State law is important not only because of the criminal jurisdiction that some states may exercise over tribal marijuana sales but also because of the DOJ’s third enforcement priority, "[p]reventing the diversion of marijuana from states where it is legal under state law in some form to other states." The DOJ’s interpretation of this priority may the key issue. A tribal enterprise that serves as a ready source for state residents wishing to purchase sufficient quantities of marijuana for off-reservation use or even for sale to others would arguably undermine state laws prohibiting the sale, possession and use of marijuana, possibly triggering federal intervention.

Generally, of course, criminal jurisdiction over Indians in Indian country lies with the tribal and federal governments. But there are exceptions. In 1953, Congress enacted Public Law 83-280, 18 U.S.C. § 1162, widely known as "Public Law 280," giving six states (Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin) criminal jurisdiction over tribes within their boundaries. Congress has also authorized certain other states to exercise jurisdiction over reservations by specific congressional act. In these states, regardless of actions that tribes may take to legalize and regulate marijuana, state officials will retain the power to enforce state criminal laws prohibiting the sale, distribution or use of marijuana against Indians and non-Indians.

Even states not authorized to exercise criminal jurisdiction over Indians in Indian country nonetheless have jurisdiction over crimes committed by non-Indians against non-Indians. U.S. v. McBratney, 104 U.S. 621 (1882); Draper v. United States, 164 U.S. 240 (1896). A non-Indian state resident who makes a purchase of marijuana at a tribal enterprise on-reservation could, therefore, be prosecuted for the purchase, possession and/or use of the drug. This raises interesting questions relating to the state’s enforcement priorities and options. Will state law enforcement officers have probable cause to make stops of non-members who make short reservation visits consistent with a drug buy, or perhaps make pre-textual stops in order to conduct searches? If a Tribe permits the consumption of marijuana on the reservation, will this create a risk of "drugged driving," triggering not only state enforcement efforts but also the DOJ’s sixth enforcement priority? Might the state response be different where the tribe adopts regulations to assure that sales are limited to "small amounts of marijuana for personal use on private property," as referenced in the Cole Memorandum?