Can American Indian Nations Legally Sell Cannabis?

In the summer of 2021, leaders from the Paiute Indian nation in Utah met with state officials to discuss the possibility of getting into the medical cannabis business. The nation expressed interest in doing so after seeing how successfully Utah’s medical cannabis program was proceeding. The question is whether American Indian nations can legally sell cannabis without state or federal approval.

It is an interesting question that still doesn’t seem to have a black-and-white answer. Way back in 2014, the U.S. Justice Department came out with an official statement saying that Indian nations could cultivate, process, and sell cannabis products as long as they followed the laws of the states in which their tribal lands were located.

That is all well and good, but cannabis is still illegal under federal law. The Justice Department’s statement does not amount to legally binding regulation. It is simply an admission that federal authorities will turn a blind eye to Indian nation cannabis activities the same way they have with the states.

Medical Cannabis in Utah

Getting back to Utah, state law strictly limits cannabis to medical use only. All cultivators, testers, processors, and pharmacies must be licensed by the state. Furthermore, the number of licenses issued by the state is severely limited. This begs the question of whether the Paiute nation could get in on things without being licensed.

On the one hand, the Justice Department’s statement does seem to indicate that licensing would be necessary. On the other hand, American Indian nations reserve the right to a certain amount of self-governance. Their tribal lands belong to them. They exercise sovereign control over those lands.

To ask permission from state officials would be no different than Deseret Wellness seeking a license to operate their Provo medical cannabis dispensary. If the state said no, then the Indian nation would be surrendering its sovereignty to what effectively amounts to a foreign entity.

Recreational Cannabis in New York

On the other side of the country you have the state of New York, where both medical and recreational cannabis have been legalized. As of December 2021, the state still hadn’t gotten around to establishing a system by which licensed dispensaries could sell recreational marijuana. Yet customers, at least in upstate New York, can still get recreational cannabis on Indian tribal lands.

In short, a number of Indian nations have stepped up to fill in the gap. They have either actively established dispensaries or simply looked the other way while native citizens have done it. Either way, non-members are free to travel to tribal lands where they can buy recreational cannabis not available through other channels.

No Easy Answers

It would appear as though American Indian nations are free to do as they please with cannabis. The Justice Department isn’t going to go after them, and it doesn’t seem that the states have any desire to do so either. In New York, tribal lands are home to a growing number of recreational cannabis dispensaries.

Meanwhile, tribal leaders in Utah are working with state government to see if they can come to some sort of agreement. It would be interesting to see the Paiute nation deciding to get into medical cannabis without permission. Would the state try to intervene? No one knows.

Although the ambiguity is unfortunate, that is the way it is with most dealings between American Indian nations and state governments. Indian nations are sovereign nations. At the same time, treaties allow for some control by state and federal agencies. The fact is that there are no easy answers here. There probably never will be.

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Sophia