New Mexico Cannabis Raid Spotlights Native American Jurisdictional Dilemma

A federal raid on a household cannabis plot on tribal land in northern New Mexico’s Sangre de Cristo Mountains is sparking controversy over who has how much enforcement authority on Native American reservations. As more states embrace legal adult-use cannabis, a lack of clarity persists on the question of how much power the state, federal and tribal governments have on these lands.

On Sept. 9, agents from the US Bureau of Indian Affairs (BIA) confiscated nine plants from a garden at the Picuris Pueblo home of Charles Farden, 54, a life-long reservation resident who is not actually Native American. Farden is enrolled in the New Mexico medical marijuana program, to treat post-traumatic stress and anxiety.

Farden told the Associated Press he was shocked to be put in handcuffs as federal agents uprooted his plants, which were then thick with buds—about a year’s personal supply, by his estimate. 

“I was just open with the officer, straightforward. When he asked what I was growing, I said, ‘My vegetables, my medical cannabis,’” Farden told the AP. “And he was like, ‘That can be a problem.’”

Federal Law Comes First?

New Mexico’s legislature approved a medical marijuana program in 2007, while Picuris Pueblo instated its own parallel program for tribal members in 2015. 

As Picuris Gov. Craig Quanchello told Albuquerque’s The Paper: “We’re exercising our sovereignty. We went through our community and said, OK, this is what’s going on. This is what we want to do. How does the community feel about cannabis from the medical side? …We wanted to provide an alternate medicine for our community people, and we wanted options… We wanted to have an affordable medicine.”

And this is going to become a more pressing question as the Land of Enchantment gets a legal adult-use market. This April, New Mexico’s Gov. Michelle Lujan Grisham signed a general cannabis legalization bill, which took effect in June—permitting up to six plants per individual or 12 per household for personal use, with no weight limit. Commercial sales are set to begin next April. At least two of New Mexico’s 23 federally recognized tribes are seeking an agreement with the state allowing them to operate cannabis businesses—Picuris and Acoma Pueblo.

But the feds, of course, do not recognize any state legalization law. And it is the feds that share law enforcement responsibilities with the governments of federally recognized tribes. This is especially an issue for Picuris, a small pueblo that does not maintain its own police force, relying on BIA officers to enforce tribal laws. The specter of BIA raids could put the kibosh on plans for retail outlets on the pueblos.

In a recent letter to Gov. Quanchello obtained by the Associated Press, a BIA special agent in charge said the agency won’t instruct its officers to relax enforcement on the reservations—and that cannabis cultivation remains a federal crime, notwithstanding any changes to state or tribal law. 

“Prior notification of law enforcement operations is generally not appropriate,” the letter stated. “The BIA Office of Justice Services is obligated to enforce federal law and does not instruct its officers to disregard violations of federal law in Indian Country.”

Officials with the BIA and Interior Department, which oversees the agency, did not respond to the AP’s request for comment on the matter. Farden has not been hit with any criminal charges. 

Prelude at Picuris

The September bust at Picuris also had a prelude about four years earlier. On Nov. 30, 2017, agents from the BIA’s Division of Drug Enforcement arrived at the pueblo to uproot and confiscate a medical marijuana “test plot” of 36 plants that had been established on land under the control of the tribal government. 

News gets out slowly in this rugged and remote part of the state, even today, and it wasn’t until the following November that the raid was written up by the Albuquerque Journal. “They took the plants and threatened to prosecute us,” Gov. Quanchello told the newspaper.

A year later, there had still been no arrests or prosecutions. But the test plot was not replanted. 

Gov. Quanchello emphasized that the pueblo had been totally open with state and federal authorities about what they were doing.  “We even told them if they ever want to raid us, here’s where you need to go,” he told the Journal.

Contacted by the Journal for comment about the raid, the US Attorney’s Office in Albuquerque sent this terse reply via email: “The matter about which you inquire was investigative in nature and, as a matter of policy, Justice Department agencies, including the US Attorney’s Office, do not comment on investigative matters.” 

Negotiating a Solution

This September’s second raid at Picuris has dampened hopes that the situation would improve under the new administration of Joe Biden. 

In its account of the new raid, the Associated Press quoted Portland-based criminal defense attorney Leland Berger, who last year advised the Oglala Sioux Tribe of South Dakota after it instated a cannabis program. Berger implicitly noted the 2014 Wilkinson Memo, which instructed federal prosecutors not to interfere with cannabis sales or cultivation on tribal lands. “It’s remarkable for me to hear that the BIA is enforcing the federal Controlled Substances Act on tribal land where the tribe has enacted an ordinance that protects the activity,” he said. 

As the AP noted, other Native American nations around the country have successfully reached accommodations with state and federal authorities—if informally in the case of the latter. 

In Washington, the Suquamish Tribe in 2015 reached a “compact” with the state to open a retail cannabis outlet just across Puget Sound from Seattle on their Port Madison Reservation.

In Nevada, several reservations now operate dispensaries, bringing their own tribal laws into conformity with the state medical marijuana program and adult-use regulations.

In South Dakota, the Oglala Sioux last year became the only tribe to establish a cannabis market without parallel state regulations, approving both medical and adult use in a March referendum at the Pine Ridge Reservation. That November, a statewide referendum legalized adult-use cannabis in South Dakota, although the state supreme court this November barred it from taking effect.

Sometimes the federal presence on tribal lands is welcomed by reservation governments. President Biden this November ordered several federal agencies to coordinate a new effort to combat human trafficking and crime in Indian Country, where rates of violence are more than twice the national average. But the boundaries between tribal and federal power have long been contested. As Berger told AP: “The tribes are sovereign nations, and they have treaties with the United States, and in some cases there is concurrent jurisdiction… It’s sort of this hybrid.”

‘We Are Being Discriminated Against’

Cannabis Now reached Gov. Craig Quanchello by phone at Picuris Pueblo. He fills in some details on the two raids at the reservation.

Of the medical marijuana test plot that was destroyed in November 2017, he stresses the tribal government’s effort to be transparent. “We met with the US Attorney’s office, and the [Taos] county and state officials, to let them know what we were doing. Our program mirrored the state’s, but we added PTSD and opioid abuse as treatable conditions.” 

Nonetheless, in the 2017 raid, “They brought in dogs and surveillance airplanes—basically shutting down our world. At that point we were hesitant to go forward.”

With new administrations in both Washington and Santa Fe, the tribe was just beginning to get over this hesitancy this year. House Bill 2, the legalization measure signed by Gov. Lujan Grisham on April 12, includes a provision for “intergovernmental agreements with Indian nations, tribes and pueblos.”

Then came this November’s raid on Charles Farden, a non-Native who is married to a tribal member and is enrolled in the state medical marijuana program. “The pueblo recognizes the state card,” Quanchello says.

Quenchello sees cannabis as an obvious option for the mountain-locked pueblo, where the already meager economy has been hit hard by the COVID-19 pandemic.  

“We’re farmers by nature,” he says. “We’ve always grown our traditional crops—corn, hay, alfalfa. We don’t have much population, but we have land. We see this as a means of economic development.”

And he portrays the willingness to work with the state government as a matter of good faith. “We don’t have to,” he asserts. “We are sovereign. But we want to do it, in a spirit of teamwork.”

Yet he’s open about his frustration at two federal raids, even as other reservations around the U.S. have been given some breathing room.

“Why is the BIA picking on us, the smallest pueblo in New Mexico, with no gaming and not on a traffic route? The money is not going to go into anyone’s pocket, it’s going back to the community—to provide healthcare for our kids, our elders. We don’t get enough federal funds to operate, and the funds are dwindling every year. We’re being discriminated against here.”

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