In hopes of assuaging uncertainty about medical marijuana law enforcement after a Supreme Court decision ruled much of eastern Oklahoma to be reservation land, one tribe has passed new legislation protecting licensed patients.
Muscogee (Creek) Nation will allow specific exemptions related to medical marijuana within the reservation boundaries. Federal and tribal law does not recognize cannabis as a legal drug, and a Tulsa attorney spoke out early to warn licensed patients of McGirt’s possible legal ramifications.
Under the new legislation, patients with state licenses would be exempt from the tribe’s Title 14, regarding being in possession of a controlled dangerous substance, as long as they are in compliance under Oklahoma law.
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The tribe had established a task force after the McGirt v Oklahoma ruling to address jurisdictional issues likely to arise from the decision.
The recommendation on medical marijuana legislation from the task force, the Mvskoke Reservation Preservation Commission, seeks to “give clarity and eliminate uncertainty as to whether the Nation will enforce any criminal law against anyone who possesses a valid medical marijuana license.”
The new law states, “it shall not be unlawful for any person to grow, process, dispense, test, possess, or use marijuana in any form in the Nation’s Indian country under a valid medical marijuana license issued by the Oklahoma State Department of Health as long as such person is in compliance with all medical marijuana license laws and regulations under Oklahoma State law.”
Principal Chief David Hill said in a statement the legislation is an example of the tribe exercising its sovereignty while addressing public safety issues within the reservation.
“Furthermore, this is a pro-business action by the Commission and commitment to individuals and entities licensed in medical marijuana endeavors throughout the reservation,” Hill said.
According to a statement from the tribe, the task force plans continued analysis to develop further recommendations regarding medical marijuana, possible regulatory and taxation authority, and economic development opportunities.
The Cherokee Nation early this year signaled its desire not to stand in the way of legalized medical marijuana; a Jan. 15 policy change prohibits discrimination of applicants and employees based on drug screens positive for THC.
“Landscapes are changing, and the Cherokee Nation needed to modernize its HR policies to reflect those changes,” Principal Chief Chuck Hoskin Jr. said then. “I am committed to ensuring that we support all valid (physician-supported treatments).”
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Can’t get a prescription for marijuana
Marijuana is listed as a schedule 1 controlled substance in federal law, so it cannot be prescribed, only "recommended."
A Ninth Circuit Court ruling ensures protection for doctors who issue recommendations to patients who may benefit from cannabis-based treatments, but federal law precludes doctors from “aiding and abetting” patients obtaining marijuana. This means doctors and patients cannot discuss dosages, strains or specific cannabis products for treating a specific ailment. Doctors instead fill out a form indicating they have discussed the risks of marijuana use with the patient and feel the benefits are worth the treatment.
Some patients who see physicians for pain and are treated with opioids also may not be able to do so and use medical marijuana as a licensed patient.
Can’t use marijuana in the workplace or be impaired on the job
State Question 788 says only that an employer may not discriminate against an employee simply because of their status as a medical marijuana patient. This means that simply having a license cannot be grounds for termination or discipline. That employer can still, however, write and enforce rules that restrict the use of marijuana by employees just like any other controlled substance. No patients would be protected if they come to work high, use marijuana in the workplace or attempt to do their job while impaired.
Can’t transport marijuana across state lines
Patients who obtain medical marijuana cards in other states may purchase from dispensaries there, but the products may not be brought back to Oklahoma. Nor could a patient travel to a state with a recreational marijuana law and bring any legally obtained products back to Oklahoma. Those patients who plan to cultivate marijuana at their own homes would also not be permitted to obtain seeds from another state.
Can't get a doctor's recommendation inside a dispensary
A change to the law made it illegal to post a physician inside a medical marijuana dispensary, as this one did, for customers to sign up as patients inside the retail business operation.
Can't try the product while shopping
The use of any cannabis product is prohibited inside a licensed medical marijuana business, so patients should not expect samples like what some CBD shops have been able to offer.
Can’t smoke marijuana where tobacco also prohibited
The law makes cannabis like tobacco when it comes to public consumption by falling under the Smoking in Public Places and Indoor Workplaces Act.
Can't give marijuana away
Nothing in the law allows for patients to transfer ownership of marijuana. Patients cannot donate or sell marijuana, even to other patients. Licensed patients may cultivate marijuana on their own residential property or, with written permission, on rented property. They cannot grow outdoors unless the plants are surrounded by a locked 6-foot fence. If the yield of the plants at harvest surpasses the legal amount that may be in a patient’s possession, the marijuana must be either processed or destroyed. Patients may process their own marijuana for concentrates or edibles but would not be permitted to perform extractions using butane.
Can’t drive while impaired on marijuana
Although it is legal for patients to have a certain amount of marijuana on their person, if that patient is behind the wheel, a law enforcement officer will evaluate whether the person is at all impaired. Driving while under the influence remains illegal even for medical marijuana patients.
Can’t possess an excessive amount of marijuana
A patient remains within the legal guidelines if they possess no more than 3 ounces of marijuana on their person and 8 ounces at their residence, 1 ounce of concentrated marijuana, and 72 ounces of edible marijuana. If caught exceeding those limitations, a patient would lose their license and could face criminal charges including intent to distribute or trafficking.
Can't smoke where you're told not to
