A New Mexico man whose medical marijuana garden was raided by federal agents on tribal territory last year is planning to file a lawsuit seeking $3.5 million is damages over what he and other advocates consider to be an example of racial discrimination in cannabis enforcement.
In September 2021, the Bureau of Indian Affairs (BIA) raided the garden of a member of the Pueblo of Picuris and destroyed nine plants he was growing for personal therapeutic use in compliance with state and tribal law.
Now, about a year later, Charles Farden has filed a tort claim indicating his intent to sue the federal government. He’s arguing that the raid was carried out without a legal warrant, and he says the enforcement action revealed a federal double standard that’s inherently discriminatory against Native peoples.
That’s because a congressional spending bill rider bars the Justice Department from using its federal funds to interfere in the implementation of state medical cannabis programs, which has generally safeguarded patients acting in compliance with state law. But BIA falls under the Interior Department, meaning it doesn’t have to adhere to the rider restriction.
The result is a policy that’s allowed prohibition to be selectively enforced in a “racially discriminatory way,” the tort claim for Farden, who is being represented by independent state Sen. Jacob Candelaria, says.
“One of the driving factors why the damages are so high in this case, we contend, is also how patently racist the Department of Interior’s enforcement of federal drug policy is,” Candelaria Candelaria told The Santa Fe New Mexican, which first reported on the pending lawsuit. “If you’re a non-Native person engaging in the same conduct Mr. Farden did on non-Native land, your chance of federal prosecution and conviction is next to zero because Congress has prevented the Department of Justice from using any money to enforce the law.”
The attorney said that not only was the policy itself discriminatory, but the BIA action was unconstitutional on its face because agents did not produce a search warrant. While the agency claimed that Farden signed a “consent to search document,” Candelaria disputed that and said that BIA was unable to provide a copy of the document as part of a Freedom of Information Act (FOIA) request.
“These officers didn’t have a warrant to enter or search, let alone seize, property. These officers actually violated…BIA policy, which is very clear that when BIA officers are to enforce the Controlled Substances Act, they need to preserve, catalogue and create a chain of custody for all evidence. Here, these officers barged into my client’s property, placed him in handcuffs and had him out in the sun for multiple hours.”
The BIA cannabis raid was strongly condemned by Pueblo of Picuris Gov. Craig Quanchello, who told Marijuana Moment in an earlier interview that he similarly felt that the action constituted racial discrimination. The tribal government said in a letter to BIA that the raid was “a gross invasion of the Pueblo’s sovereign authority over its members and other persons residing on its land.”
Interior Secretary Deb Haaland was pressed on the agency’s marijuana enforcement policy at a Senate Appropriations subcommittee hearing in July.
Sen. Martin Heinrich (D-NM) criticized the use of departmental funds to interfere in tribal marijuana programs, especially given the need to prioritize combating violent crime and solving cases of missing Indigenous people. He also cited the raid of Farden’s garden as an example of unnecessary overreach.
“Why, instead of focusing on this crisis [of violent crime] that is truly a crisis, are limited BIA resources being used to enforce federal cannabis laws on reservations where cannabis has already been legalized by the sovereign tribe?” the senator asked the secretary.
Haaland said that she believes “very strongly that we should respect tribal laws and work in partnership with tribes on their public safety priorities,” adding that tribal communities understand the unique challenges that they face and where resources should be allocated.
As part of Fiscal Year 2023 spending legislation for Interior, House appropriators did include language in the base bill to provide protections for Indian tribes against being federally prosecuted simply because they’ve legalized marijuana within their territory.
The language is somewhat similar to previous sections attached to different spending measures as amendments that have pushed to give cannabis safeguards to tribes. However, the latest section comes with contingencies not seen before, including a policy stating that tribes in states that haven’t legalized marijuana wouldn’t be covered under the protections.
Overall, the provision says that no federal funds appropriated to agencies within Interior, Justice Department, Bureau of Indian Affairs or Office of Justice Services could be used to “enforce federal laws criminalizing the use, distribution, possession, or cultivation of marijuana against any person engaged in the use, distribution, possession, or cultivation of marijuana in Indian country” where such activity is authorized.
But it’s not an all-encompassing protection, as the section goes on to say that the policy is “subject” to two exceptions.
First, federal funds could still be used to interfere in tribal cannabis activity if the territory is located within a state that maintains prohibition, for example.
Indian tribes must also take “reasonable measures under tribal marijuana laws to ensure that marijuana is prohibited for minors; marijuana is not diverted to states or tribes where marijuana is prohibited by state or tribal law; marijuana is not used as a means for trafficking other illegal drugs or used to support organized crime activity; and marijuana is not permitted on Federal public lands.”
Previous provisions attached to House-passed appropriations bills covering the Commerce, Justice, Science, and Related Agencies (CJS) simply prohibited the use of federal funds to enforce criminalization on native lands where cannabis has been legalized, without either nuance about state law or policy guidelines. That only applied to DOJ funds, however, whereas this new legislation covers multiple agencies of jurisdiction. None of those measures have ever been enacted into law despite passing the House.
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At a congressional hearing in April, Rep. Dave Joyce (R-OH) also raised the cannabis issue with Haaland.
“Tribes have authority to make marijuana legal in their reservations under tribal law,” the secretary told the senator. “Although I cannot change the federal law, I understand the issue,” adding that part of the issue also comes down to DOJ, which she does not control.
“I understand what tribes are saying, and I generally, of course, respect tribal laws,” the secretary said. “We want to work in partnership with tribes on any public safety issues and their priorities.”
In June, a Senate committee held a listening session to broadly address marijuana issues for Indian tribes, discussing relevant legislation and the importance of tribal sovereignty with respect to cannabis.
Members of the Senate Indian Affairs Committee, chaired by Sen. Brian Schatz (D-HI), heard testimony from numerous representatives of Indian tribes and trade associations across the country, including the Suquamish Tribe, Pueblo of Laguna, Kumeyaay Nation, Puyallup Tribe and Santee Sioux Tribe.
While many of the conversations focused on tribal-specific policies and issues such as taxation and tribal contracts with state governments, there were also several witnesses who stressed the need for a comprehensive end to federal prohibition to uplift tribal markets.
In March, a coalition of nine U.S. senators sent a letter to Attorney General Merrick Garland, urging him to direct federal prosecutors to not interfere with marijuana legalization policies enacted by Native American tribes.
The letter requested that the Justice Department “respect the inherent sovereignty of Tribal governments and cease the enforcement of the Controlled Substances Act on Tribal land as it pertains to the growth, possession, and use of cannabis for medicinal, agricultural, and recreational purposes, where those Tribes have legalized this activity for its own members and those acting in compliance with Tribal law.”
There was previous Obama-era DOJ guidance on prosecutorial discretion for tribal governments that opted to legalize cannabis. But that guidance, known as the Wilkinson Memo, was rescinded by then-Attorney General Jeff Sessions in 2018, along with a separate memo urging prosecutors not to go after states that established regulated cannabis markets.
The senators urged the attorney general to “reinstate prosecutorial discretion and allow U.S. Attorneys to deprioritize cannabis enforcement where states and Tribes have legalized cannabis.”
While the tribe-specific DOJ guidance was rescinded, the federal government has generally taken a hands-off approach to marijuana enforcement in states that have chosen to legalize the plant—with a glaring exception being last year’s BIA raid in Pueblo of Picuris.
Meanwhile, the Pueblos of Pojoaque and Picuris signed an intergovernmental cooperative agreements with New Mexico’s government in May that allows the tribes to impose their own tax on cannabis products sold within their tribal jurisdictions.
Other states like Washington similarly allow Native tribes to enter into intergovernmental agreements that would authorize Indian territories to enact their own regulations, penalties and tax policies for cannabis.
Photo courtesy of Chris Wallis // Side Pocket Images.