March 30, 2017
As part of a symposium entitled "One Toke Too Far: The Horizontal-Federalism Implications of Marijuana Legalization Symposium," my article "Budding Conflicts: Marijuana's Impact on Unsettled Questions of Tribal-State Relations," will appear in the Boston College Law Review (forthcoming 2017). (There seems to be an unwritten rule that every piece of marijuana-related legal scholarship must contain a pun.)
Tribes are currently in an uncertain situation with respect to marijuana legalization. A December 2014 decision by the Department of Justice to deprioritize enforcement of federal marijuana laws against tribes as well as states prompted many tribes to revisit their policies toward marijuana. Some tribes opted to legalize marijuana for medical and/or recreational purposes under tribal law, while others went still farther by planning commercial marijuana enterprises. The Flandreau Santee Sioux Tribe in South Dakota, for example, hoped to launch the nation's first "marijuana resort," complete with a smoking lounge and a shuttle service for guests who wished to avoid driving under the influence. Other tribes occupied the opposite end of the spectrum. The Yakama Nation, which has maintained a strict policy against drugs and alcohol for decades, chose to strengthen its anti-marijuana laws in the wake of Washington's move toward legalization.
In many cases, tribes' efforts to go their own way on marijuana policy have sparked clashes with nearby states. The Flandreau Santee Sioux had to abandon their resort plans after they met with intractable opposition from state and federal authorities, who worried that non-tribal residents of South Dakota (where marijuana is illegal) would be lured onto the reservation. The Yakama Nation is currently engaged in litigation to stop Washington marijuana vendors from doing business on off-reservation lands where its members hunt and fish. Such jurisdictional conflicts are, of course, nothing new; they arise in the interstate context all the time. But they are exacerbated in the state-tribal context for two reasons: the tremendous uncertainty that exists about the proper scope of state and tribal regulation in Indian country and the absence of the formal and informal mechanisms - such as, to take perhaps the most important example, the Full Faith and Credit Clause - that help mediate comparable interstate friction. In my article, I discuss the reasons why state-tribal conflicts over marijuana may be particularly intense and suggest avenues for smoothing state-tribal relations, including clarification of tribes' regulatory authority and possible federal legislation that could draw on the experience of the Indian Gaming Regulatory Act while avoiding its mistakes.
When tribes set their own marijuana policy, they can both express their own sovereign values and serve as useful "laboratories of democracy" in an era when attitudes and legal approaches toward marijuana are changing quickly. Fully achieving these goals, however, will depend on finding better ways to resolve state-tribal policy disputes.