Tribal Law and Marijuana (The Cole Memo)
What is the Cole memo?
The Cole Memorandum is a US Attorney's office policy statement that contains provisions that provide for the production, sale, and distribution of Cannabis as it pertains to Indian Tribal land. Specifically, the Cole memo lays down guidelines for the United States Attorney's Office and its involvement with Marijuana concerned with the following:
- Marijuana use by minors.
- Marijuana proceeds funding gangs and cartels.
- Transportation of Marijuana from states where it is legal to states where it is not.
- Marijuana as a “cover up” for more illicit drug activity.
- Violent crimes involving guns related to marijuana.
- Impaired driving.
- Cultivation on federal land that endangers the environment.
- Marijuana possession on federal property.
The Cole memo stresses the notion that the prosecution of federal marijuana crimes will be targeted to those who violate one or more of the above policy concerns. However, this is not necessarily dispositive. Generally, the US attorney's office has license to prosecute based on the “interests of the department”
Tribal marijuana criminal defense attorney, Bill Kroger, is well versed in the nuances of the Cole Memorandum as well as other pertinent policy discussions and laws related to Cannabis activity on Tribal land.
What does Tribal Law say about Marijuana?
- Tribal law prohibits the sale of Marijuana to anyone under the age of 18.
- Driving while impaired still remains a crime and does apply to marijuana.
- Transport of Marijuana across states
Can the Federal Government enforce federal drug laws on Tribal Land?
- Generally, yes. The Assimilative Crimes act makes any violation of a state's criminal law a federal crime on tribal land.
- The Assimilative Crimes act hinges on the notion that when the government prosecutes an offense, it is not merely enforcing state law, but actually federal law merely by applying the state law to the offense.
- Essentially, it attempts to hold tribes to legal standards similar to US law by holding them accountable for the state and local laws they are surrounded by.
Relevant Case law: MENOMINEE INDIAN TRIBE OF WISCONSIN v. DEA & US Department of Justice
- In 2014, the Cole memo laid out guidelines that stated the US Department of Justice would not prosecute on the basis of federal laws pertinent to Marijuana cultivation on tribal land.
- In October 2015, raided Menominee Tribal land and seized roughly 30,000 cannabis plants.
- The Bureau of Indian Affairs and law enforcement had previously taken no issue with the tribe's hemp plants.
- However, a sample taken by law enforcement alleged to have tested positive for the indication of Marijuana.
- After the plants were seized and destroyed by the DEA, the Menominee tribe filed a lawsuit against the DOJ and the DEA.
- The lawsuit claimed that the tribe had the right to grow Hemp under the 2014 Federal Farm Bill with assistance from the College of the Menominee nation.
- The 2014 farm bill held that states could ––in conjunction with institutions of higher education–– research and grow hemp if those states had legalized hemp production.
- The lawsuit also argued that since the tribe had legalized hemp on its lands, the laws of Wisconsin ––which surrounded Menominee lands–– did not apply and were not relevant.
- The court held that the tribe of the Menominee nation was not a “state” and as such, was governed by Wisconsin's state laws, which made hemp production a crime.