Smoking the Peace Pipe in South Dakota

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A new pot resort in South Dakota will be opening up soon on tribal land, despite the fact that pot is not yet legal in South Dakota.

This is possible because of tribal sovereignty, the same legal principle which was used to establish casinos in areas where there was no gambling. These resorts are now being seen as an opportunity to bring marijuana businesses to tribal land.

Tribal sovereignty is a semi-autonomous state in which Native American tribes and their lands are treated as entities legally separate from
the states they are in. However, tribes still have access to federal rights and services and are still subject to most laws. Consequently, the relationship between tribes and the fed is tenuous and often strained. This becomes increasingly apparent in the push for marijuana legalization on Native Lands.

In late 2013, the Department of Justice issued a memorandum, known as the Cole memo, which outlined guidelines for federal marijuana enforcement in states that have made it legal. About a year later another memo, the Wilkinson Statement, was issued including tribal lands in the discussion and stating that under rules of Tribal Sovereignty, marijuana businesses may be established, as long as they reflect regulations used by states where pot is legal. This means monitoring amounts, tracking product, preventing underage use, etc.

Naturally, as with gaming, this provides an opportunity for the tribes to develop businesses, improve the economy, create jobs and better support communities. One tribe in South Dakota is taking advantage with the nationís first pot resort. The Flandreau Santee Sioux tribe plans to open their resort on New Yearís Eve and it will include a large grow facility, dispensary, smoking lounge and bar, live music, food and accommodations provided by the tribeís casino. The group is making an effort to reflect current laws and maintain a high level of transparency with the state and the fed.

Gaming came to tribal lands with many fears and criticisms. Some worried that gambling and alcohol would bring out the worst in guests and in the community. They also feared increasing imposition from the federal government in their enterprises. But over time many of these fears have been allayed and the tribal nations with casinos have become economically stronger and more independent from federal support. Legalization supporters hope for similar results.

However there are serious risks. The federal government has raided grow facilities on native lands, local laws are difficult to navigate when pot is illegal in your state and tribes may get significant and vocal opposition from local groups due the stigma around marijuana. But supporters in the Flandreau community are pushing forward. To many proponents of tribal legalization, the issue is about more than money, itís about asserting sovereignty and therefore independence; and itís about taking care of your own.

Ultimately, tribes who intend to get into the marijuana business need patience and careful planning because the situation is complex with far reaching consequences. The experience of casino businesses has bolstered the belief that the tribes can come out ahead so long as the endeavor is well managed. The Flandreau Santee Sioux are confident that they can lead the way and encourage other tribes to work with them towards similar goals of sovereignty and economic stability. Their plan is thorough, transparent and the buzz around the resort is growing.

As if on cue, this week a federal ruling was announced that protects dispensaries from federal raids as long as state laws are followed. This may also protect Native businesses as they move forward in marijuana-related plans. It will be exciting to see what comes of the endeavor and how it paves the path for the future of tribal marijuana and legalization everywhere.

ABOUT THE AUTHOR: Russell Hebets
Russell graduated from the University of Michigan in 2000 with an undergraduate degree in economics. In 2000, Russell attended the Indiana University School of Law, graduating in 2003 with a Juris Doctorate degree. Arriving in Colorado, he worked as a Deputy District Attorney in the Arapahoe County D.A.ís office. During his time with Arapahoe County, he handled DUIs, domestic violence cases, assaults, thefts, and a variety of misdemeanor trials. He left the D.A.ís office in 2001 to enter private practice, where he exclusively focused on criminal defense. Russell has successfully defended individuals charged with offenses ranging from traffic violations and DUIs to 1st degree murder and vehicular assault, as well as numerous drug cases.

Russell is admitted to the Colorado State Bar as well as being licensed to practice in Federal Court. Russell is active in the defense community and is a current member of the Colorado Criminal Defense Bar and the National College of DUI Defense.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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