In September, federal agents raided a home garden on the Indian reservation of Picuris Pueblo. The raid came as a surprise to 54-year-old Charles Farden, who believed that his plants were legal. Farden has lived in Picuris since he was a child. He is not Native American, but is married to a member of the tribe. Marijuana is now legal according to the laws of New Mexico and Picuris. Because of this, he saw no reason to be anything but honest when several federal officers arrived at his home and asked what he was growing in the garden. In an interview with The Associated Press, “I was just open with the officer, straightforward. When he asked what I was growing, I said, ‘My vegetables, my medical cannabis.’ And he was like, ‘That can be a problem.’” After this, Farden officers promptly handcuffed Farden and confiscated his plants.
In terms of cannabis regulation, Native American tribes have the power to legalize the plant within their jurisdiction. Generally, government agencies are respectful of the right of tribes to legislate their own approach to cannabis. So after hearing about the raid that happened at Farden’s house, tribal governor Craig Quanchello sent a letter to the Bureau of Indian Affairs (BIA) through a lawyer. In this letter, Quanchello expressed dismay with the officers flouting tribal law saying, “We are thus extremely surprised, and concerned, that BIA law enforcement officers, who surely have far more pressing priorities, would take it upon themselves to carry out an operation like this, particularly where it was against persons whose possession of cannabis was for medical purposes.”
The BIA responded to Quanchello’s letter with one of their own that states that they will not prevent officers from penalizing individuals in possession of cannabis. This letter reads “Prior notification of law enforcement operations is generally not appropriate. The BIA Office of Justice Services is obligated to enforce federal law and does not instruct its officers to disregard violations of federal law in Indian Country.” Technically, Native American tribes have the same rights as states to legalize and regulate cannabis. However, this raid shows that this is not always accurate in practice.
Since weed first started being legalized by individual states, the federal government has (for the most part) respected local regulations without intervention. The same typically goes for Native American tribes that allow cannabis use. This makes the recent raid surprising and seemingly unprecedented, since you don’t see people’s homes being raided for weed in states where the plant is legal. So the question is why BIA agents see fit to go against tribal ordinances to enforce federal law when this action would not apply in other legally similar situations. Lawyer Leland Berger, who advised the Oglala Sioux tribe when they legalized marijuana, has expressed surprise with the events saying, “It’s remarkable for me to hear that the BIA is enforcing the federal Controlled Substances Act on tribal land where the tribe has enacted an ordinance that protects the activity.”
Berger also discusses why cannabis ordinances on tribal land might be less cut and dry than state-legal cannabis legislature, “The tribes are sovereign nations, and they have treaties with the United States, and in some cases there is concurrent jurisdiction. ... It’s sort of this hybrid.” Because the federal government has concurrent jurisdiction over many tribal reservations, whether to address cannabis using tribal or federal laws becomes significantly murkier. As Berger says, Indian tribes are sovereign nations from a legal perspective. This means they can make their own legislative decisions. However, it this situation, federal law has trumped tribal law in a way that we haven’t seen in other places cannabis is legal.
This brings about a lot of questions regarding the tribal right to individual government and why these laws appear to be observed differently than state laws that allow cannabis. Craig Quanchello said of the inequality that the raid exposed during an interview with Marijuana Moment, “Why is Picuris being discriminated against or picked on?” the governor of the tribe, Craig Quanchello, said in a phone interview with Marijuana Moment on Tuesday. “Why are we having to suffer the consequences of a rogue officer? That’s what we’re trying to get to.”
“That’s the story we’re trying to tell, is for them to have some equality across the Indian country for tribes,” he said, adding that the tribe wants to know “what is that secret criteria that is needed by the feds to not bother us that everybody else seems to have except us?”
The recent raid in Picuris, New Mexico, highlights legal inequalities in the right of Native American tribal governments to regulate cannabis. The government seldom applies federal cannabis where there is a state-legal industry. However, the BIA has shown that they do not universally respect these tribal laws. If this ability were stable and Indian tribes didn’t have to fear federal intervention, many could form lucrative legal industries like many states have. In the words of Quanchello, “We’re farmers by nature. It’s something we can do here and be good at it,” Quanchello said. “We don’t want to miss it.” But the recent raid has brought up questions about whether this is possible. This is because creating a stable cannabis industry requires consistent acknowledgment of legal guidelines. If a tribe were to start an industry in the current climate, it could be destroyed by the agents sporadically enforcing federal cannabis law. Therefore, Indian nations cannot reap the benefits of the budding weed industry because there is no legislative consistency.
AP news article about the raid:
Marijuana Moment article discussing the Pueblo tribe’s response to the raid: