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AB-924 Indian tribes: commercial cannabis activity.(2017-2018)

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Date Published: 07/02/2018 02:00 PM
AB924:v96#DOCUMENT

Amended  IN  Senate  July 02, 2018
Amended  IN  Senate  June 18, 2018
Amended  IN  Senate  June 27, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 924


Introduced by Assembly Member Bonta

February 16, 2017


An act to add Chapter 23 (commencing with Section 26240) to Division 10 of the Business and Professions Code, relating to cannabis.


LEGISLATIVE COUNSEL'S DIGEST


AB 924, as amended, Bonta. Indian tribes: commercial cannabis activity.
Existing law, the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), which includes the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA), enacted by the voters at the November 8, 2016, statewide general election, provides for the licensure and regulation of commercial cannabis activity. MAUCRSA specifies the requirements to obtain a license to engage in commercial cannabis activity. AUMA authorizes the Legislature to amend its provisions by a bill passed with a 2/3 vote of each house of the Legislature, if the amendment furthers its purposes and intent. AUMA also authorizes the Legislature to amend other provisions by a bill passed by a majority vote if the bill implements specified substantive provisions and the amendments are consistent with and further the purposes and intent of the act.
Under the existing federal doctrine of tribal immunity and the federal Indian Commerce Clause, the state, with certain exceptions, is precluded from asserting regulatory authority over the activities of federally recognized Indian tribes conducted on their own lands. Under federal law, absent express federal law to the contrary, the state may assert the same regulatory authority over Indians conducting activities beyond their own lands that the state asserts over all citizens of the state.
This bill would amend AUMA by authorizing the Governor to enter into an agreement with a federally recognized Indian tribe authorizing commercial cannabis activity and requiring the tribe to establish a tribal cannabis regulatory commission or agency, as defined, that would exercise exclusive regulatory authority over all commercial cannabis activity, by both Indians and non-Indians, in Indian country and that requires the commission to adopt standards that meet or exceed the standards adopted under the state’s regulatory framework governing commercial cannabis activity. The bill would also require the agreement to contain provisions exempting a tribe from state cultivation or sales taxes related to commercial cannabis activity if the tribe imposes an equivalent tax and exclusively uses that tax revenue to fund essential government services, as defined, provided by a tribe, and exempting a tribe from any sales or cannabis tax imposed by a local jurisdiction whose geographical boundaries contain the Indian country. The bill would require the agreement to contain provisions requiring a tribe, when engaging in sales of cannabis outside Indian country, to sell only to an entity operating with a state license. establish the Cannabis Regulatory Enforcement Act for Tribal Entities or the “CREATE Act” and would require a tribe entering into a tribal cannabis regulatory agreement with the Governor, as ratified by the Legislature, to establish a tribal cannabis regulatory commission or agency pursuant to the tribe’s established governmental process.
Vote: TWO_THIRDSMAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) In November 1996, voters approved Proposition 215, which decriminalized the use of medicinal cannabis in California. Since the proposition was passed, most, if not all, of the regulation has been performed by local governments.
(b) In 2015, California enacted three bills (Assembly Bill 243 (Wood, Chapter 688 of the Statutes of 2015); Assembly Bill 266 (Bonta, Chapter 689 of the Statutes of 2015); and Senate Bill 643 (McGuire, Chapter 719 of the Statutes of 2015)) that collectively established a comprehensive state regulatory framework for the licensing and enforcement of cultivation, manufacturing, retail sale, transportation, storage, delivery, and testing of medicinal cannabis in California. This regulatory scheme is known as the Medical Cannabis Regulation and Safety Act (MCRSA).
(c) In November 2016, voters approved Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA). Under Proposition 64, adults 21 years of age or older may legally grow, possess, and use cannabis for nonmedicinal purposes, with certain restrictions. In addition, beginning on January 1, 2018, AUMA makes it legal under state law to sell and distribute cannabis through a regulated business.
(d) In 2017, California enacted Senate Bill 94 and Assembly Bill 133 (Chapters 27 and 253 of the Statutes of 2017), which enacted the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) to consolidate the license and regulation of commercial medicinal and adult-use cannabis activities under a single regulatory framework.
(e) Although California has chosen to legalize the cultivation, distribution, and use of cannabis, it remains an illegal Schedule I controlled substance under federal law. The intent of Proposition 64 and MAUCRSA was to ensure a comprehensive regulatory system that takes production and sales of cannabis away from an illegal market and curtails the illegal diversion of cannabis from California into other states or countries. The state has legalized cannabis through MAUCRSA and AUMA.
(f) The state has criminal jurisdiction over Indian land located within the state pursuant to federal law commonly known as Public Law 280 (PL-280).
(g) Indian tribes have inherent authority to engage in commercial activity on tribal land and exclusive civil regulatory jurisdiction over those activities. Public Law 280 neither divested nor diminished tribes’ exclusive jurisdiction over activities on tribal lands. Bryan v. Itasca County, (1976) 426 U.S. 373; California v. Cabazon Band of Mission Indians, (1987) 480 U.S. 202; Native Village of Venetie I.R.A Council et. al. v. State of Alaska, 944 F.2d 548 (9th Cir. 1991). land.
(h) MAUCRSA and Proposition 64 did not include provisions to address how Indian tribes would interact with the regulated California marketplace where state-licensed businesses are limited to conducting business only with other state-licensed businesses.
(i) California has an interest in ensuring the health and safety of the California consumers of cannabis products that were cultivated or manufactured on tribal land.
(j) California has an interest in promoting economic development and self-sufficiency by Indian tribes.
(k) Indian tribes have a vested interest in ensuring the protection of the public health, welfare, and safety in connection with commercial cannabis activity that occurs within a tribe’s jurisdiction, including, but not limited to, protecting minors, preserving environmental resources, and preventing the illegal diversion of cannabis or cannabis products outside of the regulated market.
(l) California is committed to interacting with Indian tribes on a mutually respectful government-to-government basis to enhance public health and safety, ensure a lawful and well-regulated cannabis market, encourage economic development in Indian country, and provide fiscal benefits to both California tribes and the state.
(m) Local governments serve a critical role in California’s program for the regulation of commercial cannabis activities, and should be afforded the ability to provide input concerning potential impacts from commercial cannabis activity occurring on lands adjacent to their jurisdiction.
(n) The purpose and intent of this measure is to establish a framework for affording full faith and credit between the State of California and federally recognized Indian tribes as an affirmation of tribal sovereignty, including, but not limited to, recognition of tribal laws, ordinances, resolutions, legislative acts, and regulations governing commercial cannabis activity in Indian country, and authorizing commercial cannabis activity between tribally licensed entities and state-licensed entities in a manner that protects public health and safety and the environment.
(o) The provisions of this bill authorizing the Governor to enter into government-to-government agreements with Indian tribes concerning the control, regulation, and taxation of commercial cannabis activity in Indian country country, with ratification by the Legislature, further the purposes and intent of Proposition 64.
SEC. 2.Chapter 23 (commencing with Section 26240) is added to Division 10 of the Business and Professions Code, to read:
23.Agreements with Tribal Governments
1.General Provisions
26240.

This chapter shall be known, and may be cited, as the Cannabis Regulatory Enforcement Act for Tribal Entities or the “CREATE Act.”

26241.

As used in this chapter, the following definitions apply:

(a)“Agreement” means an Indian tribal cannabis agreement authorized under this chapter and entered into between the state and an Indian tribe.

(b)“Essential governmental services” means services provided by an Indian tribe that has entered into an agreement, including, but not limited to, health care, early childhood development programs, job placement, mental health treatment, substance use disorder treatment, education, elder care, social services, administration, public facilities, fire, police, courts, sewer, water, environmental and land use, park and wildlife restoration, transportation, utility services, community and economic development, and general welfare consistent with the tribe’s applicable law.

(c)“Indian country” shall have the same meaning as in Section 1151 of Title 18 of the United States Code.

(d)“State” means the State of California, including its departments, agencies, bureaus, officials, employees, and agents, but does not include a local jurisdiction or the departments, agencies, bureaus, governing bodies, officials, employees, or agents of a local jurisdiction.

(e)“State license” means a commercial cannabis license issued by a licensing authority pursuant to this division.

(f)“Tribe” means an Indian tribe, band, nation, or community wholly or partially located within the geographical boundaries of the state that the United States Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. Sec. 479a et seq.).

(g)“Tribal cannabis regulatory commission or agency” means an entity required pursuant to Section 26245 and created under a tribe’s established governmental process for the purpose of controlling and regulating commercial cannabis activity in Indian country within the tribe’s jurisdiction.

(h)“Tribal cannabis regulatory program” means a program established by an Indian tribe to control and regulate commercial cannabis activity on land within Indian country.

(i)“Tribal-issued identification card” means an identification card issued by a tribe to an enrolled member of the tribe that includes, at a minimum, the name of the individual and a picture of the individual.

(j)“Tribal license” means a commercial cannabis license issued under a tribal cannabis regulatory program.

2.Agreements with Tribal Governments
26242.

(a)The Governor may enter into an agreement with a tribe to do all of the following:

(1)Recognize the state’s exclusive authority to regulate commercial cannabis and industrial hemp activity occurring within the state’s jurisdiction, including through the state cannabis regulatory program, and local jurisdictions’ authority to regulate commercial cannabis and industrial hemp activity within their jurisdictions, including under locally enacted commercial cannabis regulatory programs.

(2)Recognize and affirm the tribe’s exclusive authority to regulate commercial cannabis and industrial hemp activities in Indian country within the tribe’s jurisdiction.

(3)Authorize commercial cannabis activity between entities located and licensed in Indian country and state licensees.

(4)Authorize commercial industrial hemp activity between the tribe and the state, in accordance with the provisions of this chapter.

(b)The Governor may delegate authority to negotiate this agreement to the Chief of the Bureau of Cannabis Control, or his or her designee, for all matters related to commercial cannabis activity. The Governor may delegate authority to negotiate the provisions of the agreement regarding industrial hemp, if any, to the state’s Secretary of Food and Agriculture, or his or her designee.

(c)An agreement is deemed approved when executed by the Governor, or his or her designee, and does not require approval by the Legislature.

(d)Notwithstanding any other law, a tribal licensee may engage in commercial cannabis activity with a state licensee and a state licensee may engage in commercial cannabis activity with a tribal licensee, subject to the requirements and limitations set forth in this chapter.

(e)This chapter does not require a tribe to enter into an agreement before the tribe conducts commercial cannabis or industrial hemp activities in Indian country within its jurisdiction. However, a person or entity shall not conduct commercial cannabis or industrial hemp activity between Indian country and the state unless the tribe has entered into an agreement under this chapter and implemented requirements for tribal licensees. A state licensee shall not engage in commercial cannabis activity in Indian country except with a tribal licensee.

(f)Notwithstanding any other law, the execution of, and compliance with the terms of, an agreement does not constitute a project for purposes of the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).

26243.

(a)An agreement shall include, but not be limited to, the provisions and subject matter specified in this article.

(b)The provisions of this chapter only apply to agreements entered into between a tribe and the state under this chapter.

26244.

(a)A tribe entering into an agreement shall establish a cannabis regulatory program to control and regulate commercial cannabis activity in Indian country within the tribe’s jurisdiction in accordance with this chapter.

(b)A tribal licensee that engages in commercial cannabis activity within the state shall do so in accordance with the requirements of this division, including, but not limited to, conducting commercial cannabis activity solely through state licensees.

26245.

(a)A tribe entering into an agreement shall establish a tribal cannabis regulatory commission or agency pursuant to the tribe’s established governmental process.

(b)The tribal cannabis regulatory commission or agency shall, among other things, administer the tribe’s cannabis regulatory program, including issuance and renewal of tribal licenses for commercial cannabis activity in Indian country within the tribe’s jurisdiction and disciplinary actions against tribal licensees.

(c)The tribe shall require that protection of public health and welfare be the highest priority for the tribal cannabis regulatory commission or agency in exercising licensing, regulatory, and disciplinary functions under the tribe’s cannabis regulatory program, and that whenever the protection of public health and welfare is inconsistent with other interests sought to be promoted, the protection of public health and welfare shall be paramount.

(d)The tribal cannabis regulatory commission or agency shall exercise exclusive regulatory authority over all commercial cannabis activity, by both Indians and non-Indians, in Indian country within the tribe’s jurisdiction, except in circumstances mutually agreed to by the tribe and the state.

(e)The tribe shall establish through its own governmental process a code of conduct applicable to persons responsible for implementing and enforcing the tribe’s cannabis regulatory program, including persons serving on the tribal cannabis regulatory commission or agency. Among other things, the code of conduct shall prohibit persons whose responsibilities include implementation or enforcement of the tribe’s cannabis regulatory program from obtaining a tribal license or acquiring an ownership stake in a tribal licensee, except where that person possesses an ownership interest in a commercial cannabis business solely by virtue of the person’s status as a member of the tribe.

26246.

(a)A tribe entering into an agreement shall establish license types for commercial cannabis activity in Indian country within the tribe’s jurisdiction that are the same as, or equivalent to, the license types for commercial cannabis activity under this division at the time the agreement becomes effective.

(b)All commercial cannabis activity in Indian country within the tribe’s jurisdiction shall be conducted between tribal licensees. A state licensee may apply for, and be issued, a tribal license as provided for in the agreement.

(c)A testing laboratory licensed pursuant to this chapter shall not be licensed in any other commercial cannabis activity in Indian country within the tribe’s jurisdiction. A person holding a tribal testing laboratory license shall not employ an individual who is also employed by any other licensee that is not a testing laboratory.

(d)Except as provided in subdivision (c), an applicant may apply for, and be issued, more than one tribal license.

(e)An applicant or a licensee shall apply for, and, if approved, obtain, a separate tribal license for each location where it engages in commercial cannabis activity in Indian country within the tribe’s jurisdiction.

(f)A tribal licensee shall not sell alcoholic beverages or tobacco products on or at a premises licensed under the tribe’s cannabis regulatory program.

(g)A tribal licensee shall not be located within 600 feet of a school providing instruction in kindergarten and grades 1 to 12, inclusive, a day care center, or a youth center that is in existence at the time the tribal license is issued, including a school, day care center, or youth center located on adjacent land outside Indian country within the tribe’s jurisdiction.

(h)A tribe with jurisdiction over an area of less than 40 acres may specify a different radius than provided in subdivision (g) for schools, day care centers, or youth centers located solely in Indian country within the tribe’s jurisdiction.

(i)The tribe shall establish a fee schedule for the application and renewal of tribal licenses under its own governmental processes.

(j)The tribe’s requirements for the process by which a person or entity may apply for, and be issued, a tribal license shall be the same as, or equivalent to, the requirements imposed on applicants under this division, including all of the following:

(1)Each owner of the applicant electronically shall submit to the California Department of Justice fingerprint images and related information to the same extent and in the same manner as required of a state license applicant pursuant to this division.

(2)The applicant shall provide evidence of the legal right to occupy and use the proposed location where commercial cannabis activities will occur.

(3)The applicant shall provide evidence that the proposed location is in compliance with subdivisions (g) and (h) of this section.

(4)An applicant with 20 or more employees shall provide a statement that the applicant will enter into, or demonstrate that it has already entered into, and abide by the terms of a labor peace agreement.

(5)The applicant shall pay all applicable fees for licensure by the tribe.

(6)The applicant shall provide a detailed description of the operating procedures for cultivation, extraction and infusion methods, the transportation process, inventory procedures, quality control procedures, and security protocols, as required by the tribe.

(7)(A)The applicant shall provide a complete, detailed diagram of the proposed premises where the license privileges will be exercised.

(B)A tribal licensee shall not change or alter the premises, the usage of the premises, or the mode or character of the business operations conducted from the premises, from the plan contained in the diagram on file with the application, unless and until written approval by the tribe’s cannabis regulatory commission or agency is obtained.

(8)The applicant shall provide a complete list of every person with a financial interest in the entity applying for the license. “Person with a financial interest” does not include persons whose only interest in a license is an interest in a diversified mutual fund, blind trust, or similar instrument.

(k)The tribal cannabis regulatory commission or agency shall deny an application if either the applicant or the premises for which a tribal license is applied, do not qualify for licensure under the tribe’s cannabis regulatory program.

(l)The tribal cannabis regulatory commission or agency shall utilize standards that meet or exceed the requirements set forth in paragraphs (4) and (5) of subdivision (b) of Section 26057, as of the effective date of the agreement, in evaluating whether to approve or deny an application by a person with a prior criminal offense.

(m)(1)A tribe may license wholly owned entities of the tribal government using procedures that differ from those set forth in subdivision (j), except that wholly owned entities of the tribal government shall still comply with the labor peace requirement in paragraph (4) of subdivision (j), and the wholly owned entity applying for a tribal license shall designate at least one person as an official representative for purposes of submitting fingerprints to the California Department of Justice, as required under paragraph (1) of subdivision (j).

(2)For purposes of this subdivision, “official representative” means a person who is the chief executive officer of the wholly owned entity, a member of the board of directors or other governing body of the wholly owned entity, or an individual who will be participating in the direction, control, or management of the wholly owned entity.

(n)Upon receipt of an application for a tribal license, a tribal cannabis regulatory commission or agency shall provide notice of the application to each local jurisdiction located adjacent to the tribe’s jurisdiction, including, but not limited to, the name of the applicant, the type of license applied for, and the proposed location where the applicant intends to conduct commercial cannabis activity. The tribal cannabis regulatory commission or agency shall consider objections and comments, if any, received from a local jurisdiction in determining whether to approve or deny an application for a tribal license and, at the request of a local jurisdiction, shall meet with representatives of the local jurisdiction to discuss the application.

26247.

(a)The tribal cannabis regulatory commission or agency shall investigate and take disciplinary action against a tribal licensee for noncompliance with the requirements of the tribe’s cannabis regulatory program.

(b)The tribe and state shall mutually agree to provide information to the other, upon request, concerning all licenses applied for, issued, or renewed under their respective cannabis regulatory programs, including information concerning disciplinary actions against licensees under those programs.

26248.

(a)A tribe entering into an agreement shall authorize the tribal cannabis regulatory agency or commission to take disciplinary action against a tribal licensee, including for any of the following:

(1)Failure to comply with the requirements of the tribe’s cannabis regulatory program.

(2)Knowing violations of the applicable requirements for environmental protection, water use, or energy use.

(3)Knowing violations of applicable laws conferring worker protections or legal rights on the employees of a tribal licensee.

(4)The intentional and knowing sale of cannabis or cannabis products to a person, other than a qualified patient, under 21 years of age.

(5)The intentional and knowing sale of medicinal cannabis or medicinal cannabis products to a person who is not a qualified patient or a primary caregiver.

(6)The intentional and knowing sale, transfer, or transportation of commercial cannabis or cannabis products to a person or entity other than a tribal licensee or a state licensee.

(7)The intentional and knowing sale, transfer, or distribution of cannabis or cannabis products that have not been certified as meeting the required laboratory testing standards.

(8)Engaging in commercial cannabis activity within the state’s jurisdiction without a state license, or engaging in commercial cannabis activity within a local jurisdiction without a license, permit, or other authorization required by the local jurisdiction.

(9)Failure to maintain safe conditions for inspection by the tribal cannabis regulatory commission or agency.

(10)Failure to dispose of cannabis waste in a manner designated by the tribal cannabis regulatory commission or agency.

(11)Failure to pay applicable taxes.

(b)A tribe entering into an agreement shall authorize the tribal cannabis regulatory commission or agency to suspend, revoke, place on probation with terms and conditions, or otherwise discipline tribal licensees, including through issuance of a fine, under procedures established by the tribe.

26249.

A tribe entering into an agreement shall, at a minimum, implement the following for tribal cultivation licensees:

(a)Size restrictions on tribal cultivation licenses that meet or exceed the size restrictions that apply to the same or equivalent type of state cultivation license.

(b)Standards for environmental protection, water use, and energy use for tribal cultivation licensees, and share those standards with the state.

(c)Requirements for pesticide use by tribal cultivation licensees that meet or exceed the requirements applicable to state licensees.

(d)Requirements for weighing and measuring devices used by a tribal licensee that meet or exceed the requirements applicable to a state licensee.

(e)Appellation of origin and organics programs using standards that meet or exceed the standards applicable to appellation of origin and organics programs established pursuant to Sections 26062, 26062.5, and 26063.

(f)Security requirements, including, but not limited to, video monitoring, fencing, lighting, and controlled access, that meet or exceed the requirements applicable to state licensees.

26250.

(a)A tribe entering into an agreement shall agree to record commercial cannabis transactions and activities in the track and trace system established pursuant to Chapter 6.5 (commencing with Section 26067) to the same extent and in the same manner as required of state licensees.

(b)A tribe entering into an agreement shall agree to implement a program for the identification of permitted cannabis plants at tribally licensed cultivation sites during the cultivation period that is the same as, or equivalent to, the program used to identify permitted cannabis plants at state-licensed cultivation sites.

26251.

(a)A tribe entering into an agreement shall agree to all of the following:

(1)Transportation of cannabis and cannabis products in Indian country within a tribe’s jurisdiction shall only be permitted by a tribal distribution licensee.

(2)Delivery of cannabis or cannabis products in Indian country within the tribe’s jurisdiction shall be prohibited, except by a tribal licensee authorized to make deliveries.

(b)A tribe entering into an agreement shall impose requirements on tribal licensees authorized to distribute or deliver cannabis or cannabis products that meet or exceed the requirements applicable to state licensees, including all of the following:

(1)Minimum standards governing the types of vehicles in which cannabis and cannabis products may be distributed or delivered.

(2)Minimum qualifications for persons eligible to operate distribution and delivery vehicles, including that a driver of a delivery vehicle be directly employed by a tribal licensee authorized to transport cannabis or cannabis products.

(3)That a shipping manifest be completed and maintained for all transportation and delivery activities.

26252.

A tribe entering into an agreement shall impose requirements on tribal retail licensees that meet or exceed the standards applicable to state retail licensees, including all of the following:

(a)Requiring security measures that are reasonably designed to prevent unauthorized entrance into areas containing cannabis or cannabis products and theft of cannabis or cannabis products from the premises.

(b)Prohibiting an individual from remaining on the tribal licensee’s premises if he or she is not engaging in an activity expressly related to the operations of the tribal licensee.

(c)Establishing limited access areas accessible only to authorized personnel.

(d)Other than limited amounts of cannabis used for display purposes, samples, or immediate sale, requiring storage of all finished cannabis and cannabis products in a secured and locked room, safe, or vault, and in a manner reasonably designed to prevent diversion, theft, and loss.

(e)Requiring tribal licensees to notify the tribal cannabis regulatory commission or agency and the appropriate state or local law enforcement authorities within 24 hours after discovering any of the following:

(1)Significant discrepancies identified during inventory, as determined by the tribal cannabis regulatory commission or agency.

(2)Diversion, theft, loss, or any criminal activity pertaining to the operation of the tribal licensee.

(3)Diversion, theft, loss, or any criminal activity by an agent or employee of the tribal licensee pertaining to the operation of the tribal licensee.

(4)The loss or unauthorized alteration of records related to cannabis or cannabis products, qualified patients, primary caregivers, or licensee employees or agents.

(f)Maintaining adequate video monitoring of the licensed retail premises with video retention capability that meets or exceeds the requirements applicable to state licensees.

(g)Prohibiting a tribal retail licensee from selling cannabis and cannabis products to individual customers for personal use in amounts that exceed the limits imposed by law.

26253.

A tribe entering into an agreement shall impose requirements for the manufacture of cannabis products by tribal licensees that meet or exceed the manufacturing requirements applicable to state manufacturing licensees.

26254.

(a)A tribe entering into an agreement shall impose standards for the testing of cannabis or cannabis products by a testing laboratory licensed pursuant to this chapter that meet or exceed the standards applicable to state licensed testing laboratories.

(b)Cannabis and cannabis products cultivated or manufactured in Indian country within a tribe’s jurisdiction and that are distributed for sale solely within Indian country within the tribe’s jurisdiction shall be tested and certified by a testing laboratory licensed pursuant to this chapter before the cannabis or cannabis product may be distributed to a retailer for sale to customers.

(c)Cannabis and cannabis products cultivated or manufactured in Indian country within a tribe’s jurisdiction shall be tested and certified by a testing laboratory licensed pursuant to Chapter 10 (commencing with Section 26100) before the cannabis or cannabis product may be distributed to a state licensee located outside of Indian country within the tribe’s jurisdiction.

26255.

(a)A tribe entering into an agreement shall impose requirements for the packaging and labeling of cannabis and cannabis products that meet or exceed the packaging and labeling requirements established pursuant to Chapter 12 (commencing with Section 26120).

(b)A tribe entering into an agreement shall impose requirements for the destruction of cannabis waste that meet or exceed the cannabis waste destruction requirements imposed pursuant to this division.

26256.

(a)A tribe entering into an agreement shall impose requirements for quality assurance and inspection of cannabis or cannabis products cultivated, manufactured, or sold in Indian country within the tribe’s jurisdiction that meet or exceed the requirements applicable to cannabis or cannabis products cultivated, manufactured, or sold by state licensees, including all of the following:

(1)Cannabis or cannabis products shall not be sold by a tribal licensee unless a representative sample of the cannabis or cannabis product has been tested by a testing laboratory licensed pursuant to this chapter and certified as safe for sale to consumers.

(2)A tribal licensee authorized to distribute or transport cannabis or cannabis products shall transport all batches of cannabis or cannabis products cultivated or manufactured by a tribal licensee to a tribal or state licensed testing laboratory, as required pursuant to Section 26254.

(3)A tribal licensee shall not distribute or transport cannabis or cannabis products to a licensed retailer unless and until the cannabis or cannabis product has been certified by a licensed testing laboratory as meeting the applicable testing requirements, and determined by the distributor to have satisfied the applicable packaging and labeling requirements.

(b)A cannabis or cannabis product cultivated, manufactured, packaged, labeled, or tested in Indian country within the tribe’s jurisdiction shall not be distributed to a state retail licensee located outside the tribe’s jurisdiction until a distributor licensed pursuant to Chapter 7 (commencing with Section 26070) inspects the cannabis or cannabis product in accordance with Section 26080 and determines the cannabis or cannabis product complies with the packaging, labeling, and testing requirements imposed by law.

26257.

(a)A tribe entering into an agreement shall establish a process for the identification of adulterated or misbranded cannabis products, and the destruction of those products, using standards that meet or exceed the standards and procedures established pursuant to this division.

(b)To ensure the protection of public health and welfare, an agreement shall include procedures for notice and recall of adulterated or misbranded cannabis or cannabis products originating from tribal licensees, as negotiated between the tribe and the state.

26258.

(a)Except as provided in subdivision (e), a tribe entering into an agreement shall agree to prohibit tribal licensees from doing any of the following:

(1)Selling cannabis or cannabis products to a person under 21 years of age.

(2)Allowing a person under 21 years of age on the tribal licensee’s premises.

(3)Employing or retaining a person under 21 years of age.

(4)Selling or transferring cannabis or cannabis products, unless the person to whom the cannabis or cannabis product is to be transferred or sold first presents documentation that reasonably appears to be a valid tribal- or state-issued identification card showing that the person is 21 years of age or older.

(b)The tribal cannabis regulatory commission or agency may utilize persons under 21 years of age in the enforcement of the tribe’s cannabis regulatory program, including for purposes of investigating grounds for potential disciplinary action against tribal licensees, or employees or agents of tribal licensees.

(c)The state may also conduct premises and compliance checks for tribal licensees. Prior to conducting a premises or compliance check, the state agency shall contact the tribal cannabis regulatory commission or agency to provide, at a minimum, 24 hours’ written notice of the premises or compliance check and obtain prior approval from the tribe. Tribal consent shall not be unreasonably withheld. An authorized tribal representative may observe and participate in a premises or compliance check. The state shall share the results of a premises and compliance check with the tribe.

(d)To the extent the tribal cannabis regulatory commission or agency obtains information concerning criminal acts in connection with commercial cannabis activity, including information regarding persons or entities who sell or furnish cannabis to persons under 21 years of age, the tribe shall agree to promptly furnish that information to state and local law enforcement agencies.

(e)Notwithstanding subdivision (a), each of the following apply:

(1)A tribal licensee that is authorized under tribal law to engage in the cultivation, distribution, manufacture, or sale of medicinal cannabis or medicinal cannabis products may allow on its premises a person 18 years of age or older who possesses documentation that reasonably appears to be a valid tribal- or state-issued identification card showing the person is a qualified patient.

(2)A tribal licensee that is authorized under tribal law to transfer or sell medicinal cannabis or medicinal cannabis products may transfer or sell medicinal cannabis or medicinal cannabis products to a person 18 years of age or older who possesses documentation that reasonably appears to be a valid tribal- or state-issued identification card showing the person is a qualified patient.

26259.

(a)A tribe entering into an agreement shall impose restrictions on marketing and advertising by tribal licensees that meet or exceed the restrictions established in Chapter 15 (commencing with Section 26150).

(b)A tribe entering into an agreement shall prohibit a tribal licensee from giving away any amount of cannabis or cannabis product, or any cannabis accessories, as part of a business promotion or other commercial activity, to the same extent as that prohibition applies to a state licensee.

26260.

A tribe entering into an agreement shall establish and implement protocols and training programs to detect impaired driving in Indian country within the tribe’s jurisdiction, including impaired driving caused by ingestion of cannabis or cannabis products.

26261.

A tribe entering into an agreement shall establish all of the following:

(a)Recordkeeping requirements for tribal licensees that meet or exceed the standards applicable to state licensees.

(b)Annual reporting and performance audit requirements for the tribal cannabis regulatory commission or agency that meet or exceed the requirements applicable to state licensing authorities.

26262.

(a)A tribe entering into an agreement shall, through its own governmental process, establish requirements that tribal cannabis licensees do all of the following:

(1)Adhere to tribally designated labor and worker-protection standards, including, but not limited to, minimum wage, employee training, and workplace safety requirements.

(2)Adhere to tribal law that is no less stringent than federal laws and state laws forbidding harassment, including sexual harassment, in the workplace, forbidding employers from discrimination in connection with the employment of persons to work or working for tribal licensees on the basis of race, color, religion, ancestry, national origin, gender, marital status, medical condition, sexual orientation, age, or disability, and forbidding employers from retaliation against persons who oppose discrimination or participate in employment discrimination proceedings, provided that punitive damages are not required to be included, and that nothing herein precludes the tribe from giving a preference in employment to members of federally recognized Indian tribes pursuant to a duly adopted tribal ordinance.

(3)Allow representatives of recognized labor organizations to communicate with employees of tribal licensees.

(4)Engage in good faith negotiations with designated representatives of recognized employee organizations, to the extent employees of the tribal licensee have agreed to be represented by that employee organization.

(b)For purposes of this section, “employee organization” means an organization that includes employees of the tribal licensee and that has as one of its primary purposes representing those employees in their relations with the tribal licensee.

26263.

(a)All tribal licensees shall participate in those state statutory programs relating to employment as provided for in this chapter, including, but not limited to, participating in the state’s workers compensation program, participating in the state’s program for providing unemployment compensation benefits, withholding all taxes due the state, and complying with all earnings withholding and assignment orders issued by California state courts.

(b)All tribal licensees shall participate in the state’s workers’ compensation program with respect to employees employed at commercial cannabis facilities in Indian country within the jurisdiction of the tribe. The workers’ compensation program includes, but is not limited to, state laws relating to securing the payment of compensation through one or more insurers duly authorized to write workers’ compensation insurance in this state or through self-insurance as permitted under the state’s workers’ compensation laws. If the tribal licensee participates in the state’s workers’ compensation program, it agrees that all disputes arising from the workers’ compensation laws shall be heard by the Workers’ Compensation Appeals Board pursuant to the Labor Code. The tribal licensee shall consent to the jurisdiction of the Workers’ Compensation Appeals Board and the courts of the State of California for purposes of enforcement.

(c)In lieu of participating in the state’s statutory workers’ compensation system, the tribe may create and maintain a system that provides redress for cannabis employees’ work-related injuries through requiring insurance or self-insurance that meets or exceeds the workers’ compensation coverage standards set forth in state law, including the provision of remedies for aggrieved workers. A tribe that elects to establish its own workers’ compensation system shall forward to the state all relevant ordinances that have been adopted and all other documents establishing the system and demonstrating that the system is fully operational and meets or exceeds the workers’ compensation coverage standards set forth in state law. Notwithstanding any other law, an entity that has both a tribal license and a state license may only provide workers’ compensation coverage through the state’s workers’ compensation program.

(d)All tribal licensees shall participate in the state’s program for providing unemployment compensation benefits and unemployment compensation disability benefits with respect to employees employed at a cannabis-related business located within Indian country under the jurisdiction of the tribe. Participation shall include compliance with the provisions of the Unemployment Insurance Code and the tribe shall consent to the jurisdiction of the state agencies charged with the enforcement of that code and of the courts of the State of California for purposes of enforcement.

(e)As a matter of comity, with respect to persons, including nonresidents of California, who are employed at commercial cannabis businesses licensed by the tribe, the tribal licensee shall withhold all taxes due to the state as provided in the Unemployment Insurance Code, and shall forward the amounts to the state. The tribal licensee shall file with the Franchise Tax Board a copy of any information return filed with the federal Secretary of the Treasury, as provided in the Revenue and Taxation Code and the regulations thereunder, except those pertaining to tribal members living in Indian country within the tribe’s jurisdiction. For purposes of this subdivision, “tribal members” refers to the enrolled members of the tribe.

26264.

(a)A tribe entering into an agreement shall impose and maintain a tribal retail sales tax that is equal to at least 100 percent of the combined amount of the state cannabis excise tax, imposed by Section 34011 of the Revenue and Taxation Code, and the state sales and use tax imposed by Part 1 (commencing with Section 6001) of Division 2 of the Revenue and Taxation Code, on all sales of cannabis or cannabis products in Indian country, subject to any mutually agreed-upon exemptions. Retail sales to members of the tribe taking place wholly in Indian country within the tribe’s jurisdiction may be exempted at the discretion of the tribe. The tribe may choose to levy a tribal tax on any transaction that is otherwise exempt.

(b)A tribe entering into an agreement shall impose and maintain a tribal cultivation tax on all harvested cannabis that enters the commercial market in either Indian country, the state, or both, that is equal to at least 100 percent of the state cultivation tax imposed by Section 34012 of the Revenue and Taxation Code.

(c)A tribe entering into an agreement shall agree to use the proceeds of the tribal tax for essential government services.

(d)The agreement shall provide for an independent audit of collection of the tribal retail sales tax and tribal cultivation tax to determine compliance with this section. The results of the independent audit shall be provided only to the tribal cannabis regulatory commission or agency and to the state. The state shall keep the audit results confidential.

(e)Commercial cannabis activity in Indian country is not subject to any sales or cannabis tax imposed by a local jurisdiction whose geographical boundaries contain the Indian country.

(f)The state agrees not to impose any fees, including escrow account fees, on a tribe under this agreement for cannabis products generated from a tribal source and sold on tribal lands.

26265.

(a)The tribe and the state shall agree to maintain regular and open communication regarding the administration and implementation of an agreement.

(b)The tribe and the state shall further agree, if either party believes that the goals and objectives of the agreement are not being met, to meet promptly to discuss any issues and concerns.

(c)The tribe and the state shall each designate one or more persons to serve as the designated primary contacts regarding administration of the agreement. Unless another contact is identified by the state, the Chief of the Bureau of Cannabis Control shall be the primary contact for the state regarding administration of the agreement.

(d)To facilitate regular and open communication with the state, the tribe shall ensure that a tribal representative is available to speak with representatives from the state’s licencing authorities on a continuous basis, 24 hours a day, seven days a week.

(e)The tribe and the state shall mutually agree to investigate instances of alleged noncompliance with the commercial cannabis regulatory programs upon request by the other and in accordance with mutually agreed-upon procedures. The tribe shall agree to reasonably cooperate with state investigations concerning persons or entities holding tribal licenses, and the state shall agree to reasonably cooperate with investigations by the tribe concerning persons or entities holding state licenses.

(f)The tribe and the state shall negotiate mutually agreeable procedures to address public health and welfare emergencies concerning cannabis or cannabis products that are cultivated, distributed, manufactured, or sold in Indian country within the tribe’s jurisdiction, including for the prompt recall of adulterated or misbranded cannabis or cannabis products. At a minimum, in situations concerning time sensitive health and safety matters, the tribe shall allow the state to enter Indian country within the tribe’s jurisdiction to conduct investigative activities, including the embargo or seizure of potentially adulterated or misbranded cannabis or cannabis products, within 12 hours of providing notice of the need for entry if the tribe or the tribal cannabis regulatory commission or agency fails to respond to the entry request within that time frame.

(g)The agreement shall further require the tribe to facilitate and assist state criminal enforcement activities against persons engaging in unlicensed commercial cannabis activities in Indian country within the tribe’s jurisdiction.

26266.

(a)The tribe shall adopt, and at all times shall maintain in continuous force, an ordinance that provides for all of the following:

(1)That California tort law governs all claims of bodily injury and personal injury arising out of the use of cannabis or cannabis products produced by a tribal licensee that would otherwise be shielded from liability by the immunity of the tribal government. The ordinance is not required to include punitive damages. The tribe may include in the ordinance a requirement that a person with claims for money damages against the tribe file those claims within the time periods applicable for the filing of claims for money damages against public entities under Division 3.6 (commencing with Section 810) of Title 1 of the Government Code.

(2)The waiver of the tribe’s sovereign immunity and its right to assert sovereign immunity with respect to the arbitration or resolution of claims in the tribe’s tribal court system, if a tribal court system is established. The ordinance shall allow for the dispute to be settled either in the tribe’s tribal court system, or by binding arbitration before a neutral arbitrator. The decision to choose either the tribal court system or a neutral arbitrator shall be at the claimant’s sole discretion. Resolution of the dispute before the tribal court system shall be at no cost to the claimant, excluding claimant’s attorney’s fees. The cost and expenses of the arbitration shall be initially borne equally by the parties and the parties shall pay their share of the arbitration costs at the time of claimant’s election of the arbitration option, but the arbitrator may award costs to the prevailing party not to exceed those allowable in a suit in superior court.

(3)To effectuate its consent to the tribal court system or arbitration in the ordinance, the tribe shall, in the exercise of its sovereignty, expressly waive, and also waive its right to assert, sovereign immunity in connection with the arbitrator’s jurisdiction and in any action to enforce the parties’ obligation to arbitrate, confirm, correct, modify, or vacate the arbitral award rendered in the arbitration, or enforce or execute a judgment based upon the award.

(4)The ordinance may also require that the claimant first exhaust the tribe’s administrative remedies for resolving the claim in accordance with the following standards:

(A)The claimant shall bring his or her claim within 180 days of receipt of written notice of the tribal dispute process, as long as notice is served personally on the claimant or by certified mail with an executed return receipt by the claimant, and the 180-day limitation period is prominently displayed on the front page of the notice.

(B)Arbitration shall be stayed until the completion of the tribal dispute process or 180 days from the date the claim is filed in the tribal dispute process, whichever occurs first, unless the parties mutually agree to a longer period.

(b)Upon notice that a claimant claims to have suffered an injury or damage covered by this section, the tribe shall provide notice by personal service or certified mail, return receipt requested, that the claimant is required within the specified limitation period to first exhaust the tribal dispute process, if any, and, if dissatisfied with the resolution, is entitled to arbitrate his or her claim de novo before a retired judge.

26267.

(a)As part of an agreement, the Governor may authorize commercial activity concerning the cultivation, manufacture, distribution, or sale of industrial hemp between persons or entities authorized by the tribe to conduct those activities in Indian country within the tribe’s jurisdiction and persons or entities authorized by the state to conduct those activities.

(b)The terms, if any, upon which the Governor authorizes commercial industrial hemp activity between a tribe and persons or entities authorized by the state shall be designed to create parity, to the extent possible, between the state’s regulatory program for commercial industrial hemp activity and the tribe’s regulatory program for commercial industrial hemp activity.

26268.

(a)A tribe entering an agreement shall engage in good faith discussions with each local jurisdiction whose geographic boundaries contain all or part of Indian country within the tribe’s jurisdiction to identify the impacts, if any, from commercial cannabis activity occurring in Indian country within the tribe’s jurisdiction, including increased utilization of public safety services, environmental, water, or energy impacts, or other mutually identified impacts. The tribe and local jurisdiction may enter into enforceable written agreements or a memorandum of understanding to mitigate the impacts.

(b)A memorandum of understanding between a tribe and a local jurisdiction pursuant to this section may include provisions to facilitate the mutual sharing of information between the tribe and the local jurisdiction concerning all licenses applied for, issued, or renewed under this division, including information concerning disciplinary actions against state or tribal licensees.

(c)The tribe shall require all tribal licensees to comply with the terms of each memorandum of understanding executed under this section, and the tribe shall investigate and discipline tribal licensees for violations of the memorandum of understanding, including through suspension or revocation of the tribal license.

(d)Each local jurisdiction that enters into a memorandum of understanding pursuant to this section shall investigate violations of the memorandum of understanding by persons or entities authorized by the local jurisdiction to engage in commercial cannabis activities. The local government shall discipline a person or entity who is authorized by the local jurisdiction to engage in commercial cannabis activity and who is determined to have violated the memorandum of understanding, including through suspension or revocation of the authorization to conduct commercial cannabis activity within the local jurisdiction.

26269.

(a)In recognition of the government-to-government relationship of the tribe and the state, the parties shall make their best efforts to resolve disputes that arise under agreements by good faith negotiation, when possible.

(b)Except for the right of either party to seek injunctive relief against the other when circumstances are deemed to require immediate relief, the tribe and the state shall seek to resolve disputes by first meeting and conferring in good faith in order to foster a spirit of cooperation and efficiency in the administration and monitoring of the performance and compliance of the terms, provisions, and conditions of the agreement, as follows:

(1)Either party shall give the other, as soon as possible after the event giving rise to the concern, written notice setting forth the facts giving rise to the dispute and, with specificity, the issues to be resolved. The parties may authorize persons other than the primary contacts referenced in subdivision (c) of Section 26265 to provide the notice required by this paragraph.

(2)The other party shall respond in writing to the facts and issues set forth in the notice within 15 days of receiving the notice, unless both parties agree in writing to an extension of time.

(3)The parties shall meet and confer in good faith by telephone or in person in an attempt to resolve the dispute through negotiation within 30 days after receipt of the notice set forth in paragraph (1), unless both parties agree in writing to an extension of time.

(4)If the dispute is not resolved to the satisfaction of the parties after the first meeting, either party may seek to have the dispute resolved by an arbitrator in accordance with this section, but neither party is required to agree to submit to arbitration.

(5)Disputes that are not otherwise resolved by arbitration or other mutually agreed-upon means may be resolved in the United States District Court in the judicial district where the tribal licensee is located, or, if the federal court lacks jurisdiction, in a state court of competent jurisdiction located in the County of Sacramento. The disputes to be submitted to court action include, but are not limited to, claims of breach of the agreement, provided that the remedies expressly provided in paragraph (2) of subdivision (e) are the sole and exclusive remedies available to either party for issues arising out of the agreement, and supersede any remedies otherwise available, whether at law, tort, contract, or in equity. Notwithstanding any other law or the agreement, neither the state nor the tribe shall be liable for damages or attorney’s fees in an action based, in whole or in part, on the fact that the parties have either entered into an agreement, or have obligations under an agreement. The parties are entitled to all rights of appeal permitted by law in the court system in which the action is brought.

(c)The tribe shall not be precluded from pursuing arbitration or judicial remedy against the state on the ground that the tribe has failed to exhaust its state administrative remedies. The state is not precluded from pursuing arbitration or judicial remedy against the tribe on the ground that the state has failed to exhaust tribal administrative remedies.

(d)The agreement shall provide that arbitration between the tribe and the state shall be conducted as follows:

(1)Arbitration shall be before a neutral arbitrator. Discovery in the arbitration proceedings shall be governed by Section 1283.05 of the Code of Civil Procedure, provided that discovery authorized by that section shall not be conducted without leave of the arbitrator. The parties shall equally bear the cost of arbitration.

(2)In an arbitration under this section, the parties will bear their own attorney’s fees.

(3)The arbitration shall take place within 75 miles of Indian country within the tribe’s jurisdiction, or as otherwise mutually agreed by the parties. The parties shall agree that either party may file a state or federal court action to enforce the parties’ obligation to arbitrate, confirm, correct, or vacate the arbitral award rendered in the arbitration in accordance with Chapter 4 (commencing with Section 1285) of Title 9 of Part 3 of the Code of Civil Procedure, or enforce or execute a judgment based upon the award. In an action brought with respect to the arbitration award, venue is proper in a state court located within the County of Sacramento or in a federal court located in the Eastern District of California.

(e)For the purpose of actions or arbitrations based on disputes between the state and a tribe that arise under an agreement and the enforcement of a judgment or award resulting therefrom, the state and the tribe expressly waive their right to assert their sovereign immunity from suit and enforcement of any ensuing judgment or arbitral award and consent to the arbitrator’s jurisdiction and further consent to be sued in federal or state court, as the case may be, provided that all of the following apply:

(1)The dispute shall be limited solely to issues arising under the agreement.

(2)Neither the tribe nor the state shall make a claim for restitution or monetary damages, except that payment of money expressly required by the terms of the agreement may be sought. Solely injunctive relief, specific performance, including enforcement of a provision of the agreement expressly requiring the payment of money to one or another of the parties, and declaratory relief that is limited to a determination of the respective obligations of the parties under the agreement may be sought.

(3)This subdivision does not constitute a waiver of the sovereign immunity of either the tribe or the state with respect to any third party that is made a party or intervenes as a party to the action.

(f)If intervention, joinder, or other participation by an additional party in an action between the state and the tribe would result in the waiver of the tribe’s or the state’s sovereign immunity as to that additional party, the waivers of either the tribe or the state provided herein may be revoked, except where joinder is required to preserve the court’s jurisdiction, in which case the state and the tribe may not revoke their waivers of sovereign immunity as to each other.

(g)The waivers and consents to jurisdiction expressly provided for in this section and elsewhere in this chapter shall extend to all arbitrations and civil actions expressly authorized by the agreement, including actions to compel arbitration, any arbitration proceeding herein, any action to confirm, modify, or vacate any arbitral award or to enforce any judgment, and any appellate proceeding emanating from any of these proceedings, whether in state or federal court.

(h)Except as stated in the agreement or this chapter, a waiver or consent to be sued, either express or implied, is not granted by either party, whether in state statute or otherwise.

26270.

(a)(1)If, at any time after the effective date of an agreement, the state enters into an agreement, compact, or consent decree with another federally recognized Indian tribe or governmental agency thereof dealing with the regulation of commercial cannabis in Indian country that includes a most favored nation provision, then, upon a tribe's written request, its agreement will be amended to include the same provision. This does not require that the state offer a tribe the option to receive the same terms offered to every other tribe or tribal government agency in the absence of a most favored nation provision in the agreement.

(2)For purposes of this subdivision, “most favored nation” means language by which the state agrees to accord a tribe or tribal government agency the same favorable terms that are offered in later agreements with any other tribe or tribal government agency.

(b)In an action filed by a third party challenging either the tribe’s or the state's authority to enter into or enforce an agreement, the tribe and the state shall support the agreement and defend each of their authority to enter into and implement this agreement. This provision does not waive the sovereign immunity of the tribe or any of its subdivisions or enterprises.

(c)An agreement shall remain in effect for 10 years, unless the tribe and the state mutually agree, in writing, that the agreement should be vacated or terminated and superseded by a new agreement between the parties within that time frame.

(d)An agreement shall be automatically renewed for successive periods of 10 years, unless the tribe or the state provides written notice to the other, no later than 120 days before the expiration of the then-current 10-year period, that it wishes to modify the terms of the agreement.

(e)Amendment or alteration of an agreement shall not arise by implication or course of conduct. An agreement may be altered only by a subsequent written document, approved by the tribe and the state, expressly stating the parties’ intention to amend the agreement.

(f)If a provision of an agreement or its application to a person or circumstance is held invalid, the remainder of the agreement is not affected.

(g)If the classification of cannabis as a Schedule I drug is altered in any way or federal cannabis enforcement policy changes, tribes that enter into agreements with the state shall meet and discuss with the state the need to modify the agreement. If those modifications cannot be agreed upon, then either party may terminate the agreement upon 60 days’ written notice.

SEC. 2.

 Chapter 23 (commencing with Section 26240) is added to Division 10 of the Business and Professions Code, to read:
CHAPTER  23. Agreements with Tribal Governments

26240.
 This chapter shall be known, and may be cited, as the Cannabis Regulatory Enforcement Act for Tribal Entities or the “CREATE Act.”

26241.
 A tribe entering into a tribal cannabis regulatory agreement with the Governor, as ratified by the Legislature, shall establish a tribal cannabis regulatory commission or agency pursuant to the tribe’s established governmental process.