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Marijuana in Indian Country

Governance and Economic Opportunities

NAFOA has held educational events over the last four years on the legal, economic, and political risks and opportunities of tribal participation in the marijuana industry. The webinars and in-person panels coincided with the release of the Department of Justice's (DOJ) Memorandum on Marijuana in Indian Country. Although the DOJ Memorandum regarding marijuana in Indian Country sparked serious conversation on the potential economic and political impacts that marijuana could have for tribes, political, legal, and banking uncertainty continues to impede progress. Making matters more uncertain, in January 2018 Attorney General Jeff Sessions released a memorandum rescinding previous guidance provided by the Cole Memorandum and Memorandum on Marijuana in Indian Country and instructed U.S. attorneys to return to the practice of prohibiting the cultivation, distribution, and possession of marijuana nationwide.

Several bills have been introduced in both the Senate and House of Representatives pertaining to medical, adult use, and industrial hemp legalization and decriminalization. NAFOA is currently monitoring the progress of proposed legislation and will provide relevant and timely updates. NAFOA will continue to gather tribal input regarding its role in the marijuana issues and provide clarity on a strategy forward. 

If you have any questions, contact Ellie Beckett at ellie@nafoa.org or Ryan Ward at ryan@nafoa.org.


Current Pending Cannabis-Focused Legislation as of July 2018

Marijuana Freedom and Opportunity ActS. 3174 was introduced by Senator Schumer (D-NY) (there is no House companion yet)

  • Officially removes marijuana as a Schedule I drug of the Controlled Substances Act.
  • Creates the Marijuana Opportunity Trust Fund (“Fund”)
    • The Secretary of Treasury would transfer the greater of ten percent of all tax revenue generated by the cannabis industry or $10 million to the Fund.
    • The amount transferred into the Fund would then be made available to small cannabis businesses owned by women, and by socially and economically disadvantaged individuals.
  • Authorizes up to $250 million over five years for highway safety research and to help expedite the development of enhanced strategies and procedures to reliably determine the impairment of a driver under the influence of THC.
  • Authorizes $500 million over five years for public health research to better understand the effects of THC on the brain and the efficacy of medicinal marijuana for specific ailments.
  • Allows the Alcohol and Tobacco Tax and Trade Bureau to regulate advertisements and promotions in order to prohibit promotions to individuals 18 years old and under.
  • Authorizes up to $100 million for state and local governments to create expungement or sealing programs for those with prior marijuana convictions.
  • Grant states the authority to prohibit marijuana if they choose to do so.

Strengthening the Tenth Amendment Through Entrusting States or STATES ActS. 3032 was introduced by Senator Gardner (R-CO) and Senator Warren (D-MA) and H.R. 6043 in the House by Congressman Joyce (R-OH-14)

  • Amends the Controlled Substances Act (21 U.S.C. § 801 et seq.) (CSA) so that -- as long as states and tribes comply with a few basic protections -- its provisions no longer apply to any person acting in compliance with state or tribal laws relating to the manufacture, production, possession, distribution, dispensation, administration, or delivery of marijuana.
  • Amends the definition of “marihuana” under the CSA (21 U.S.C. § 802(16)) to exclude industrial hemp, as defined in section 7606(b) of the Agricultural Act of 2014 (7 U.S.C. § 5940(b)).
  • Does not alter CSA Section 417 (prohibition on endangering human life while manufacturing a controlled substance) and maintains the prohibition on employing persons under age 18 in marijuana operations, two federal requirements with which states, territories, and tribes must continue to comply.
  • Prohibits the distribution of marijuana at transportation safety facilities such as rest areas and truck stops (Section 409).
  • Does not allow for the distribution or sale of marijuana to persons under the age of 21 (Section 418) other than for medical purposes.
  • Addresses financial issues caused by federal prohibition by clearly stating that compliant transactions are not trafficking and do not result in proceeds of an unlawful transaction.

Secure and Fair Enforcement Banking Act or the SAFE Banking ActS. 1152 was introduced by Senator Merkley (D-OR) in the Senate and H.R. 2215 was introduced by Rep. Perlmutter (D-CO-7) in the House.

This bill prohibits a federal banking regulator from:

  • Terminating or limiting the deposit insurance or share insurance of a depository institution solely because the institution provides financial services to a legitimate marijuana-related business;
  • Prohibiting or otherwise discouraging a depository institution from offering financial services to such a business;
  • Recommending, incentivizing, or encouraging a depository institution not to offer financial services to an account holder solely because the account holder is affiliated with such a business; or
  • Taking any adverse or corrective supervisory action on a loan made to a person solely because the person either owns such a business or owns real estate or equipment leased or sold to such a business.

Hemp Farming Act of 2018S.2667 was introduced in the Senate by Majority Leader McConnell (R-KY) and H.R. 5485 was introduced in the House by Rep Comer (R-KY-1)

  • The bill would fully legalize industrial hemp by removing it from the Controlled Substances Act.
  • It would also remove most existing restrictions or regulations limiting hemp growers’ access to banking or crop insurance.

Additional Resources:

Department of Justice Sessions Memorandum (2018)

Department of Justice Memorandum on Marijuana in Indian Country (2014)

Department of Justice Cole Memorandum (2013)