Sovereignty Under Scrutiny? – PuffTec
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Sovereignty Under Scrutiny?

The Flandreau Santee Sioux Tribe received federal recognition by the U.S. Government over 80 years ago under the Indian Reorganization Act of 1934.  Federal Recognition grants tribes sovereignty over their own lands, allowing for the establishment of government and laws that don’t always agree with the laws of surrounding U.S. states.  They are, however, subject to the jurisdiction of the federal government, and as such must comply with federal laws and guidelines.  In many ways, sovereign Native American lands are equal to U.S. states.  It is because of sovereignty through federal recognition that tribes are legally allowed to operate casinos, even “within” states where casino style gambling is illegal.  Often, this comes as a result of agreements between state and tribal governments.    

When the U.S. Justice Department told sovereign tribes this past December, under what’s known as the Cole Memorandum, that they could grow and sell marijuana in similar fashion to Colorado and Washington on their own lands, it was seen as a major step for sovereign tribes’ rights and reinforced the idea that sovereign tribes and U.S. states are seen as equal on the federal level.  The memorandum outlined eight federal law enforcement priorities where the Department will focus its limited investigative and prosecutorial resources in all states. 

The Flandreau Santee Sioux Tribe legalized marijuana on their reservation by a 5-1 vote, and have plans to cultivate and sell it at a single location on the reservation beginning this December.  According to their plans, patrons will be allowed to purchase up to a single gram of marijuana, which must be consumed in a designated lounge.  In other words, the Sioux’s legalization plans will undoubtedly be the strictest in the country – a plan that one would expect to see as a model included in the Justice Department’s memorandum.  That’s precisely why recent comments from South Dakota Attorney General Marty Jackley come as a surprise to so many. 

Jackley’s concerns come from the interpretation of the memorandum, which he believes may have been intended only for sovereign lands within states that have already passed legislation to legalize marijuana.  He asserts his beliefs that anyone with marijuana in their bloodstream or in their physical possession is in violation of state and federal law, including non-Indians on tribal lands and Indians who go off reservation.

Currently, South Dakota is one of few states that allows convictions for internal possession of a controlled substance, even in altered forms absorbed into the body.  Whereas Jackley may be correct, as under the law one can envision a situation where an individual who is not in possession of marijuana is drug tested off sovereign lands and charged with internal possession for positive results, his questionable interpretation of the memorandum is almost certainly off the mark. 

If the memorandum was in fact intended only for sovereign lands which happen to fall within the borders of a state which has legalized marijuana, this would set a new precedent that would establish a link between the local laws of a state, and those of Native American lands, which by definition, are sovereign from states.  This would be a major setback for the rights granted to Native Americans through sovereignty, and would beg the question of what sovereignty actually means.  For many Native American tribes, sovereignty means the ability to retake control of the future for their people, and the revitalization of their vibrant culture that comes with it.

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