US Department of Justice
United States Attorney
District of Arizona

Two Renaissance Square
40 North Central Avenue, Suite 1200
Phoenix, Arizona 85004-4408
(602)514-7500 (Main)
(602)514-7693 (Main FAX)

March 23, 2011

Dear Tribal Leader:

In keeping with my belief that frequent communication between us is key to improving public safety in Indian Country, I write to provide you with the latest updates on USAO matters and programs that bear on your community. In December, I wrote to you to discuss the transfer of juveniles to adult status in federal criminal matters, and to advise you that the law provides your tribal government with opportunity for input to the process when the juvenile suspects from your community are under the age of 15. Today I write with additional news I think will be of interest to all of you, including an update on the progress of our Tribal SAUSA program, which I introduced in an earlier letter.

Tribal SAUSA Program

In November, I sent you a model letter of agreement detailing the Tribal SAUSA Program, so you could evaluate it and consider whether your government might participate by nominating a tribal prosecutor or other tribal attorney. Several of you have responded in the affirmative and have requested or entered into a final letter of agreement. This office is setting up initial meetings with the tribal prosecutors thus far designated by their leaders and we anticipate this first group (of approximately six tribal prosecutors) will submit papers for the federal background check in April, with SAUSA training for the first class to take place in June. We will repeat the process three months later for up to six additional tribal attorneys. For those tribal leaders still considering whether to participate in the Tribal SAUSA program, I sincerely hope you will take advantage of it and then monitor the benefits to your community. If this is at all a possibility, I encourage you to contact Tribal Liaison John Tuchi at (602) 514-7543 or Deputy Tribal Liaison Marnie Hodahkwen at (602) 514-7568 to discuss it. And if you have decided to participate, please contact John or Marnie to get a final letter agreement addressed to the appropriate official.

USAO Approach to Medical Marijuana in Tribal Lands

Since the voters of the State of Arizona passed, by referendum, a medical marijuana regime in November, several of you have contacted us to discuss the position the United States Department of Justice will take regarding criminal prosecution of marijuana offenses in Indian Country. In October 2009, then-Deputy Attorney General David Ogden issued Department-wide policy guidance on this issue for all districts in which states had enacted laws authorizing medical marijuana cultivation, distribution, possession and use. I enclose with this letter a copy of that policy, which provides in brief that where a target is in “clear and unambiguous compliance” with the state law, federal prosecutors ought not devote scarce resources to the prosecution of program participants. I also attach guidance our office has recently developed to address the particular circumstance of medical marijuana on tribal lands. That guidance, while honoring the Department-wide policy, also recognizes the unique circumstance of Indian Country, where state law does not apply and tribal criminal law does not reach non-Indians; the guidance therefore provides that we will evaluate every case submitted from Indian Country involving marijuana on a case-by-case basis, and where sufficient evidence is developed taking the matter out of “clear and unambiguous compliance” with the state scheme, we will consider prosecution. A copy of that guidance is also attached. Should you have any questions about either of these policies or medical marijuana in general, please contact John or Marnie at the above numbers.

Special Law Enforcement Commission Program Issues

Another major thrust of our Public Safety Operational Plan is to promote the Special Law Enforcement Commission (or SLEC) Initiative to every tribe with a 638-contract police force. SLEC is a program administered by BIA that allows tribal police officers, upon completing required training in substantive federal law and federal criminal procedure, to act as federal agents for purposes of investigating and prosecuting federal felonies (including the so-called “Major Crimes”) in Indian Country. This Office aggressively promotes SLEC status because we recognize that it multiplies the number of trained officers available to properly investigate and bring federal charges against the most serious and dangerous offenders in Indian Country. SLEC also improves the training and ability of those most likely to be the first responders to serious violent crimes in Indian Country – your tribal police.

As we have assumed an increasing role in delivering SLEC training to tribes, we also have observed practices in administering the program that needlessly inconvenience and even discourage otherwise qualified tribal officers and their departments from participating in SLEC. Our concern for the treatment of tribal police officers in Arizona led us to draft substantial portions of a letter from the U.S. Attorney community to Mr. Darren Cruzan, BIA’s Assistant Director for Justice Services, pointing out some of the obstacles the current system has placed before those seeking SLEC certification, and suggesting ways to make the program more officer-friendly. I have attached a copy of that letter for your review as well. We are hopeful that BIA will act on our suggestions to make obtaining SLEC a less frustrating and more respectful process for tribal law enforcement.

I hope you find the information in this letter useful. As always, please call me or any member of our Indian Country Team whenever we can be of help.

Sincerely,

/s/ Dennis K. Burke
Dennis K. Burke
United States Attorney
District of Arizona

enclosures

United States Attorney’s Office – District of Arizona
Policy Guidance on Medical Marijuana in Indian Country

The United States Attorney’s Office for the District of Arizona remains committed to the enforcement of the Controlled Substances Act. Our District policy remains one of “zero tolerance” for illegal distribution or other trafficking of any controlled substance—including marijuana—in Indian Country, no matter what the quantity. Now that the voters of Arizona have enacted by referendum a medical marijuana regime, this District will be subject to, and expect to follow, the attached policy directive from the office of the Deputy Attorney General of the United States, dated October 2009. It provides that USAOs should refrain from devoting scarce resources to the prosecution of individuals who possess or handle marijuana in clear and unambiguous compliance with a state’s duly enacted medical marijuana laws. We will therefore handle prosecutions in Indian Country—as with the rest of our potential medical marijuana prosecutions on other federal land and elsewhere—in accordance with the DAG memo. This will not interfere with our commitment to prosecuting illegal drug trafficking on tribal land. We will evaluate every marijuana prosecution referred to us on a case-by-case basis to determine whether there are indicators that an individual is not in clear and unambiguous compliance with state law, which can be indicated in many ways—possessing a quantity of the drug greater than allowed by the state scheme; possession of other controlled substances in concert with marijuana; evidence of distribution for profit; or carriage of a firearm in connection with marijuana. This list is not exhaustive, and in cases where these other factors exist, we will evaluate for federal prosecution.

Recognizing that in many cases, individuals may be subject to stiffer penalties for certain crimes under tribal law than in the federal court system, each tribe may also wish to work to formulate its own policies and regulations for medical marijuana cases. We are also open to further discussions on medical marijuana policy if any tribes have concerns or questions.

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