The Associated Press
If the Menominee tribe can’t open a casino in Kenosha, maybe it’ll grow marijuana instead.
Tribal legislator Craig Corn opened the door Friday to growing marijuana on tribe’s impoverished reservation near Shawano.
The question of tribes entering the marijuana business has been smoldering since last year, when the U.S. Department of Justice told federal prosecutors not to prevent tribes from growing or selling pot on their reservations, even in states such as Wisconsin that ban it.
Indian law experts say the Justice Department memo left many questions unanswered.
Still, interest has grown since Gov. Scott Walker last month rejected the tribe’s proposal for an off-reservation in Kenosha.
In a tweet Corn sent out Friday, the former tribal chairman said: “Now we embark on a new economic endeavor, it is time to progress forward. We are gonna fast track a effort to legalize marijuana.”
He told the Milwaukee Journal Sentinel the tribe has numerous legal hurdles it must research and overcome before it could legally plant and sell marijuana.
“We don’t have anything set in stone. We’re not going to legalize it tomorrow or anything,” Corn said. “We have to find out whether it can be done, what are the obstacles, what are the pros and cons.”
There are many obstacles, said Carl Artman, a Indian law attorney in Milwaukee and the former head of the U.S. Bureau of Indian Affairs.
“It’s a very gray area right now,” said Artman, who is a member of the Oneida tribe. “There are still a whole lot of things to overcome before they could do it.”
Artman said the Justice Department memo lacked specifics on how to move ahead.
“It was like being in New York and being told that to get to Wisconsin, you head west,” Artman said. “The tribes and states and the federal government still have a lot to figure out.”
Talk on the impoverished Menominee reservation and social media got stronger after Jan. 23, when Gov. Scott Walker rejected the tribe’s bid to run an off-reservation casino in Kenosha — a project the tribe had been pursuing for nearly 20 years.
“It could be a huge agricultural resource,” said Ken Fish, who serves as counsel for people in tribal court but is not a state-licensed attorney.
It appears that the Menominee is the only Wisconsin tribe that could take advantage of the federal directive. Wisconsin is one of six states in which state authorities enforce most crimes — including illegal drug use. The Menominee tribe is exempt from that law, so its violations are prosecuted by federal authorities.
The Justice Department memo, however, had several legal caveats pertaining to how tribes could grow marijuana without being subjected to federal law enforcement. The memo said the feds could enforce drug laws to prevent “the diversion of marijuana from states where it is legal under state law in some form to other states.”
Anthony Broadman, a Seattle Indian law attorney, said that directive could pose a hurdle to the Menominee.
“I don’t know how a reservation that is located in a state where pot is illegal” could transport the marijuana without violating the diversion provision as soon as it leaves the reservation, he said.
Unless Wisconsin lawmakers legalize marijuana for medical or recreational use, Broadman said, it appears that all the Menominee would be permitted to do is raise marijuana for use by its tribal members on the reservation.
Fish, however, said the tribe could get around the restriction by shipping its crop to states where it is legal. In order to get the marijuana off the reservation, the tribe would have to negotiate a series of compact agreements with states to permit it to legally ship the product, Fish said.
He acknowledged that would be a difficult — but profitable — task.
“There is a big demand in states that sell medical marijuana. … It is a huge market,” Fish said. “Whoever gets there first is going to capitalize.”
Corn agreed, saying that the 8,700-member tribe hopes to raise cash to help it cure the many social ills on its reservation. In 2010, the University of Wisconsin’s School of Medicine and Public Health ranked Menominee County last in overall quality of health, according to the tribe’s website.
“Even though the Kenosha casino got squashed, we still have the needs,” Corn said. “We have to look at whatever we can to take care of those needs.”
Both Artman and Broadman said the movement to allow tribes to grow marijuana is reminiscent of the early days of Indian gaming.
When the casinos first started popping up in the 1980s, there were constant battles between tribes and authorities over the legality of the operations. Today, many states embrace tribal casinos and collect millions of dollars in fees from the Indian governments that operate the gambling operations.
“The history of Indian law is a succession of tribes pushing the envelope,” Broadman said. “No economic success has come to Indian country except when tribes stuck out their necks and tried something new. That’s how they got Indian gaming.”