A marijuana grow. Courtesy photo
Opinion

Leland McGee: California agency attacks tribal sovereignty with marijuana rules




California Launches Coup D’état Over Tribal Sovereignty

By Leland McGee

On November 16, 2017, the Bureau of Cannabis Control (BCC), a newly created regulatory body within the California state government, released a set of Emergency Medicinal and Adult Use Cannabis Regulations.

Their purpose? To meet a January 1, 2018 deadline for implementation of the recently enacted Medical and Adult Use Cannabis Regulation and Safety Act (MAUCRSA). Their problem? The California Code of Regulations Title 16, Division 42 – Bureau of Cannabis Control, contains the following:
Ҥ 5009. Limited Waiver of Sovereign Immunity
(a) Any applicant or licensee that may fall within the scope of sovereign immunity that may be asserted by a federally recognized tribe or other sovereign entity must waive any sovereign immunity defense that the applicant or licensee may have, may be asserted on its behalf, or may otherwise be asserted in any state administrative or judicial enforcement actions against the applicant or licensee, regardless of the form of relief sought, whether monetary or otherwise, under the state laws and regulations governing commercial cannabis activity (excerpt).”

This action is nothing less than a calculated political assault by the state of California on established legal policy over tribal sovereignty. This affront impacts all 108 federally recognized Indian tribes with lands throughout the state. Considering the decades of established government-to-government relations between the tribes and the state, including sound doctrines on tribal sovereignty and its legal jurisdictions, this BCC action is highly suspect and completely unacceptable.

As it stands, without a state-issued license, tribes are barred from engaging in cannabis operations and commerce within the state’s legal cannabis space. Without a tribe’s waiver of their sovereign immunity under § 5009 (above), a tribe cannot be granted a state license. The rules further restrict any state licensed cannabis entity from engaging with any non-state licensed entity or operation, including non-state-licensed tribes. Such waivers of sovereignty by tribes will lead to state laws and policies applying on all Indian lands of a tribe that conducts commercial cannabis operations.

Arguments and opinions abound as to why the state has taken this action. We all know the legal jigsaw puzzle that the state and the federal government has created for tribes attempting to enter the highly lucrative, state-legal industry. Questions also arise as to why a newly formed regulatory body such as the BCC wields so much power to change established tribal-state policy?

As a comparison, let’s review the California’s State Water Resources Control Board (SWRCB) draft policies over the cannabis industry. Arguably the most powerful regulatory body in the state, for decades it has controlled and regulated every aspect of California’s water resources, usage and rights held within and outside of the state. The SWRCB’s Cannabis Cultivation Policy and Guidelines for Cannabis Cultivation include:
“Tribal Lands – Lands recognized as “Indian Country” within the meaning of Title 18, United States Code, Section 1151.
Tribal Authority Savings Clause
Nothing in this Policy shall be construed to amend or modify in any way the authority of California Native American Tribes to regulate cannabis cultivation on tribal lands recognized as Indian Country within the meaning of Title 18, United States Code, Section 1151.”

Such language reveals that the very powerful SWRCB intends to adhere to established legal policy in recognizing and respecting tribal sovereign rights and jurisdiction over commercial cannabis activities conducted on Indian lands within the state. Yet in contrast, the BCC’s regulatory language makes no mention of tribal sovereign rights, other than to mandate a limited waiver of them by any tribe seeking to do business in the state’s cannabis space.

This just one example of current inconsistencies applied to tribal sovereignty by the various state agencies charged with developing regulatory policies over commercial cannabis activities. Most disturbing is the threat of other state agencies following the BCC’s lead, effectively preventing a tribe from participating in a projected $7-10 billion-dollar industry without first submitting to a forced waiver of their sovereign immunity as a cost of doing business.

An opportunity still exists in the California state legislature to correct this encroachment on tribal sovereignty. Assembly Bill 924, introduced early in the 2017 legislative session, requires the state to enter into a compact with federally recognized Indian tribes seeking to legally engage in the state’s cannabis industry. This bill has passed the Assembly, currently awaits Senate passage, then enactment by Governor Brown.

With the current session having ended for the year, it is critical that California tribes and their supporters rally passage of this legislation throughout the pending 2018 session. Without AB-924, no legal cannabis commerce will be allowed within the state by an Indian tribe (off of their reservation) without a state-issued license, severely restricting tribal economic opportunities in this burgeoning industry.

All tribes throughout the United States should recognize the dangerous precedent California is establishing in state-tribal relations throughout Indian Country. This is not just about a Tribe’s decision to voluntarily participate in a state-legal cannabis industry. Removing tribal sovereignty as part of any tribal-state relationship is wrong, regardless of the circumstances surrounding such action.

Considering the billions of dollars in gaming revenues tribes have contributed to California’s budget over the past few decades, the state should be ashamed of itself for now taking advantage of those same tribes seeking to participate in California’s legal cannabis space.

Leland McGee, a citizen of the Cherokee Nation, currently serves as Chief Executive Officer for The Sequoyah Group, LLC, a native-owned consulting firm specializing in tribal business development and governmental “best practice” modeling. His career in Indian affairs includes service under both the Clinton and Bush Administrations, the National Congress of American Indians and the state of Maryland. His efforts as a tribal lobbyist, tribal administrator, executive director and business development consultant have helped improve many tribal communities and business opportunities on Indian lands throughout the United States.