Federal cannabis policy creates challenges in Indian country

Last year state policymakers were presented with the challenge of setting up a regulatory and tax regime for adult-use cannabis after a bipartisan majority of voters enacted I-190 in the 2020 election. Though cannabis policy is still a work in progress, we got a lot of things right to ensure that the industry was set up responsibly in Montana.

Our fledgling cannabis industry comes with a great deal of opportunity for Montanans. Already we are seeing new jobs being created by entrepreneurs setting up businesses from cultivation to retail to laboratory support services. And this industry as a whole is just getting started — the potential for growth is tremendous.

Throughout this process my top priority has been to ensure that Montana’s Native Americans were not left out of that opportunity. It hasn’t been easy due to the unique challenges our tribal nations face.

When the Legislature passed HB 701 last session, our intent was to allocate a single automatic license to each of our tribal nations to allow them to cultivate and sell cannabis. However, the Department of Revenue interpreted that provision of HB 701 much more narrowly than the Legislature intended, inadvertently limiting the ability of the tribes to expand a cannabis operation beyond the smallest size allowed.

This is a problem I will fight to fix next session, and already the interim Economic Affairs has proposed a bill to do just that. But this licensing conflict exemplifies the challenges that tribes face with cannabis.

This is equally true at the federal level. Montana’s tribes live in a gray area as sovereign nations on federal trust property. Tribes have more interaction with the federal government than any county or municipal government, which makes the federal ambiguity on cannabis policy all the more challenging for us.

As state after state, now 37 in total, have created a legal cannabis market, there is a growing need for the federal government to begin to clarify their regulations. States, and for that matter tribal nations, should always have the last say on to what degree cannabis is legal in their jurisdictions, but the federal government first needs to remove the cloud of uncertainty that exists for legal cannabis.

State policymakers are following the directions their citizens are giving them. As public sentiment has shifted to supporting legalizing cannabis, we are seeing state regulations follow suit. A decade ago, the majority of Americans opposed legalizing cannabis — today that sentiment has completely shifted and nearly 60% of Americans believe that cannabis should be legal for both medical and adult use.

But as legal cannabis spreads from state to state, we need to make sure it is done responsibly. Nowhere is this more important than for minority communities like our tribal nations. In Montana I think we’ve done a good initial job of providing additional resources for law enforcement and addiction services, for example. But it’s incumbent on us as legislators to carefully examine the progress of our cannabis industry next session to see where we can do better.

That’s what we should expect from our federal policymakers as well, as they consider building on the small steps they’ve already taken to give greater clarity for a national regulatory framework. But this process needs to accelerate in Washington D.C. — the longer it is drawn out, the more delayed the opportunity for jobs and growth for Montana’s tribes.

Senator Jason Small, R-Busby, represents Senate District 21, which includes the Crow and Northern Cheyenne reservations. He is the vice chairman of the Select Committee on Marijuana Law.