Academic journal article Boston College Law Review

Budding Conflicts: Marijuana's Impact on Unsettled Questions of Tribal-State Relations

Academic journal article Boston College Law Review

Budding Conflicts: Marijuana's Impact on Unsettled Questions of Tribal-State Relations

Article excerpt


In some ways, we have been here before. In 1987, the U.S Supreme Court decided California v. Cabazon Band of Mission Indians, holding that, under most circumstances, states lacked authority to enforce state anti-gaming laws against tribal operations.1 By the end of the next year, Congress had passed the Indian Gaming Regulatory Act ("IGRA"),2 which somewhat curtailed tribes' sovereign right to regulate gaming while establishing a framework by which states and tribes could negotiate over the extent of tribal gaming operations. In a short time, tribal casinos became commonplace, and today, tribal gaming is a nearly thirty billion dollar industry.3

It is going too far to say that tribal-state relations in the gaming arena are free of conflict. Indeed, IGRA has been criticized for spawning its own litigation industry,4 and many tribes justifiably chafe at the ways in which IGRA permits state intrusion into what they see as internal tribal matters such as labor law.5 Nonetheless, the story of tribal gaming has, on the whole, been one of relative stability. From the state perspective, even states with strong anti-gaming traditions have, in many cases, tacitly welcomed the presence of tribal gaming operations within state borders, because such operations bring benefits to the surrounding communities without necessitating a change in state policy.6 Meanwhile, on the tribal side, tribes have often been able to leverage the positive spillover effects of casinos to find common ground with states on matters of mutual interest such as treating gambling addiction.7

One might expect tribal marijuana legalization efforts to follow a similar trajectory. At first glance, there are many parallels between the history of tribal gaming and the future of tribal marijuana. Tribes' ability to engage in gaming operations required relief from federal as well as state law.8 Similarly, it is only due to a relaxation in federal policy that tribes have been able to explore changes to their marijuana laws.9 Just as with gaming, marijuana has the potential to be an economic boon for tribes, whether they simply grow marijuana for sale to off-reservation commercial sellers or medical dispensaries or use marijuana to attract tourism-as the South Dakota Flandreau Santee Sioux Tribe hoped to do through their efforts to launch a "marijuana resort" in 2015.10

Yet, there are also significant differences that suggest that marijuana may force tribes and states to grapple with difficult issues of spillovers and extraterritorial regulation in a way that gaming did not. To begin with, a casino is, of course, inherently stationary. A tribal gaming enterprise can deliver to the surrounding state community both economic benefits and problems such as increased traffic, but its effects are limited by the certainty that the gaming itself will happen on-reservation. By contrast, marijuana is easily transported across reservation borders, increasing effects across borders as well.11

Second, splits in opinion about marijuana appear deeper than was true of tribal gaming. Tribes were pioneers in widespread legalization of gaming. By contrast, states led the liberalization of marijuana policy,12 yet liberalization still provokes a sharp divide among them.13 Tribal views on marijuana are likewise divided, sometimes even among tribes who occupy territory within a single state.14

The federal role is different as well. Federal involvement in tribal gaming was extensive and followed a mostly consistent course.15 By contrast, federal attitudes toward marijuana in general and tribal marijuana in particular have been both hands-off and ever-shifting, with the Department of Justice-possibly in response to state pressures-sending sharply mixed signals about the acceptability of tribal marijuana ventures.16

These differences suggest that different marijuana policies will pose issues for state-tribal relations in a way that gaming has not. …

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