Cannabis and Indigenous Communities | 11.17.20
A missing piece of most cannabis conversations in New Mexico, whether it has to do with medical or the potential for legalization of recreational- use, is how Indigenous Communities are impacted. It’s a complicated scenario, especially when you consider the 23 Tribes in our state are all sovereign nations. This week on “Growing Forward” we dive into those sovereignty issues, and how Indigenous communities perceive the future of cannabis in their communities. Additional Reading – We talk a lot in this episode about a hemp-growing operation in Northwest New Mexico. As the episode points our, there are a lot of concerns about how that operation is being handled and operated. A lot has happened in this story since we taped out interview with Navajo Times Reporter Arlyssa Becenti, but here are some of her most recent updates and related reporting from other news outlets:
Coalition of Officers Raids Benally’s Hemp Farms – Navajo Times
Redfeather-Benally Replaces Dineh Benally on Farm Board – Navajo Times
Police Agencies Still Investigating Hemp Farms on Navajo Nation – Farmington Daily Times
Uprooted: A Police Raid Near Shiprock Has All But Ended an Illicit Cannabis-Growing Operation – Searchlight New Mexico
Episode Music:
Christian Bjoerklund – ” Hallon”
Poddington Bear – “Good Times”
Growing Forward Logo Created By:
*******
“Growing Forward” is a collaboration between New Mexico Political Report and New Mexico PBS, and is funded through a grant from The New Mexico Local News Fund.
FULL TRANSCRIPT
♪ ♪
Andy Lyman: I’m Andy Lyman with New Mexico Political Report.
Megan Kamerick: And I’m Megan Kamerick with New Mexico PBS and this is Growing Forward a podcast about cannabis in New Mexico.
Andy Lyman: When lawmakers debate cannabis legalization, they often focus on public safety and potential tax revenue for the state.
Megan Kamerick: But one issue that’s often overlooked in this discussion is how tribal communities will be impacted.
Andy Lyman: It’s a complicated issue with probably more questions than answers.
Megan Kamerick: And we could probably spend a lot longer than 30 minutes talking about it.
Andy Lyman: One contributing factor is that the 23 tribes, pueblos and reservations in New Mexico are all sovereign nations, which raises a lot of questions about what role they should have when lawmakers draft legalization proposals.
Megan Kamerick: Another important thing to remember is that Native Americans are far from monolithic.
Monica Braine: Like, you know, not all towns and cities and states and counties are on the same page across the country when it comes to medical cannabis, or any kind of cannabis, really.
Megan Kamerick: Monica Braine is a producer with a nationwide call-in show Native America calling. After years of reporting on the issue, she says there are no universal truths when it comes to cannabis in Indian country.
Monica Braine: There are tribes that got in on the game early and whether it was on the medical side or in states that have legalized and they run their own dispensaries or they are growing or distributing things like that. And other tribes are taking their time to decide whether or not this is something that’s right for them. The experts that we’ve had on our show who focus on this issue in Indian country, particularly like native lawyers, have come on and said things about how it’s jurisdictionally such a complicated situation for Native America, right? That “go slow on something like this, or you’re going to be sorry.” And we’ve seen that the Flandreau Santee Tribe, I think they started something and ended up having to have their hemp crops burned, because they — it was a complicated situation, the officials were just not having it, basically. And so, yeah, it’s it. I can’t say it enough that it’s complicated. And that some tribes just don’t want to mess with that the complications of having jurisdictional. So, for when we talk about Indian Country, that’s like the legal designation, and it really means land on federally recognized reservations. So, there’s federally recognized tribes, and those tribes are sovereign entities that have a government-to-government relationship, whether it’s a government to federal government relationship or government to state government relationship. And so, it doesn’t mean that there’s a free for all, and that you get to do whatever you want, you still have to follow federal laws. And when it comes to criminal jurisdiction, things are covered under the major crimes act.
Megan Kamerick: As we’ve mentioned before, and it’s worth repeating now, regardless of state laws, cannabis is still illegal on the federal level. So, over the years, as various states have moved to legalize recreational use cannabis, there’s always this lingering concern that the federal government will come in and raid dispensaries.
Andy Lyman: Which isn’t necessarily an unfounded concern. The Obama administration did crack down on some states that had a recreational use program. But in 2013, U.S. Deputy Attorney General James Cole issued a memo. It essentially said the federal government would take a hands-off approach, letting states chart their own course with cannabis. Monica says that guidance commonly referred to as the Cole memo, applied to tribes as well.
Monica Braine: so initially, it really looked like tribes were not going to be able to get in the game. [laughs] you know, whether it was medical marijuana or in states that legalized entirely. The Cole memo came out, and it sort of indicated that tribes would have the possibility of being able to produce or sell or things like that. Of course, the Cole memo came out during the Obama administration. The trump administration rescinded it. And so tribes found themselves back in a confusing territory again, which you know, we had individuals on our show who are saying, “We’re pretty used to this being told one thing, and then another, and things like that,” but it makes it tricky for tribes that are trying to build economies for themselves, that maybe are trying to pivot from gaming, or gaming is not lucrative in their area. But this provides an economic opportunity for the tribe for the community to thrive and grow. And to have it be so confusing and getting mixed messages and then having even local sheriffs showing up and saying things, it’s a really tricky situation.
♪ ♪
Arlyssa Becenti: [speaking navajo]
Andy Lyman: That’s Arlyssa Becenti, a reporter with Navajo Times. Among a long list of other things, Arlyssa has been covering industrial hemp farming on the Navajo Nation.
Arlyssa Becenti: So, it’s a long story. [laughs] So, in 2017, this is 2017, Dineh Benally. He is, he’s a lot of different things. He ran for president. He ran for Navajo Vice President, President and Senator for New Mexico, I don’t really remember what district. And now he is the San Juan River Farm Board President. But in 2017, he came to Navajo Nation Council with a legislation wanting to, you know, get into the medicinal marijuana business. But that legislation was withdrawn. It just it didn’t go through. So that’s when he did it the right way. When he went to the leaders. Last year in 2019, I got a tip that he was pursuing hemp. And in my mind, I’m thinking “Okay, well, they’ll shut this down.” And I didn’t really have much to go on at the time. And so I left it. But then in June of this year in 2020, because Navajo Nation police sent out a press release, saying, “Okay, we hear your concerns” to the Shiprock community, “we hear your concerns, you know, we are trying to take care of it as best as we can. We’re doing what we can. We’re keeping vigilant of this hemp that we are hearing about these greenhouses, these farms are being placed out of nowhere.” And after that, a few days later, the Navajo Department of Justice sent out their own press release and saying, “okay, we’re going to we’re going to sue Dineh Benally and his two companies.” And from then, since those press releases on to now, is when I’ve been covering it, and I’ve been covering in form of, of how it’s being unfolded, how the issues are being unfolded, what the community is doing and how their leadership in that community what they’re doing, as well as what our Navajo Nation leadership is doing.
Andy Lyman: Arlyssa has been covering this issue from the start. But another news outlet Searchlight New Mexico recently picked up the story and was able to get some information that Arlyssa says many officials were not willing to give her. Part of what Searchlight reported was that Dineh Benally was likely growing cannabis with the psychoactive substance THC, which is illegal on Navajo Nation. Benally was also featured in a story earlier this year on the PBS Newshour.
PBNS Newshour reporter: On his 300 acres, Benally and his farmers can grow up to two and a half million hemp plants. But this crop comes with some caveats. The U.S. Agriculture Department and tribal lands have new regulations around the farming of hemp. These include sample testing of the plants to ensure their THC levels are low enough to be considered hemp, and to plan to dispose of any plants that test too high. And Navajo leaders like President Jonathan Nez, say Benally must follow the new federal rules and get permission from the nation to raise a hemp crop.
Dineh Benally: And we just want to be able to do it correctly and protect our Navajo people that want to utilize that product on our nation.
PBS Newshour Reporter: Benally says he will work to ensure he is meeting the new federal and tribal guidelines. And he understands cooperation ensures success.
Dineh Benally: We have to work together. That’s all I realized, like to get this going and take it to the next level.
Arlyssa Becenti: Speaking with the Navajo Nation police, they have been really great sources especially as the Navajo EPA. There’s a good amount of hemp, of course, but they also could be having growing marijuana in there. There’s a lot of intelligence going on right now between the feds and Navajo nation, but you know, they believe that there is marijuana, and there’s a lot of shady deals going on. And that’s what I’m hearing from these police sources. And when I speak to people outside who actually work there, they don’t want to talk to me. Nobody wants to talk to me, everyone is very antagonistic towards me when I speak with them.
Andy Lyman: Let’s pause for a quick trip down memory lane just to catch everyone up. Hemp was actually made legal in New Mexico under former Governor Susana Martinez, albeit probably by accident. Martinez actually planned to veto the hemp legalization bill, but the state supreme court ruled that she failed to go through the correct veto process. Without the proper veto, that means hemp was now a de facto legal crop.
Megan Kamerick: And much of Arlyssa’s reporting is on this hemp farming operation not specifically cannabis with higher levels of THC.
Andy Lyman: Remember, by law hemp has to have no more than .03% THC to be legal. So that means if Benally really was growing plants with a high percentage of THC, he was breaking Navajo Nation law. Here’s Arlyssa again but keep in mind she’s talking about hemp, not cannabis. With that significant amount of THC.
Arlyssa Becenti: They need a business plan of how of what they’re going to use, how they’re going to use this, what they’re going to do. There’s gonna have to be — you have to adjust taxes, how are we going to be able to get the income from all of this hemp and then tax it as well. And then we’re going to have to talk about how it’s going to fit into the general budget. That’s just the political way. And we just politically. I don’t know really much about the community because we have 110 different chapters, and they all have their own opinions on that. Just from the discussions and the NMSU pilot project, when I was listening to it over a year ago, this Shiprock chapter was just really afraid that well, the elders there, were really afraid of what bad it could bring to the community. And so just also education, education is needed from people who are wanting to go forward with hemp, industrial hemp. And they’re going to have to be really good at educating because Navajo Nation elders who are basically the voters, the majority voters, they’re very wary of anything new coming in. And because we’ve been burned before, I mean, our coal mining, our uranium mines, these are all foreign entities that came on promising all this wonderful stuff, and instead, they extracted from our land, and they left. And they left a big destruction. The largest uranium mine spill, radioactive mine spill, happened here in church rock, and it just completely ruined the water system in the Rio Puerco. And that that kind of stuff that has happened in the past, they’re concerned of happening again, and this hemp is probably something I believe, guys are gonna be thinking, “alright, we need to be very cautious of this. This is something new, and we don’t want it to bring harm to us.”
♪ ♪
Andy Lyman: So, I think it’s fair to say that there might be some trepidation about either cannabis or hemp as a cash crop, at least on the Navajo Nation. In September, Arlyssa reported that one of the growing houses on Benally’s operation was torched.
Megan Kamerick: Beyond just the legal questions, Arlyssa says views within the Navajo Nation vary so much it’s impossible to assign a Navajo view to recreational cannabis legalization.
Arlyssa Becenti: It’s just such a huge, huge nation with a lot of people with a lot of different views. And when it comes to judiciously — like we have so many different kinds of conservative Navajos, but we also have different traditional Navajos who say, who write “okay, cannabis, it comes from the ground, hemp it comes from the ground. It’s medicine, it will help us it can do this for us. It’s traditional, we can do it, it comes from the earth.” And you have the other ones who are saying, “there’s no room in our traditions that says our beliefs that has hemp or anything like this. And this is basically new. And I don’t buy the fact that this is traditional, just because it comes from the from the earth.” There’s just no one underlying traditional belief. We all have our different beliefs and how we interpret Navajo beliefs and Navajo traditions, even Navajo language. It’s different from one side of the reservation to the next side of the reservation. Shiprock is a really farm-exclusive territory where they grow melons and corn and you know, squash and everything like that. And they’re just afraid that if this hemp comes in, it’s just going to ruin the land, it’s going to ruin, it’s going to take away from the water resources. And there’s over 400 acres, 36 farms identified all over. And there’s also talks that it’s not just in the northern Navajo agency, it’s branched out into Arizona, and other parts of New Mexico, on the Navajo Nation. So, they’re just worried more so about that. [music] just by the lack of water already, obviously, since we’re in COVID. That’s one of the major reasons why COVID spreads so rapidly is because people don’t have water. That’s why there’s so many, every year we find feral horses who have died because they don’t have water to drink. And so those are our problems that we see now. This hemp, needing all the water that it does, and the way Dineh Benally is taking the water, that’s one major concern for the farmers, I believe.
♪ ♪
Megan Kamerick: Clearly there are some diverse views on the Navajo Nation, and even if the tribal government comes to a consensus on recreational use cannabis, it will likely be a different view from other tribal communities in the state.
♪ ♪
Andy Lyman: There are examples of other tribal governments around the us that have figured out how to get into the legal cannabis industry. In Nevada, for example, the state passed a law that allows tribes to negotiate directly with the governor, instead of getting the feds involved. Monica Braine points to one tribe in California that challenged a state mandate that would have significantly impacted a core principle of all tribes… Sovereignty.
Monica Braine: It’s a really tricky situation, I really admire the tribes that have tried to venture into it. There’s a tribe in California called the Benton Paiute and we had the tribal chairwoman on a few years back in 2018. And one of the things that was really interesting about California was that if tribes wanted to sell cannabis, they needed to get certified through the state to be allowed to sell according to the state. And there were in the papers that they made the tribes fill out, there were things that said, I waive all my sovereign immunity in order to sell cannabis, you know, and the chairwoman of this tribe in California, was like, “we’re not doing that.” So, they set up their own system, they certified themselves to sell cannabis. Because that’s just like a line in the sand, you’re not going to waive your sovereign immunity. That’s why tribes exist.
Megan Kamerick: That sounds like trying to do something like that, you’d have to have a fairly sizable tribe that has a government with the capacity to do something like that.
Monica Braine: It’s true. But this particular tribe, the Benton Paiute is actually not that big, but they work well together as a cohesive government and have been governing themselves for a very long time. And so, they put the systems in place to be able to do that, which I found really fascinating.
Megan Kamerick: Which gets us back to Andy’s earlier point about tribes’ seat at that proverbial table. I asked monica what she thinks about how involved officials in Indian Country are in the important conversations about medical cannabis and the legalization of recreational cannabis.
Monica Braine: Honestly, Megan, I really don’t know if they’re being included or not. I’ve been asking that question. And particularly, when it comes to this question of whether or not they will have to certify themselves through the state to be able to sell, to be able to manufacture, to be able to grow. And I can’t get a clear picture of that. And I’m not sure that Pueblos and Tribes in New Mexico have the time and energy to make sure that they have a place at the table and they shouldn’t have to. In the past, it kind of seems like natives of tribes have been sort of an afterthought unless they demand or it’s required by law that consultation happens. This current administration that we have, I think, is focused on making sure that they consult with tribes and things like that. But is the legislation making sure that as they’re writing legislation, they’re talking with Pueblos about it, they’re talking with the Navajo Nation about it? And like I said, I really don’t know the answer to that.
Megan Kamerick: So, this whole issue of representation and whether tribal communities are being included, as we’re all figuring out what this is going to look like is still up in the air, as monica says, but also up in the air is this, this, disconnect or this confusion between hemp versus cannabis? We’ve heard this before, Andy, there’s a lot of confusion. [laughs]
Andy Lyman: Yes. And again, just as a reminder that and I said earlier, hemp by law has to have a very low percentage of THC. I think a lot of people probably are listening to this saying, “well, wait a minute, they’re growing hemp and not cannabis.” But I think this might be indicative of what is yet to come. If New Mexico were to legalize cannabis next year, this is something that tribal groups are going to have to, you know, really get their voice heard on this issue. And I think they probably do need some more representation when they’re drafting this legislation. Because there is that disconnect between state, federal and tribal governments.
Megan Kamerick: And so that disconnect between states and the federal government is basically compounded for Native American tribes. They have to navigate relationships at the federal level, the state level, even the local level.
Monica Braine: Whether or not tribes have a good relationship with their state is always sort of a tricky situation. And it can vary from administration to administration. And then on top of that, you have the relationship with the federal government. I think, going back to like that Cole memo, it made things confusing as to whether or not the federal government was on board with tribes being able to pursue this as a economic development. And whereas, for example, gaming, it’s pretty crystal clear. We have major federal legislation that paved the way for tribes to do gaming, they do have to negotiate compacts with states. This is where we’re headed with marijuana [music] with the cannabis legalization is that: will tribes be negotiating compacts with states? Will they be doing what’s called a revenue sharing? So, it’s not taxes with gaming, its revenue sharing, and it’s anywhere from like 1% to 30%, that tribes will share their gaming profits with the state. And that’s all as a result of federal legislation. So, do we need federal legislation? And is that even a possibility? You know, that’s why we have so many, a patchwork of so many different situations going on. So, when you try to sit down and push some legislation through, you’re going to have tribes that are going to say, don’t bother pushing this deal. I’m not negotiating anything with you. I only do my relationship with the federal government.
♪ ♪
Megan Kamerick: We should probably point out that we recorded this episode prior to the presidential election. But regardless of the outcome, it really seems like there’s still a lot of unknowns.
Andy Lyman: There’s a lot of guesswork involved. For instance, it seems to me that the trump administration would rather leave the issue up to individual states. Whether that would give autonomy to tribes is a good question. I think that Joe Biden had offered even less clarity on the issue. During his campaign, he spoke about things like expungements and eliminating penalties for drugs, but I’m not really sure he ever spoke at length about legalization on a federal level.
Megan Kamerick: That makes me even more curious about what New Mexico lawmakers will, or even can, do to include tribes and legalization efforts. I mean, I guess New Mexico could enter into some sort of compact, like in Nevada?
Andy Lyman: Yeah, seems like that should be a possibility. Let’s clarify though how cannabis is classified by the federal government. The plant is still listed as a schedule one drug.
Emily Kaltenbach: Schedule one basically means that there’s no medicinal or therapeutic value for substance and we know that that’s not the case for cannabis.
Andy Lyman: Emily Kaltenbach is with the New Mexico Drug Policy Alliance, a group that advocates for things like criminal justice reform and revamping drug laws. They were at the forefront of the efforts to legalize medical cannabis more than a decade ago. Now the group is focusing on legalizing recreational use cannabis.
Emily Kaltenbach: If you look at how many U.S. States now have some sort of legal cannabis option, whether that’s medical or full legalization, the research and the anecdotal evidence shows [laughs] people– it does have something so bad about you. So, there’s been a long battle to take cannabis off of schedule one. There are different proposals out there. One is just to reduce it to a lower schedule, right, that shows that it does have some medicinal value, but still is controlled in a medical setting. We really advocate for the descheduling because if you just reschedule and lower it on that controlled substance, then it still has to be very tightly regulated in a way that would really limit individuals access, especially patients, medical patients’ access.
Andy Lyman: We still don’t know exactly what any legislation will look like yet. But, Emily says previous proposals did at least address autonomy of sovereign nations.
Emily Kaltenbach: Last year’s bill actually required that there would be some tribal agreements with the state because for many reasons, I mean, one we want to see sovereign nations be able to stand up their own legalization systems, and both on the medical and the adult use side. And so it’s important that those agreements come into place. There’s also as a standalone bill that Shendo carried last year. So yes, I think that, you know, that’s something that we’re advocating for that there’s appropriate agreements between tribes and nations and pueblos in the state. And also that, you know, we don’t want to see tribal communities lose out on some of the benefits of a new system.
Megan Kamerick: Monica says an ideal situation for tribes would be if they could navigate legalizing cannabis independently from surrounding states. But with these added layers of bureaucracy and questions about state versus federal jurisdictions, that seems kind of overwhelming for tribal governments that are also grappling with huge issues like the COVID pandemic. I can see why lawyers advise and why some tribes have a lot of trepidation about getting into lists just from your description, like, ah! What a headache…i mean, with maybe a potentially good revenue stream, but who knows…
♪ ♪
Monica Braine: It’s like, it’s already a headache just to be native, right? To be a tribe and sovereign entity, and then you’re going to add like another headache on top of that, like no amount of medical cannabis is going to make that headache go away. [laughs]
♪ ♪
Megan Kamerick: Growing Forward is a collaboration between New Mexico PBS and New Mexico Political Report, thanks to a grant from the New Mexico Local News Fund.
Andy Lyman: Our producers are Kevin McDonald and Bryce Dix. Bryce also does the editing. Matthew Reichbach is the editor at New Mexico Political Report. Join us next time when Megan and I take a couple of field trips.
♪ ♪
Megan Kamerick: Be sure to subscribe to growing forward wherever you get your podcast and while you’re there, please leave us a review. It really helps. You can also get caught up on all of our episodes so far by heading to nmpbs.org and searching for “Growing Forward.”
♪ ♪