Native American tribes are eyeing marijuana legalization as a potentially lucrative business opportunity in the wake of a green light from the Department of Justice in December.

So far, no tribe has taken the plunge, but across the country tribal leaders who have not reflexively rejected the idea are taking a look at what may become a significant revenue stream.

In the Northeast, the Mohegan Indian Tribe, which operates the large Mohegan Sun casino in Connecticut, and the Narragansett Indian Tribe in neighboring Rhode Island are weighing the option.

The Mohegan Sun casino and hotel in Uncasville, Conn. Mario Tama/Getty Images

Montana’s vast Fort Peck Reservation may put the issue on tribal ballots in October, and the Red Lake Band of Chippewa in northern Minnesota is conducting a feasibility study on broad cannabis reform.

The Department of Justice says it will allow tribes to grow marijuana if certain enforcement triggers aren’t tripped — such as sales to minors, involvement with organized crime and the export of pot to jurisdictions where it’s banned — and the policy only applies to federally recognized tribes.

Some states, such as Virginia, Ohio and Georgia, have no tribes with federal recognition, and in others states, such as California, Florida and New York, tribal lands are placed by Congress under state criminal jurisdiction, throwing up a potential roadblock.

But in many states, including some near major East Coast cities, there are tribes that could conceivably welcome outsiders to buy and use the drug on reservation land.

Tribes likely would have a competitive pricing advantage over states with legal marijuana, where taxes are high. Unlike low-tax cigarettes, a source of revenue on some reservations, tribes would have near-complete control over production, distribution and sales, potentially deepening their market advantage.

For tribes not surrounded by states that allow pot for recreational use, becoming an outpost of legalization would present challenges. Though the feds have been tolerant of small quantities of marijuana seeping out of Colorado and Washington, where recreational pot stores opened last year, it's unclear they would be so permissive with tribes.



Lance Morgan, a prominent tribal law attorney and member of the Winnebago Tribe of Nebraska, says he is working with several businesses and tribes considering growing marijuana for recreational use.

“I think it is a matter of months before some tribes put in place the regulatory system to legalize it,” says Morgan, who declined to identify his clients.

“I think it will be easier in the legal states,” he says, referring to Alaska, Colorado, Oregon and Washington, “but I think some tribes in the other states will likely legalize it also.“

Wyn Hornbuckle, a spokesman for the Department of Justice, says tribes interested in legalizing marijuana would do so on their own and are not expected to consult with the department or federal officials.

“American Indian tribes are sovereign governments, like states,” he says. “Marijuana remains illegal under federal law, so it would not be the Justice Department’s role to work with tribes to facilitate legalization.”

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As the December memo states, Hornbuckle says, tribal governments and local federal prosecutors “will consult on a government-to-government basis as issues arise.”

The boom in tribal gambling operations offers a potential, though imperfect, historical parallel of the road ahead.

Casinos emerged as a large source of income in the 1980s, when two Supreme Court decisions said tribes — with some exceptions — can use their unique status to allow gambling, regardless of regulatory restrictions in neighboring states. Congress passed legislation in 1988 setting up a federal regulatory framework, and many tribes now have revenue-sharing compacts with states.

Marijuana is — and likely will remain for many years — in a fuzzy area of federal non-enforcement within jurisdictions that allow it. Amid a likely lull in federal action, Morgan expects tribal legalization to yield a "cycle of disputes and then finally some type of tribal-state compacts that define the two governments' approach."

The Candidates

Though some anti-marijuana activists fear pockets of legalization across the country, tribes thus far have taken a cautious approach, many seeming reluctant to jeopardize existing businesses or to be the first to step out of the pack.

Chuck Bunnell, a spokesman for the Mohegan tribe, says tribal leaders are “intrigued by the potential” of growing and selling marijuana and have been contacted by companies interested in partnerships.

But, he says, consideration of legalizing the drug is “extraordinarily preliminary.”

“First and foremost we need to protect and would protect the industry we have invested billions of dollars in — with a ‘b,’” Bunnell says, referring to the tribe’s gambling business.

Gamblers play on some of the more than 6,000 slot machines at the Mohegan Sun casino.

Mario Tama/Getty Images

Officials with the nearby Narragansett tribe, which does not operate a casino, are “taking a look at it as of right now but have not made any commitment to move forward,” says Chief Sachem Matthew Thomas.

Meanwhile, Garrett Big Leggins, a tribal executive board member at Montana’s Fort Peck Reservation, where the board voted this month to legalize medical marijuana, says outright legalization may be presented to the reservation’s 12,000 residents this year.

“Our thinking at this point is to ask our tribal members by placing it on the ballot in our next tribal election, which is scheduled for October 31, 2015,” he says. Big Leggins says tribal leaders will consult with attorneys and federal and state officials, and he says the reservation’s constitutional reform committee will discuss the issue.

Similarly remote and sparsely populated, the tribal council of Minnesota’s Red Lake Band of Chippewa, which claims enhanced sovereignty rights on its 1,200-square mile “closed” reservation, is conducting a feasibility study on growing marijuana and industrial hemp, which resembles marijuana but contains minimal amounts of the high-inducing compound THC.

The feasibility study "does not mean that the tribe is planning to grow marijuana or hemp,” says tribal spokesman Michael Meuers. “The tribe seeks to know the pros and cons, the legalities, and how it might benefit Red Lake Nation citizens economically and with jobs.”

Marijuana Through the Years View All 20 Images

Any decision would require approval from the 11-member tribal council — of whom four stated their opposition during a meeting this month — followed by approval from tribal members in a referendum.

In Maine, two federally recognized tribes — the Penobscot Nation and Houlton Band of Maliseets — supported a bill in the state legislature in 2013 that would have legalized marijuana. A Penobscot leader did not immediately return a request for comment, but Maliseets Chief Brenda Commander said unilateral legalization isn't in the cards.

"We believe it would be very controversial as we live in a small conservative town that would bring perhaps very negative attention to the tribe," Commander says. "It would be difficult to also suggest this to our community members with many opinions being vocally expressed for and against."

On Long Island’s only federally recognized reservation, the issue is “not up for consideration,” says Shinnecock tribe spokeswoman Beverly Jensen. The tribal council of Connecticut’s Mashantucket Pequot Tribal Nation, which runs the U.S.’s second largest casino, Foxwoods, “has not reviewed or considered this issue,” says spokesman Bill Satti.

A Complicated Legal Question for Some Tribes

The degree of tribal independence from neighboring states depends on a patchwork of federal laws that, in some instances, transferred from federal to state governments criminal jurisdiction over tribal lands.

Martin Seneca, chief counsel for the Seneca Nation of western New York, says the tribe reviewed the possibility of growing marijuana for recreational use but determined it’s not legally possible.

Seneca says although the Department of Justice told tribes they can proceed without federal interference, New York tribes aren’t free to chart their own course because Congress placed their tribal land under state criminal jurisdiction.

Signs protesting a cigarette tax are posted on a bridge on the Tonawanda Seneca Nation reservation in New York in 2010.

David Duprey/AP

“We have to be concerned about New York state criminal laws because they have criminalized marijuana,” Seneca says. “We’ve looked at it and we’re going continue to look at it, and if there are opportunities that make sense we’re going to consider moving in those directions.”

Seneca says it's probably possible for tribes to enter New York's medical marijuana market, but he says the state’s new medical pot law is so narrowly tailored that doing so would not make sense.

The tribes of New York aren’t alone in being placed under the thumb of state criminal law.

A few years after Congress transferred jurisdiction over tribes in New York, it passed Public Law 280 in 1953. The law currently binds all tribal land in California and Florida and most tribal land in Alaska, Minnesota, Nebraska, Oregon, Wisconsin to state criminal jurisdiction. Other acts grant criminal jurisdiction to states over certain reservations in Iowa, Oklahoma, Kansas and North Dakota.

Matthew Fletcher, a law professor and director of the Indigenous Law and Policy Center at Michigan State University, says for tribes affected by Public Law 280, "if the state flatly bans all marijuana possession and use, then that ban will apply to the Indian communities."

But if states allow any form of legal marijuana, Fletcher says, tribes have the legal groundwork for legalization.

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Therefore, he says, it's probably not possible at the moment for Florida's two federally recognized tribes to legalize marijuana — as the state allows no legal use of the drug — but tribes in California likely could legalize recreational use because of the state medical pot law.

"If it's a flat ban all the way across, the tribes, if they want to do it, are out of luck," he says. "Once the door's open, the tribe can do whatever it wants."

Gaming is a useful analogy, Fletcher says. In Connecticut, the state ban on gambling exempted bingo and poker nights, and tribes were able to use the opening to build enormous casinos.

States can, and have, relinquished or partially relinquished criminal jurisdiction over individual tribes affected by Public Law 280. Tribes technically don't need states' permission to strip themselves of state criminal jurisdiction and can directly request retrocession to federal jurisdiction from the Department of Justice.

Pot Plans Under Wraps

Many tribes without a clear position did not respond to requests for comment for this story and there's clear opposition from some tribal leaders concerned about American Indians’ longstanding problems with alcoholism and addiction.

The tribes that could most easily navigate the legal and social questions of legalization are located in the four states that have already legalized marijuana. In two of those states, Colorado and Washington, recreational pot shops are already doing business. In Alaska and Oregon, stores are not yet open.

Only two tribes are federally recognized in Colorado, the Ute Mountain Ute and the Southern Ute. Neither appear eager to embrace legalization.

There are many more tribes in Washington, some of whom helped spur the Department of Justice’s guidance in their quest to keep marijuana illegal on reservations. The Suquamish Tribe, located across Puget Sound from Seattle, however, explored its ability to sell marijuana before the December clarification.

The Suquamish are keeping their plans quiet for now. “We’ve got a ways to go and we’re not going to get out in front of it,” says Rion Ramirez, general counsel of the tribe-owned Port Madison Enterprises.

On the eastern side of the state, a spokesman for the Puyallup Tribe of Indians, whose laws allow pot possession in line with Washington law but expressly prohibit stores, did not respond to a request for comment.

At the moment, tribes appear most comfortable adjusting their policies to match state laws. In California, the Pinoleville Pomo Nation is partnering with Denver-based United Cannabis Corp. to grow marijuana for medical use, becoming the first California tribe to do so.

United Cannabis plans to announce partnerships with other tribes in California, where lax rules govern marijuana for medical use. Jake Hunter, a company representative, says he can neither confirm nor deny the company is working with tribes outside California on pot-growing plans.