National Congress Of American Indians Demands Tribal Consultation On Marijuana Rescheduling Rule

Tribal Organization Faults DOJ Over Rescheduling Process

The National Congress of American Indians (NCAI) says the Trump administration “failed to engage” in consultation with American Indian tribes as required under federal law when crafting its plan to reschedule marijuana. The group adopted a resolution at its annual convention last month demanding the Department of Justice address the issue.

NCAI is the oldest and largest national organization of American Indian and Alaska Native tribal governments. The resolution was previously noted by Vicente LLP.

The final order on marijuana rescheduling was signed by Attorney General Todd Blanche in April. It immediately moved marijuana products regulated by a state medical cannabis license from Schedule I of the Controlled Substances Act to Schedule III.

However, the order “does not specifically mention Tribes or Tribally regulated medical cannabis programs and by its limited terms may not cover Tribal cannabis products, despite the wide-ranging medical cannabis products subject to Tribal licensure,” the resolution says.

The resolution states that the tribal cannabis industry has “grown every year as more Tribes exercise their inherent sovereign authority to regulate cannabis and cannabis products.”

Scale Of Tribal Cannabis Involvement

A map created last year by the Indigenous Cannabis Industry Association in collaboration with the law firm Vicente LLP showed that more than a fourth of Indigenous communities in the continental U.S. are now involved with marijuana or hemp programs.

An estimate published last month by HedgeRow Analysis projected that Native American tribes participating in the legal marijuana market stand to generate more than $2 billion in new revenue every year.

Despite that growing involvement, the NCAI resolution says DOJ claimed marijuana rescheduling “does not have substantial effects on one or more Indian tribes, despite the scores of Tribes that engaged with the DOJ during the contemplation of the Final Order and that have exercised their sovereignty by regulating and licensing cannabis and cannabis products within their jurisdiction.”

The resolution notes the consultation requirement stems from a Clinton-era executive order. The group argues the administration did not meet that obligation.

Demands For Corrective Action

NCAI “demands the DOJ immediately initiate Tribal consultation with Tribes engaged in the cannabis industry to gain insight into the [Controlled Substances Act] scheduling of cannabis and cannabis products, and how actions the DOJ takes impact Tribes,” the resolution says.

The group is calling on DOJ to either amend the existing rescheduling order to include tribally licensed cannabis products or issue a separate new rule “specifically rescheduling Tribally licensed cannabis and cannabis products from schedule I to schedule III.”

The resolution also urges DOJ to include Tribes in any further administrative action regarding cannabis, regardless of whether it involves the CSA or rescheduling.

NCAI cites the number of Tribes actively engaged in the cannabis industry through the exercise of their inherent sovereign authority as the basis for that demand.

The resolution now stands as the organization’s formal position, with the next step resting with DOJ.

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