Reservations About Pot on Reservations

Coming soon to a reservation near you?

Photographer: Sean Gallup/Getty Images

The U.S. Justice Department is attempting to solve a problem that almost no one knew about with a solution that almost no one asked for. The results -- so far, confusion and uncertainty -- have been entirely predictable.

The department announced this month that it would permit marijuana legalization on 300 or so Indian reservations in 30 states. The decision has perplexed American Indian leaders, who say that the last thing many tribes want is more lax federal law enforcement.

Whatever one may think of legalizing marijuana -- and there are plenty of causes for concern, especially regarding its health effects -- the way to do it is not to let Attorney General Eric Holder simply pick and choose which federal drug laws he will enforce. Yes, prosecutors have discretion, and it may make sense to use it when a state's voters decide to legalize pot. It makes less sense when local officials not only haven’t asked, but also rely on the federal government for law enforcement, as is the case with Indian reservations.

It's not a matter of autonomy -- tribal rights are protected by treaty -- so much as public health. American Indians have rates of alcohol dependency well above the national average. Ditto for tobacco and illegal drug use. Mortality rates, too. Keep in mind that regular marijuana use causes respiratory problems and impairments in thinking and memory (especially in young people), and that for many it leads to addiction.

Meanwhile, poverty rates on reservations and labor force participation rates are low. On the long list of things the U.S. government could do to improve life on Indian reservations, making it easier to get marijuana does not make an appearance.

That said, Holder’s directive is problematic from a legal standpoint as well. It doesn't automatically legalize pot on reservations. Rather, it allows tribes to petition U.S. attorneys to adopt the same look-the-other-way policy that now governs Colorado and Washington. The Justice Department says permission won’t be granted unless the tribes adopt strong regulatory and enforcement frameworks, but that leaves local (and unelected) U.S. attorneys with the power to decide whether tribal rules are adequate to protect people from marijuana's dangers.

Leaving aside the question of why tribes, unlike states, wouldn't be allowed to judge that for themselves, U.S. attorneys are not public health experts. Their offices exist to enforce laws, not to negotiate them away.

Legalizing marijuana on reservations in this way will also create needless conflict and confusion within and among the states. The Mohegan Tribal Council in Connecticut, a state where marijuana is illegal, is interested in the possibility of connecting its struggling casino to a marijuana shop. Allowing the public to buy pot on reservations but not to go home with it will lead to chronic law-breaking -- or a surge in driving under the influence. Or both.

Obama’s nominee to succeed Holder as attorney general, Loretta Lynch, is no stranger to enforcing drug laws, having served as the U.S. attorney for parts of New York City. At her confirmation hearing next year, senators should ask her to send this policy up in smoke.

To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net.