Foggy Framework

State, tribal cannabis agreements leave pueblos in legal gray area

Two Northern New Mexico pueblos are eager to jump into the state’s newly created adult-use cannabis industry, and though a promise from Gov. Michelle Lujan Grisham’s administration offers some hope for a way forward, tribal leaders are proceeding with varying levels of caution because of a conflict with federal law.

Opening up cannabis commerce to Native tribes could mean major economic development for sovereign nations like the Pueblos of Picuris and Pojoaque. A confusing maze of contradictory legal frameworks, however, has left them in a legal gray area.

While recreational cannabis is now legal in New Mexico, it’s still prohibited under federal law, which governs conduct on tribal land.

Pueblo of Picuris Gov. Craig Quanchello says the tribe plans to pursue the potential boon immediately, despite a history of what he considers harassment by federal law enforcement. Pueblo of Pojoaque Gov. Jenelle Roybal says she needs to learn more before pushing ahead.

Lujan Grisham inked agreements with the two pueblos in late March, showing support for the tribes entering the cannabis business and establishing guidelines for production and sales. The intergovernmental agreements also promise a landscape free of legal hurdles.

“We are New Mexicans and we should have the right, like any other New Mexican, to engage in cannabis,” Quanchello tells SFR.

But there are no guarantees, Quanchello says. Previous run-ins with federal law enforcement have left him guarded. He’s optimistic, though, that the agreement with the state will appease the feds and that a friendlier environment under President Joe Biden’s Department of Justice will keep them out from under the microscope.

The Pueblo of Picuris decriminalized cannabis in 2015 and has been operating medical facilities for years, but not without interruptions. In 2017, federal agents raided the tribe’s small-grow operation and destroyed more than 30 nearly-mature plants. In addition, Quanchello says officials with the Bureau of Indian Affairs have a history of harassing tribal members. He claims agents have “gone rogue” and threatened people in the community with prosecution.

“Since we’ve acknowledged that we were in cannabis and medical cannabis, BIA has totally blackballed us,” he says, adding that the tribe is facing discrimination. “They’ll stop and frisk you; they’re searching my tribal members’ cars.”

SFR sent multiple inquiries to the BIA regarding its law enforcement policies, but they were not returned. The US Attorney’s Office for the District of New Mexico declined to comment.

Criminal jurisdiction on tribal land falls to both the pueblos and the federal government. So the BIA, which maintains a Division of Drug Enforcement, can operate legally on Native land. In some cases, tribes are reliant on BIA policing, according to University of New Mexico professor Barbara Creel, who says the agency could be abusing its power.

“It’s very disturbing if they are actually being directed to do stop-and-frisks or target tribal members for cannabis possession,” Creel says. “We clearly have a conflict now between the tribe as a sovereign doing something that’s legal within the state territory but inconsistent with federal law and policy.”

Both tribes are federally recognized, meaning they’re eligible for BIA funding and services. Skirting around federal drug laws has created some apprehension for tribal leaders. However, a shift under Biden has eased some of Quanchello’s concerns, and the pueblo intends on quickly establishing cannabis businesses.

According to Heather Brewer, spokeswoman for the New Mexico Cannabis Control Division, the tribes should be covered under the intergovernmental agreement and by the US Department of Justice.

The Cole Memorandum, an Obama-era policy delivered in 2014, issued guidance to US attorneys for practicing discretion against state-regulated marijuana programs. The Wilkinson Memo, drafted by the Department of Interior, extended that discretion to Native American tribes.

Essentially, the policy directed federal prosecutors to leave tribal cannabis interests alone, so long as they adhere to certain priorities such as preventing possession by minors, keeping revenue out of the hands of criminal organizations and stopping the diversion of cannabis to other states where it remains illegal.

However, President Donald Trump’s Attorney General, Jeff Sessions, scrapped the Cole and Wilkinson memos in 2018. Legal cannabis advocates and members of Congress have pushed the DOJ to reinstate the protections, but so far to no avail.

“I think that the feds are behind in their view of cannabis legislation, definitely behind on public policy and public sentiment regarding cannabis, but they’ve just not been able to catch up with the quickly moving legal landscape,” Creel says. “So they’ve adopted, in my view, a sort of don’t-ask-don’t-tell policy.”

So the pueblos have turned to the state for guidance. In Lujan Grisham’s announcement of state-tribal cooperation, the state says the intergovernmental agreements offer protection from federal law.

It’s unclear, though, what cannabis directives a future administration might hand down.

According to Roybal, the Pojoaque Pueblo intends to open a dispensary, but not without talking with federal agencies further.

“That’s what our conversations are right now, that there’s no law enforcement action with them on their part,” she says. “Nothing is confirmed. We definitely want to meet with [the BIA] before we open everything up.”

Legislation from Congress to decriminalize cannabis could ease concerns for the tribes. The most recent attempt by officials was the MORE Act, which passed the US House of Representatives on April 1, that would wipe out federal criminal penalties. The Senate is unlikely to sign off on it, though.

Geography, lack of resources and capital have restricted New Mexico tribes’ efforts at economic development. While Pojoaque has gaming operations to benefit from, Picuris does not. Each could find much-welcomed revenue in the cannabis industry, which is estimated to bring $300 million in sales to the state.

And while the tribes would be subject to the 12% excise tax on recreational sales if they were to start a business outside tribal lands, Brewer says any products produced, purchased or sold within their territories would be exempt—much like tobacco.

Quanchello says the Picuris would consider litigation if any of its cannabis operations are thwarted by the BIA, but “it’s like suing your mother or father.” Until then, the tribe will press forward. After all, it owns the title to its lands and Quanchello wants to make use of it.

“We’d like to exercise our sovereignty,” he says. “We’re farmers by nature and that’s something that we’re good at. We’re in a rural area. We don’t have the population. Now that hemp is legal and recreational is legal, there’s a money value to an acre and that’s something that we’d like to take advantage of.”

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