With the current legal and financial restrictions on the sale of cannabis, and confusion regarding the legal framework that governs this multi-billion dollar medical and recreational trade, many Tribes may have been hesitant or unable to enter the cannabis industry. The upcoming change in administration, along with legislative developments on both the federal and state level, suggest that the legal landscape for the cannabis industry may move further towards rationalization. Tribes considering entering the industry—as well as those that have been in the cannabis business for some time—should be aware of several key legal developments that will influence the future of this industry.

As sovereign nations, Tribes have the inherent authority to protect and promote the health and welfare of their citizens using methods most beneficial for their communities.

This authority is plenary and provides a tribe with exclusive power over its members and territory. Cooley was charged with possession with intent to distribute and possessing a firearm in furtherance of drug-trafficking. In the District Court, Cooley successfully moved to suppress the evidence on the theory that the officer acted outside the scope of his authority as a tribal law enforcement officer in detaining Cooley and conducting a search. Tribal officers, the court held, may only detain a non-Indian on a right of way when the violation is “apparent” or “obvious” a higher standard than the traditional reasonable suspicion and probable cause standards. A Ninth Circuit panel affirmed, though four judges would have granted the government’s request to have the case reheard en banc.

The case may clarify tribal jurisdiction on highways running through reservations, which have also been the subject of litigation and threats of litigation related to COVID-19 checkpoints at Reservation boundaries this year.

The government asked the Supreme Court to take the case arguing that the Ninth Circuit’s decision “diminishes the inherent sovereign authority of Indian tribes and unjustifiably impedes the enforcement of state and federal law on Indian reservations[.]” The government also argued that state and federal law enforcement cannot be expected to fill the void created by the Ninth Circuit’s decision due to the “sheer size of reservations and the lean staffing of law enforcement departments in remote areas.” Among other things, the government cited the work of journalist Sierra Crane Murdoch describing the hours it could take for non-tribal law enforcement to respond to calls in Indian country.

The Crow Tribe supported the government’s request as an amicus curiae, noting their 1868 treaty provision ensuring their right to have “bad men” apprehended, prosecuted, and excluded from the Reservation. The Crow Tribe was supported by the National Congress of American Indians, the National Indigenous Women's Resource Center and more than a dozen other Tribes and tribal organizations

The case may clarify tribal jurisdiction on highways running through reservations, which have also been the subject of litigation and threats of litigation related to COVID-19 checkpoints at Reservation boundaries this year.

Notably, this case may be the first indication of recently confirmed Justice Barrett’s views on matters of federal Indian law. A memorandum prepared by the Native American Rights Fund in October 2020 concluded that among the 900 cases Judge Barrett heard on the Seventh Circuit, none involved an Indian Tribe or an Indian law issue. The Supreme Court agreed to hear the case on November 20, 2020. Oral argument has not yet been scheduled.