Tribes Excluded From Federal Marijuana Rescheduling Process Group Claims

Tribal Group Says DOJ Skipped Required Consultation

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 act.

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

DOJ claimed it did not consult because marijuana rescheduling “does not have substantial effects on one or more Indian tribes,” according to the resolution. NCAI disputed that claim, citing the scores of tribes that engaged with the DOJ during the contemplation of the final order.

The consultation requirement stems from a Clinton-era executive order. NCAI is the oldest and largest national organization of American Indian and Alaska Native tribal governments.

The resolution was previously noted by Vicente LLP.

Rescheduling Order May Leave Out Tribal Products

The final rescheduling order, signed by Attorney General Todd Blanche in April, immediately moved marijuana products regulated by a state medical cannabis license from Schedule I of the CSA to Schedule III.

But 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 tribal cannabis industry has “grown every year as more Tribes exercise their inherent sovereign authority to regulate cannabis and cannabis products,” the measure says.

A map created last year by the Indigenous Cannabis Industry Association in collaboration with 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.

What NCAI Wants Next

NCAI 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 group also wants tribes included in any future administrative action on cannabis. “NCAI calls on the DOJ to specifically include Tribes in any further administrative action it contemplates regarding cannabis and cannabis products, regardless of whether it involves the CSA or rescheduling, due to the number of Tribes that are actively engaged in the cannabis industry through the exercise of their inherent sovereign authority,” the resolution says.

The resolution was adopted by the group’s members at its annual convention last month. No DOJ response has been reported.

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