California has an infant state regulated recreational marijuana market that it is creating a place for its 100 or so federally-recognized tribes to operate within.
However, some tribes that haven’t been allowed to participate in that market are considering outside of the California framework, using their sovereign status as a shield.
The state’s legal marijuana market—which isn’t legal as far as the federal Justice Department is concerned—officially kicked off on January 1.
Several tribes have read the rules set forth by the state and concluded they would be giving up authority over their reservations if they apply for a state license.
Mark Levitan, a tribal attorney, told the Associated Press, “They have to give up their rights to act as governments, with regard to cannabis.” This includes giving states control over the taxation and governance of the pot trade on reservation land.
The recently-enacted state law gives California full control over licensing. Tribes would be required to follow state rules and “submission to all enforcement,” to get a license and waive “sovereign immunity,” which protects tribes from lawsuit.
Although the state has more than 60 Indian casinos, many of its tribes are too small or too rural to offer gaming, making them good potential pot merchants, except that the state’s rules are so unattractive to them.
States and tribes have been negotiating this thorny issue for many months before the new law took effect but failed to achieve a meeting of the minds by the launch date for the state’s recreational market.
On January 1 the California Native American Cannabis Association warned California Governor Jerry Brown that tribes could engage in cannabis activities under “inherent sovereign immunity,” and added that “the state will have no jurisdiction to enforce its cannabis laws and regulations on tribal lands.”
The Golden State contrasts with its northern regional neighbor, Washington, which has negotiated seven marijuana compacts with its tribes so far, with others pending. Under the compacts the tribal merchants are covered legally and can market their products off the reservation.
California’s tribes are lobbying for a similar arrangement that would be reminiscent of tribal state gaming compacts, although they wouldn’t require the blessing of any federal agency—which is good since the federal government doesn’t smile on the pot trade. Under this agreement the state would recognize the tribes’ “exclusive authority” to regulate commercial pot activities on their own lands.
Some lawmakers are sympathetic, but don’t expect a quick deal to happen. One of the state’s negotiators, Rep. Rob Bonta, told the AP “Everyone agrees conceptually there should be an even playing field, a level playing field.”
