RN Collins has written a series of 20 new articles for cannabis law report on 2026 Psychedelics & Legal Issues.

This is the 13th in a series of 20

 

Tribal Sovereignty and Psychedelic Regulation: Indian Country Jurisdiction, Tribal-State Compacts, and the Limits of State Licensing Frameworks

Cannabis Law Report | Policy Reform / Governance / Oversight Series, Article 6A

Abstract

As Oregon, Colorado, and New Mexico develop regulatory frameworks for supervised psilocybin services, a fundamental jurisdictional question has gone almost entirely unaddressed: may a federally recognized Indian tribe operate a psilocybin program within Indian Country outside the reach of state licensing requirements? Conversely, do state psilocybin service center frameworks — premised on mandatory facility licensing, trained-facilitator requirements, and geographic restrictions — apply to tribal lands at all? This article examines, in sequence, the federal trust doctrine and its limits on state regulatory authority in Indian Country; whether the Controlled Substances Act’s Schedule I classification of psilocybin forecloses tribal psilocybin programs; the particular complications created by Public Law 280 for the three jurisdictions with active or emerging psilocybin programs; the cannabis compact framework as an imperfect but instructive analogy; and the policy and legal design questions that would govern any viable tribal psilocybin access pathway. The article concludes that neither existing state program architecture nor existing federal enforcement guidance addresses the tribal jurisdiction question, and that a statutory framework — either at the state or federal level — is required before tribal psilocybin programs can operate with meaningful legal security.

I. Introduction

The emergence of state-regulated psilocybin service programs in the United States has generated substantial legal analysis focused on the federal-state tension created by psilocybin’s continued Schedule I status under the Controlled Substances Act, the structural design of state licensing frameworks, and the equity dimensions of access. What that literature has largely overlooked is a parallel jurisdictional question of significant practical and theoretical importance: the legal status of psilocybin programs operating on, or serving members of, federally recognized Indian tribes.

The gap is not trivial. Approximately 574 federally recognized tribes hold land across the United States, including within the three states — Oregon, Colorado, and New Mexico — that currently have active or imminent psilocybin regulatory programs.¹ Psilocybin mushrooms have documented histories of ceremonial and healing use in certain Indigenous traditions, including among Mazatec communities in southern Mexico whose knowledge substantially shaped the contemporary understanding of psilocybin’s effects.² Many Indigenous advocates have objected to state psychedelic programs precisely because those programs commercialize practices with deep ceremonial roots without meaningful tribal participation in program design, revenue structures, or governance.³

These cultural objections are well-documented in the existing literature. What is not documented is the distinct legal question: may a tribe operate its own psilocybin program under tribal law, shielded from state licensing requirements by the federal trust doctrine and principles of tribal sovereignty? And if so, under what conditions? These questions are not resolved by existing state law, existing DOJ enforcement policy, or existing academic commentary.

This article does not argue that tribal psilocybin programs are presently lawful or that they should be encouraged without careful policy design. It argues that the question is legally open, practically urgent, and analytically under-served — and that the existing framework of tribal-state cannabis compacts provides the most coherent structural model for addressing it through negotiated agreement rather than adversarial litigation.

II. The Jurisdictional Baseline: Federal Indian Law and the Limits of State Authority in Indian Country

A. The Trust Doctrine and the Geography of Sovereignty

The foundational principle of federal Indian law is that federally recognized Indian tribes retain inherent sovereign authority over their members and their territory, subject to the paramount authority of the federal government — and, importantly, not subject to the general regulatory authority of states.⁴ The federal government holds land within reservation boundaries in trust for tribes, and that trust relationship has long been understood to insulate tribal lands from ordinary state police power regulation.

The Supreme Court articulated this structural principle most directly in Worcester v. Georgia,⁵ establishing that state law “can have no force” within reservation boundaries — a principle the Court has since qualified in important respects without abandoning its core premise. In Mescalero Apache Tribe v. Jones,⁶ the Court acknowledged that tribal lands retain “historic immunity from state and local control,” though it also confirmed that this immunity is not absolute and must be assessed through analysis of specific federal statutes, treaty terms, and the nature of the state’s regulatory interest. The Mescalero Court notably held that the Tribe’s off-reservation business activities were subject to nondiscriminatory state taxation, illustrating that the geographic scope of immunity matters: it attaches most strongly to reservation lands and tribal governmental functions conducted thereon.

For purposes of psilocybin regulation, the immediately relevant principle from Mescalero is the distinction between immunity for on-reservation activity and reduced protection for off-reservation conduct. A tribal psilocybin program located on trust land and serving tribal members would be closest to the core of the protected sphere; a program operated by tribal members off-reservation, or serving predominantly non-Indian clients traveling to the reservation for commercial services, would present a different legal picture.

B. The Cabazon Regulatory/Prohibitory Distinction and Its Application to Psilocybin

The most operationally important legal tool for analyzing state authority over tribal activities is the regulatory/prohibitory distinction established in California v. Cabazon Band of Mission Indians.⁷ In Cabazon, the Supreme Court held that California could not enforce its bingo regulations on the Cabazon and Morongo Bands because California’s law was regulatory in character — it did not prohibit bingo, it conditioned and restricted its conduct. Because the state’s law was regulatory rather than prohibitory, it could not be enforced within reservation boundaries under Public Law 280 or otherwise against the tribes.⁸

The Cabazon distinction has a direct and underappreciated application to psilocybin. In the three states with active psilocybin programs:

• Oregon legalizes and regulates supervised psilocybin services under ORS Chapter 475A. Psilocybin is not prohibited in Oregon; it is permitted within a licensed framework.
• Colorado decriminalized personal use and authorized regulated healing centers under Proposition 122 and SB23-290. Psilocybin is not prohibited in Colorado for adults twenty-one and over in qualifying contexts.
• New Mexico has authorized psilocybin services through its medical regulatory framework, permitting licensed providers to administer psilocybin in clinical settings.

If Oregon’s psilocybin framework is regulatory rather than prohibitory — which the Cabazon analysis strongly suggests, given that the state explicitly permits and regulates the activity rather than banning it — then Oregon’s licensing requirements may not be enforceable against tribal operators conducting psilocybin programs on reservation lands. The analogy to gaming is direct: just as California could not impose its bingo regulations on tribal bingo operations in a state that broadly permitted gambling, Oregon may not be able to impose its service center licensing requirements on tribal psilocybin programs in a state that broadly permits supervised psilocybin services.

This analysis has significant implications. It suggests that, under existing federal Indian law principles, a tribe located in Oregon could potentially operate a psilocybin program on reservation land under tribal law and outside the OHA licensing framework — subject to the critical overriding question of federal CSA enforcement.

C. The White Mountain Apache Balancing Test and Third-Party Complications

Where the Cabazon regulatory/prohibitory test does not produce a clear answer — or where non-Indians are involved in activities on tribal lands — the Court’s balancing test from White Mountain Apache Tribe v. Bracker⁹ applies. Bracker requires federal courts to weigh the federal and tribal interests in the regulated activity against the state’s asserted regulatory interest, with tribal sovereignty providing a “backdrop” against which state authority must be justified.

For tribal psilocybin programs serving non-tribal clients — which would likely characterize any commercially viable program — the Bracker balancing analysis becomes important. The state has a plausible regulatory interest in ensuring that psilocybin services offered to non-Indians meet safety standards, particularly given the vulnerability of clients in altered states of consciousness. Tribes, on the other hand, have economic development interests in operating licensed programs and sovereign interests in applying their own regulatory frameworks. Under Bracker, neither interest automatically prevails; courts would need to assess the specific regulatory conflict at issue.

III. The Controlled Substances Act in Indian Country: The Central Federal Obstacle

A. The CSA as a Law of General Applicability

Whatever the analysis under state and federal Indian law, the primary legal obstacle to any tribal psilocybin program is not state authority — it is federal authority. The Controlled Substances Act classifies psilocybin as a Schedule I controlled substance,¹⁰ and the CSA applies in Indian Country as a law of general applicability.¹¹ Indian Country is treated as federal territory for jurisdictional purposes under the Federal Enclaves Act of 1817, and federal statutes of nationwide application — including the CSA — extend to tribal lands without the need for specific jurisdictional grants.¹²

This means that psilocybin cultivation, manufacture, and distribution on tribal lands, even pursuant to a tribal ordinance authorizing such activity, would violate the CSA. Federal agents from the DEA and FBI have jurisdiction to investigate and prosecute CSA violations in Indian Country regardless of tribal authorization.¹³ A tribal resolution legalizing psilocybin services provides no defense to federal prosecution.

The CSA’s applicability in Indian Country is not merely theoretical. In 2015, federal agents raided the Menominee Tribe’s reservation in Wisconsin and seized hemp plants the Tribe had grown pursuant to a tribal ordinance, on the grounds that Wisconsin law did not authorize hemp cultivation and the federal hemp exemption was conditioned on state law compliance.¹⁴ The case illustrates that even well-intentioned tribal natural medicine programs can be subject to federal enforcement when they conflict with the CSA — and that tribal sovereignty does not shield tribes from federal criminal jurisdiction over Schedule I substances.

B. The Cannabis Enforcement Policy Analogy: Cole, Wilkinson, and Their Rescission

The closest existing model for federal enforcement tolerance of tribal controlled substance programs is the cannabis enforcement policy architecture developed during the Obama administration. In August 2013, Deputy Attorney General James Cole issued a memorandum directing U.S. Attorneys to focus federal cannabis enforcement on eight specific priorities — including preventing sales to minors, diversion to other states, and revenue flowing to criminal organizations — rather than on state-compliant cannabis programs.¹⁵

In October 2014, Monty Wilkinson, Director of the Executive Office for U.S. Attorneys, extended the Cole Memorandum’s priorities to Indian Country through what is commonly called the “Wilkinson Memorandum.”¹⁶ The Wilkinson Memorandum directed U.S. Attorneys to use the Cole Memorandum’s eight priorities as a guide for marijuana enforcement in Indian Country, treating tribal legalization decisions with the same deference afforded to state legalization decisions, provided tribes established “sufficiently robust” regulatory systems. It also required, uniquely for Indian Country, that U.S. Attorneys consult with affected tribes on a government-to-government basis before commencing enforcement actions.¹⁷

The Wilkinson Memorandum was significant for tribal cannabis programs in Washington, Nevada, and Oregon, where tribal-state cannabis compacts were subsequently negotiated. However, the Cole and Wilkinson Memoranda were rescinded by then–Attorney General Jeff Sessions in January 2018, leaving tribal cannabis programs in a renewed enforcement uncertainty from which they have partially recovered through the practical reality that DOJ enforcement against compliant tribal cannabis operations has not materially resumed.¹⁸

C. Psilocybin and the Enforcement Vacuum

No analog to the Wilkinson Memorandum exists for psilocybin. The DOJ has issued no guidance on psilocybin enforcement in Indian Country. The DEA has not publicly addressed the question of whether it would deprioritize enforcement against tribal psilocybin programs operating in states with active regulatory frameworks. The absence of any enforcement guidance means that a tribe seeking to operate a psilocybin program today would do so without the partial federal tolerance that cannabis programs in the same states could point to during the Cole/Wilkinson era.

The current federal posture — under the Trump administration, which rescinded Biden-era rulemaking on cannabis scheduling but has also expressed public openness to psychedelic therapy for veterans and other populations¹⁹ — is ambiguous. HHS Secretary Robert F. Kennedy Jr. has made public statements supportive of psychedelic therapy access, and the DEA referred a psilocybin rescheduling petition to HHS in August 2025 for further review.²⁰ These signals suggest a potentially tolerant posture toward state psilocybin programs generally, but no administration official has made any statement regarding tribal psilocybin programs specifically.

In the absence of enforcement guidance, a tribe operating a psilocybin program under tribal law faces the same federal enforcement risk as any other psilocybin operator — with the additional complexity that federal prosecutorial consultation requirements in Indian Country (a legacy of the Wilkinson Memorandum framework, even after its formal rescission) create some practical friction before federal prosecution would proceed.

IV. Public Law 280 and Its Complications for Psilocybin Program States

A. Public Law 280’s Jurisdictional Transfer

Public Law 83-280, enacted in 1953, transferred federal criminal jurisdiction over Indian Country to six mandatory states — California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska — and permitted other states to assume criminal jurisdiction through an opt-in procedure.²¹ The law also allowed mandatory PL 280 states to exercise civil jurisdiction over certain matters on tribal lands. However, PL 280 expressly did not grant states regulatory power over tribes or federally held trust lands, and the Supreme Court has consistently held that PL 280’s civil jurisdiction provisions do not authorize states to apply their general civil regulatory schemes on reservations.²²

Oregon is a mandatory PL 280 state. This creates a complex jurisdictional overlay for psilocybin regulation. Under PL 280, Oregon theoretically has criminal jurisdiction over psilocybin offenses in Indian Country within the state — but Oregon’s Psilocybin Services Act has decriminalized supervised psilocybin services for licensed operators. The Cabazon regulatory/prohibitory distinction again becomes pivotal: because Oregon permits supervised psilocybin services for licensed operators, a tribe operating psilocybin services under its own regulatory framework on reservation land could argue that Oregon’s law is regulatory, not prohibitory, and therefore not enforceable in Indian Country through PL 280.²³

This argument is not free from doubt. Oregon’s ORS 475A retains criminal penalties for unlicensed psilocybin activity — manufacture, distribution, or facilitation outside the licensed framework. A tribal operator without an OHA license is unlicensed under Oregon law and is therefore potentially engaged in conduct that Oregon would characterize as criminal. The key analytical question is whether Oregon’s interest in licensing enforcement is the kind of regulatory interest that PL 280 authorizes states to enforce in Indian Country — a question courts have not answered in the psychedelic services context and would likely answer through the Cabazon/Bracker framework.

Colorado presents a less complicated PL 280 situation. Colorado did not elect to assume criminal jurisdiction over tribal lands when it had the opportunity to do so under PL 280’s opt-in provisions.²⁴ Colorado tribes therefore retain their general immunity from state criminal law enforcement, subject to federal prosecution for CSA violations. Colorado’s SB23-290 framework — which both decriminalized personal psilocybin use and established a regulated healing center program — would almost certainly be characterized as regulatory under Cabazon and therefore inapplicable to tribal lands without tribal consent.

New Mexico’s medical psilocybin model involves direct regulatory authority through the Department of Health. As with Colorado, New Mexico is not a mandatory PL 280 state, limiting state regulatory reach into tribal territory.

B. The PL 280 Regulatory/Prohibitory Analysis Applied to Psilocybin Licensing

The critical analytical question under PL 280 for Oregon — the only mandatory PL 280 state with an active psilocybin program — is whether the state’s psilocybin licensing requirements are criminal/prohibitory (and therefore enforceable in Indian Country under PL 280) or regulatory (and therefore not enforceable). The answer likely turns on the following factors: whether Oregon generally permits the underlying activity, whether the licensing framework primarily serves to regulate conduct rather than prohibit it, and whether the state’s interest is primarily in generating revenue and ensuring safety rather than in suppressing the activity itself.

Under this analysis, Oregon’s psilocybin framework is almost certainly regulatory rather than prohibitory. Oregon voters affirmatively authorized supervised psilocybin services through Measure 109. The licensing system exists to govern a permitted activity, not to ban it. The state’s asserted interests — client safety, facilitator training, product testing — are plainly regulatory. Under Cabazon and its progeny, these regulatory interests cannot be enforced against tribal operators on reservation land through PL 280 alone.²⁵

This does not mean tribal psilocybin programs in Oregon are lawful. It means that Oregon’s state licensing framework, standing alone, is not the operative legal constraint. The federal CSA remains the central obstacle, as discussed above.

V. The IGRA Compact Model: Structure, Lessons, and Limits of Applicability

A. How IGRA Compact Structure Works

The Indian Gaming Regulatory Act of 1988 (IGRA), Pub. L. 100-497, 25 U.S.C. §§ 2701–2721, created the framework under which federally recognized tribes operate Class III gaming — slot machines, casino-style card games, and other high-stakes gambling — through negotiated Tribal-State compacts.²⁶ Class III gaming may only be conducted on tribal lands if: (1) authorized by a tribal gaming ordinance approved by the National Indian Gaming Commission; (2) the gaming is located in a state that permits such gaming for any purpose; and (3) the tribe and state have negotiated and the Secretary of the Interior has approved a Tribal-State compact.²⁷

The IGRA framework emerged directly from Cabazon, which held that states could not impose their gaming regulations on tribes in states that broadly permitted gambling. Congress responded by creating a structured compact mechanism that accommodated tribal sovereignty while providing states a limited regulatory role through the negotiation process. The compact model requires good-faith negotiation, provides for federal mediation if negotiations fail, and requires Secretarial approval of compact terms.²⁸

B. Cannabis Compacts: The Most Relevant Intermediary Model

Between IGRA gaming compacts and the absent framework for psychedelics lies the tribal cannabis compact model, which several states have developed without any statutory mandate analogous to IGRA. Washington State enacted HB 2000 in 2015, authorizing the Governor to negotiate cannabis agreements with federally recognized tribes, with negotiating authority delegated to the state Liquor and Cannabis Board.²⁹ Similar compact legislation followed in Nevada, Minnesota, and Michigan, each creating a framework for regulatory coordination between the state’s cannabis program and tribal cannabis operations.

Washington’s tribal cannabis compacts — which as of 2025 cover more than eighteen tribes within the state — illustrate the key structural features of the model: tribal regulatory equivalency (the tribe must establish a regulatory system demonstrating equivalency to state requirements), revenue arrangements (compacts specify how state and tribal taxes are allocated), dispute resolution mechanisms, and enforcement protocols covering diversion prevention.³⁰ These compacts operate entirely as voluntary agreements under state law — there is no federal statute requiring states to negotiate them, and there is no federal approval mechanism. Their legal security rests primarily on state statutory authorization, the terms of the agreement, and the practical reality that federal enforcement has not targeted compact-compliant tribal cannabis programs.

Colorado’s SB23-290 took a step toward acknowledging the tribal dimension of natural medicine regulation by creating a Federally Recognized American Tribes and Indigenous Community Working Group within the Department of Regulatory Agencies (DORA).³¹ The Working Group is statutorily charged with advising DORA and the Natural Medicine Advisory Board on issues including the misappropriation and exploitation of tribal and Indigenous communities, conservation issues related to natural medicine sourcing, and best practices for building trust with these communities.³² Notably, SB23-290 created the Working Group as an advisory body, not as a compact-negotiating mechanism. The statute does not authorize the Governor or DORA to negotiate tribal-state compacts for psilocybin services, nor does it create any legal pathway for tribal healing centers to operate outside the state’s healing center licensing framework.³³

This represents a significant structural gap. The Working Group can generate recommendations; it cannot generate legal authority.

C. Why No Statutory Compact Authority Exists for Psychedelics — and Why That Matters

Unlike IGRA, which provides a specific statutory framework requiring states to negotiate in good faith and establishing federal approval for compact terms, no statute requires — or authorizes — states to negotiate psilocybin compacts with tribes. Unlike Washington’s cannabis compact legislation, which at least provides state statutory authority for negotiations, Oregon’s ORS 475A contains no provision authorizing the OHA or the Governor to enter into agreements with tribal governments regarding psilocybin service center operations on reservation lands. Colorado’s SB23-290 creates an advisory working group but not a compact authority. New Mexico’s medical psilocybin framework similarly lacks any tribal compact provision.

The absence of statutory compact authority has the following practical consequences:

First, any voluntary agreement between a state and tribe regarding psilocybin services on tribal lands would lack the legal foundation that state compact legislation provides. Such an agreement would not bind subsequent state administrations and could be challenged as ultra vires if state administrators lack independent authority to negotiate such agreements.

Second, without a compact, a tribal psilocybin program operating under its own tribal code but without state licensing would be subject to the full force of state criminal law (where PL 280 applies) or state civil regulatory enforcement, and would lack the negotiated enforcement-coordination agreement that cannabis compacts provide.

Third, the absence of federal psychedelic enforcement guidance equivalent to the Wilkinson Memorandum means tribal programs also lack the federal tolerance signal that cannabis programs could rely on during the 2014-2018 period.

VI. Existing State Program Silence on Tribal Lands

A. Oregon’s ORS 475A Framework

Oregon’s Psilocybin Services Act, codified at ORS 475A.210–722, establishes a comprehensive licensing framework for manufacturers, laboratories, facilitators, and service centers. The Act confers regulatory authority exclusively on the Oregon Health Authority. It contains no provision addressing psilocybin services on tribal lands, no provision authorizing OHA to negotiate agreements with tribal governments, and no exception or carve-out for tribally operated programs.³⁴ The Act’s provisions apply by their terms to all persons and entities providing psilocybin services “within this state” — language that has not been interpreted to exclude or include tribal lands.³⁵

The geographic scope question is not merely semantic. Approximately thirty federally recognized tribes have lands within Oregon’s borders, including the Confederated Tribes of Warm Springs — which already operate a tribally owned cannabis cultivation and retail enterprise — as well as the Confederated Tribes of Siletz Indians, the Coquille Indian Tribe, the Cow Creek Band of Umpqua Tribe of Indians, and others.³⁶ Whether ORS 475A’s licensing requirements apply to psilocybin services on those tribes’ lands is a question that OHA has not addressed and that existing legal authority does not resolve.

B. Colorado’s SB23-290 and the DORA Tribal Working Group

As noted above, Colorado created a Tribal and Indigenous Working Group through SB23-290, signed into law on May 23, 2023.³⁷ This represents a meaningful acknowledgment — more explicit than anything in Oregon or New Mexico’s legislation — that tribal and Indigenous communities have distinct interests in the natural medicine regulatory framework. However, the Working Group’s mandate is consultative and advisory, not jurisdictional. It was charged with identifying issues related to commercialization, misappropriation, conservation, and community trust — not with developing a legal framework for tribal healing center operations on reservation lands.³⁸

When the Working Group first convened in 2024, its membership reflected the peyote-centric traditions of most Colorado-adjacent tribes, with fewer representatives from communities with strong psilocybin traditions.³⁹ The Working Group’s composition suggests that DORA’s primary concern was cultural appropriation and ceremonial-use consultation, not the distinct question of tribal regulatory jurisdiction over commercial psilocybin programs.

C. New Mexico’s Medical Model

New Mexico’s approach to psilocybin involves state health department licensing of medical providers authorized to administer psilocybin in clinical settings. New Mexico has nineteen federally recognized tribes within its borders, including the Navajo Nation — the largest federally recognized tribe in the United States by land area. New Mexico’s medical psilocybin framework contains no tribal engagement provisions and has not publicly addressed whether tribally operated medical programs would be subject to or exempt from state licensing requirements.

VII. Viable Frameworks for Tribal Psilocybin Programs

Given the analysis above, what legal pathways exist for a tribe seeking to operate a psilocybin program? Three frameworks warrant analysis, each with distinct risk profiles.

A. Purely Tribal Regulation: Sovereign Authority Without Federal Cover

A tribe could enact a tribal ordinance establishing a psilocybin services regulatory program on tribal lands, license facilitators and service centers under tribal law, and operate the program without reference to state licensing requirements. This approach rests on the Cabazon argument that state licensing requirements are regulatory and therefore inapplicable on tribal lands, combined with the assertion of inherent tribal sovereign authority over economic activity within reservation boundaries.

The primary legal risk of this approach is federal CSA enforcement. Unlike state regulatory requirements, the CSA presents a direct federal criminal prohibition. A purely tribally-regulated program would have no enforcement guidance, no compact, and no formal agreement with the relevant U.S. Attorney’s Office. Tribal operators and facilitators would be subject to federal prosecution at prosecutorial discretion.

The secondary risk is state action. In PL 280 states, including Oregon, the state might argue that its psilocybin licensing requirements are criminal/prohibitory in their application to unlicensed operators, rather than merely regulatory, and attempt enforcement through PL 280 criminal jurisdiction. This argument is legally weak under Cabazon but is not frivolous, and litigation would be expensive and uncertain.

This approach is therefore most viable in non-PL 280 states (Colorado, New Mexico) with a more sympathetic federal administration and is least viable in Oregon absent either state compact legislation or federal enforcement guidance.

B. Voluntary Tribal-State Agreements: Practical Collaboration Without Legal Security

A tribe and state could negotiate a voluntary agreement — modeled on cannabis compacts — under which the tribe establishes a tribal regulatory program that the state recognizes as equivalent to its own licensing framework, with coordinated enforcement, shared safety standards, and mutually agreed revenue arrangements. This model has operational precedent in Washington’s cannabis compact framework and provides a practical path for regulatory coordination.

The primary limitation of this approach, as noted, is the absence of statutory compact authority in Oregon, Colorado, or New Mexico’s psilocybin frameworks. A voluntary agreement would need to rest on general executive authority to negotiate intergovernmental agreements — an authority that varies by state — and would lack the legal stability of a statutorily-authorized compact. It would also not resolve the federal CSA problem; indeed, it might complicate it, as a state’s formal recognition of a tribal psilocybin program could be seen as state facilitation of a federal Schedule I offense.

If and when psilocybin is rescheduled to a lower schedule, the legal basis for voluntary agreements would strengthen considerably. Under Schedule II, the question would shift from whether the activity is federally prohibited to whether specific DEA and FDA regulatory requirements apply on tribal lands — a question with more tractable analytical tools.

C. A Federal Legislative Framework: The Most Durable Solution

The most legally secure pathway for tribal psilocybin programs would require federal legislation. Specifically, Congress could enact a statute that: (1) expressly authorizes federally recognized tribes to establish regulatory frameworks for supervised psilocybin services on tribal lands; (2) requires states with psilocybin programs to negotiate in good faith with tribes seeking compact agreements; (3) establishes minimum regulatory standards that tribal programs must meet as a condition of the federal authorization; and (4) designates a federal agency — most plausibly the Substance Abuse and Mental Health Services Administration, in coordination with the Bureau of Indian Affairs — to approve tribal regulatory frameworks and oversee federal compliance.

This approach would parallel IGRA’s structure in several respects: federal statutory authorization, tribal ordinance approval, state compact negotiation requirement, and federal Secretarial approval. It would resolve the CSA problem by providing specific statutory authorization for tribal psilocybin programs — a mechanism analogous to the Native American Church’s peyote exemption under the CSA,⁴⁰ which demonstrates that Congress is capable of creating controlled substance exemptions specific to tribal and ceremonial contexts.

Congressional action of this scope is not currently under active consideration. However, several pending federal psychedelic reform bills — including bills addressing veteran access and broader scheduling reform — could provide legislative vehicles for tribal access provisions.⁴¹

VIII. Design Recommendations for State-Level Action

While waiting for federal legislation, states with active psilocybin programs can take concrete steps to address the tribal jurisdiction gap.

1. Enact Compact Authorization Legislation. Oregon, Colorado, and New Mexico should enact legislation authorizing their governors — or designated agencies — to negotiate and execute tribal-state agreements regarding psilocybin services on tribal lands. The legislation should specify: the subjects of permissible negotiation (regulatory equivalency, safety standards, client protection, revenue allocation, enforcement coordination); the process for state approval of compact terms; and the legal effect of an approved compact on state licensing requirements. Washington’s cannabis compact legislation, codified at RCW 69.50.357, provides a functional model.⁴²

2. Direct Agency Engagement with Tribal Governments. Oregon’s OHA, Colorado’s DORA, and New Mexico’s Department of Health should initiate government-to-government consultation with federally recognized tribes in their states regarding psilocybin program design and jurisdiction. Consultation should not be limited to cultural appropriation concerns — though those concerns are important — but should specifically address the jurisdictional question of whether tribal members and lands are subject to or exempt from state licensing requirements.

3. Create a Tribal Regulatory Equivalency Standard. Any compact framework should include a tribal regulatory equivalency standard specifying the minimum safety, training, client protection, and recordkeeping requirements that a tribal psilocybin program must meet for the state to recognize it as operating lawfully. These standards should be calibrated to the specific context of tribal ceremonial and healing traditions while ensuring substantive client protection.

4. Seek U.S. Attorney Engagement. In each state, tribal governments and state agencies should seek government-to-government consultation with the relevant U.S. Attorney’s Office to assess enforcement posture toward compact-compliant tribal psilocybin programs. This consultation — modeled on the engagement framework that preceded the Wilkinson Memorandum for cannabis — would not provide legal protection but would provide operational information about federal enforcement risk.

5. Advocate for Federal Guidance. State agencies and tribal governments should jointly urge DOJ and DEA to issue enforcement guidance for psilocybin in Indian Country, paralleling the role the Wilkinson Memorandum played for cannabis. Such guidance should specify that compliant tribal psilocybin programs operating in states with active regulatory frameworks will not be prioritized for federal enforcement, and should establish consultation procedures analogous to those the Wilkinson Memorandum required for cannabis.

IX. The Cultural Dimension: Why Jurisdiction Matters Beyond Economics

Any legal analysis of tribal psilocybin jurisdiction risks treating the question purely as a matter of economic development and regulatory authority. It is also a cultural and epistemological question that deserves acknowledgment.

Psilocybin mushrooms have been used in ceremonial and healing contexts by Mazatec and other Mesoamerican Indigenous communities for centuries.⁴³ The foundational knowledge that undergirds the contemporary psychedelic therapeutic model — including the understanding that psilocybin’s effects are shaped by set and setting, that experienced guides are essential to safe use, and that the substance can facilitate profound psychological transformation — was substantially derived from the traditions of these communities and transmitted, without meaningful consent or compensation, to Western researchers beginning in the 1950s.⁴⁴

State psilocybin programs have been criticized by Indigenous advocates for commercializing this knowledge without tribal consultation, without benefit-sharing arrangements, and without protection of ceremonial practices from commercial exploitation.⁴⁵ Colorado’s NCAI, the Native American Church of North America, and the Native American Church of Oklahoma jointly issued a statement expressing opposition to the commercialization of peyote and related substances without Indigenous consent.⁴⁶

The jurisdictional framework analyzed in this article — whether tribes may operate their own psilocybin programs outside state licensing requirements — is inseparable from these cultural concerns. If the answer to the jurisdictional question is yes, tribes may have the legal authority to establish psilocybin programs that operate on Indigenous cultural terms, with ceremonial frameworks, pricing structures, and client selection criteria determined by tribal governance rather than state licensing boards. If the answer is no — if state licensing requirements apply on tribal lands — then the commercialization of psilocybin on terms determined by state regulatory bodies extends even into Indian Country.

The jurisdictional analysis is therefore not merely about regulatory authority. It is about whose values and whose institutions govern access to substances with deep roots in Indigenous traditions.

X. Conclusion

The tribal sovereignty question in psychedelic regulation is legally open, practically urgent, and institutionally unaddressed. Existing state psilocybin frameworks in Oregon, Colorado, and New Mexico are silent on the application of their licensing requirements to tribal lands. Existing federal Indian law principles — the trust doctrine, the Cabazon regulatory/prohibitory distinction, and the Bracker balancing test — strongly suggest that state licensing requirements are regulatory in character and therefore inapplicable on tribal lands without tribal consent. But the Controlled Substances Act’s Schedule I classification of psilocybin imposes a federal criminal prohibition that tribal sovereignty does not override, and no enforcement guidance analogous to the Wilkinson Memorandum exists to signal federal tolerance of tribal psilocybin programs.

The IGRA compact model provides the most coherent structural framework for a durable solution, but no statute currently authorizes states to negotiate psilocybin compacts with tribes, and no federal legislation has been introduced to create tribal program authority analogous to IGRA. In the interim, states should pursue compact authorization legislation, government-to-government consultation with tribal governments, and engagement with U.S. Attorneys’ offices regarding enforcement posture.

The tribal jurisdiction gap is not merely a technical footnote to the policy reform series examined in this publication. It sits at the intersection of the three most consequential legal questions in psychedelic regulation: the federal-state tension over Schedule I enforcement, the equity dimensions of access and governance, and the cultural integrity of substances with deep Indigenous roots. No comprehensive regulatory framework can be considered complete without addressing it.

Endnotes

1. Bureau of Indian Affairs, Federal Register: Indian Entities Recognized by and Eligible To Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 944 (Jan. 8, 2024) (listing 574 federally recognized tribes); see also Or. Rev. Stat. § 475A.210 et seq. (Oregon Psilocybin Services Act); Colo. Rev. Stat. § 12-170-101 et seq. (Colorado Natural Medicine Health Act, as enacted through S.B. 23-290, signed May 23, 2023).
2. R. Gordon Wasson, Seeking the Magic Mushroom, Life Magazine, May 13, 1957 (documenting Mazatec psilocybin traditions and transmitting them to Western audiences); see also Andy Letcher, Shroom: A Cultural History of the Magic Mushroom 159–185 (2006) (analyzing the Mazatec foundations of modern psilocybin knowledge).
3. Gabriela Galindo, The Mass Co-Opting of Native Medicines and Traditions, Boulder Weekly, May 10, 2023; Joint Organizational Statement of the National Congress of American Indians, Native American Church of North America, and Native American Church of Oklahoma (Apr. 26, 2023) (expressing opposition to commercialization of peyote and related substances).
4. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832); see also Felix S. Cohen, Handbook of Federal Indian Law § 4.01 (2012 ed.) (summarizing foundational trust doctrine principles).
5. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
6. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 152 (1973) (holding that a state may impose nondiscriminatory gross receipts taxes on tribal off-reservation business activities, while recognizing that tribal reservation lands retain “historic immunity from state and local control”).
7. California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).
8. Id. at 209–212 (analyzing California’s bingo statute under the regulatory/prohibitory distinction developed in Bryan v. Itasca County, 426 U.S. 373 (1976), and concluding that because California broadly permitted gambling, including through a state lottery, its bingo regulations were regulatory rather than prohibitory and therefore unenforceable in Indian Country under Public Law 280).
9. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142–45 (1980) (establishing the preemption balancing test for state laws applied to on-reservation activities involving non-Indians, weighing federal and tribal interests against state regulatory interests against the backdrop of tribal sovereignty).
10. Controlled Substances Act, 21 U.S.C. § 812, Schedule I(c)(17) (classifying psilocybin as a Schedule I controlled substance).
11. See Sacks Tierney P.A., Tribes and Cannabis: The Enforcement of Marijuana Laws in Indian Country (Mar. 11, 2022), https://www.sackstierney.com/blog/tribes-and-cannabis-the-enforcement-of-marijuana-laws-in-indian-country/ (“Marijuana is a Schedule 1 Controlled Substance, and federal laws related to marijuana are considered laws of general applicability, thus applicable in Indian Country.”); see also 21 U.S.C. § 801 et seq. (Controlled Substances Act establishing nationwide application).
12. Federal Enclaves Act of 1817, 18 U.S.C. § 1152; see FBI, Legal Digest: Indian Country and the Tribal Law and Order Act of 2010, Law Enforcement Bulletin (Sept. 25, 2017), https://leb.fbi.gov/articles/legal-digest/legal-digest-indian-country-and-the-tribal-law-and-order-act-of-2010 (explaining that Indian Country is treated as a “federal enclave” for jurisdictional purposes, extending the general body of federal criminal law to tribal lands).
13. Bureau of Indian Affairs, Office of Justice Services, Drug Enforcement Program, https://www.bia.gov/bia/ojs (describing BIA drug enforcement authority; noting coordination with FBI and DEA for investigation of controlled substance violations in Indian Country).
14. Menominee Indian Tribe of Wisconsin v. Drug Enforcement Administration, No. 16-cv-00614 (E.D. Wis. 2016), available at https://www.narf.org/nill/bulletins/federal/documents/menominee_v_dea_doj.html (rejecting tribal argument that hemp cultivation under a tribal ordinance was shielded from federal CSA enforcement, holding that the hemp exemption was conditioned on state law compliance and that Wisconsin did not authorize hemp cultivation).
15. Memorandum from James M. Cole, Deputy Attorney General, to All United States Attorneys, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013) (the “Cole Memorandum”), available at https://www.justice.gov/archives/jm/criminal-resource-manual-691-indian-gaming (referenced in DOJ Justice Manual discussion of Indian gaming).
16. Memorandum from Monty Wilkinson, Director, Executive Office for U.S. Attorneys, to All United States Attorneys, Policy Statement Regarding Marijuana Issues in Indian Country (Oct. 28, 2014) (the “Wilkinson Memorandum”), available at https://www.justice.gov/sites/default/files/tribal/pages/attachments/2014/12/11/policystatementregardingmarijuanaissuesinindiancountry2.pdf.
17. Id. at 1–2 (directing U.S. Attorneys to apply Cole Memorandum priorities to marijuana enforcement in Indian Country and to consult with tribal governments on a government-to-government basis before commencing enforcement actions against tribal cannabis programs).
18. Vicente LLP, Native American Tribal Sovereignty and the Cannabis Industry (June 11, 2025), https://vicentellp.com/insights/native-american-tribal-sovereignty-and-the-cannabis-industry/ (noting that although the Cole and Wilkinson Memoranda were rescinded in 2018, federal enforcement against compliant tribal cannabis operations has not materially resumed and dozens of tribes across the country successfully operate cannabis enterprises).
19. See generally Harris Sliwoski LLP, Oregon Psilocybin: State of the State (2024) (Jan. 2025), https://harris-sliwoski.com/psychlawblog/oregon-psilocybin-state-of-the-state-2024/ (observing that “no one should be overly concerned about enforcement against OPS program actors” under the current federal administration, while noting that the administration’s formal posture has not been articulated).
20. The DEA’s referral of a rescheduling petition to HHS in August 2025 reflects ongoing federal engagement with psilocybin’s regulatory status but does not constitute enforcement guidance for tribal programs. See document sources in the accompanying Policy Reform / Governance / Oversight Series, Document 5 (Federal-State Tensions in Psychedelic Regulation).
21. Public Law 83-280, 67 Stat. 588 (1953), codified as amended at 18 U.S.C. § 1162 (criminal jurisdiction) and 28 U.S.C. § 1360 (civil jurisdiction); Bureau of Indian Affairs, What Is Public Law 280 and Where Does It Apply?, https://www.bia.gov/faqs/what-public-law-280-and-where-does-it-apply (identifying the six mandatory PL 280 states as Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin).
22. Bureau of Indian Affairs, supra note 21 (noting that PL 280 “did not grant states regulatory power over tribes or lands held in trust by the United States”); Bryan v. Itasca County, 426 U.S. 373, 388 (1976) (holding that PL 280’s civil jurisdiction provisions do not grant states authority to apply their general regulatory schemes on reservations); California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209 (1987) (applying Bryan regulatory/prohibitory distinction to confirm that regulatory state laws are outside PL 280’s jurisdictional grant).
23. Cabazon, 480 U.S. at 210–212 (applying the regulatory/prohibitory test and holding that because California broadly permits gambling, its bingo regulations fall on the regulatory side and cannot be applied in Indian Country under PL 280).
24. National Indian Gaming Commission, Tribal-State Compact Status (confirming that Colorado is not among the states that assumed jurisdiction under PL 280’s opt-in provisions).
25. Cabazon, 480 U.S. at 211; Bryan v. Itasca County, 426 U.S. at 388.
26. Indian Gaming Regulatory Act, Pub. L. 100-497, 102 Stat. 2467, Oct. 17, 1988, codified at 25 U.S.C. §§ 2701–2721.
27. 25 U.S.C. § 2710(d)(1) (requiring that Class III gaming be: (A) authorized by a tribal ordinance approved by the NIGC Chairman; (B) located in a state that permits such gaming for any purpose; and (C) conducted in conformance with a Tribal-State compact).
28. 25 U.S.C. § 2710(d)(7)(A)(i) (authorizing federal district court actions where a state fails to negotiate in good faith); 25 U.S.C. § 2710(d)(8)(B) (requiring Secretarial approval of compact terms).
29. Wash. Rev. Code § 69.50.357 (2015), enacted by H.B. 2000, ch. 207, Laws of 2015 (authorizing the Governor to enter into cannabis agreements with federally recognized tribes in Washington State); Washington State Liquor and Cannabis Board, Cannabis Compacts, https://lcb.wa.gov/tribal/cannabis_compacts.
30. Id.; see also Matthew Klas, Tribally Owned Cannabis Stores Have Grown 24% Since May 2024, MJBizDaily (May 23, 2025), https://mjbizdaily.com/tribally-owned-cannabis-stores-have-grown-by-24-percent-since-may-2024/ (noting that Washington state has the most tribal cannabis outlets with twenty-five, covering more than eighteen tribes).
31. S.B. 23-290, § 107, 74th Leg., Reg. Sess. (Colo. 2023), signed May 23, 2023, codified at Colo. Rev. Stat. § 12-170-107 (creating the Federally Recognized American Tribes and Indigenous Community Working Group within DORA).
32. Colo. Rev. Stat. § 12-170-107 (charge of Working Group includes advising on: misappropriation and exploitation of tribal and Indigenous communities, cultures, and religions; conservation issues with natural medicine sourcing and cultivation; excessive commercialization of natural medicine products and services; and best practices for building trust with Indigenous communities).
33. Id.; see also Vicente LLP, The Ultimate Guide to Colorado’s Natural Medicine Health Act (SB23-290 Psychedelics Law), https://vicentellp.com/insights/ultimate-guide-to-sb23290-colorado-natural-medicine-psychedelics-regulation-and-legalization-bill/ (describing Working Group mandate without suggesting compact authority).
34. Or. Rev. Stat. §§ 475A.210–475A.722 (Oregon Psilocybin Services Act, as enacted by Ballot Measure 109 (2020) and amended by subsequent legislative action); see Or. Rev. Stat. § 475A.220 (conferring regulatory authority exclusively on the Oregon Health Authority).
35. Or. Rev. Stat. § 475A.498 (providing that “[a] psilocybin product may be used only at a service center and only under the supervision of a psilocybin service facilitator,” without specifying the geographic scope of the statute’s application to tribal lands).
36. Confederated Tribes of the Warm Springs, Warm Springs Cannabis, https://warmsprings-nsn.gov/program/warm-springs-cannabis/ (describing a 100% tribally owned and regulated cannabis enterprise on the reservation with off-reservation retail stores in Portland and Bend markets); Oregon Secretary of State, Confederated Tribes of Warm Springs Reservation, Oregon Blue Book, https://sos.oregon.gov/blue-book/Pages/national-tribes-warm-springs.aspx.
37. S.B. 23-290, signed May 23, 2023, effective July 1, 2023; Colorado General Assembly, SB23-290 Natural Medicine Regulation and Legalization, https://leg.colorado.gov/bills/sb23-290.
38. Colo. Rev. Stat. § 12-170-107; see also Psychedelic Week, Meet Colorado’s Psychedelic Tribal and Indigenous Community Workgroup, Convening May 8, https://www.psychedelicweek.com/p/co-natural-medicine-native-psilocybin-peyote-dmt (describing the Working Group’s composition and mandate as focused on consultation and cultural protection rather than jurisdictional authority).
39. Psychedelic Week, supra note 38 (noting that most Working Group members represent communities that utilize peyote in ceremonial contexts, with only one or possibly two members representing communities that utilize psilocybin mushrooms).
40. 42 U.S.C. § 1996a (American Indian Religious Freedom Act Amendments of 1994, exempting use of peyote in bona fide traditional ceremonies from the CSA for members of federally recognized tribes); see also 21 C.F.R. § 1307.31 (DEA regulation recognizing peyote exemption for Native American Church use).
41. See, e.g., Veterans Mental Health Care Improvement Act of 2023, S. 491, 118th Cong. (2023) (proposing expanded psychedelic therapy access for veterans through VA programs, which could provide a legislative vehicle for tribal access provisions).
42. Wash. Rev. Code § 69.50.357; see Washington State Liquor and Cannabis Board, Cannabis Compacts, https://lcb.wa.gov/tribal/cannabis_compacts (providing the template compact and list of tribal compact partners, updated October 2025).
43. R. Gordon Wasson, Seeking the Magic Mushroom, Life Magazine, May 13, 1957; see also SAPIENS, Medicinal Psychedelics and Indigenous Knowledge (May 22, 2023), https://www.sapiens.org/culture/medicinal-psychedelics-indigenous/ (discussing the Mazatec tradition’s historical role in transmitting psilocybin knowledge to Western researchers and researchers).
44. Id.; see also Oregon Health Authority, Psilocybin 101: What to Know About Oregon’s Psilocybin Services, Oregon Health News Blog (Apr. 12, 2023), https://oregonhealthnews.oregon.gov/psilocybin-101-what-to-know-about-oregons-psilocybin-services/amp/ (acknowledging that “[f]or centuries, Indigenous and Tribal communities across the globe have used psilocybin for spiritual, ceremonial and other purposes”).
45. Galindo, supra note 3; Boulder Weekly, The Mass Co-Opting of Native Medicines and Traditions (May 10, 2023), https://boulderweekly.com/opinion/the-mass-co-opting-of-native-medicines-and-traditions/.
46. Joint Organizational Statement of the National Congress of American Indians, Native American Church of North America, and Native American Church of Oklahoma (Apr. 26, 2023), as referenced in Boulder Weekly, supra note 45 (expressing joint opposition to commercialization of peyote and related substances without Indigenous consent and to pharmaceutical patenting of treatments derived from Indigenous medicines).

The author acknowledges that this article addresses a legally unsettled area in which neither courts nor legislatures have provided definitive answers. The analysis reflects the state of existing federal Indian law doctrine as applied to an emerging regulatory context; it does not constitute legal advice to any tribe, state agency, or operator. Tribes seeking to develop psilocybin programs should consult with attorneys experienced in both federal Indian law and controlled substance regulation.