Can a federally recognized tribe sell cannabis to California-licensed businesses off tribal lands without a California cannabis license?
Apply this to your situation
This page answers the general question as of 2026. Ezel answers yours: what it means for your facts, under current California law, with citations.
Plain-English summary
Assemblymember Anamarie Ávila Farías asked whether a federally recognized tribe could conduct commercial cannabis activity with California licensees off tribal lands without obtaining a state cannabis license, provided the tribe had adopted laws substantially comparable to California's regulatory framework.
The opinion answered no. California's commercial cannabis system generally requires every participating person or entity to hold a Department of Cannabis Control license and requires commercial activity to occur between licensees. A license issued only by a tribal authority does not satisfy that requirement for transactions with California licensees off tribal lands.
The opinion also concluded that applying the state licensing requirement in this setting is consistent with federal Indian-law principles. Under the rule discussed in Mescalero Apache Tribe v. Jones, generally applicable state law may govern tribal business activity off tribal lands when the law is nondiscriminatory and no express federal law provides otherwise. The opinion found both conditions satisfied: California requires the same state license from all similarly situated commercial cannabis participants, and the Attorney General identified no federal law or treaty reserving a right to engage in off-land commercial cannabis activity without a state license.
The analysis was expressly limited to activity off tribal lands. It did not decide how California cannabis law applies on tribal lands.
What this means for you
Federally recognized tribes and tribal cannabis businesses
For commercial cannabis activity with California licensees off tribal lands, the opinion requires a license issued by the California Department of Cannabis Control. Comparable tribal regulations and a tribal license do not substitute for the state license under the framework the opinion analyzed. Department regulations also require a tribe applying for a state license to submit a written waiver of relevant sovereign-immunity defenses for state enforcement actions.
California-licensed cannabis businesses
The opinion reads California law and regulations to require commercial cannabis activity to occur between state licensees, subject to exceptions it described as irrelevant to this request. A California licensee therefore cannot lawfully conduct the off-land commercial transactions described in the request with a tribe holding only a tribal license.
Regulators and attorneys
The opinion treats the licensing requirement as nondiscriminatory because it applies to all similarly situated market participants. It also states that no identified federal law or treaty conflicts with applying that requirement to tribal activity off tribal lands. Questions about cannabis activity on tribal lands, including the state's authority under Public Law 280, were outside the opinion's scope.
Common questions
Q: Is a tribal cannabis license enough for sales to California licensees off tribal lands?
A: No. The opinion concludes that a tribe must hold a California Department of Cannabis Control license for the commercial activity described.
Q: Does adopting cannabis rules comparable to California's change the answer?
A: No. The opinion says California's current framework requires a state-issued license; comparable tribal regulation does not create an exception.
Q: Why may California apply its licensing law to a tribe off tribal lands?
A: The opinion applies the Mescalero rule: nondiscriminatory state laws generally govern tribal business activity beyond reservation boundaries unless express federal law provides otherwise. It found California's licensing rule nondiscriminatory and identified no contrary federal law or treaty.
Q: Did the opinion decide whether California may regulate cannabis activity on tribal lands?
A: No. It expressly limited its analysis to commercial activity off tribal lands and did not analyze the state's authority on tribal lands.
Q: Does a tribe have to waive sovereign immunity to obtain the state license?
A: The opinion quotes Department regulations requiring a federally recognized tribe applying for a commercial cannabis license to submit a written waiver of relevant sovereign-immunity defenses in state administrative or judicial enforcement actions.
Background and statutory framework
California's Medicinal and Adult-Use Cannabis Regulation and Safety Act establishes the commercial licensing system discussed in the opinion. Commercial cannabis activity includes cultivation, possession, manufacturing, distribution, processing, storage, laboratory testing, packaging, labeling, transportation, delivery, and sales. The opinion distinguishes those activities from limited adult personal use and medicinal use, which were not the subject of the request.
Within the commercial framework, entities must obtain and maintain a Department of Cannabis Control license, operate within the scope and premises of that license, and generally transact only with other licensees. Cannabis remains a controlled substance under state law outside the authorized framework, and unlicensed commercial activity can lead to civil or criminal penalties.
The tribal-law analysis turns on where the activity occurs. The opinion explains that tribes retain significant authority over their members, territory, and internal relations. Off tribal lands, however, it relies on Mescalero and later cases holding that tribal business activity is generally subject to nondiscriminatory state law unless express federal law grants a conflicting right. The opinion found no such conflict for California's off-land cannabis licensing requirement.
Citations and references
Statutes and regulations:
- Bus. & Prof. Code, § 26000 et seq., the commercial cannabis regulatory framework
- Bus. & Prof. Code, § 26001, subd. (q), defining commercial cannabis activity
- Bus. & Prof. Code, § 26037.5, subd. (a), barring commercial cannabis activity without a state license
- Bus. & Prof. Code, § 26053, subd. (a), limiting activity to licensed premises
- Cal. Code Regs., tit. 4, § 15000.1, subd. (b), requiring commercial cannabis activity between licensees
- Cal. Code Regs., tit. 4, § 15009, subd. (a), requiring a tribal applicant's sovereign-immunity waiver
- Health & Saf. Code, §§ 11007, 11054, subd. (d)(13), treating cannabis as a controlled substance under state law
- Health & Saf. Code, §§ 11359, 11358, 11360, prohibiting specified cannabis activity outside the lawful framework
- 21 U.S.C. § 801 et seq., the federal Controlled Substances Act discussed in the opinion
Cases:
- Mescalero Apache Tribe v. Jones (1973) 411 U.S. 145, generally applicable nondiscriminatory state law governing tribal business activity off tribal lands absent express federal law to the contrary
- Big Sandy Rancheria Enterprises v. Bonta (9th Cir. 2021) 1 F.4th 710, state licensing regulation of tribal cigarette sales off tribal lands
- King Mountain Tobacco Co., Inc. v. McKenna (9th Cir. 2014) 768 F.3d 989, nondiscriminatory state regulation and the express-federal-law inquiry
- People v. McCovey (1984) 36 Cal.3d 517, federal rules that expressly conflicted with state regulation of off-land sales
- In re J.W. (2002) 29 Cal.4th 200, express inclusion implying exclusion of unlisted alternatives
- Michigan v. Bay Mills Indian Community (2014) 572 U.S. 782, state enforcement tools concerning tribal business located off tribal lands
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/25-102.pdf
Original opinion text
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 25-102
of :
: May 28, 2026
ROB BONTA :
Attorney General :
:
HEATHER THOMAS :
Deputy Attorney General :
The HONORABLE ANAMARIE ÁVILA FARÍAS, MEMBER OF THE STATE
ASSEMBLY, has requested an opinion regarding the licensing requirements for a
federally recognized tribe to participate in California’s commercial cannabis industry.
QUESTION PRESENTED AND CONCLUSION
May a federally recognized Indian tribe located exclusively within the exterior
boundaries of the State of California conduct intrastate commercial cannabis activity with
state licensees off tribal lands without obtaining a commercial cannabis license from the
California Department of Cannabis Control, if the tribe has adopted laws substantially
comparable to California’s cannabis regulatory framework?
No. With limited exceptions, California law requires every entity that engages in
intrastate commercial cannabis activity with California licensees to hold a license issued
by the Department of Cannabis Control. To engage in such activity off tribal lands, a
tribe must hold a California commercial cannabis license.
1
25-102
BACKGROUND
The jurisdictional relationship between tribes and state and federal government is
“of a complex character.” 1 The U.S. Supreme Court “has consistently recognized that
Indian tribes retain ‘attributes of sovereignty over both their members and their
territory.’” 2 “[T]ribal sovereignty is dependent on, and subordinate to, only the Federal
Government, not the States.” 3 But “state laws may be applied to tribal Indians on their
reservations if Congress has expressly so provided.” 4 Off tribal lands, states have greater
authority over tribal activities, as discussed in more detail below. 5 In either
circumstance, tribes retain sovereign immunity against suit “absent a clear waiver by the
tribe or congressional abrogation.” 6
California has been at the forefront of legalizing cannabis at the state level. It
became the first state to legalize cannabis for medicinal use when voters passed
Proposition 215 in 1996. 7 In 2016, voters approved Proposition 64, which legalized
recreational cannabis use for adults 21 and older within specified limits. 8 Shortly
thereafter, in 2017, the Legislature consolidated Proposition 64 with the earlier legislation
governing medicinal use to create a single commercial cannabis framework: the
Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA). 9 Relevant
here, MAUCRSA generally requires any entity engaged in commercial cannabis
activities within California to obtain a state license. 10 Under regulations implementing
1
United States v. Kagama (1886) 118 U.S. 375, 381.
2
California v. Cabazon Band of Mission Indians (1987) 480 U.S. 202, 207 (Cabazon).
3
Washington v. Confederated Tribes of Colville Indian Reservation (1980) 447 U.S. 134,
154.
4
Cabazon, supra, 480 U.S. at p. 207.
5
21 Cal.Jur.3d (2026) Indians, § 21.
6
Okla. Tax Com. v. Citizen Band Potawatomi Indian Tribe of Okla. (1991) 498 U.S. 505,
509.
7
Cal. Dept. of Cannabis Control, California’s Cannabis Laws,
https://cannabis.ca.gov/cannabis-laws/laws-and-regulations/ (as of May 28, 2026); Health
& Saf. Code, § 11362.5; 106 Ops.Cal.Atty.Gen. 119 (2023); Ryan B. Stoa, Tribal
Cannabis Agriculture Law (2023) 2023 Utah L.Rev. 1075, 1077.
8
See, e.g., Health & Saf. Code, §§ 11018, 11357, 11358, 11359, 11360, 11362.1,
11362.2, 11362.3, 11362.4; see also California Courts, Proposition 64: The Adult Use of
Marijuana Act, https://www.courts.ca.gov/prop64.htm (as of May 28, 2026).
9
Bus. & Prof. Code, § 26000 et seq.; Ofc. Of Sen. Floor Analyses, Unfinished Business
Analysis of Sen. Bill No. 94 (2017-2018 Reg. Sess.) as amended June 9, 2017, p. 1.
10
Bus. & Prof. Code, § 26037.5, subd. (a).
2
25-102
MAUCRSA, a tribe applying for a commercial cannabis license must submit a written
waiver of any sovereign immunity defense it may have or assert in any state
administrative or judicial enforcement action brought against the tribe under state law and
regulations governing commercial cannabis activity. 11
ANALYSIS
The question here is whether a federally recognized Indian tribe may lawfully
conduct commercial cannabis activity with California licensees off tribal lands within the
state, if the tribe has adopted laws that impose requirements substantially comparable to
the California cannabis regulatory framework. 12 We conclude that, to engage in such
activities off tribal lands, a tribe must obtain a commercial cannabis license issued by the
Department of Cannabis Control. California law generally requires any entity engaged in
commercial cannabis activities to obtain a state-issued license. And the state has the
authority to apply its generally applicable cannabis licensing requirements to tribal
activities off tribal lands.
Under California law, a tribe must obtain a state commercial cannabis license to
engage in commercial activity with other licensed entities
Legal cannabis activities in California fall into three overlapping categories: adult
personal use, personal medicinal use, and commercial activity. First, adult personal use
is legalized within certain, narrow limits. People age 21 and older can possess, process,
transport, purchase, obtain, or give away to other adults age 21 and older up to 28.5
grams of nonconcentrated cannabis or eight grams of concentrated cannabis, as well as
grow six living plants. 13 Second, individuals with a physician’s recommendation or
approval can use and cultivate cannabis for personal medicinal purposes. 14 Physicians
can recommend an amount of cannabis consistent with the patient’s needs, and patients
and caregivers are not subject to criminal prosecution or other penalty for medicinal
cannabis activity consistent with California law. 15
Third, a person or entity engages in commercial cannabis activity if they cultivate,
possess, manufacture, distribute, process, store, laboratory test, package, label, transport,
11
Cal. Code Regs., tit. 4, § 15009, subd. (a).
12
This opinion does not address the application of state law to cannabis activities on
tribal lands. We note that the Department of Justice is currently litigating related
questions.
13
Health & Saf. Code, §§ 11362.1, 11362.2.
14
Health & Saf. Code, § 11362.5, subds. (b)(1)(A), (d).
15
Health & Saf. Code, §§ 11362.77, 11362.765; People v. Kelly (2010) 47 Cal.4th 1008.
3
25-102
deliver, or sell cannabis or cannabis products. 16 Because the definition includes cannabis
activities such as possession and cultivation, it describes activities that may also fall
under the personal adult or personal medicinal use provisions broadly described above.
These activities may be conducted without a license pursuant to those regimes. 17
Because personal adult and personal medicinal activities are not the subject of this
request, we do not discuss them here.
Instead, this opinion addresses commercial cannabis activities such as large-scale
cannabis cultivation, laboratory testing, storage, or distribution. To engage in these
activities, an entity must obtain and maintain a license from the California Department of
Cannabis Control and comply with MAUCRSA. 18 That Act “establish[es] a
comprehensive system to control and regulate” commercial cannabis activity concerning
both medicinal and adult use. 19 All commercial activity must be conducted between
licensees, subject to exceptions not relevant here. 20 Licensees must operate within the
scope of their license, and they may conduct commercial cannabis activities only “on the
premises licensed for the activity.” 21
Otherwise, cannabis remains a controlled substance under state law. 22 Those who
engage in commercial cannabis activity without a license, or who aid and abet such
16
Bus. & Prof. Code, § 26001, subd. (q); 37 Cal.Jur.3d (2026) Health & Sanitation, § 28;
but see Bus. & Prof. Code, § 26033, subd. (a). Commercial cannabis activity also
includes “acting as a cannabis event organizer for temporary cannabis events.” (Bus. &
Prof. Code, § 26001, subd. (q).)
17
Health & Saf. Code, § 11362.1; Bus. & Prof. Code, §§ 26033, 26037.5.
18
Bus. & Prof. Code, §§ 26037.5, subd. (a), 26030, subd. (a), 26000, subds. (b), (c),
26001, subds. (ah), (ai), (ao); Cal. Code Regs., tit. 4, § 15000.1, subd. (a).
19
Bus. & Prof. Code, § 26000, subd. (b); see generally Bus. & Prof. Code, § 26000 et
seq.; Cal. Code Regs., tit. 4, § 15000 et seq.
20
For example, a licensed retailer and a licensed microbusiness may sell cannabis to
customers or nonprofits. (Cal. Code regs., tit. 4, §§ 15000.1, subd. (b), 15404, 15409.)
MAUCRSA also exempts other entities from licensing requirements, including qualified
patients, primary caregivers, and those who cultivate cannabis consistent with provisions
governing personal adult recreational use, as well as certain nonprofits who obtain
temporary local licenses to provide cannabis to low-income persons. (Bus. & Prof. Code,
§§ 26033, 26037.5, subd. (b), 26070.5, subd. (b).)
21
Bus. & Prof. Code, § 26053, subd. (a); Cal. Code Regs., tit. 4, § 15000.1, subds. (b),
(c).
22
Health & Saf. Code, §§ 11007, 11054, subd. (d)(13).
4
25-102
unlicensed activities, can face civil and criminal penalties. 23 State law continues to
prohibit activities such as possession for sale; planting, harvesting, or processing; and
unlawful transportation, importation, sale, or gift of cannabis outside the framework
described above. 24
Turning to the question before us, our requestor has asked whether a tribe may
conduct commercial cannabis activity with California licensees off tribal lands without
obtaining a state-issued license, if the tribe has adopted laws substantially comparable to
California’s cannabis regulatory framework. Under current law, it cannot. As discussed,
cannabis is a controlled substance, and cannabis activity remains illegal outside of the
framework described above. That framework generally requires all commercial cannabis
activity to occur only between California licensees. 25 And a licensee who operates
contrary to the law may face civil or criminal penalties. 26 In short, state law does not
allow a California cannabis licensee to lawfully conduct commercial cannabis activity
with an entity who holds a commercial cannabis license issued by a tribal authority
instead of the state.
Finally, state law expressly contemplates tribal participation in the commercial
cannabis market as California licensees. Department of Cannabis Control regulations
specifically reference federally recognized tribes, requiring them to waive any relevant
sovereign immunity defense to obtain a commercial cannabis license. 27 The inclusion of
tribes in the state’s commercial cannabis licensing regulations as licensees reinforces our
23
Bus. & Prof. Code, §§ 26030, 26038, subds. (a), (e); see generally Bus. & Prof. Code,
§§ 26030-26039.6.
24
Health & Saf. Code, §§ 11359, 11358, 11360. Cannabis remains a controlled
substance under federal law. (Federal Controlled Substances Act, 21 U.S.C. § 801 et
seq.) While analysis of any potential application of federal law to tribal cannabis activity
is beyond the scope of this opinion, we note that California courts have held that the
federal Controlled Substances Act does not preempt California’s cannabis laws. (See
Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734; Kirby v. Cnty.
of Fresno (2015) 242 Cal.App.4th 940; City of Garden Grove v. Superior Ct. (2007) 157
Cal.App.4th 355.)
25
Bus. & Prof. Code, § 26037.5 (“A person or entity shall not engage in commercial
cannabis activity without a state license issued by the department pursuant to this
division”); Cal. Code Regs., tit. 4, § 15000.1, subd. (b) (“Commercial cannabis activity
shall only be conducted between licensees”). As described above, the law contains
exceptions to the license requirement that are not relevant here. (See ante, fn. 20.)
26
Bus. & Prof. Code, §§ 26030, 26038, subd. (e); see generally Bus. & Prof. Code,
§§ 26030-26039.6.
27
Cal. Code Regs., tit. 4, § 15009, subd. (a).
5
25-102
conclusion that tribes without a state license may not engage in commercial cannabis
activities. 28
California has the authority to require Department of Cannabis Control licensees to
conduct commercial cannabis activities occurring off tribal lands only with state-
licensed entities.
We next consider whether applying state licensing laws to a tribe’s commercial
cannabis activities conducted off tribal lands is consistent with limits on state authority
concerning tribal activities. We conclude that it is.
As noted above, tribes have a complex jurisdictional relationship with states and
the federal government. Tribes have the inherent power to preserve their own self-
government, and they have powers granted or reserved to them by Congress. 29 The
existence and degree of a state’s authority regarding tribal activities can be a complex
question, particularly if the activity at issue occurs on tribal land. 30
Off tribal land, however, “state power over Indian affairs is considerably more
expansive.” 31 When a tribe “travels beyond its reservation borders for the purpose of
carrying on a business enterprise,” it “does not have expansive immunity from ordinary
28
See generally In re J.W. (2002) 29 Cal.4th 200, 209 (under expressio unius principle,
“the expression of one thing in a statute ordinarily implies the exclusion of other things”).
29
Montana v. United States (1981) 450 U.S. 544, 563-564 (“Thus, in addition to the
power to punish tribal offenders, the Indian tribes retain their inherent power to determine
tribal membership, to regulate domestic relations among members, and to prescribe rules
of inheritance for members. . . . But exercise of tribal power beyond what is necessary to
protect tribal self-government or to control internal relations . . . cannot survive without
express congressional delegation”); see also Mescalero Apache Tribe v. Jones (1973) 411
U.S. 145, 148 (Mescalero); Rice v. Rehner (1983) 463 U.S. 713, 718.
30
American Indian Law Deskbook, ch. 5, General Civil Regulatory Jurisdiction,
Introduction (“Among the most difficult and recurring issues in Indian law is the scope of
federal, tribal, and state civil regulatory authority in Indian country. . . . [E]ven today
there remain significant differences within the [Supreme] Court both as to governing
principles and how accepted principles should be applied”); see also White Mountain
Apache Tribe v. Bracker (1980) 448 U.S. 136, 151 (Bracker) (“[T]hough the reservation
boundary is not absolute, it remains an important factor to weigh in determining whether
state authority has exceeded the permissible limits”).
31
Washington v. Confederated Tribes of Colville Indian Reservation, supra, 447 U.S. at
p. 162.
6
25-102
regulation that applies to businesses throughout the State.” 32 Instead, as the U.S.
Supreme Court held in Mescalero Apache Tribe v. Jones, tribal members “going beyond
reservation boundaries have generally been held subject to non-discriminatory state law
otherwise applicable to all citizens of the State,” “[a]bsent express federal law to the
contrary.” 33 Applying that rule, the Court in Mescalero upheld a state’s taxation of a ski
resort operated by a tribe off tribal lands. 34 The Ninth Circuit has similarly upheld state
laws taxing and regulating tribal cigarette sales off tribal lands. 35
Here, our focus is likewise on commercial activities occurring off tribal lands.
The state may therefore enforce its law governing those activities if it satisfies the rule
from Mescalero. That rule has two prongs: The state law must be nondiscriminatory,
and it cannot be prohibited by express federal law to the contrary.
Under the first prong, an application of state law is nondiscriminatory when it
treats tribes or tribal entities the same as other similarly situated entities. 36 So, for
example, a state law that treats tribal law enforcement entities differently from law
enforcement entities of other jurisdictions is discriminatory. 37 On the other hand,
requirements that every entity that distributes cigarettes must obtain state licensing are
nondiscriminatory. 38 Here, California’s commercial cannabis licensing scheme treats all
similarly situated entities the same because all participants must hold a license issued by
California to participate in the market. Therefore, state law is nondiscriminatory.
32
Big Sandy Rancheria Enterprises v. Bonta (9th Cir. 2021) 1 F.4th 710, 729, internal
quotation marks omitted (Big Sandy Rancheria Enterprises).
33
Mescalero, supra, 411 U.S. at pp. 148-149; Twenty-Nine Palms Band of Mission
Indians v. Blanche (9th Cir. May 6, 2026, No. 25-2340) _ F.4th _ [2026 WL 1239758]
(Blanche).
34
Mescalero, supra, 411 U.S. at pp. 155, 158.
35
See Big Sandy Rancheria Enterprises, supra, 1 F.4th at pp. 728-729; King Mountain
Tobacco Co., Inc. v. McKenna (9th Cir. 2014) 768 F.3d 989, 998 (King Mountain
Tobacco).
36
King Mountain Tobacco, supra, 768 F.3d at p. 993 (state statute requiring all cigarette
sellers within the state to pay money into an escrow fund was nondiscriminatory).
37
Cabazon Band of Mission Indians v. Smith (9th Cir. 2004) 388 F.3d 691, 697-701
(under state law at the time, a statute that limited display of emergency light bars to
“authorized emergency vehicles” was discriminatory because tribal law enforcement
vehicles were treated differently from law enforcement entities from bordering states).
38
Big Sandy Rancheria Enterprises, supra, 1 F.4th at pp. 728-729.
7
25-102
Under the second prong, “express federal law to the contrary” exists if federal law
grants or reserves for the tribe a right or privilege that is inconsistent with state law. 39
For example, in People v. McCovey, California criminally charged a member of the
Hoopa Valley Reservation who sold fish off tribal lands that were caught on tribal lands
with a type of fishing net prohibited under state law. 40 But federal regulations expressly
permitted tribal members to fish on tribal lands using the prohibited net, then sell the fish
off tribal lands. 41 The California Supreme Court held that the “comprehensive” and
“pervasive” federal regulatory scheme constituted an “express federal law to the
contrary” that prohibited the state from enforcing its fishing net requirements upon tribal
members. 42
In cases where federal law is ambiguous, it “must be interpreted in the light most
favorable to the Indians, and extrinsic evidence may be used to show the federal
government’s and Indians’ intent.” 43 For example, the Ninth Circuit held that a treaty
between the federal government and a particular tribe that reserved for the tribe the right
“to travel upon all public highways” created an express right to travel. 44 Upon close,
fact-specific examination of extrinsic evidence to determine the extent of that right, the
court held that the treaty prohibited the state from enforcing its truck licensing and permit
fee requirements upon the tribe. 45 In a different case, however, the Ninth Circuit held
that the same treaty was silent on the tribe’s right to trade, and therefore it did not contain
an express provision exempting the tribe from a state law governing cigarette sales. 46
Here, express federal law does not prohibit the state from enforcing its cannabis
licensing laws upon tribal activities off tribal land. 47 We are not aware of any federal law
or treaty that reserves for tribes the right to engage in commercial cannabis activity off
39
King Mountain Tobacco, supra, 768 F.3d at pp. 994-997; Ramsey v. United States (9th
Cir. 2002) 302 F.3d 1074, 1077; Cree v. Waterbury (9th Cir. 1996) 78 F.3d 1400, 1403-
1405; People v. McCovey (1984) 36 Cal.3d 517.
40
People v. McCovey, supra, 36 Cal.3d at p. 522.
41
Id. at pp. 523-524, 526, 530-531.
42
Id. at pp. 526, 534-535 (unlike Mescalero, “‘express federal law to the contrary’ is
present here. The federal regulations expressly govern off-reservation sales of
reservation-caught fish and impose sanctions at odds with state law”).
43
Ramsey v. United States, supra, 302 F.3d at p. 1079.
44
Cree v. Flores (9th Cir. 1998) 157 F.3d 762, 764, 774.
45
Ibid.
46
King Mountain Tobacco, supra, 768 F.3d at p. 998.
47
As noted above, California courts have held that the federal Controlled Substances Act
does not preempt California cannabis law, as a general matter. (See ante, fn. 24.)
8
25-102
tribal land without obtaining a state license. Therefore, express federal law does not
prohibit enforcement of California’s commercial cannabis licensing requirements off
tribal lands under the second prong of Mescalero. 48
In conclusion, the question before us asks whether the State of California may
require tribes to become California-licensed to engage in commercial cannabis activity
with California licensees off tribal land. California can so require. As discussed above,
California’s commercial cannabis licensing requirement satisfies the rule from Mescalero
because it is a nondiscriminatory law that is not preempted by federal law. And courts
have upheld analogous state laws as applied to tribal activities off tribal land, such as
state fishing requirements, state licensing requirements for cigarette sales, and state taxes
on business income. 49 Thus, tribes must obtain a California license to engage in
commercial cannabis activity with California cannabis licensees off tribal lands. 50
Some observers urged us to reach a different conclusion. In their view, allowing
tribes to conduct commercial cannabis activity off tribal lands without obtaining a
California license would best respect tribal sovereignty. 51 As a general matter, tribal
48
We note, without analyzing, that California may have some authority to enforce state
law on tribal land, particularly against nontribal members. (See, e.g., Bracker, supra, 448
U.S. at pp. 141-145.) Because the question of state authority over cannabis activities on
tribal land is beyond the scope of this opinion, we do not address it here.
49
Organized Village of Kake v. Egan (1962) 369 U.S. 60, 76 (state fishing laws); Big
Sandy Rancheria Enterprises, supra, 1 F.4th at pp. 728-729 (tribe-to-tribe cigarette sales
treated as “off tribal land” and thus subject to state law); Mescalero, supra, 411 U.S. at
pp. 148-155 (ski resort off tribal land subject to state taxes); see also Michigan v. Bay
Mills Indian Community (2014) 572 U.S. 782, 795-796 (while the state could not sue the
tribe due to its sovereign immunity, the state had a number of other civil and criminal
tools at its disposal, including licensing requirements, to enforce state law against a tribe
or tribal members for a tribal casino located off tribal land).
50
Some states have addressed the issue of tribal participation in state cannabis markets by
authorizing their governor to enter into a government-to-government compact with tribes.
These compacts allow an entity licensed by a tribe to engage in commercial cannabis
activity with state-licensed entities. Such legislation exists in Nevada, Washington,
Michigan, and Oregon. (See N.R.S. § 223.250; Wash. Rev. Code Ann. § 43.06.490;
O.R.S. § 475C.521; M.C.L.A. § 333.27957, subd. (h)(2)(b) [authorizing the Michigan
cannabis regulatory agency to enter into tribal compacts].) In California, similar bills
were introduced in 2017, but none were enacted. (See Assem. Bill No. 924 (2017-2018
Reg. Sess.); Assem. Bill No. 1096 (2017-2018 Reg. Sess.).)
See Elk Valley Rancheria, California, letter to Heather Thomas, Deputy Attorney
51
General, Opinion Unit, California Department of Justice, May 6, 2024, p. 2 (describing
(continued…)
9
25-102
sovereignty refers to a tribe’s ability to govern its own internal relations, by creating its
own laws to regulate activities on its own lands and to be governed by them. 52 But
where, as here, tribal activities occur off tribal lands, courts have concluded that state
regulation does not ordinarily infringe upon tribal sovereignty. 53 The Ninth Circuit has
held, for example, that licensing requirements in an analogous context—wholesale
cigarette sales off tribal lands—were consistent with tribal sovereignty if the laws
satisfied the rule from Mescalero discussed above. 54 Tribal sovereignty principles
therefore do not prevent California from enforcing its licensing requirements for
commercial cannabis activity occurring off tribal land.
Observers may also cite Public Law 280 (PL 280), a federal law that grants certain
states, including California, relatively broad criminal jurisdiction, and more limited civil
jurisdiction, over tribal members on tribal lands. 55 Under PL 280, the state’s authority
concerning tribal activities on tribal lands turns on whether a particular law is criminal
and prohibitive in nature, or civil and regulatory. 56 However, because the question
concerns only commercial cannabis activity off tribal lands, we need not engage in that
inquiry here. Thus, we do not further analyze or comment on California’s authority
under PL 280 to enforce state cannabis law on tribal land.
tribal sovereignty as “a fundamental principle recognized by the federal and state
governments” that “grants tribes the authority to self-govern and make decisions about
their own economic development”).
52
See, e.g., New Mexico v. Mescalero Apache Tribe (1983) 462 U.S. 324, 332 (“We have
continued to stress that ‘Indian tribes are unique aggregations possessing attributes of
sovereignty over both their members and their territory.’ . . . The sovereignty retained by
tribes includes ‘the power of regulating their internal and social relations’”) (finding that
concurrent state jurisdiction over hunting and fishing by non-members on tribal lands
would interfere with tribal self-governance).
53
Big Sandy Rancheria Enterprises, supra, 1 F.4th at pp. 728-729 (concluding that tribal
sovereignty principles did not prohibit the state from regulating tribal sales of cigarettes
off tribal land); Blanche, supra, __ F.4th at __ [2026 WL 1239758] (same).
54
Big Sandy Rancheria Enterprises, supra, 1 F.4th at pp. 728-729.
55
Pub.L. No. 83-280 (Aug. 15, 1953) 67 Stat. 588, codified at 11 U.S.C. § 1162 and 28
U.S.C. § 1360; Bryan v. Itasca County, Minnesota (1976) 426 U.S. 373.
56
Cabazon, supra, 480 U.S. at pp. 207-212, superseded by statute; Doe v. Mann (9th Cir.
2005) 415 F.3d 1038, 1053-1058.
10
25-102
CONCLUSION
For these reasons, we conclude that tribes must obtain a license from the
Department of Cannabis Control to engage in commercial cannabis activity with
California cannabis licensees off tribal lands.
11
25-102
Get today's answer for your situation
You just read a 2026 opinion on this question. Ezel checks the current California statutes and case law and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the law it relies on.