Excerpted From: Sam J. Carter and Robin M. Rotman, Burning Questions: Changing Legal Narratives on Cannabis in Indian Country, 74 Mercer Law Review 993 (Spring, 2023) (199 Footnotes) (Full Document)


CarterRotmanIn the not-so-distant past, thoughts of Cannabis legalization in the United States were radical. In the present day, the narratives around Cannabis are changing. The term “present day” affixes this Article to early 2023, a snapshot in time. To understand the current legal narratives surrounding Cannabis, and what they might become in the future, it is important to examine the history of Cannabis law and policy in United States. This Article begins by discussing Cannabis regulation in the United States, from the rise of federal regulation to the gradual deregulation by states with tacit federal consent. The Article then examines the jurisdictional conflicts between tribes and states for tribes that attempt to decriminalize Cannabis on the reservation with specific attention paid to enforcement of criminal laws on reservation, regulation of commercial activity, and regulations regarding cannabis research in Indian Country. This Article then examines the recent marijuana policy statement issued by the Biden administration and current Congressional activity, including their possible implications for Cannabis in Indian Country and issues to watch. Finally, this Article concludes with a call to recognize the self-determination of tribes in establishing and enforcing their own Cannabis policies on reservation land.

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Tribes have inherent sovereignty, and the federal government recognizes them as domestic, dependent nations in the federal system. Tribes have used their sovereignty and rights to self-determination to manage tribal lands, to own and operate tribal businesses, and to establish policies that are socially and politically resonant with the values and cultures of their members. As the reformation of Cannabis laws and policies is an issue being addressed by both the federal and state governments, it is critical that tribal governments not be forgotten in the development, regulation, and enforcement of these laws and policies. It should not be the responsibility of tribes to advocate for their voices to be heard in conversations of Cannabis reformation, nor should they have to retroactively fight for their rights once disputes have already arisen. Rather, a proactive approach needs to be taken by both the federal and state governments to make sure that tribes are considered and included in Cannabis law and policy reformation. If the United States is committed to upholding the sovereignty and self-determination of tribes, the reformation and enforcement of Cannabis must be a joint effort.

Ph.D. Candidate, University of Missouri. University of Missouri (B.A., 2019); University of Missouri (M.S., 2021).

Assistant Professor, University of Missouri. The University of the South (B.S., summa cum laude, 2004); Yale Law School (J.D., 2009). Member, State Bars of Illinois, Missouri, New York, and Washington D.C.