By: Ashleigh Fixico
In 2020, the Smart and Safe Arizona Act (“Prop 207”) legalized the production, sale, possession, and consumption of recreational marijuana for adults throughout the state. Prop 207 not only permits adults over the age of 21 to lawfully possess and use specific quantities of cannabis, but it also establishes an expungement process for records relating to arrests, charges, and convictions for specific marijuana-related drug offenses.While around 60 percent of Arizona voters supported Prop 207 and voted to enact the legalization, taxation, and use of recreational cannabis, marijuana remains illegal on 27 percent of land in Arizona.
There are 22 tribal nations, representing 296,000 people, in the state of Arizona.These tribal nations are sovereign nations with a special government-to-government relationship with the federal government.Because of this special relationship, the federal government has plenary and exclusive power with regard to tribal nations and their lands; therefore, state law often times cannot be enforced on tribal lands as the tribal nation and federal government presumptively have jurisdiction. For Prop 207, this poses a major issue because federal law still classifies marijuana as a Schedule I drug and remains illegal.Because federal law applies in Indian country, Prop 207’s legalization ends at the reservation boundary and the joint that was legal before entering the reservation becomes a federal offense. For individuals unaware of Arizona’s tribal nations, this poses a significant issue as they travel throughout the state because tribal nations themselves, as an exercise of sovereignty over its lands and people, may also prosecute individuals for cannabis.
Tribal nations have the inherent authority to protect the health and welfare of their citizens and lands. Tribal nations therefore enact tribal laws—criminal and civil—that govern their reservation lands and the people who enter, regardless of whether they did so knowingly. Twenty reservations cover more than 19,000,000 acres in Arizona, including lands adjacent to metropolitan areas like Phoenix.For example, the Salt River Pima Maricopa Indian Community (“SRPMIC”) is located near Scottsdale, roughly 25 miles from the Sandra Day O’Connor College of Law located in downtown Phoenix. Within SRPMIC’s reservation, possession and consumption of marijuana is illegal under tribal law and is punishable by a fine of up to $5,000 or by jail up to one year.Importantly, SRPMIC may also exercise its civil authority to seize an individual’s vehicle used to transport cannabis, even if that individual were legal under state law.In other words, possessing cannabis at the Talking Stick Casino and Resort, which is owned by SRPMIC and operated on its lands, is a high stakes game that may just cost you your vehicle.
As of December 2021, SRPMIC is taking steps to explore the use of medical and recreational marijuana on the reservation. However, SRPMIC’s potential embrace of cannabis use does not cure the issue that cannabis will remain illegal on the reservation unless and until Congress removes marijuana from the Schedule of Controlled drugs and declares marijuana federally legal. Until then, it is imperative to remember Prop 207 does not provide blanket coverage as 27 percent of Arizona is Indian land subject to tribal and federal jurisdiction.
Ashleigh N. Fixico is a citizen of the Muscogee (Creek) Nation from Seminole, Oklahoma. She is a 2L and is the President of the Native American Law Student Association (NALSA). Most recently, Ashleigh clerked with the Native American Rights Fund in Boulder, Colorado. Ashleigh is dedicated to enhancing tribal economic development and fostering greater tribal self-determination. Her personal interests include spending time with her four-legged son Joxie, trying new things, and cooking for her family.