes—has prosecutorial jurisdiction over felonies, including marijuana possession (past a certain threshold) and distribution. So just because the feds aren't going to enforce pot laws doesn't mean every police officer from Minnesota's Bureau of Criminal Apprehension down to Bemidji beat cops won't throw you in jail for holding.

Then, even if you're an enrolled member of a tribe, you'll likely be indicted for possessing whatever amount of weed you have on you. And, like other minorities, "the rate at which Natives are arrested compared to their white peers is higher, the rate at which they're sentenced is higher, and the length of those sentences is longer, as well," according to Treuer. These facts of life, combined with the power of Public Law 280, essentially make the DOJ announcement an illusion in his eyes.


"I think at Red Lake or Bois Forte, or any reservation where Public Law 280 is not in effect, you get a little bit of that gray area. But most of those tribes have some kind of drug code where [possession] would be illegal," he told me. "It does make the Justice Department statement kind of confusing, but I don't think this is going to create a major paradigm shift."

Especially in Red Lake, the possibility of legal weed seems slim. The authorities there have deemed alcohol to be so detrimental to their small reservation that it's illegal. (With Bemidji a 30-minute drive away, however, alcohol is readily available through backdoor sales.) Prohibition isn't in effect on other area reservations, but alcoholism is a major problem in Indian country.

"Personally, I think we should not be proliferating the use of another addictive substance," Treuer said. And not just for Natives, he added, citing a much talked-about Journal of Neuroscience study that showed brain abnormalities among people who smoked. Legal weed might lead to more people smoking, the argument goes. In Indian country, increased marijuana use would be tacked on to high alcohol consumption, and might feed into "deeply intertwined" issues of "poverty, joblessness, historical trauma, violence and substance abuse"—a dynamic Treuer lays out in in his book, Everything You Wanted to Know About Indians But Were Afraid to Ask.

On the other side of the issue is Sheldon Cook Jr., head of Red Lake–based Rez Rap Records. Cook told me he believes as much as 70 percent of the reservation's population of 1,200 smokes weed. I asked if, in such a small place, he was worried about the cops coming down on him for his very public use and support for marijuana.


Not one bit.

"I smoke a lot and publicly let people know I do so. If the cops wanted to do anything to me, they would have by now," Cook told me. "Stoner shit aside, this is good for our people. We live and breathe in a community struggling with poverty and depression. Day by day, people are losing their lives to themselves. It's about how we are living—poor, lower-class, placed to the side by the world. It's like we don't exist. [Weed cultivation] has the potential to make our land worth billions. I'm very excited and anxious to see what my reservation's leaders decide to come up with. I just hope it's for and not against this amazing plant."

But without those new laws making dope legal, there are other possibilities at play. For instance, what if tribes—in acknowledging the state's existing marijuana laws—never passed their own? That scenario could lead to sticky situations for police, tribal officials and prosecutors navigating these new legal waters, according to Frank Bibeau, an attorney and enrolled member of the White Earth band. Treuer agreed, suggesting Public Law 280's supersedence could be challenged in court if there were no tribal marijuana laws on the books.

"If they lawyer up and fight it, it could make for a pretty significant case," Treuer said.

According to Bibeau, there's no law against weed in Leech Lake's tribal code, something he should know as a former member of its legal department. But fighting for the right to possess weed in the absence of tribal laws is a piecemeal path toward legalization, he said, adding that tribes should be looking to take advantage of the DOJ announcement in the same way they pounced on gambling in the 1980s, reaping massive profits for Native Americans across the country.


"I think it's all coming down to dollars and cents and logic," Bibeau said. "It's a resource to be used like everything else."

The DOJ announcement named no tribes in particular who asked for the government to step away from the enforcement of federal marijuana laws. But North Dakota US Attorney Timothy Purdon alluded to tribes there who might be interested, and Bibeau said he's heard the same. Over in Wisconsin, the Ho-Chunk tribe has made their stance in favor of weed known. Still, as states have found in the past decade, legalizing marijuana isn't always an easy task when many in the halls of power still sees it as a dangerous gateway to use of harder drugs.

And like baby-boomer parents with weed-heavy pasts telling their kids not to smoke, there's also the matter of hypocrisy: Marijuana use in Indian country is fairly commonplace—where even those who are using meth, crack, or drinking alcohol also smoke weed as a "base," according to Treuer. But just because a lot of people are toking up doesn't necessarily mean politicians will be going to bat for the herb any time soon.

"Bear in mind what somebody does in the privacy of their home and what somebody says in public are two very different things," he told me. "It's been a while since we've had a president who has not used pot, but it's unlikely that we'll have a president who will advocate for the legalization of pot. And tribal politicians are just the same. That's where we're at in the United States of America, and that's where we're at in Indian country, too."

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