Is Tribal Grass Really Greener?

By Anthony Broadman

It is hard to think if there has ever been a furor in Indian Country like we are witnessing amidst the tribal marijuana gold rush.  Nor could there be a more dynamic tribal issue, legally speaking.

Last week, the Compassionate Access, Research Expansion and Respect States (CARERS) Act was introduced in the U.S. Senate.  Under this new legislation, the federal Controlled Substances Act would be amended so that states can set their own medical marijuana policies.

While the CARERS Act does not mention tribes, it has implications eerily similar to 18 U.S.C. 1161, which imported state liquor regulations into Indian Country. See Rice v. Rehner.  Right now, states have no civil regulatory authority over marijuana in Indian Country.  Indian Country should pay careful attention to the CARERS Act, for fear that it might be amended or construed to change that reality.

This week, officials with California Department of Fish and Wildlife and National Marine Fisheries Service published, "Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds."  The paper discusses several critical regulatory and environmental issues for tribes that are considering recreational or marijuana cultivation should carefully consider.

As a result of Proposition 215 and the subsequent Supreme Court ruling, the widespread and largely unregulated cultivation of marijuana has increased rapidly since the mid-1990s in remote forested areas throughout California . . .

In spite of state-wide prevalence, there is not yet a clear regulatory framework for the cultivation of marijuana, and from an economic viewpoint there is little distinction between plants grown for the black market and those grown for legitimate medical use . . .


The broad array of impacts from marijuana cultivation on aquatic and terrestrial wildlife in California has only recently been documented by law enforcement, wildlife agencies, and researchers. These impacts include loss and fragmentation of sensitive habitats via illegal land clearing and logging; grading and burying of streams; delivery of sediment, nutrients, petroleum products, and pesticides into streams; surface water diversions for irrigation resulting in reduced flows and completely dewatered streams; and mortality of terrestrial wildlife by rodenticide ingestion.

Indeed, unless great precaution is taken by Indian Country at all levels of this conversation, and robust regulation is carried out by tribes in the marijuana space, the grass may not be greener.

Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672,, or via Marijuana is illegal under federal law.