New York State Legalizes Recreational Marijuana: What this means for the Seneca Nation

On March 31, 2021, New York State legalized “adult-use marijuana.” The new law legalizes the possession and use of marijuana within the State for adults 21 and over, will create a regulatory structure for the sale of recreational marijuana for adults, and will expunge the records of people previously convicted of marijuana possession.

The legalization of recreational marijuana raises questions as to how recreational marijuana will be treated on the Territories of the Seneca Nation. While substantial uncertainty remains in this industry, the FAQs below aim to provide some guidance to Seneca Nation members residing on or visiting the Nation.

Can adult Seneca Nation members now possess and use recreational marijuana on the Territories?

No. The production, sale, and possession of recreational marijuana remains illegal on the Seneca Nation’s lands pursuant to Nation Law. It also continues to be unlawful to use or consume recreational marijuana on the public lands of the Seneca Nation, including public highways, bridges, Seneca Nation property, parking lots, driveways, and grounds surrounding Seneca Nation buildings. These laws currently remain in place and are not affected by the State’s recent legalization of recreational marijuana.

The Seneca Nation also prohibits the sale of drug paraphernalia, including equipment, product, or material intended or designed for use with a “a controlled substance, for which possession of such controlled substance is unlawful under federal law.” This includes paraphernalia intended for use with marijuana, including pipes, water pipes, roach clips, bongs, and other drug-using mechanisms. In addition, the Seneca Nation continues to operate Drug Free Workplaces, which prohibit the use of recreational marijuana in the workplace by Nation and Nation-owned entities’ employees.

Can private businesses now sell marijuana on the Territories?

No. In addition to Nation laws prohibiting the sale or possession of marijuana, the Nation has not adopted regulations governing the growing, manufacturing, distribution or sale of recreational marijuana. The sale of recreational marijuana remains illegal on Seneca Nation Territory, and no current regulatory structure exists to govern recreational marijuana within the Seneca Nation. The Nation does not condone, permit, or allow the private cultivation, distribution, or sale of recreational marijuana on its lands, nor the manufacturing or sale of any products which contain marijuana for recreational use.

The State’s regulatory structure governing marijuana sales will not apply on the Seneca Nation’s land. This does not make the sale of marijuana legal on the Territories. Instead, sales of marijuana remain prohibited by both Nation law and the laws of the United States.

Finally, the Biden administration has not issued guidance on how it will treat the marijuana industry in states that have legalized marijuana, or on Indian reservations that are neighbors with states that have legalized recreational marijuana. Marijuana remains illegal under the United States’ Controlled Substances Act. Any attempts to grow, distribute or sell marijuana on Seneca lands have a substantial likelihood of drawing attention from federal law enforcement agencies, including the United States Drug Enforcement Agency.

Can businesses located on Nation Territory participate in the State’s licensing program for marijuana retailers?

Seneca businesses and individuals can participate in the State’s recreational marijuana program so long as that participation takes place entirely outside the territories of the Seneca Nation. The State’s licensing program does not apply on the Seneca Nation territories, and therefore no State-licensed marijuana facilities may be located within the Seneca Nation.

Does the Nation intend to create regulations allowing for a private marijuana economy?

The Nation has no current plans for creating a regulatory structure that would allow for a private marijuana growing and sales economy on the Nation lands. As an extremely highly regulated industry, the Nation currently does not have the enforcement abilities required to provide the oversight necessary to ensure that a private marijuana growing and sales industry would be operated safely and legally.

Does the Nation intend to participate in the marijuana industry?

As you are aware, the COVID-19 Pandemic of 2020 has had a devastating impact on the economy of the Seneca Nation and the Nation government’s ability to provide public services and general welfare assistance to our people. We have recognized that reliance on gaming revenues for governmental funding does not provide the financial security necessary to ensure that we can continue to provide these benefits.

As part of a larger effort to diversify the sources of revenues required by the Seneca Nation and our people, the Nation is exploring investment in a Nation-owned recreational marijuana program, the revenues of which would be used to support government programs. These discussions are in their initial phases, and will require that the Nation revise its existing laws concerning marijuana.