The growth in interest in industrial hemp farming among Native American tribes presents another opportunity to further nullify federal prohibition in effect. But successful development of a hemp industry on tribal lands will require a willingness to ignore federal law.

Modern Farmer magazine recently ran an article promoting the possibility of hemp farming on Native American lands. Their overall support for the growing hemp industry across the U.S. is notable, but there were several errors in their reporting that created a confused picture of the legal landscape both Native Americans and states face.

Modern Farmer asserted that the federal government removed hemp from its registry of banned substances in 2014. This vastly oversimplifies what the feds did.

Since 1970, the federal government has regulated hemp under the Controlled Substance Act. It technically remains legal to grow industrial hemp, but farmers must obtain a permit from the DEA, a nearly impossible feat. Early in 2014, President Barack Obama signed a new farm bill into law, which included a provision allowing a handful of states to begin limited research programs growing hemp. The “hemp amendment”

…allows State Agriculture Departments, colleges and universities to grow hemp, defined as the non-drug oil-seed and fiber varieties of Cannabis, for academic or agricultural research purposes, but it applies only to states where industrial hemp farming is already legal under state law.

In short, current federal law authorizes the farming of hemp – by research institutions only, for research only. Farming for commercial purposes by individuals and businesses remains prohibited.

As Modern Farmer points out, the legal situation becomes even more complex when it comes to Native American lands, owing to their status as legally separate from the United States. But federal cannabis laws do apply on tribal lands. Modern Farmer asserts that “in 2014, a bill allowed Native American tribes to set their own cannabis-related laws, the same way states can.”

This drastically overstates what the federal government did. Federal marijuana and hemp prohibition remains in full effect in both the states and on Native American lands. What the magazine refers to as a “bill” was actually a U.S. Department of Justice memorandum clarifying that federal government will limit its cannabis enforcement efforts on tribal lands that have legalized marijuana just like they have in the states.

Attorney Judy Dworkin explains the scope of the “Wilkinson Memorandum”

This policy statement does not allow Indian Tribes to legalize cannabis; it is merely an interpretation of the August 29, 2013, “Cole Memorandum” from the Deputy Attorney General regarding guidance on enforcement priorities to federal prosecutors as it applies to Indian Country.

The Wilkinson Memorandum reiterates the authority and jurisdiction of the United States to enforce federal law in Indian Country. It provides that, with respect to Indian Country, the federal government’s limited investigative and prosecutorial resources should be focused on the eight priorities of marijuana enforcement described in the Cole Memorandum.

The memorandum essentially affirms Native American lands have the same status as states when it comes to cannabis.The feds maintain marijuana and hemp prohibition, but have committed to limited their enforcement efforts.

Because it failed to completely grasp the applicability of federal cannabis law on tribal lands, Modern Farmer understates the impact hemp legalization has had at the state level.

Even now, after a few farms (mostly non-Native) have begun farming and harvesting hemp, the legal situation is so confusing that large-scale agriculture of the crop has yet to take off…The comparatively smaller size of Native American lands and lesser burdens of red tape enable Native American tribes to get industrial hemp production moving much more quickly than states can.

In fact,hemp industries have already started developing in Vermont, Colorado, Maine and other states that have legalized it at the state level without any regard to federal law.

As Modern Farmer reports, the Navajo tribe has passed a resolution to work with CannaNative to develop industrial hemp farming on tribal land in New Mexico. The organization assists tribes in developing hemp and cannabis-based economies on Native American lands throughout the United States.

The tribe has the exact same legal path before it as the states – not an easier one with less red tape. In order to develop a hemp industry, it will have to ignore federal law. As it does in the states, success will depend on Native American farmers’ willingness to take on the very small risk of federal prosecution and begin growing the crop. While prospective hemp growers would still have to take federal law into consideration, by eliminating the tribal requirement for federal permission, the Navajo would clear away a major obstacle to widespread commercial hemp farming on tribal lands.

Mike Maharrey

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