TALLAHASSEE — Will marijuana be as legal as poker chips on Native American tribal lands in Florida?
That is the question being asked after the U.S. Justice Department published a memo directing federal prosecutors nationwide to allow tribes to cultivate and grow marijuana on their sovereign lands without fear of federal harassment.
The decision will be made on a case-by-case basis, according to the memo published Thursday, and there is no indication yet that Florida's two federally recognized tribes — the Miccosukees and Seminoles — will participate.
But experts say the proposal opens the door for Native Americans across the country to capitalize on the lucrative new industry much in the way the tribes began selling cigarettes and opening casinos.
"The tribes have the sovereign right to set the code on their reservations," said Timothy Purdon, the U.S. attorney for North Dakota who chairs the U.S. Attorney General's Subcommittee on Native American Issues, in an interview with the Los Angeles Times. He said that he and other prosecutors from tribal states have been raising questions for years about the issues and wanted the guidance.
Although Florida has legalized only a noneuphoric strain of marijuana for treatment of seizures and cancer, opponents say the new federal policy could accelerate access to broader use of marijuana in Florida.
"This has nothing to do with medicine, this has to do with the commercialization of marijuana,'' said Kevin A. Sabet, director of the Drug Policy Institute at the University of Florida, who is opposed to marijuana legalization. "If you live 10 minutes away from a reservation, you could be living 10 minutes away from a pot shop."
The Miccosukee Tribe has three reservation areas in South Florida, along Tamiami Trail, Alligator Alley and Krome Avenue. The Seminole Tribe of Florida has six reservations, which total more than 90,000 acres. They are in Hollywood, Big Cypress, Brighton, Immokalee, Fort Pierce and Tampa.
"It's not on the Seminole Tribe's radar," said Gary Bitner, tribe spokesman.
A spokesman for the Miccosukee Tribe said they are reviewing the new policy and would not comment. A spokesman for Attorney General Pam Bondi said she was reviewing the implications.
According to the memo, originally dated and sent on Oct. 28, U.S. attorneys will prosecute marijuana sales on tribal land according to the same guidelines they have adopted for the states — focusing on keeping marijuana out of the hands of organized crime, away from children and not diverting it to states where marijuana remains illegal.
"The United States Attorneys recognize that effective federal law enforcement in Indian Country, including marijuana enforcement, requires a consultation with our tribal partners in the districts and flexibility to confront the particular, yet sometimes divergent, public safety issues that can exist on any single reservation,'' the memo said.
Although possession of marijuana continues to be a federal crime, the U.S. Department of Justice announced in August 2013 that it would allow states to write their own rules for regulating marijuana sales.
Four states — Washington, Colorado, Alaska, Oregon — and the District of Columbia have legalized the recreational use of marijuana, and the U.S. attorneys in those states sought guidance as to how to treat the sovereign nations within their jurisdictions.
The new memo tracks the same criteria established in the 2013 policy, known as the Cole Memorandum, and says that the priorities of the Justice Department will remain the same when enforcing marijuana sales on tribal land as U.S. land.
It notes for example, that marijuana sales will continue to be illegal for tribes in states where marijuana remains illegal but it is unclear what that means for tribes in states where some or all strains of marijuana are legal for medical purposes. That assumes that strains of marijuana that are legal, such as the so-called Charlotte's Web in Florida, will also be legal on tribal land.
An attempt to legalize medical marijuana for a broad category of illnesses was defeated in November when supporters could not muster the 60 percent majority required by Florida law.
But Sabet, co-founder of Project SAM (Smart Approaches to Marijuana), said the Justice Department memo basically gives the tribes "the green light" to go beyond the amendment and sell marijuana for any purpose "as long as they promise to say they are doing it in a responsible way."
Others note that the federal approach to marijuana on tribal land should track federal law relating to gambling on tribal land — allowing no more than what state law allows.
After the voters approved slot machines, for example, the Seminole Tribe was automatically authorized to operate similar games at their casinos. The tribe, instead, entered into a compact with the state and won the exclusive right to offer casino games that are not authorized by state law, in exchange for $250 million in annual payments. A portion of that agreement, known as the tribal gaming compact, is up for renewal this year and it is possible a debate over marijuana could influence it.
"My worry is you will now have corporate investors flocking to tribes and enticing them to sell marijuana in order to make a lot of money,'' Sabet said. "The legalization is about massive corporations — the beginning of a new Tobacco 2.0, and it is now going to be infiltrating the tribe."
He said it is also not difficult to imagine the two cash industries, gambling and pot, operating together in Florida.
Gambling magnet Sheldon Adelson, the billionaire owner of the Las Vegas Sands, may have already anticipated this. He spent $5.5 million during the November election in an effort to defeat Amendment 2, the proposal to legalize a broader range of marijuana for medical purposes.
But Sabet said Indian tribes do not support getting into the marijuana business because they fear it will exacerbate existing drug dependency issues. The Yakama Nation in Washington state, for example, recently banned marijuana on its reservation and the Hoopa Valley Tribe in Northern California is trying to fend off illegal pot plantations on its reservation that have damaged the environment.
Mary Ellen Klas can be reached at meklas@MiamiHerald.com and @MaryEllenKlas