*[co-author: Jack Bekos]
A whopping 7 in 10 Americans favor the legalization of cannabis, according to Gallup, as more states are slated to legalize adult use cannabis, or at least decriminalize it, this year. Indigenous nations, such as Wisconsin’s Ho-Chunk, are following suit. As of April 30, the Ho-Chunk tribal legislature voted to decriminalize cannabis on its tribal lands. Yet, as the Drug Enforcement Administration (DEA) advances the rescheduling of cannabis under the Controlled Substances Act, complex jurisdictional questions remain regarding the enforcement of cannabis laws at the tribal and state levels. Among them, as of 2024, can tribes legalize cannabis use and sale on their own lands?
It is unclear whether and how states that outlaw adult use cannabis will enforce their own laws if an intrastate tribe decriminalizes or legalizes its use. Adding to this confusion is Public Law 83-280 (P.L. 280), which transfers criminal jurisdiction over indigenous nations, with exceptions, from the federal government to certain states, including Wisconsin. The Badger State must now reckon again with its position as a mandatory P.L. 280 state: the Ho-Chunk nation’s decriminalization of cannabis is in direct conflict with Wisconsin’s categorical ban on the substance.[1] That localities including Madison, Eau Claire, Milwaukee, Oshkosh, and Green Bay have all decriminalized cannabis possession and use in the face of statewide prohibition does little to solve this jurisdictional conundrum. Sure, if analogized, these local decriminalization successes lend credence to the assumption that in the Ho-Chunk nation, a person is highly unlikely to face state prosecution for possession of certain amounts of cannabis. Yet, unless and until Wisconsin legislators side with the majority of American states and legalize cannabis, indigenous tribes must contemplate their own cannabis legalization efforts, protocols, licensing regimes, and oversight.
The United States Department of Justice’s Cole and Wilkinson memorandums, although now retracted, encouraged prosecutorial discretion to U.S. Attorneys tasked with enforcing federal cannabis laws on native land. Specifically, those officials were directed to ignore state-regulated cannabis programs and prioritize enforcement in states where cannabis legalization efforts had not yet occurred. As a result, indigenous tribes have had the easiest time entering the commercial cannabis market within states that legalized cannabis and maintain robust licensing programs. Such is the case for tribes in Washington, Oregon, Michigan, New York, and Montana, many of whom have taken advantage of legalization on the back of compacts with their state. In those states that continue to outlaw cannabis, like Wisconsin, federal enforcement of anti-cannabis laws is more likely. Adding insult to injury, P.L. 280 poses a substantial limit on tribes’ ability to self-govern criminal matters in the first place (for example, enforcing cannabis-related legislation). Whereas P.L. 280 undercuts tribal sovereignty by imposing state law demands on tribes without their consent, non-P.L. 280 states are better able to realize the commercial potential of legalized cannabis operations. In South Dakota, for example, the Flandreau Santee Sioux Tribe operates a booming cannabis dispensary, whose doors quickly opened to off-reservation customers when South Dakota legalized medical cannabis in 2021.
After successfully decriminalizing cannabis, tribes like the Ho-Chunk must now consider the best pathway to legalize its use, even in the context of P.L. 280. Native tribes would have a stronger legal ability to initiate legalized commercial cannabis activity if and when the DEA reschedules cannabis to a Schedule III controlled substance. If the federal government remains silent on tribal sovereignty regarding cannabis legalization, however, the issue will continue progressing in its current ad hoc, state- and tribe-specific manner.
Still, the Ho-Chunk nation and other P.L. 280 tribes can endeavor to move towards legalization while the DEA engages in the rulemaking process around Schedule III. One organization, the Indigenous Cannabis Industry Association (ICIA), works directly with tribes across Wisconsin to promote cannabis operations and indigenous entrepreneurship in anticipation of eventual state legalization. With the help of the ICIA, the Ho-Chunk’s extensive lobbying efforts to state and local legislatures have proven successful in preliminary negotiations. Indeed, this tribe and others seek to concretize commercial cannabis plans now as a way of diversifying their nations’ revenue sources in the future. While Wisconsin legislators plod along in debating legalization of even just medical cannabis, the state and its native tribes lose millions of dollars in cannabis-related revenue yearly to neighboring states.
The Ho-Chunk nation and other tribes seeking legalization should engage legal counsel now as they consider retail cannabis operations post-decriminalization. Given that Wisconsin is a P.L. 280 state, any tribal legalization regime will need to be strictly regulated, licensed, and overseen by tribal government. In the alternative, potential compacts with the state of Wisconsin, mirroring those created in places like Washington and New Mexico, must be drafted with tribal sovereignty in mind. These intergovernmental agreements would be most effective if they prevent federal law enforcement on indigenous land. Even then, some tribes might oppose such compacts given a historically antagonistic relationship with their state governments. In that case, intratribal, interstate agreements or associations remain promising alternatives.
*Written with the assistance of Jack Bekos, a summer associate in Husch Blackwell’s Milwaukee office.
[1] Contrast the Ho-Chunk and Menominee nations: in 2015, as the only non-P.L. 280 tribe in Wisconsin, the Menominee legislature approved the legalization of adult use cannabis, setting itself up for a legal battle with the federal government instead.
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