Marijuana in Indian Country: It's Really Complicated

The Justice Department announced last month that if Indian tribes legalized marijuana on their reservations, DOJ would not interfere.  This has sparked a lot of discussion as to the wisdom and desirability of growing and selling pot.

One issue that hasn't got much attention outside Indian law circles, but which complicates things significantly, is Public Law 280, a statute passed in 1953 that turns federal jurisdiction over crimes on Indian lands in some 16 states over to state prosecutors.   The law provides that in six states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin) the federal government does not enforce the law on tribal lands, but leaves it to the states, who exercise full jurisdiction.  The law permits other states voluntarily to assume jurisdiction, and another ten states (Arizona, Florida, Idaho, Iowa, Montana Nevada, North Dakota, South Dakota, Utah, and Washington) have done so over at least some reservation lands.  (A map, which for some reason excludes Florida) is above.)

What this seems to mean--I'm not an Indiana law expert--is that if pot is grown and sold on a reservation that has legalized it in, say, Oklahoma, the crime will not be prosecuted, because DOJ has enforcement authority and the DOJ memo tells federal prosecutors not to prosecute--while the state has no authority on the reservations.  But if it's grown and sold on a California reservation where the tribe has voted to legalize, the DOJ memo has no practical effect because California state authorities do not have to follow DOJ guidance.

Making it even more confusing, is that even in some of the P.L. 280 states, the states have no jurisdiction over some reservations, such as the Red Lake Nation in Minnesota and the Warm Springs Reservation in Oregon, because they're exempt from the statute.

Moreover, some reservations may straddle state lines.  The Navajo nation, for example, lies partly in Arizona and partly in New Mexico.  The former is a P.L. 280 state, while the latter isn't.  If the Navajo voted to legalize pot on their reservations, there would be no prosecutions on the New Mexico side because the Land of Enchantment's police have no authority and prosecution would be governed by the DOJ memo.  On the Arizona side, state prosecutors would have full authority to prosecute drug offenses on that part of the reservation that lies in the Grand Canyon State.

It's estimated that about a quarter of reservation Indians (and all Alaskan natives) live in P.L. 280 states, and nearly three-quarters of recognized tribes are subject to some aspects of the statute.