The Iipay Nation of Santa Ysabel, which failed to operate a casino in San Diego County’s Backcountry on the remote Highway 79—and then announced it was offering online poker, only to be slapped down in the courts by the state and federal governments— wants to enter an industry many tribes see as a fruitful diversification from a pure gaming economy.
But the game only works if they let you play. So far, the federal and state governments are putting up roadblocks to tribes like the Iipay. There are 109 tribes in the state that could conceivably take part in this burgeoning industry. This tribe last week opened the Mountain Source cannabis store in front part of the same building that once housed slot machines, and which closed five years ago.
Treats they sell include cannabis flower and marijuana-infused truffles.
The back side they plan to use to manufacture cannabis products. Overlooking the building is a hillside with several marijuana greenhouses. Several more are being built.
It’s an open question whether the tribe will be able to sell its product in California off of its reservation, even though the Golden State allows recreational pot smoking and sales of the product in licensed facilities. Unlike gaming, there exists no legal methodology for tribes to join California’s new green revolution, including its regulated market.
The tribes insist that the state treat them like sovereign governments in this case, as they do in gaming. Instead, the state wants to treat them like every other pot farmer.
Even if tribes agree to apply for state licenses, it’s hard to get them approved because state law requires that local jurisdictions approve the business before a license is issued. Problem is, the tribes are their own jurisdictions.
The net effect is that so far none of the California agencies that issue cannabis licenses have issued none to reservations.
And non-tribal businesses are ready to defend their turf. They don’t want tribes given special exceptions, such as the one that gives them a monopoly on Las Vegas style gaming.
The tribes are looking to a bill that has died three times in the Legislature that would allow reservations to create their own marijuana regulatory system, similar to their tribal court systems.
The bill’s author, Rep. Rob Bonta, told the Enterprise-Record, “We should have solved this by now. Our tribes absolutely deserve a right to participate in the same legal cannabis market as other stakeholders.”
Although marijuana remains an illegal drug under federal law, California and the U.S. Department of Justice have achieved a détente to where DEA agents don’t swoop down on state-licensed pot dispensaries. In 2013 Deputy Attorney General James Cole issued a memo that prevented the feds from enforcing the law on states that, like California, had legalized it. A year later the same protection was extended to Indian reservations.
This led to several tribes legalizing pot on the reservation and some began growing and selling it on the reservation. But then, in 2015 federal drug agents raided a cannabis farm owned by tribes in Modoc County and confiscated thousands of plants.
The same year Mendocino County Sheriff’s deputies closed a cannabis farm owned by the Piloleville Pomo Nation.
The state’s position is that the tribes weren’t operated under guidelines of state law.
Around the same time San Ysabel began growing marijuana. It moved cautiously, copying regulations from states and tribes that hadn’t been raided. They invite inspection by county and state authorities. Today eight companies grow the plant on the reservation—so far without any complaints.
Some advocates of a tribal marijuana market, point out that the initiative that legalized recreational use and sales, didn’t even mention tribal participation.
Attorney Ariel Clark, who specializes in marijuana law, commented, “When tribes in California, who have used the cannabis plant as a form of medicine for thousands of years, were completely omitted from Prop. 64, it fell in line in large part with how tribes are treated in this state.”
The most recently adopted cannabis regulations took effect at the first of the year. They included a section that allows tribal participation but only if they “submit a written waiver of sovereign immunity” to the Bureau of Cannabis Control. That allows state regulators to come onto tribal land and look at records that are related to pot production. Tribes are still required to get approval of neighboring counties or cities.
That requirement doesn’t get past square one for most California tribes. They are looking for California to follow the path of Oregon, Nevada and Washington and adopt the use of tribal compacts that would mirror tribal gaming compacts. They commit tribes to adhere to state safety standards and collect taxes so that they can’t undercut non-tribal competitors.
Bonta wants to pass the same type of bill, but has so far not gotten past objections. He says he has given up trying to get support for it.
Santa Ysabel, like other tribes, is waiting for some kind of bill like that to be passed. If it is, it would probably sign it.
