On June 6, the Eastern Band of Cherokee Indians’ Tribal Council approved an ordinance allowing all adults over 21 to purchase cannabis at the Band’s Great Smoky Cannabis Company superstore, regardless of where they reside or if they have a medical cannabis license. Great Smoky opened in April 2024 after the Council voted overwhelmingly in favor of a referendum proposing the legalization of recreational cannabis use on the Qualla Boundary last year.
The Ordinance, which is expected to come into effect in August, supplants the dispensary’s initial policy of only selling to those with a valid medical cannabis license issued by the Band’s Cannabis Control Board, or another out-of-State regulatory regime.
While this expansion of sales to any non-Band adult is estimated to double revenue, it also threatens to heighten interjurisdictional tensions between the Band and State- and Federal-level authorities.
In addition to being prohibited under Federal law, cannabis remains illegal, for both recreational and medicinal purposes, at the State level in North Carolina, where the Qualla Boundary is located.
Six days prior to last September’s referendum, Rep. Chuck Edwards, representing North Carolina’s 11th District, preemptively responded by introducing a piece of legislation entitled the “Stop Pot Act” in Congress, a stalled Bill that would have withheld 10% of Federal highway funds from States and Bands that attempt to permit the use of recreational cannabis in their jurisdiction. And earlier this year, North Carolina Senators Thom Tillis and Ted Budd released a letter expressing their concern with the Band’s plan and requesting clarification from State- and Federal-level law enforcement as to their authority and willingness to enforce applicable laws in and around Qualla Boundary. District Attorney Ashley Hornsby Welch responded that North Carolina would continue to enforce State law “off Qualla Boundary.”
Beyond that, however, the State has no jurisdiction to interfere with the Band’s impending recreational cannabis market, as Qualla Boundary is trust land, to which the Federal government holds the title and over which it exercises exclusive jurisdiction. As a self-governing entity, however, it remains unclear the extent to which the Band can exercise its sovereignty in violation of Federal law.
In 2014, the Department of Justice circulated a memorandum reiterating that Federal law enforcement will exercise its prosecutorial discretion with regard to tribes that choose to implement medical or recreational cannabis regimes on the basis of eight enforcement priorities and, in recognition of such tribes’ unique sovereignty, will commit to engaging in consultation with these tribes before carrying out any enforcement operations. However, this memorandum, along with similar memoranda issued under the Obama Administration, were subsequently repealed by then Attorney General Jeff Sessions in 2018. Even before this, however, a number of Federal raids were conducted on indigenous land, interfering with their cannabis regimes, without first engaging in consultation.
Historically, in cases where a Band’s internal legal regime created potential conflict with State or Federal law, it has been common for the parties to enter into compact agreements, setting out a collaboratively designed framework on which tribes can manage their own affairs while ensuring off-band compliance with inconsistent laws in adjacent jurisdictions. In this case, however, the Eastern Band of Cherokee Indians implemented their new cannabis regime without seeking State or Federal approval: “We’re not asking permission from the State; we’re telling them,” says Forrest Parker, General Manager of Qualla Enterprises LLA, which owns Great Smoky. State officials opposed to this new regime have likewise demonstrated a disinterest in collaboration. The aforementioned letter written by Senators Till and Budd was decried by the Band as being “inflammatory” and avoiding an attempt to “respectfully communicate their concerns” directly to the community.
Starting this summer, as non-Band individuals travel to Qualla Boundary to purchase cannabis, State- and Federal-level law enforcement will be on alert to individuals bringing products beyond the Band’s borders into North Carolina (or any other State in which the drug remains illegal).
To make matters more complex, while the dispensary now boasts the fact that it is a totally integrated seed-to-sale outfit, previous reporting indicated the Band’s earlier medical regime relied on the cultivation of cannabis on Cooper’s Creek land, which required transporting the yields back to Qualla Boundary land via a State-owned road, in violation of North Carolina’s prohibition on cannabis trafficking.
This is a complex and emotionally charged area of law that would benefit from the utilization of alternative dispute resolution processes. Fortunately, there is a rich history of successful cooperation between self-governing Bands and State/Federal authorities establishing compacts, by which both sides were able to meet their respective priorities while respecting the other side’s jurisdiction. Mediation may go a long way towards facilitating such agreements, whose terms may provide for the monitoring of intra-Band cannabis supply chains and sales, establish quantity limits on individual transactions, and schedule regular compliance inspections, among other possible matters. Further, the collaborative nature of mediation may encourage Band and State officials to coordinate a joint enforcement strategy that eases interjurisdictional tensions and ensures that the Band's cannabis regime is self-contained and does not compromise the policy objectives of neighboring communities.
(Justin is a second-year law student and summer student at CansultEd. CansultEd is an alternative dispute resolution company that operates exclusively in the US Cannabis space.)