The Americas have led the way on cannabis reform, with countries including Canada and Uruguay having legalised recreational use, along with several US states. The relationship between cannabis and indigenous communities throughout the region, however, is complex and problematic, and recent changes in national policies have made matters considerably more confusing. A number of tribal and First Nations in both the USA and Canada, for instance, have been placed in a precarious position as a result of new federal laws regarding cannabis, with the sovereignty, health and economic development of these communities all at stake.
Cannabis And Indigenous Communities – The Global Picture
For more than a century, cannabis has played a role in race relations around the world, with indigenous and other minority ethnic groups in the Americas being disproportionately targeted by law enforcement for weed-related offences. Recent steps towards legalisation have changed the landscape considerably, yet the system remains very much rigged against those who have suffered most from historical prohibition.
For instance, the International Convention for the Protection of New Varieties of Plants allows for cannabis breeders around the world to obtain intellectual property rights in the cultivars they create. However, traditional indigenous cannabis growers are generally excluded from this opportunity, as they tend to cultivate landrace strains which are considered to be ‘raw’ materials rather than the product of human endeavour, and cannot therefore be classed as intellectual property. Given that these landraces provide the genetic building blocks with which all commercial strains are built, the irony of this situation is easy to spot.
With the establishment of legal markets, entrepreneurial breeders and cultivators worldwide have made considerable sums of money, yet indigenous cannabis-farming communities have been denied access to these riches. In Mexico, for instance, a legalisation bill currently grinding its way through the legislative machinery was recently amended to remove a clause that would have ensured that a percentage of all cultivation licenses go to indigenous communities and other disadvantaged groups.
It’s also no secret that indigenous people are unfairly discriminated against by law enforcement the world over. In Canada, for instance, members of First Nations were nine times more likely than white people to be arrested for cannabis possession in the city of Regina between 2015 and 2017, despite similar rates of use among both populations[i]. Having legalised cannabis in 2018, Canada failed to automatically expunge these historical convictions, yet continues to prevent anyone with a criminal record from participating in the legal cannabis market – all of which points to a bum deal for indigenous communities.
Cannabis And Indigenous People In The US
The issue of cannabis legalisation is a thorny one for Native communities in the US, many of which have been ravaged by the harmful effects of alcohol and drug addiction. As a result, tribes such as the Yakama Nation remain strongly opposed to the sale or use of cannabis on their reservation, despite the plant being fully legal in their home state of Washington.
Changes in cannabis legislation have therefore triggered some uncomfortable debates over the ability of indigenous communities to regulate their own affairs on tribals lands. In an attempt to resolve these uncertainties, the US Department of Justice issued the Wilkinson memo in 2014, which gave Native tribes across the country the right to grow and sell cannabis on their reservations if they choose, as long as they take measures to ensure this does not end up in the hands of children or criminal dealers.
While this went some way to restoring the authority of tribes over their own cannabis policies, it also highlighted some major disparities. For instance, despite being allowed to grow cannabis on their own land, none of these communities are licensed to sell their product to the wider population outside of their reservations. As such, indigenous communities are excluded from entering the legal cannabis market, and are forced to operate in a legal grey area.
Of course, tribes are allowed to apply for licenses, yet doing so means complying with a number of regulations that would essentially strip them of their sovereignty and right to self-governance. The fact that they would also have to pay tax to the US federal and state governments further highlights this dilemma, underscoring the reality that indigenous communities are now forced to choose between self-determination and the right to participate in the legal cannabis industry.
For sure, the situation is not equal across the US, with some states having arranged satisfactory compromises that allow tribal nations to legally sell cannabis while maintaining all of their rights. These agreements are known as compacts, and mirror those that enable reservations to operate casinos in states where gambling is illegal. As a result of one such compact, the Paiute Nation has become the largest dispensary operator in the state of Nevada.
Meanwhile, several tribes have chosen to operate outside of the state-regulated system, essentially abandoning the mainstream market and establishing a rival tribal market. The Bay Mills Indian Community in Michigan, for instance, recently opened its own dispensary after devising its own framework for the regulation of cannabis on indigenous lands. Despite not being able to sell off-site, the dispensary has attracted large numbers of customers due to its highly competitive prices, which are made possible by the fact that no licensing fees or taxes need to be paid. Operating in a separate, tribal-run cannabis market therefore brings both advantages and disadvantages.
Cannabis And Indigenous People In Canada
Bill C-45, which legalised cannabis in Canada in 2018, makes no mention of First Nations or other indigenous communities. As such, it vests control over the regulation of cannabis sales in the federal and provincial governments, with indigenous governments left out of the picture entirely. To make matters worse, the bill demands excise tax to be paid on all cannabis sales on indigenous lands, with none of this money going to First Nation communities.
Mirroring the situation in the US, cannabis legalisation in Canada has raised serious questions about the sovereignty of First Nation, Métis, and Inuit communities. Just as is the case north of the border, many indigenous groups are opposed to legalisation and wish to retain the right to ban pot on their lands if they see fit, as they have done with alcohol.
Indeed, the majority of Canada’s dry communities are to be found on First Nations reserves, and the federal government’s failure to even consult these groups before legalising cannabis has caused outrage and confusion. The Onion Lake First Nation, for instance, was left perplexed after being granted eligibility for a cannabis sales license, despite being a dry community with no interest in legalising pot.
Essentially, cannabis legalisation has hindered indigenous communities’ authority to regulate their own economic and political affairs, which is why representatives of the Dene Nation pleaded with the federal government to delay the passing of the bill by two years in order to allow for certain issues to be straightened out. Unsurprisingly, these calls fell on deaf ears.
Other indigenous communities, however, are in favour of cannabis use, and even claim that the plant has helped to shape their cultural identity. For instance, the website of the Canadian-founded Indigenous Cannabis Cup states that “Indigenous people have long had an affinity to cannabis… and in many ways, they were innovators in the use of cannabis.”
Yet those Nations that favour legalisation are typically loathe to apply for provincial licenses, as this would require them to comply with regulations that go against their cultural values, thereby undermining their right to self-determination. Such a scenario is reminiscent of the situation in the US, and has seen some Nations establish dispensaries on their own terms. The Pheasant Rump Nakota Nation, for example, recently passed its own law called the Traditional Medicinal Plants Act, which sets out the regulations for cannabis sales on its land.
However, despite being backed by the Pheasant Rump elders, the dispensaries that have been established under this act lack provincial licenses, leaving them in a legal grey area and facing the constant threat of being raided or shut down.
In general, it is thought that many First Nations living in the more populated southern areas of Canada are in favour of allowing cannabis sales on their land, as this would attract customers from outside and stimulate economic growth. Those in the more remote north, however, are unlikely to receive many non-indigenous visitors, and are therefore less keen on legalisation due to fears of drug use among community members.
Cannabis legalisation thus highlights and exacerbates many of the conflicts, contradictions and paradoxes that are inherent to the relationships between federal and indigenous governments. And yet, Prime Minister Justin Trudeau rose to power on the dual campaign promises of legalising cannabis and advancing the reconciliation process with indigenous communities. Achieving them both is clearly proving to be more complicated than he thought.
[i] Koutouki K, Lofts K. Cannabis, reconciliation, and the rights of Indigenous Peoples: Prospects and challenges for cannabis legalization in Canada. Alta. L. Rev.. 2018;56:709. – https://www.albertalawreview.com/index.php/ALR/article/view/2519/2497
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