The greatest impact of the memorandum will likely be on tribes situated in states that have already legalized the recreational use of marijuana (currently Washington and Colorado, with Alaska and Oregon starting in 2015). The memorandum expressly refers to an August 29, 2013 memorandum from Deputy Attorney General James M. Cole.

The Cole Memorandum was authored in reaction to the ballot initiatives in Washington and Colorado legalizing recreational marijuana. The Cole Memorandum stresses the importance of state and local law enforcement and regulations. The references to the Cole Memorandum make the Department of Justice’s most recent memorandum on marijuana policy in Indian Country most applicable to tribes in those states. Previously, uncertainty existed regarding the extent to which those tribes could participate in the marijuana industry given federal prohibitions. While some uncertainty continues to exist, the memorandum creates a more equal playing field in those states for tribes that wish to legalize marijuana under tribal law. The factors of the Cole Memorandum will apply to both state and tribal industries.

Outside of the several states that have already legalized recreational marijuana, the impact of the memorandum remains highly uncertain. In order to avoid federal prosecution, tribes would nearly certainly be required to enact strict regulations regarding each of the eight factors delineated in the memorandum. The application of the third factor in particular—preventing the diversion of marijuana from states where it is legal under state law in some form to other states—is uncertain and could be a difficult obstacle for tribes looking to legalize marijuana under tribal law. In particular, if a tribe wished to allow non-members to buy marijuana (and derive the tax benefits from such a transaction), could those sales be viewed as diversion (particularly in Public Law 280 states)?

This in turn raises a host of other questions. For example, would the civil/regulatory test from cases such as California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), apply in determining what counts as diversion from Indian Country within a state to the remainder of the state (i.e., if nonmembers can play bingo on an Indian reservation without running afoul of civil/regulatory gambling laws, could nonmembers buy or use marijuana on an Indian reservation without running afoul of civil/regulatory marijuana laws?)? Would a state’s marijuana laws be civil/regulatory if medical marijuana is allowed? Even if the civil/regulatory test does not apply, would the federal concerns with respect to diversion apply if marijuana is legal in some form (as will soon be the case in Minnesota) although different from the form authorized by tribal law?