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Legal Marijuana Raises Issues for Indian Tribes

Washington and Colorado each has their own set of pot problems

By Katy Steinmetz / San Francisco @katysteinmetz Feb. 06, 2014

Washington’s Yakama tribe lives on a one million-acre reservation in the southern part of the state, a relatively small patch left after nearly 12 million acres was ceded to the U.S. government by the nation in 1855. As state officials are racing to build one of the world’s first legal marijuana markets, tribe officials are making it clear that their reservation wants no part of it—and they don’t want anyone else growing or selling cannabis on their ceded land either, to which they maintain certain rights. But it remains unclear whether they have the legal authority to make a demand that affects nearly a third of the land area in the state.

The laws that govern American Indian reservations have long been confusing. Many tribes are subject to only their own laws and federal law, while certain reservations are under state jurisdiction. Now adding to the confusion in Colorado and Washington is the uncertainty about how those states can legally regulate a substance still considered illegal by the federal government. And while many Yakama are anxious to keep the marijuana market far away—fueled by concern about substance abuse—other advocates for American Indians are mad that tribes can’t enjoy the new freedoms that other state residents have.

People in Colorado and Washington who don’t live on reservations “are moving forward with this massive experiment,” says Troy Eid, chairman of the Indian Law and Order Commission, a national advisory body focused on criminal justice in Indian territory. “And, once again, these tribes are getting screwed.”

AP Photo/Yakima Herald-Republic, Gordon KingYoung men wait to take part in an annual pow wow and rodeo in Toppenish, Wash. The boys are members of the Coleville and Yakama tribes. — AP Photo/Yakima Herald-Republic, Gordon King
Young men wait to take part in an annual pow wow and rodeo in Toppenish, Wash. The boys are members of the Coleville and Yakama tribes.

The Washington State Liquor Control Board is tasked with shaping the new market in that state. Right now, they’re sifting through more than 7,000 business license applications from residents who want to farm marijuana or run pot shops, and they plan to start issuing those licenses in March. This is where leaders from the Yakama tribe have addressed “several hundreds” of letters, each “pro-objecting,” as their attorney George Colby puts it, to individual applications made from areas the tribe occupies or once did. “Citizens of the state of Washington don’t get to vote on what happens” in those areas, he says. “The federal government wasn’t supposed to let alcohol come on the Yakama reservation, and thousands of people have died. We’re not going to let that happen again.”

There is little question about tribes in Washington being able to prohibit marijuana use among their own people on their own land (though there is some question about “tribes’ ability to regulate non-member conduct on the reservation,” the attorney general’s office says). The big unknown is how much authority they have over sprawling ceded lands, acres that were essentially handed up to the federal government more than 150 years ago with the promise that tribes would retain certain rights to those lands in perpetuity. In the Yakama’s case, members still have the exclusive right to hunt, fish and gather food on those 12 million acres.

Eid, an expert in tribal law appointed to his position by the president and Congress, says that while it’s not “absolutely clear,” he believes the Yakama do have the ability to object to marijuana being grown or sold on ceded lands. Meanwhile, the Washington state liquor board says they’re still planning to issuing licenses to businesses in those areas. “Objections are made all the time to licenses,” says spokesman Brian Smith. “You want to make sure you’re operating within the law as you know it, and that’s what we’ll be doing here.”

Neither side knows for sure, and that is a recipe for the conflict to end up in court, which might in turn force the question of how the discrepancy between state and federal law is going to be remedied when it comes to marijuana. The Washington attorney general’s office tells TIME that they will defend the liquor board if they’re sued, but that “the Liquor Control Board is still in the process of issuing licenses so it would be premature to speculate on the issue of how a court might rule on the issue of licenses on ceded lands.” Colby says that they will request the federal government to intervene if their ongoing pre-objections are not heard.

Other tribes in the state have yet to weigh in but Eid says that they are likely to stand with the Yakama, if only to make sure their rights to their own ceded lands remain as robust as possible. He also says that it would be ideal if everyone sat down in a room together and hashed out the issue. “They can work out what the scope of marijuana use and cultivation and distribution and so on could be,” he says. “They ought to be able to come to a voluntary agreement that would enable them to avoid any issues involving litigation.”

When Eid is not working on the commission, he acts as counsel for the Ute Mountain Ute tribe, one of two in Colorado. Unlike the Yakama reservation, where state law enforcement has some authority, reservations in the Rocky Mountain State are bound solely by federal and tribal law. That means that while reservation-dwellers in Colorado were allowed to vote in favor of Amendment 64, the proposal that legalized recreational marijuana, it remains illegal to grow, sell or smoke on their reservations as it ever was. (La Plata County, one of two with large American Indian populations, voted to approve the measure by 62% to 38%.)

Some of the American Indians in Colorado view their current situation as a missed business opportunity. “Capital is flowing in here from all over the world,” Eid says. “The tribes are going to be left behind, because there’s been no change in state law that applies to them … These are some of the poorest areas in the country. They could be involved in this business as well, but instead they’re being prohibited from being part of what’s happening.”

One way or another, the federal government may have to weigh in on the issue, whether it’s Congress eventually giving tribes the authority to decide whether they want to legalize marijuana or a federal judge ruling on the status of ceded lands. “This is one of so many of the issues that we are pushing through,” says Smith. “We’re sort of the pioneers here. But we continue onward, into some unknown territory.”

Colorado Natives Recount Harrowing Escapes as Floods Recede, Head to Nebraska

U.S Army via Environmental Protection AgencyFlood-damage homes in Boulder, Colorado, on September 14. — U.S Army via Environmental Protection Agency
Flood-damage homes in Boulder, Colorado, on September 14.

By Carol Berry, Indian Country Today Media Network

Boulder, Colorado collectively shouldered the job of cleaning up after flooding from torrential rains that fell for days, overrunning parched fields and inundating homes in a 17-county area and prompting one American Indian to point to global change as the culprit.

The deluge was, depending on the source, a 100-, 500- or 1,000-year record flood that left at least eight people confirmed or presumed dead, including an American Indian youth.

But there’s no guarantee that severe flooding won’t occur even sooner than 100 years, said Theresa Halsey, Hunkpapa Lakota, who produces the Indian Voices newsletter and other material for KGNU Community Radio.

“This world is out of order,” she said, citing “wild and crazy” hurricanes and tornadoes and global warming-related rising waters from the Arctic.

Halsey’s lower-level apartment was damaged by floodwater that soaked carpets and will have to be dried to ensure there’s no mold, so she had to move furniture and other belongings into the hallway. Her temporarily waterlogged life is probably better than that of people who had sewer backups and loss of power, she said, adding that she was particularly fortunate since she lives near Boulder Creek, which flooded.

Other Indians had similar experiences in Boulder, where the University of Colorado and Boulder Valley public schools closed down for the day on September 17. Nearly 12,000 people were evacuated in north-central and northeast Colorado, where many of the state’s 30,000 non-reservation Indians reside. Flooding that began on September 11 resulted from five to 15 inches of rain, depending on the area, the state’s office of emergency management said. Dozens were being airlifted to safety on Wednesday September 18, and hundreds more were stranded or still unaccounted for.

Natives in the flood-torn area had harrowing tales of escape and near-misses. Lori Windle, Objibwe, a founder of the Society for American Indian Government Employees, heard a loud roaring on September 12 and realized that nearby Coal Creek had risen from about two feet to some 30 feet, widening rapidly and uprooting trees.

At that point she realized she should leave, particularly after talking with a Houma woman she knew who worked for the Federal Emergency Management Agency and who told her they were “getting ready to declare it a disaster area.” She spent the night at her daughter’s house. Windle was among the lucky ones —her house was spared as the floodwater lapped at the foot of her driveway.

Carolyn Hayes, Navajo, who creates Indian regalia and does craft work, lives in a second-floor apartment in Boulder and is concerned that some of her belongings in a basement storage area may have been water-damaged, but a sprained ankle had prevented her from checking. She too recalled the rushing water of September 12.

They and other area residents were glad to see clearing skies on September 16 as estimates for rebuilding and repair soared into the hundreds of millions of dollars. State emergency management officials said that official early estimates would be made next week. Rebuilding could take at least a year for the thousands of homes and businesses affected and for hundreds of bridges and roads that have been destroyed.

Meanwhile, run-over from the floodwaters seemed to be heading toward Nebraska and the South Platte River, which courses south of Denver and into the neighboring state.

“The exact crest stages are still uncertain as the waters are just moving into Nebraska,” according to the National Weather Service. “It is possible that upcoming forecasts could change so those along the river should stay tuned for updated information.”

Native Youth Among Seven Killed in Raging Colorado Floodwaters

Brennan Linsley/Associated PressThe raging floodwaters of Boulder Creek, at the base of Boulder Canyon, on Friday September 13. — Brennan Linsley/Associated Press
The raging floodwaters of Boulder Creek, at the base of Boulder Canyon, on Friday September 13.

Source: Indian Country Today Media Network

The death toll rose to seven in the floods ravaging Colorado, among the victims American Indian Wesley Quinlan, and his girlfriend, Wiyanna Nelson, both 19.

The two were swept away by raging floodwaters on Wednesday September 11 as they tried to make it home along with two other friends, who survived. Just a week earlier the pair had vacationed with Quinlan’s mother, Glenda Aretxuloeta, to celebrate her birthday and meet her Native family members, the Denver Post reported.

“He was very, very connected to my Native American heritage,” Aretxuloeta told the newspaper, which did not give a tribal name.

As many as seven people have died in the massive floods that have been inundating Colorado since last Wednesday, including two women who are missing and presumed dead.

Boulder and Longmont, Colorado, continued to be inundated in floodwaters on September 16 as bad weather and heavy clouds grounded National Guard helicopters; more than 1,000 people awaited evacuation, and 1,000 or more were still unaccounted for, cut off because of ravaged infrastructure.

At least four people are confirmed dead, CNN reported, and two more are presumed to have perished in the raging floodwaters. Fox News said as many as seven had died.

On Saturday September 14 President Barack Obama declared Colorado a disaster area, and the Federal Emergency Management Administration (FEMA) said it was continuing to monitor the situation.

Besides the 19-year-old couple, two other victims were discovered in a roadway and a collapsed home, CNN said, while the two people presumed dead are two women, one 60 and the other 80.

With helicopters grounded, rescue crews were working on the ground only. But even they faced obstacles, with Colorado National Guardsmen among 51 people who had to be rescued on Sunday, along with first responders and civilians, when their own tactical trucks were stranded by rising floodwaters in Lyons, Colorado, Fox News said. Fifteen remained stranded after air rescues were suspended, the Colorado National Guard said in a statement.

“Mother Nature is not cooperating with us today, and currently we are not flying,” National Guard incident commander Shane Del Grosso told reporters, according to CNN. “But tomorrow if we get that window of opportunity, which is sounds like we might get, we have the horsepower to hit it hard.”

The toll is high financially as well, with Boulder County looking at a copy50 million repair bill that is 10 to 15 times its annual budget, the county’s transportation director, George Gerstle, told CNN. That’s to repair up to 150 miles of roads and as many as 30 bridges.

Besides the devastation and tragedy, the floods are troubling because they did not come from routine sources, National Geographic reported. Normally they come about from spring rains, or intense summer thunderstorms that dump voluminous rain in concentrated areas, NatGeo.com said. This was different. In just a few days, 15 or more inches of rain—more than the record high for an entire month—had fallen in the Boulder area, said Brad Udall, director of the University of Colorado, Boulder’s Getches-Wilkinson Center for Natural Resources, Energy and the Environment, to NatGeo.com.

“This was a totally new type of event,” he said, “an early fall widespread event during one of the driest months of the year.”

It may be yet another symptom of climate change, NatGeo.com noted. The drought that has gripped the Colorado River Basin for 14 years has hardened the soil, and wildfires have stripped vegetation. This leaves no place for water to go, and no fauna to halt its progress, both of which can create conditions for devastating flooding.

The Navajo Nation is currently contending with a similar situation related to drought, as parts of the reservation are recovering from flooding that also occurred last week.

Moreover, these dynamics feed into and exacerbate one another as wildfires become more frequent on a warming planet, creating more flood-prone land, NatGeo.com said.

Connecting the Dots: How Climate Change Is Fueling Western Wildfires

Colorado Idle No More Won’t Back Down, Rallies Opposing Keystone XL Pipeline

The crowd at a climate rally in downtown Denver February 17 numbered up to 500 at its height. The rally was in solidarity with a climate event that drew thousands in Washington, D.C. and in at least 15 states and it included a protest against the Keystone XL Pipeline. Photo: Carol Berry.

Carol Berry, Indian Country Today Media Network

The controversial Keystone XL Pipeline, if approved, will be “built through sacred sites, traditional camp grounds and areas full of Native history,” warned a young Native woman whose organization, Idle No More, was one of 30 Colorado groups rallying in Denver February 17 as thousands of activists gathered in the nation’s capital and elsewhere.

Taryn Soncee Waters, 21, Cheyenne/Oglala Lakota/Cherokee, described the danger to Native patrimony to those gathered at a downtown Denver park in balmy weather. Cheyenne Birdshead, 17, Southern Cheyenne/Arapaho, another Idle organizer and speaker, described being arrested “simply for taking part in one of our Native dances.”

Local Idle concerns about damage to Mother Earth and Native culture from the Keystone XL Pipeline meshed with worries about “climate chaos” and other ecological issues raised by various groups at the rally, but the Idle voice was uniquely defiant, learned from generations of those who refused to yield.

People attending the rally in Denver February 17 were asked to wear dark clothing in order to depict an oil spill of the kind described as likely to happen with any pipeline, including the controversial Keystone XL Pipeline. (Carol Berry)

To bring the XL Pipeline issues home graphically, black-clad participants in the #Forward on Climate Solidarity March and Rally depicted an “oil spill”—an occurrence inevitable with pipelines, they said—by lying in a large group, a self-styled blob, on a paved area near Denver’s Civic Center Park.

There were speeches, musical numbers, and the opportunity to sign petitions, one of them urging President Barack Obama not to approve the 1,700-mile Keystone XL Pipeline that would move heavy crude oil from vast Alberta tar sands southeastward, eventually reaching U.S. Gulf-area refineries and ports.

At least one speaker voiced the concern that while Obama did not approve the pipeline’s first application, additional environmental compliance and political factors could lead to his approving the second planned route, which may avoid the ecologically sensitive Sand Hills in Nebraska but not the underlying Ogallala Aquifer, a major source of U.S. water.

Marchers at a 30-organization climate crisis rally in Denver headed toward downtown’s Civic Center Park, with Idle No More leaders Cheyenne Birdshead (left) and Taryn Soncee Waters heading up the line. (Carol Berry)

Rally organizers quoted NASA scientist James Hansen as saying that “burning oil in the Canadian tar sands [source of the Keystone XL Pipeline’s crude oil] could eventually raise the carbon dioxide concentration in the atmosphere to 600 ppm [parts per million], which he said would be ‘game over’ for a safe climate.”

The 350.org, one of the event’s co-sponsors, is named for what many scientists deem the safe upper limit of carbon dioxide in the atmosphere—350 ppm, organizers said in a press release.

In addition to 350Colorado, rally co-sponsors included Idle, the American Indian Movement of Colorado, Sierra Club, Greenpeace, Environment Colorado, Protect Our Colorado, What the Frack?! Arapahoe, Earth Guardians, PLAN-Boulder County, Be the Change, Clean Energy Action, Eco-Justice Ministries, Colorado Move to Amend, Climate Ministry of the Unitarian Universalist Church of Boulder, AspenSnowmass, Protect Our Winters, and 14 Colorado GoFossilFree.org Campus Divestment Campaigns.

Although tar sands and climate change protests in Washington, D.C. and elsewhere have produced numbers of celebrity and other arrests, Idle events in the Denver area so far have been arrest-free—except for one in January at a mall in Broomfield, a community north of Denver, where Birdshead was taken into police custody after Round Dancing and where others were also cited for trespassing.

“I myself was arrested simply for taking part in one of our Native dances,” she recalled as she addressed the current rally. “It used to be illegal for our people to do our songs, dances and ceremonies. But we still have them because our ancestors did them even though they faced imprisonment.”

This week the arrestees were to have been charged in court for trespass, but the charges were dropped. Birdshead said they had been willing to go to trial, if necessary, because “doing the right thing isn’t always easy but we do it for the future generations, just like our ancestors did it for us.”

There was no obvious police presence at the Denver rally, although uniformed state parks officials were checking to make sure the Sierra Club-obtained park permit was being used according to regulations—and it was, they said.

Birdshead’s grandmother, 70-plus Virginia Allrunner, Cheyenne, is an inspiring and reliable presence at the Idle events, even though in many ways they’re largely youth-focused: A 12-year-old, Xiuhtezcatl Roske-Martinez, leader of the Earth Guardians youth group, emceed the current rally and Native emphasis generally has targeted the legacy that will be left for children and grandchildren.

“We will not retreat. We will not stop. We will go forward to protect Mother Earth. We are Idle No More,” the young women chanted together as they concluded their presentation before the hundreds at the Denver rally.