ABA midyear meeting. Native Rights

• Author: Amanda Robert, Lee Rawles
• Pages: 62-63

ABA Insider | ABA MIDYEAR MEETING

neys in places where they are complying

with state and local laws.

The resolution “simply urges Con-

gress to take action in the form of the

SAFE Banking Act or similar legislation

that would make clear that federal

depository institutions can take money

from legitimate cannabis industries

in states that have chosen to legalize

the substance without fear of federal

prosecution,” said resolution co-author

Adrian Snead, a member of the TIPS

Cannabis Law and Policy Committee

and an associate at Holland & Knight

in Washington, D.C.

Michael Drumke, chair of the TIPS

Cannabis Law and Policy Committee

and a co-author of both resolutions,

said lawyers should be able to represent

cannabis clients without fear they will

be targeted for their work.

He noted that prosecutions against

attorneys are not unheard of.

In 2017, San Diego attorney Jessica

McElfresh faced felony charges in con-

nection with representing a marijuana

business. The charges were dropped in

2018. “It’s not really a clear system,”

Drumke, a shareholder at Swanson,

Martin & Bell in Chicago, said in an

interview. “You’re not supposed to aid

and abet the commission of a federal

crime. But under the model rules, clients

are entitled to representation.”

Paul Larkin, a senior legal research

fellow with the conservative Heri-

tage Foundation, said moves to shield

lawyers and banks do not tackle the

“fundamental issue” surrounding the

legal sale of cannabis. “I think what we

need to do is decide as a society if we

are going to legalize cannabis and how.

If we’re going to legalize it, there’s no

need for an exemption for banks and

lawyers,” he said in an interview.

Big business

The legal cannabis industry is proj-

ected to be worth $30 billion by 2025,

according to New Frontier Data, a rm

that provides analysis on the industry.

In January 2018, Jeff Sessions, Pres-

ident Donald Trump’s rst attorney gen-

eral, repealed the Cole Memorandum, a

President Barack Obama-era policy that

directed the Justice Department not to

prosecute cases in the states where mar-

ijuana is legal. Last year, William Barr,

Sessions’ successor, said he supports a

softer approach to cannabis enforce-

ment and changes to federal laws.

Still, uncertainty has beset nancial

institutions. In 2014, the Department

of Treasury’s Financial Crimes Enforce-

ment Network issued guidance under

the Bank Secrecy Act clarifying how

banks should do business in the legal

cannabis industry. “Unfortunately, this

did not provide sufcient safety for

many nancial institutions,” the report

accompanying Resolution 103D said.

Last year, the U.S. House of Repre-

sentatives passed the Secure and Fair

Enforcement Banking Act of 2019. The

bill, still pending in the Senate at press

time, would clear the way for banks

to open accounts for marijuana busi-

nesses without fear of prosecution, the

report says, and help prevent the money

laundering that can arise from “off-the-

books cash transactions.” Q

ABA MIDYEAR MEETING

Native

Rights

Voting access and protection

against violence for Native

Americans should be top

priorities, ABA House says

BY AMANDA ROBERT

AND LEE RAWLES

Ahead of this year’s presiden-

tial election, the ABA House

of Delegates overwhelmingly

passed a pair of resolutions

that aim to increase voter participation

and minimize voter suppression.

Resolution 112, submitted for the

ABA Midyear Meeting by the Section

of Civil Rights and Social Justice, urges

jurisdictions to remove barriers for

Native Americans and Alaska Natives

by providing equal access to voter

registration and polling sites; treating

tribal identication cards the same as

state and local identication cards;

notifying and obtaining consent from

tribal leaders before moving or closing

registration or polling locations on their

lands; and providing adequate language

assistance to voters.

There are 573 federally recognized

tribes and hundreds of state-recognized

tribes in the United States, and accord-

ing to the 2010 census, 5.2 million peo-

ple self-identied as American Indian

and/or Alaska Native, per the report

accompanying the resolution.

A study by the National Congress

of American Indians, also cited in the

report, showed that 34% of Ameri-

can Indians and Alaska Natives are

not registered to vote, versus 26.5%

of non-Hispanic whites. In addition,

according to the study, an estimated 1.2

million eligible Native Americans could

be missing from the voter rolls.

Mark Schickman, a delegate from

the Civil Rights and Social Justice

Section and of counsel with Freeland

Cooper & Foreman in San Francisco,

spoke in favor of the resolution. He

pointed out that Native Americans were

not recognized as citizens until 1924,

did not have the right to vote until

1948 and were not guaranteed the right

to vote in every state until 1962.

“Ever since then, they have been fac-

ing challenges to the right to vote,” he

said, citing “challenges to ID cards not

being adequate, literacy issues and in-

terpretation issues,” and long distances

to travel to vote or even register to vote.

The resolution also urges the federal

government to provide tribal leaders

access to federal election observers;

require the Department of Justice to

consult annually with tribes on voting

issues; and establish a Native American

Voting Rights Task Force under the Jus-

tice Department to provide grant funds

to increase voter education, registration

and participation in tribal communities.

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