© 2015 ROBINS KAPLAN LLP TRIBAL MARIJUANA: A YEAR IN REVIEW BRENDAN V. JOHNSON CO-CHAIR, AMERICAN INDIAN LAW AND POLICY GROUP CO-CHAIR, GOVERNMENT AND INTERNAL INVESTIGATIONS GROUP

© 2015 ROBINS KAPLAN LLP 2015: A REDEFINED LANDSCAPE FOR TRIBAL MARIJUANA

© 2015 ROBINS KAPLAN LLP THE COLE MEMORANDUM  August 2013 memorandum from Deputy U.S. Attorney General James Cole  Memo offered “Guidance Regarding Marijuana Enforcement” all U.S. Attorneys

© 2015 ROBINS KAPLAN LLP THE COLE MEMORANDUM: DETAILS  Followed state ballot initiatives in Colorado and Washington states legalizing marijuana for recreational use  DOJ still committed to enforcing Controlled Substances Act  But, it must use limited resources to address the most significant threats in a rational way

© 2015 ROBINS KAPLAN LLP THE COLE MEMORANDUM: DETAILS  Memo aims to strike that balance by setting out 8 enforcement priorities of “particular” importance to guide DOJ action against marijuana-related conduct

© 2015 ROBINS KAPLAN LLP THE 8 COLE FACTORS  Preventing distribution of marijuana to minors  Preventing revenue going to criminal enterprises  Preventing transfer of marijuana from legal to illegal states  Preventing legal marijuana activity as cover for illegal acts  Preventing violence & gun use in growth and sale  Preventing adverse public health issues associated with use  Preventing growing of marijuana on public lands  Preventing marijuana possession or use on federal property

© 2015 ROBINS KAPLAN LLP WILKINSON MEMORANDUM  October 2014 memo from Director of the Executive Office of U.S. Attorneys Monty Wilkinson  Officially, the “Policy Statement Regarding Marijuana Issues in Indian Country”  Makes the Cole Factors applicable to marijuana enforcement in Indian Country

© 2015 ROBINS KAPLAN LLP BUT REMEMBER...  The Cole and Wilkinson Memos are not the same as a change in the Controlled Substances Act  Marijuana is still illegal in all 50 states under Federal law  Memos therefore guide the DOJ and U.S. Attorneys, but they are open to interpretation and discretion  All could change with a new President and Administration

© 2015 ROBINS KAPLAN LLP AGRICULTURAL ACT OF 2014  The 2014 Farm Bill included the “Legitimacy of Industrial Hemp Research” provision  Defines “industrial hemp” and differentiates from marijuana  Allows research on industrial hemp under limited circumstances

© 2015 ROBINS KAPLAN LLP FARM BILL ON INDUSTRIAL HEMP  Allows “institution of higher education” or State agriculture department to grow or cultivate hemp if: –Hemp grown for “research purposes”; and –Hemp growth is allowed under the laws of the State in which the institution or agriculture department is located

© 2015 ROBINS KAPLAN LLP FARM BILL ON INDUSTRIAL HEMP  Narrow window, but farmers in Colorado and Kentucky have worked with the Colorado Department of Agriculture and the University of Kentucky to grow industrial hemp  27 states now allow for industrial hemp cultivation

© 2015 ROBINS KAPLAN LLP THE NEW MARIJUANA LANDSCAPE

© 2015 ROBINS KAPLAN LLP WHAT WENT RIGHT: THE STATE OF WASHINGTON.

© 2015 ROBINS KAPLAN LLP SENECA NATION  November 2015, Seneca Tribe approves referendum allowing leadership to explore medical cannabis  Seneca enlists legal counsel to work through process with local, state, and federal authorities

© 2015 ROBINS KAPLAN LLP SENECA NATION  New York state authorized highly restrictive medical cannabis law in July 2014  Seneca careful to mirror state law to avoid getting ahead of state and local authorities  Emphasis on transparency

© 2015 ROBINS KAPLAN LLP WHAT WENT WRONG

© 2015 ROBINS KAPLAN LLP ALTURAS INDIAN RANCHERIA & PIT RIVER TRIBE  Among the earliest Tribes to legalize marijuana following Wilkinson memo  Each set up a huge grow operation on separate sites near Alturas, California (where medical cannabis is legal)  Outside influence and monetary backing, maybe working together

© 2015 ROBINS KAPLAN LLP ALTURAS RANCHERIA & PIT RIVER TRIBE  July 8, 2015 BIA raids the 2 facilities  12,000 marijuana plants and 100 pounds of processed marijuana seized  Problems: –Water use and harsh conditions –Internal Tribal dispute about program –Failure to work with local authorities

© 2015 ROBINS KAPLAN LLP PINOLEVILLE POMO NATION  Another early entrant into marijuana growth following Wilkinson memo  Partnered with Colorado firms on planned $10 million, 110,000 square- foot marijuana farm  Early opposition from Mendocino Sheriff threatening PL 280 enforcement

© 2015 ROBINS KAPLAN LLP PINOLEVILLE POMO NATION  September 2015 raid by Mendocino County Sheriff’s Office  Eradicated nearly 400 marijuana plants and seized 100 pounds of processed marijuana  County laws limited grow to 25 plants

© 2015 ROBINS KAPLAN LLP FLANDREAU SANTEE SIOUX TRIBE  June first tribe to legalize marijuana in state where not legal  Partners with Denver-based Monarch America  Announces Marijuana Resort with anticipated December 31, 2015 opening

© 2015 ROBINS KAPLAN LLP FLANDREAU SANTEE SIOUX TRIBE  Resort touted as an “adult playground” by Tribal President Anthony Reider  Medical cannabis treatment, too  Barcode system to track each plant from seed to sale  $2 million in monthly profit anticipated

© 2015 ROBINS KAPLAN LLP FLANDREAU SANTEE SIOUX TRIBE  November 2015 – Tribal Council votes to suspend marijuana operation  Burns first crop that same night  Rumors of impending DEA raid likely prompted action  South Dakota AG says any changes to law would only affect Tribe

© 2015 ROBINS KAPLAN LLP MENOMINEE TRIBE OF WISCONSIN  Tribe legalizes industrial hemp in May 2015  Legalizes recreational marijuana in August 2015  Enters MOU with Tribal College for hemp cultivation for research purposes  All in compliance with 2014 Farm Bill

© 2015 ROBINS KAPLAN LLP MENOMINEE TRIBE OF WISCONSIN  October 2015 raid by DEA and state officials to seize and destroy hemp crop  Raid comes after weeks of Tribe working with DOJ and DEA to test hemp  Tribe retains counsel and filed Declaratory Judgment Action to establish rights under Farm Bill

© 2015 ROBINS KAPLAN LLP ALEX WHITE PLUME  White Plume planted industrial hemp crop on Pine Ridge land from  DEA raided crop, brought enforcement action  White Plume personally enjoined from growing industrial hemp anywhere in the United States

© 2015 ROBINS KAPLAN LLP ALEX WHITE PLUME  Based on DOJ Memos and Farm Bill, pro bono legal team seeks to reopen White Plume case  Filed motion for relief due to changed law and DOJ opposes  Motion pending in federal court in the District of South Dakota

© 2015 ROBINS KAPLAN LLP TAKEAWAYS

© 2015 ROBINS KAPLAN LLP CURRENT STATE OF PLAY  Despite tribal sovereignty, much depends on legal status of marijuana in the state in which a tribe is located  Moving ahead of state or local law has consequences  Working with local U.S. Attorneys offices and state law enforcement is wise (but no guarantee)  Future could be bright, but for now, Tribes must proceed with caution—even in states where marijuana is legal

© 2015 ROBINS KAPLAN LLP