Authority of Grand Traverse Band, MI Findings, Purpose, and Policy

[History: Tribal Resolution #21-29.3368, enacted by Tribal Council in Regular Session on September 9, 2021; as amended by Tribal Resolution #23-41.3523, enacted by Tribal Council in Regular Session on February 15, 2023; as amended by Tribal Resolution #23-41.3534, enacted by Tribal Council in Regular Session on March 15, 2023.]

The Grand Traverse Band Tribal Council, on behalf of the Grand Traverse Band of Ottawa and Chippewa Indians, finds that:

(a)

The need to diversify the Tribal economy beyond what is primarily tourism-based businesses has become evident due to the severe financial impacts the Tribe has suffered as a result of extended business closures and lack of travel to the region caused by the Covid-19 pandemic.

(b)

Marijuana is an economic commodity in an emerging market that is not based on tourism.

(c)

Tribal regulation and control of the commercial cultivation, processing, distribution, and sale of marijuana for adult use within the Tribe's jurisdiction is essential for the protection of public health and welfare of the Tribe and residents and visitors to the Tribal community.

(d)

Tribal regulation and control of the commercial cultivation, processing, distribution, and sale of marijuana for adult use within the Tribe's jurisdiction is in the best interest of the Tribe.

(e)

The Tribe has the inherent authority to license and regulate the commercial cultivation, processing, distribution, and sale of adult-use marijuana within the Tribe's jurisdiction.

(f)

Marijuana use is prohibited under federal law, 1970 Controlled Substance Act (prohibiting Cannabis Sativa L. and its derivatives), 21 U.S.C. Section 811 (a)-(i), as modified by the Agriculture Improvement Act of 2018 (permitting trace amounts of THC in hemp and CBD products), P.L.115-334 (2018), however, marijuana recreation and medical use is not prohibited under State of Michigan Law, Michigan Regulation and Taxation of Marijuana Act, MCL 333.27951 to 333.27967; see also, Michigan Licenses Rule Set that provide detailed rules under the following headings:

(1)

Administrative Rules for the Michigan Medical Marihuana Program.

(2)

Michigan Medical Marihuana Act.

(3)

Marihuana licenses.

(4)

Marihuana licensees.

(5)

Marihuana Operations.

(6)

Marihuana Sampling and Testing.

(7)

Marihuana-Infused Products and Edible Marihuana products.

(8)

Marihuana Sale or Transfer.

(9)

Marihuana employees.

(10)

Marihuana Disciplinary Proceedings.

(11)

Industrial Hemp Rules for Marihuana Businesses.

(12)

Marihuana Facility/Establishment Laws.

(13)

Marihuana Tracking Act.

(14)

Medical Marihuana Facilities Licensing Act.

(15)

Michigan Regulation and Taxation of Marihuana Act.

(16)

Bulletins Page.

(17)

Medical Marihuana Operation and Oversight Grants Application.

(18)

County Grant Allotments.

(19)

Municipal Guide.

(20)

RAB 2020-17 Taxation of Adult-Use (Recreational) Marijuana Under the Michigan Regulation and Taxation of Marihuana.

(21)

The Market for and Economic Impact of the Adult-Use (Recreational) Marijuana Industry at (michigan.gov.mra/) (last visited March 10, 2021), and more generally marijuana use in some form is legal in all but eight states:

(A)

Recreational sales are legal in 16 states plus Washington D.C. (a federal enclave).

(B)

Medical sales are legal in 36 states plus Washington D.C.

(C)

Medical sales of CDB (low-THC) products are legal in 7 states.

(D)

Marijuana use is decriminalized in 32 states.

(g)

GTB Tribal Constitution provides that the Tribe has the authority "To levy and collect taxes, license fees, or assessments upon persons, entities, property, or activities subject to the jurisdiction of the Band where not prohibited by federal law" (emphasis supplied). Article IV Section 1(i). For purposes of this ordinance, the Tribal Council, acting in its combined "legislative and executive capacity," GTB Constitution Article IV Section 1, and with reference to GTB Constitution Article V Section 2 that "[jurisdiction] shall be exercised to the fullest extent consistent with self-determination and the sovereign powers of the Tribe[]," finds that this tribal ordinance is not contrary to tribal and state law and is consistent with the "criminal prohibitory-civil regulatory" distinction articulated in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) that authorized tribal activities so long as the tribal activities were not criminally prohibited under state law but rather were civilly regulated under state law. Therefore, this ordinance is consistent with state law and the standards of Cabazon. In further support of this proposition, the Council finds that the Assimilative Crimes Act, 18 U.S.C. Section 13, makes state law applicable to conduct occurring on lands reserved or acquired by the federal government as provided in 18 U.S.C. Section 7(3) when the act or omission is not made punishable by an enactment of Congress. Recognizing that federal law prohibits the use of marijuana for any purpose, the United States, nevertheless, has not prosecuted state actors or legislative action in the State of Michigan or any other of the 16 states in the Union that have authorized sales of marijuana for recreational purposes, any of the actors or legislative action in the 36 states in the Union that have authorized medical sales of marijuana, or any of the actors or legislative action in the 7 states that have authorized sales of low-THC products for medical purposes. Therefore, the Tribal Council asserts that the same practice and principle of non-prosecution should be extended to the Tribe under this ordinance. Furthermore, the use of the Assimilative Crimes Act, (ACA) 18 U.S.C. 13, analysis could address any United States prosecutorial concerns for the safe and secure regulation of Marijuana use in Michigan Indian Country. Therefore, the Tribal Council finds that this tribal ordinance is not prohibited by federal law when the sovereign status of the GTB is considered in pari materia with the sovereign status of Michigan that laws on the same subject or matter must be construed with reference to each other (Michigan's sovereign status and GTB's sovereign status) to promote the principle of uniformity and predictability in the application of law. This ordinance is consistent with "prohibitory-civil regulatory" distinction and the application of the ACA to address any regulatory jurisdiction of the United States. Based on these findings, the Council specifically finds that this ordinance is not contrary to federal law, policy and practice, as administered by the present Department of Justice as of May 19, 2021, particularly in light of the February 2021 reaffirmed "Cole Memorandum" by nominee Attorney General Merrick Garland, now confirmed, originally issued in August of 2013 that the Justice Department would not prosecute "jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale and possession of marijuana"; nor is this ordinance contrary to GTB Constitution, Article IV, Section 1 (i) as violation of federal law based on DOJ current practice and policy.

(h)

The Tribal Council further finds that based on the findings and rationales stated in Subsection (g) this ordinance would not be contrary to provisions of the Indian Self-Determination Education Assistance Act, 25 U.S.C., Sections 5301-5423, the Indian Health Care Improvement Act, 25 U.S.C., Section 1601, et seq., the Native American Housing Assistance and Self-Determination Act, 25 U.S.C., Sections 4101 et seq., the Indian Gaming Regulatory Act, 25 U.S.C., Section 2701 et seq., the Indian Law Enforcement Reform Act, 25 U.S.C., 2801 et seq., that provide contrary authority that marijuana is prohibited under federal law and the tribal programs administered by these listed federal laws. Nevertheless, to the extent that a conflict exists between these listed federal statutes and federal programs administered by GTB, and this ordinance, then GTB policy program administration is directed to follow federal law for these identified federal laws in the administration of tribal programs or enterprises.

(a)

The establishment, promotion, and operation of commercial activities related to adult use marijuana activity within the Tribe's jurisdiction is necessary and desirable provided that such activity is regulated and controlled by the Tribe pursuant to Tribal law consistent with the substantive law of the state regulating marijuana activity, such as those relating to the distribution of marijuana to minors, preventing revenue from the sale of marijuana from going to criminal enterprises, preventing the unlawful diversion of marijuana to other jurisdictions, preventing authorized marijuana activity from being used as a pretext for the trafficking of other illegal drugs or activity, preventing violence in the cultivation and distribution of marijuana, preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use, and preventing the growing of marijuana and its attendant public safety an environmental danger on publicly accessible lands.

(b)

The revenue generated from marijuana activity authorized under this ordinance shall be used to support and enhance marijuana business growth within the Tribe's jurisdiction and to provide funds to Tribal government to support the provision of services including, but not limited to, law enforcement, education, health care, and social services.

(c)

When operated in accordance with the provisions of this ordinance, such marijuana activity will be conducive to the general welfare of all residents of the Tribe's jurisdiction and six country service area as defined by the Tribe's Constitution, Article I, Section 2.