Indigenous tribes taking the lead on legal weed

After the state legalized recreational marijuana in March, the lawmakers and advocates who pushed for the law have been criticizing Gov. Andrew Cuomo for dragging his feet on setting up marijuana sales and cultivation regulations. While most of the state still needs to wait a year or more before sales can begin, some Native American tribes are already moving ahead with legal pot in their territories.

Marijuana law, as it relates to sovereign Native American tribes, can be tricky because there aren’t set regulations. “Short answer, it’s complicated,” said Heather Trela, a fellow and the director of operations at the Rockefeller Institute of Government. But the most simple way to understand it is that sovereign tribes are free to legalize – or ban – marijuana within their territories, including its cultivation and sale, independent of the state. Still, it becomes much easier for tribes looking to enter the pot market to take action after surrounding states legalize the drug to avoid jurisdictional issues over drug-related crimes with the federal government.

At the forefront of those efforts in New York is the St. Regis Mohawk Tribe, whose territory is at the northern edge of the state along the Canadian border. On June 28, it became the first tribe in the state to legalize recreational marijuana. But the tribe had been working on regulations since December 2019 following a tribal referendum on the matter. When the state approved its marijuana legislation, the St. Regis Mohawk Tribe was ready to act. And it’s on pace to begin sales well before the state.

In a unique setup, the St. Regis Mohawk Tribe has established an entire regulatory structure within its jurisdiction and will award licenses to tribal members and tribal businesses. This is different from the route many other tribes have taken, which often set up tribally owned and operated marijuana businesses. In an email, Brendan White, the tribe’s director of communications, wrote, “The adoption of the Tribe’s Adult Use Cannabis Ordinance is historic, as it represents the first adult use cannabis law adopted by a tribe in New York state and is the first in the country that licenses tribal members and tribal member-owned businesses.”

The recently passed ordinance created the Tribal Cannabis Exchange to issue licenses and collect fees, and it includes a compliance office overseen by the Tribal Cannabis Board. It has already begun receiving license applications, and while the tribe has not provided a specific timetable, marijuana sales are expected to begin in the territory before the end of the year. And the new businesses could have big monetary implications for the tribe. “It provides an opportunity to diversify our local economy, provide needed employment and remit licensing fees to financially support the ongoing provision of essential community programs and services,” White said.

Not far behind is the Shinnecock Indian Nation on Long Island, which has broken ground on a medical marijuana cultivation facility and is building a dispensary and wellness center, with expectations that sales could start before the end of the year. Like with recreational marijuana, they are planning to own and operate a medical marijuana business outside of the state’s regulations within their territory. But now that the state has legalized recreational pot, tribal leaders have said they’re looking to establish regulations for that as well, if members agree to a framework. The managing director of the Shinnecock Indian Nation’s marijuana business, Little Beach Harvest, declined to comment for this story, citing internal work happening right now.

While sales can only take place on tribal land, it can still have an impact on neighboring communities. Local governments in the region abandoned the idea of opting out of recreational sales since pot would be in the region anyway if the Shinnecock Nation moved forward with its own legalization. And given the slow pace at which the state is moving to set up its regulatory structure, the St. Regis Mohawk Tribe and/or the Shinnecock Nation could be selling recreational pot for months or even longer without competition from state-regulated retail shops.

Tribes, by setting their own tax rates, could also sell marijuana for cheaper than state-regulated shops that may operate nearby. It’s one of the incentives for states to enter into compacts with tribes, which generally result in similar tax structures and would allow tribes to operate outside of their territory, according to Trela. Those compacts, while not necessary, also help with jurisdictional issues at both the state and federal level. Many Indigenous casinos in New York operate under such compacts with the state, and tribes in other states have often reached a compact with state leaders when entering the pot business. The largest dispensary in Nevada is the result of a compact between the Las Vegas Paiute Tribe and the state government, and it has been a major boon for the tribe.

Entering compacts is not always without controversy though. In California, tribes and the state government have been at odds over marijuana regulation. In order for tribes to enter the state market outside of their territories, California officials demanded that they give up their tribal sovereignty and submit to state regulations on their own land, something the tribes refused to do. The issue arose because Proposition 64, which legalized recreational pot in the state, said nothing about how the state would interact with tribes.

The law in New York legalizing recreational marijuana didn’t say much about marijuana on Indegenous lands. It did, however, give the Cannabis Control Board, which will oversee the industry and its regulations, the authority to “enter into tribal-state compacts with the New York state Indian nations and tribes … authorizing such Indian nations or tribes to acquire, possess, manufacture, sell, deliver, transport, distribute or dispense adult-use cannabis and/or medical cannabis.” But with the Cannabis Control Board still not set up, it will likely take some time before such compacts are established. When asked whether the St. Regis Mohawk Tribe is interested in entering a compact with the state, White said such a decision “would need to be presented to tribal membership for approval.”

But not all tribes are getting in the action. The Onondaga Nation near Syracuse is reportedly not planning to authorize pot businesses in its territory. And Western New York’s Seneca Nation of Indians has not publicly announced any plans, despite two years ago saying it was eagerly awaiting the state to legalize pot, “like a snake ready to strike.”

In the meantime, both the St. Regis Mohawk Tribe and the Shinnecock Nation are moving ahead to get what could become an important industry up and running, even while the state is still figuring out its own business. They’ll likely attract shoppers from around their regions eager to purchase marijuana that’s now legal to possess. The success of their businesses may set an example for not just other tribes that are perhaps hesitant to enter the market, but for the state as well.