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Feds to Indian Tribes: We (Probably) Won't Prosecute You If You Grow Cannabis

10/01/2015

With four states and the District of Columbia having declared they're going to legalize recreational cannabis in spite of federal law, some Indian tribes have taken note and begun to explore the possibility of using cannabis as an economic development tool.

In the so-called "Cole Memorandum" issued by the feds suggests that tribal lands, should they assert independence in this matter, would be left alone. But at the same time, the feds maintain that nothing about their failure to consistently enforce the federal prohibition "alters the authority or jurisdiction of the United States to enforce federal law in Indian country." 

In other words, they're saying "we'll leave you alone unless it becomes politically advantageous for us to prosecute you again."

This pretty much sums up the federal position in regards to the states, such as Colorado, that have legalized recreational cannabis. The feds reserve the right to crack down on the states at any time.

This is why some legislators have begun to put into the works changes to federal law that would prevent the federal government from taking action against states that have unilaterally disregarded the federal prohibition.

One of the longest running dark jokes in American law is the assertion that Indian reservations are "sovereign nations." Yes, they're fully sovereign unless someone on them grows some plants the federal government doesn't like. Then, the FBI is free to do whatever it wants with the people who live there.

So, not surprisingly, given past treatment from the federal government, the tribes are a bit hesitant when it comes to forging ahead on this matter.

But, should the tribes insist on moving forward with their own plans for legalization, it would all be to the best and move toward further limiting the legal presumption that the federal government can regulate and control very nearly every aspect of the economy in the states.

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Ryan McMaken (@ryanmcmaken) is a senior editor at the Mises Institute. Send him your article submissions for the Mises Wire and Power and Market, but read article guidelines first. Ryan has a bachelor's degree in economics and a master's degree in public policy and international relations from the University of Colorado. He was a housing economist for the State of Colorado. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.