By Mike Faulk / Yakima Herald-Republic
mfaulk@yakimaherald.com
January 12, 2014
YAKIMA, Wash. — The Yakama Nation is considering an unprecedented move in its fight against legalized marijuana that could have implications for 10 Central Washington counties.
With a marijuana ban already in place on the Yakama reservation, tribal representatives now say they’ll fight the state to keep marijuana businesses from opening anywhere on ceded lands, which constitute one-fifth of the state’s land mass.
The tribe’s options include suing the state in federal court if no compromise can be reached, Yakama Nation Tribal Council Chairman Harry Smiskin said.
“We’re merely exercising what the treaty allows us to do, and that is prevent marijuana grows (and sales) on those lands,” Smiskin said.
Under the Yakama Treaty of 1855 with the federal government, the Yakama Nation was to have exclusive use of the 1.2 million-acre reservation and maintain fishing, hunting and food-gathering rights on more than 12 million acres of ceded land. The tribe has successfully taken court action against federal and state entities as well as private interests in the past to defend those rights, but most of those cases have been directly tied to the tribe’s access to natural and cultural resources.
“To my knowledge, this would be the first time” the tribe has sought to prevent the implementation of a state law on all ceded land, said George Colby, an attorney for the Yakama Nation.
“The tribe’s stance is if you don’t fight, you don’t get to win,” Colby said.
The tribe expects to file more than 600 objections with the state and federal governments against license applicants located in the 12 million-acre area that includes land in 10 Central Washington counties, Colby said. About 300 of those complaints have already been filed, he added.
The ceded area spans from the Columbia River on the Oregon border to all of Chelan County in the north and from the eastern slopes of the Cascades across the Columbia River to as far west as parts of Whitman County. The area encompasses the cities of the Upper and Lower Yakima Valleys, Wenatchee, Ellensburg, Goldendale and Pasco, although not Richland or Kennewick.
Colby and Smiskin draw comparisons to the tribe’s long fight to keep alcohol off the reservation. They say the tribe has had an equally unpleasant history with marijuana use, and that the plant, which was effectively banned by the federal government through a series of campaigns and legislation in the 1930s, never played a traditional role in Yakama culture.
“Aside from the taxation of marijuana, I don’t see any benefits from it,” Smiskin said.
Moves by the tribal government a decade ago to enforce a 150-year-old alcohol ban on the reservation have been complicated by the fact that most of the property in the cities of Toppenish and Wapato are deeded land owned by nontribal members, including proprietors of bars and stores.
In that case, a 2001 opinion issued by U.S. Attorney Jim Shively in Spokane said that the Yakamas’ ban would probably not be enforceable in cities on the reservation.
In addition to the ban on marijuana businesses, it also remains illegal to possess marijuana for personal use on the Yakama reservation. Colby said the fact that marijuana remains illegal under federal law also entitles them to challenge it on ceded lands.
But the author of the 2012 voter-approved initiative that legalized marijuana, Alison Holcomb, said she doesn’t see a legal basis for the tribe’s opposition to marijuana businesses on ceded lands.
“I think they run into the issue of not having standing to, in essence, bring suit on behalf of the federal government,” said Holcomb, the criminal justice director of the American Civil Liberties Union Washington chapter. “The federal government at this time has shown it has no intention of trying to stop the law.”
In August, the U.S. Justice Department sent a memo to Washington and Colorado saying it would not stop the implementation of laws legalizing the recreational use of marijuana. The federal government’s use of prosecutorial discretion could be rescinded if the states fail to implement a robust system of enforcement to prevent interstate trafficking and access to minors, according to the memo.
In October the state Liquor Control Board established a rule that it would not issue a license to any business located on federal lands, such as a tribal reservation, a federal park or military installation. The rule does not address ceded lands, and on Friday a spokesman said the agency wasn’t ready to comment on that issue.
“The reality is we haven’t seen a lawsuit,” Liquor Control Board spokesman Mikhail Carpenter said. “Until we do, it would be premature for us to comment.”
A spokeswoman for the state Attorney General’s Office was also unable to comment on the issue Friday.
In the coming weeks, the Attorney General’s Office will issue an opinion on whether cities and counties have a right to ban marijuana growing, processing and retail businesses from their jurisdictions. Because the opinion is a response to a Liquor Control Board inquiry specifically related to counties and municipalities, it is not expected to address tribal rights issues.
“Within the reserved area, it’s not even a contest as to whether marijuana is illegal,” Colby said. “Next is the ceded area.”
Holcomb said she supports the tribe’s right to ban marijuana businesses on the reservation. However, she said it’s unfortunate tribal leaders don’t recognize the disproportionate effects national marijuana prohibition has had on minorities in terms of criminal convictions.
Illegal marijuana grows by cartels on reservation lands and federal forest lands are also the result of prohibition, she said.
“U.S. marijuana prohibition is directly responsible for the fact that there are multinational criminal organizations setting up marijuana grows on reservation lands and ceded lands,” Holcomb said. “They pose a danger to members exercising their hunting, gathering and fishing rights in those lands.”
Smiskin said the tribe will continue to put license applicants, the state and federal governments on notice that marijuana businesses aren’t welcome on the ceded lands. He said no entities have approached the Yakama Nation to discuss their stance and potential legal challenge.
“If we can’t come to an agreement, then there is always that potential it’s going to get litigated,” Smiskin said.