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

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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.

Ryan McMaken (@ryanmcmaken) is a senior editor at the Mises Institute. Send him your article submissions for Mises Wire and The Austrian, but read article guidelines first. Ryan has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.

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