In the United States, the policy landscape surrounding marijuana is complex, multijurisdictional, and often messy, if not contradictory—particularly for tribal communities. Considered legal under federal law until the Marihuana Tax Act of 1937, possession of marijuana was banned by many states around the same time [1]. In 1951, the Boggs Act created mandatory prison sentences for specific drug offenses including marijuana. This was followed by the Narcotic Control Act of 1956, which increased penalties for drug offenses. In the 1960s, the constitutional basis for drug control shifted away from taxation to regulation of interstate commerce. At this time, responsibility moved from the Treasury to the Department of Justice, coinciding with President Nixon’s “war on drugs”[1].

Working with Congress, Nixon increased federal drug control through a series of legislative acts including the Controlled Substances Act (CSA) of 1970, which continues to serve as the foundational federal policy regarding marijuana. The CSA orders drugs based on their addictive properties and dangerousness, including risk to public health. Whereas Schedule V drugs are the least addictive and dangerous, Schedule I drugs are believed to have “high potential for abuse” and “no currently accepted medical use in treatment in the United States.”[1] As such, they are considered illegal to produce or manufacture, distribute, dispense, or possess—either for medical or personal/recreational purposes [1]. Under the CSA, marijuana and its derivatives are classified as Schedule I drugs making marijuana the most used illicit drug in the United States [2].

Several actions have been taken in recent years to both affirm the CSA and hinder its enforcement. Following a directive from former President Obama to the Department of Justice, in states where marijuana has been legalized for medicinal or recreational use, no federal funds are directed to the prosecution of marijuana-related crimes if terms of the Cole Memorandum are met. This document outlines eight enforcement priorities, including prevention of distribution to minors [3]. Later, a memorandum of understanding was sent clarifying the policy of federal non-interference, indicating that the same considerations would apply to all federally recognized reservations. As noted in the memorandum, “the eight priorities in the Cole Memorandum will guide United States Attorneys’ marijuana enforcement efforts in Indian Country, including in the event that sovereign Indian Nations seek to legalize the cultivation or use of marijuana in Indian Country”[4]. Thus, neither the Cole Memorandum nor the memorandum of understanding to tribal leaders altered the legal status of marijuana on reservations, nor did it remove the authority of federal law enforcement on reservations in cases where public safety is compromised [5].

During the first Trump administration, the Marijuana Enforcement Memorandum rescinded the policy of non-interference and granted federal prosecutors the authority to determine how to prioritize enforcement of federal policy [6]. US Attorneys are expected to “weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community”[7]. The directive again allows for federal resources to be used for marijuana enforcement [8]. Although the Department of Justice declared that it will not focus on individual offenders or state-authorized marijuana industries, the Memorandum reaffirmed that the growth and trafficking of marijuana remain federal crimes that can be prosecuted. Thus, the extension of the Cole provisions to tribal governments was effectively repealed [1].

Reflecting the priorities and position of each administration, federal policy has remained in flux. In 2021 President Biden announced that he would pardon prior federal offenses that involved simple possession of marijuana and urged governors to do the same for state-level offenses. He also asked that administrative review of marijuana as a Schedule I drug be undertaken by the Departments of Health and Human Services and Justice. If marijuana was reclassified within the CSA, resources could be channeled to the Food and Drug Administration for the management and assessment of marijuana and cannabis products [1]. While Biden’s directives allow greater leniency for adult and medicinal use of marijuana and cannabis products, he maintained that limitations on trafficking, marketing, and sales to minors remain [9]. To date, the Cole Memorandum has not been revisited.

As Schedule I drugs, marijuana and cannabis products (with the exception of hemp plant material) are meant to be strictly regulated at the federal level. Yet, policy actions taken over the last several years at the federal, state, city, and tribal levels present an inconsistent policy landscape. Today, 38 US states, three territories, and the District of Columbia have legalized cannabis products for medical use. Twenty-four states, two territories, and the District of Columbia have measures that allow for adult recreational use of marijuana. In 11 states, residents can be jailed for possession of marijuana [6]. State-level initiatives generally either legalize or decriminalize possession of a specific quantity of marijuana or cannabis products among adults aged 21 and over, and some provide a state-administered regulatory strategy for sales. To date, no state has reversed the decision to legalize either medical or recreational use of the drug [1].

To complicate matters, just as there are discrepancies between state and federal policies, efforts of some cities to decriminalize marijuana run counter to state and federal mandates [1]. This is also the case for some tribes that may choose to criminalize or legalize marijuana but are located within a state or adjacent to a city that has opposing policies. On the Pine Ridge reservation in South Dakota, for example, marijuana is legal but alcohol sales, possession, and consumption are not [10]. Recreational marijuana remains illegal in the state of South Dakota, although medical marijuana use is allowed; someone who purchases cannabis products on the reservation risks arrest once they leave if they do not have a South Dakota medical marijuana card [11]. The owner of the single dispensary in Pine Ridge has estimated that half of its customers are not from the reservation, coming instead from other parts of the state and neighboring Nebraska [12].

For reservation populations grappling with marijuana policies, it is still unclear whether federal or state laws prevail. Although tribal nations are considered to be sovereign, in many states Public Law 280, a federal law enacted by Congress, transfers federal authority in civil and criminal cases on tribal lands to the state. This allows even minor crimes to be prosecuted if part of the state’s criminal law. South Dakota is not one of the five states under Public Law 280 that has been granted jurisdiction over tribal members [13], but in those states in which Public Law 280 applies, there is immense uncertainty when it comes to both tribal law and marijuana law [14].

Based on the principles of federalism, state and tribal laws regarding the sale, distribution, and possession of marijuana and low-THC (tetrahydrocannabinol) cannabis products are preempted by federal policy and the federal government can choose to enforce the CSA if it so chooses [1]. And although federally recognized tribes are considered sovereign nations, Congress retains the authority to legislate on tribal issues. The federal government has the “right to challenge a state marijuana law if that state does not implement strong and effective regulatory and enforcement systems that will address the threat that state law could pose to public safety, public health, and other law enforcement interests…. These considerations and limitations apply in Indian Country.”[5] Thus, even with state support, tribes may still be subject to federal interference.

Protections for state and territorial marijuana markets are regulated by Congress, but tribes have not been included in those policies, and many states lack a formal policy to allow tribes to participate in statewide cannabis sales, regulation, and taxation strategies [12]. Some states have developed tribal-state compacts to govern marijuana production and sales on tribal lands. Under compact agreements, sharing of tax revenue is used to secure protection from prosecution through inclusion in state cannabis programs, which are protected by Congress [15]. The Suquamish and Squaxin Island Tribes, for example, are two of the 22 federally recognized tribes within Washington state that have signed compacts allowing them to grow, process, and/or engage in distribution of cannabis. Consistent with state policy, marijuana remains age-restricted and must be purchased from a state-licensed or tribal store.

Many of the remaining tribes within Washington are also in the process of negotiating compacts, and Washington currently has the largest number of tribally owned and operated dispensaries. The Yakama Nation is an exception; the tribe ruled against recreational marijuana in 2014 and continues to ban liquor and cannabis sales on tribal lands including all 10 counties making up the reservation [16]. In this case, the criminalization of marijuana within a state where it is legal creates concerns about enforcement and public health. In other cases, this concern works in reverse—a tribe has legalized recreational cannabis use but exists within a state with more restrictive policies. The Eastern Band of Cherokee Indians in western North Carolina first decriminalized possession of marijuana in 2021. In 2023, recreational use of marijuana was approved by the tribal council and a dispensary was opened on tribal lands. Recreational use of marijuana remains illegal within the state of North Carolina and attempts to legalize medical cannabis have failed. Although North Carolina is sometimes cited as a state in which decriminalization has occurred, possession of small amounts of marijuana remains a misdemeanor offense [17]. Despite lack of clarity and a contradictory policy environment, the number of tribally owned dispensaries is rapidly increasing. Currently, tribes from at least nine states (California, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, South Dakota, and Washington) operate cannabis dispensaries.