Tuesday, December 16, 2014

U.S. DoJ message to U.S. Attorneys concerning enforcement of anti-cannabis laws on tribal land--the "Wilkinson Memorandum"

On October 28, 2014, Monty Wilkinson, Director of the Executive Office for United States Attorneys in the United States Department of Justice, sent a memorandum whose subject line was “Policy Statement Regarding Marijuana Issues in Indian Country” to all United States Attorneys, all Tribal Liaisons, and others in the Department.  You can read this memo here.  

It begins by acknowledging the progress made towards the legalization of cannabis and the impetus coming from the tribes for more information:

“With a number of states legalizing marijuana for use and production, some tribes have requested guidance on the enforcement of the Controlled Substance Act (CSA) on tribal lands by the United States Attorneys’ offices.”

Director Wilkinson continues:

“With these requests in mind, the Attorney General’s Native American Issues Subcommittee has reviewed the Memorandum from the Deputy Attorney General, dated August 29, 2013, regarding marijuana enforcement (“Cole Memorandum”) and considered its impact on Indian Country.”

He next enumerates the Eight Priorities that the Cole Memorandum enshrines (for now) as the criteria according to which U.S. Attorneys should determine whether or not to prosecute individuals and institutions complying with their respective state laws regarding the production, distribution, sale, and use of cannabis, even if they are still in violation of the Federal prohibition against cannabis as a Schedule 1 drug along with heroin and LSD.

 He goes on to say that:

“The eight priorities in the Cole Memorandum will guide United States Attorneys’ marijuana enforcement efforts in Indian Country, including in the event that sovereign Indian Nations seek to legalize the cultivation or use of marijuana in Indian Country.”

The final paragraph is an instruction to the U.S. Attorneys to keep the home office fully-informed about any matters relating to the enforcement of anti-cannabis laws in Indian Country, “in order to keep the Department’s leadership apprised of significant issues and to maintain consistency throughout the Department.”

DoJ Supervisory Public Affairs Specialist Wyn Hornbuckle today also provided this additional statement to Etopia News:

The Justice Department is committed to dealing with tribes on a government-to-government basis.  This policy statement recognizes that Indian country is incredibly diverse, and different tribes will have different perspectives on enforcement priorities that are in the best interest of their community’s public safety. Some tribes are very concerned with public safety implications, such as the impact on youth, and the use of tribal lands for the cultivation or transport of marijuana, while others have explored decriminalization and other approaches. Marijuana remains illegal under federal law, and nothing in the Cole memorandum or this policy statement alters the authority or jurisdiction of the United States to enforce federal law in Indian Country or elsewhere. Each U.S. Attorney will assess the threats and circumstances in his or her district, and consult closely with tribal partners and the Justice Department when significant issues or enforcement decisions arise in this area.” 

He also provided some additional background for context:

“The August 29, 2013 ‘Cole Memorandum’ states that ‘The Department’s guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.’   The memorandum goes on to note such jurisdictions ‘must provide the necessary resources and demonstrate the willingness to enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities.’ One such effective measure is ‘to prevent diversion of marijuana outside of the regulated system and to other states.’”

This move by the administration is echoed in a similar provision in the recently-passed 1.1 trillion spending bill, which, according to the Huffington Post,

“includes an amendment that prohibits the Department of Justice from using funds to go after state-legal medical cannabis programs. If the bill is signed into law, it will bring the federal government one step closer to ending raids on medical marijuana dispensaries, as well as stopping arrests of individuals involved with pot businesses that are complying with state law.”  

Wyn Hornbuckle at DoJ also recommended these additional pieces of coverage of this issue:

Could legal pot sales be coming to Seneca’s reservations?