Burning Questions: Changing Legal Narratives on Cannabis in Indian Country
| Jurisdiction | United States,Federal |
| Citation | Vol. 74 No. 3 |
| Publication year | 2023 |
Burning Questions: Changing Legal Narratives on Cannabis in Indian Country
Sam J. Carter
Robin M. Rotman
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In 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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A. Cannabis Definitions and Usages Prior to United States Colonization
The words "Cannabis" and "marijuana" are often used interchangeably, but they are not the same.1 Cannabis is a genus of flowering plant and refers to the larger classification of plants that include marijuana.2 The Cannabis genus includes a few subspecies of plants. The two main subspecies are Cannabis indica and Cannabis sativa, and there are many hybrids of these two subspecies.3
Cannabinoids are the compounds found in Cannabis plants, the most well-known of which are delta-9-tetrahydrocannabinol (THC) and cannabidiol (CBD).4 Marijuana or marihuana is the name given to the psychoactive drug that consists of the dried leaves, flowers, stems, and seeds of the Cannabis plant, often containing a mixture of THC and CBD.5 Hemp is the low THC variety of the Cannabis plant, that can be used to derive CBD and its fibers used for food, clothing, and building materials.6 Only Cannabis over 0.3% THC (legal term marijuana) is defined in the United States Code.7 Under the Controlled Substances Act,8 marijuana means "all parts of the plant Cannabis sativa L . . . . and every compound, manufacture, salt, derivative, mixture, or preparation of such plant . . ."9
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The use of Cannabis has been traced to the third millennium B.C. and is regarded as one of the world's oldest cultivated plants.10 Cannabis cultivation is thought to have originated in Western China, then migrated to Asia and Africa.11 Cannabis cultivation then spread to Europe in the fourteenth century.12 Cannabis was introduced to the Western hemisphere by the Spanish in 1545.13
Little written record exists of Cannabis in Native American culture prior to the period European colonization began in 1492, but Cannabis plant usage is rooted in Native culture. Cannabis cultivation was in accordance with some indigenous worldviews of engaging in a reciprocal relationship with land and natural resources.14 As a material, Cannabis was regarded as staple for some tribes across the United States, who used hemp fibers to make fishing nets, storage bags and itatamat or "counting the day" balls.15 Cannabis was also used as a psychotropic plant in some Native American cultures, including in shamanistic traditions to stimulate religious experiences and prior to communal tribal meetings to nurture social interaction.16
For settler Americans, Cannabis cultivation can be traced back to Jamestown, Virginia, in 1632, where it was used as a source of fiber and textile.17 By the mid-1800s, Cannabis cultivation had spread across the country.18 At the time, Cannabis was not used as widely as a recreational substance amongst white Americans, but was used in medicinal
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applications, including as an analgesic in the treatment of combat injuries in the United States Civil War.19
B. Rise of Regulation
Cannabis cultivation and usage was largely unregulated in the United States throughout the 1800s.20 While the federal government began regulating supposedly dangerous drugs in 1906, following the passage of the 1906 Pure Food and Drug Act,21 Cannabis was not one of the drugs included in the act.22 Rather, state and local governments were the first to pass prohibitions on marijuana—often based on prejudiced perceptions on common recreational marijuana users at the time.23 Mexican laborers in the Southwest who were subject to racist rhetoric of being criminally minded and dangerous, became associated with marijuana smoking and it was viewed as a catalyst for their "bad" behavior.24 Similarly, black marijuana users in the South were subject to racialized perceptions of being violent criminals, with marijuana pointed to as the catalyst, rather than racism or social inequality.25 In 1913 and 1914, California and El Paso, Texas, both areas with high populations of Mexican and black citizens, both respectively passed prohibitions on the sale or possession of marijuana.26
Cannabis was not addressed by the federal government until 1915, when the US Secretary of Agriculture declared marijuana injurious to health and denied its importation.27 However, marijuana was still readily grown domestically.28 As regulations did begin to develop at the federal level, and state and local regulations spread, they were similarly tied to
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racist perceptions of Cannabis users, as well as negative media attention and economic interests.
In the 1930s, new technology for processing hemp streamlined its production and created competition with other fibers—including paper produced from wood pulp.29 William Hearst, the head of a newspaper empire and owner of vast woodlands, began reporting on the alleged dangers of Cannabis, claiming in one 1928 paper that "one could grow enough Cannabis in a window box to 'drive the whole population of the United States stark, raving mad.'"30 In the 1930s, one Hearst-controlled newspaper reported that "marijuana make(s) the smoker wilder than a wild beast" as well as anecdotal evidence that the Cannabis user would become violent after smoking.31
Economic interests were also influential to marijuana prohibitions.32 In 1930, Harry Anslinger was appointed the first director of the Federal Bureau of Narcotics.33 Notably Anslinger was appointed to the position by then Secretary of Treasury Andrew Mellon, the uncle of Anslinger's wife.34 Mellon was an investor in the DuPont company, a major producer of synthetic fibers.35 Following his appointment, Anslinger was vocal about the alleged dangers of Cannabis, often calling upon racialized sentiments. Anslinger alleged in a prejudiced statement that "[t]here are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz, and swing result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers, and others."36 These sentiments were echoed in the 1936 anti-Cannabis propaganda film Reefer Madness.37
By 1931, all but two states west of the Mississippi had restricted or prohibited marijuana use in form.38 In 1937, Congress established a de
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facto federal marijuana ban under the Marihuana Tax Act (MTA),39 which "banned unlicensed and nonmedical uses" of marijuana.40 The MTA imposed certain registration and reporting requirements on individuals dealing in marijuana, and it imposed high-cost transfer tax on marijuana sales both on an annual basis and per-transaction.41 In the decades that followed, the federal government continued to pass drug control legislation and criminalize drug use. Later acts, such as the 1951 Boggs Act42 and 1956 Narcotics Control Act43 established and increased federal penalties for marijuana offenses.44
In 1970, the federal government enacted the Controlled Substances Act (CSA) as Title II of the Comprehensive Drug Abuse Prevention and Control Act,45 which repealed the Marihuana Tax Act. The CSA established a regulatory framework for certain drugs, such as marijuana. Under the CSA, marijuana is defined as a Schedule I substance, the most restricted federal drug class, with "no . . . accepted medical use."46 As a Schedule I substance, this means that the cultivation, possession, and distribution of marijuana are illegal, except for the purposes of highly sanctioned federally approved research.47 Two federal agencies, The Drug Enforcement Administration (DEA) and the Food and Drug Administration (FDA) determine which substances appear on various schedules.48 The DEA is also tasked with enforcing both the registration and trafficking provisions. The CSA remains in full force today.
C. Era of Deregulation
In the 1970s, despite the passage of the CSA, there were limited decriminalization efforts in some state jurisdictions, leading to the overturning of some state laws criminalizing marijuana.49 In 1973, Oregon became the first state to mandate punishment by fine, rather than incarceration, for small amounts of marijuana for recreational use—
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and in the years that followed many states and cities enacted similar policies.50 California became the first state to decriminalize a form of marijuana in 1996 when it passed Proposition 215, the Compassionate Use Act,51 which allowed for the usage of medical marijuana in the state for limited medical purposes.52
The DOJ has articulated its stance on federal marijuana...
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