Montana hemp legalization raises questions for CSKT

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Char-Koosta News 

PABLO — On January 1, 2022, Montana will see its first legal recreational marijuana sales since the Montana Legislature passed Initiative-190 on November 3, 2020. The initiative legalized the possession, use and cultivation of limited amounts of marijuana for adults age 21 and over.

What does this mean for tribal members on the Flathead Reservation? 

Montana residents are allowed to possess, use and grow marijuana in the state but on the Flathead Reservation it is still illegal for tribal members of CSKT and any other federally recognized tribe until CSKT Tribal Council decides otherwise.

On June 10, the Tribal Council met with the Legal Department and the Law Enforcement Department to discuss the issues and concerns of marijuana in Montana, and the possible routes for the Tribes to take related to the legalization of marijuana in Montana.

History of Hemp in Montana

Tribal Council met with Legal Department attorneys Shane Morigeau, Michael Wheeler, Rhonda Swaney and Jordan Thompson along with stakeholders who work in Law Enforcement, and the Defender’s Office to continue ongoing marijuana/hemp discussions. The attorneys shared with Council the history and status of marijuana laws on the Flathead Reservation, in Montana, and the United States.

Marijuana in Montana became illegal in 1929 and remained so until 2004 when the state legislature passed medical marijuana initiative I-148. Morigeau said, since then I-148 has protected patients, doctors and caregivers. 

CSKT’s history with marijuana laws in Montana began in 2010 when the Tribes chose to not adopt the state’s new medical marijuana law. Wheeler presented a brief summary of CSKT’s history, and the Tribes’ laws codified (2-1-102, 2-1-103, 2-1-1401, 2-1-1402, 2-1-102) that need to be reviewed and revised to make sure they are consistent with enforcement. Wheeler said, updates to CSKT laws were coming whether the Tribes do any decriminalization and that they’ve already identified issues in the code revision group. 

In 2011 Montana’s voter initiative was repealed and the Medical Marijuana Act (Senate Bill 423) was passed; it included cultivation, manufacturing, and possession by people with debilitating conditions. Morigeau said, SB-423 crippled the marijuana industry and was challenged in the Montana Supreme Court in 2016. In 2016 initiative I-182 was passed and it created licenses, and allowed for medical marijuana dispensaries, employees, transport and testing labs. 

The 2020 ballot marijuana legalization initiatives I-118 and I-190 passed. I-190 states that an individual 20 years or older could possess, obtain, use, ingest, inhale, transport, and deliver one ounce of marijuana. 

House Bill-701 passed May 18, 2021, and revised the recreational marijuana framework that was set up in I-190. HB-701 imposes a 20 percent tax on recreational marijuana sales. The states’ projected annual revenue of $6 million from marijuana sale will go towards drug addiction treatment programs; 20 percent towards conservation efforts; four percen or up to $650,000 each will go to state parks, trails and recreational facilities, and wildlife protection; up to $200,000 to veterans services and improvements for veterans cemeteries; $300,000 towards one time purchase of drug detection dogs; $150,000 towards a one-time police training; and the remaining amount will go to the states’ general fund. 

Morigeau said, HB-701 did create a combined use license for Tribal Nations in Montana and under the legislation each can utilize a license within 150 miles from their respective reservation boundaries. 

Council inquired about tax revenue but as of now there’s uncertainty surrounding how much revenue recreational marijuana taxes will bring in. Councilwoman Ellie Bundy noted that $1.8 million was brought in from Montana’s 4 percent medical marijuana tax in the first 13 months. 

Effects on Law Enforcement

Thompson reviewed the history of marijuana at the federal level. He said, in the early 20th Century it was freely available at drug stores in liquid form — smoking was largely unknown until the first part of the century. The United States began outlawing cannabis in the 1910s, ‘20s, and ‘30s. In the 1970s as a result of President Richard Nixon’s War on Drugs, Congress passed the Controlled Substance Act that scheduled it as a level 1 drug (most dangerous drug, no medical value) which is the same schedule as heroin, LSD, and ecstasy.

Tribal Police Captain Louie Fiddler provided Council with some insight from the Law Enforcement Department perspective. Fiddler said, he took it as an opportunity to reach out to everyone in his department to get their feelings on the marijuana issue.

Fiddle said, “First and foremost we’re here to assert the law.” 

In his department, he said, one thing everybody brought up was the unfair treatment of tribal members. They have done several traffic stops and contacts on the street where there’s a tribal member and non-member, and they both possess a small amount of marijuana, but the tribal member goes to jail. Fiddler said, that none of the Law Enforcement officers are in favor of that scenario.

Some in the department look at this as a losing ground in some respect and feel like it’s a step in the wrong direction because the laws are the law and it’s an illegal drug in their eyes, Fiddler said. 

Defenders Office attorney Jim Gabriels said, “Marijuana is here and we are going to have to deal with it.” He also brought up the fairness issue Fiddler talked about saying they have some equal protection considerations to think about.

Gabriels said there are bigger problems that have to be addressed. When the Tribes adopted the Montana Criminal Code in 1994 as a part of partial retrocession, the CSKT adopted Montana Law Title 45 Chapter 9 (Crimes: Dangerous Drugs). Council didn’t say anything about whether amendments to the code were automatically adopted by the Tribes or not and this clarification to the criminal law has to happen.

“If you decriminalize, I think it’s the right thing to do in fairness to the people,” Gabriels said. “(It) makes the most sense in terms of enforcement of the criminal law uniform across the reservation.” 

Gabriels said that if Council decides to decriminalize marijuana possession, they wouldn’t get in trouble with the Feds because with Public Law 280 in place. As a result, the CSKT would be adopting the Montana decimalization law and that he doesn’t think it’s a big issue. 

Defenders Office managing attorney Ann Miller said, with their current caseload they have more pressing matters in Tribal Court to deal with. She said, there’s an explosion in substance abuse and mental health issues, and that representing marijuana charges isn’t related to the explosion.

Data shows marijuana is not a gateway drug; the gateway is trauma to substance use disorder. “Using the criminal justice system to deal with addictions related to marijuana isn’t something we need to target at this point,” Miller said.

Miller said, charges and convictions of marijuana create collateral consequences contributing to more people cycling through the legal system. A misdemeanor drug charge of marijuana or paraphernalia can lead to incarceration for a fine that isn’t paid or court appearances that are not made; this can start a cycle that leads to bigger issues, she said.

“Why would we want to add another reason to allow people to be cycling through the system,” Miller said. “Especially when it applies to members and it doesn’t apply to non-members. That contributes to fairness issues.” She said, it seems fundamentally unfair and that it contributes to the disparity of the state justice system and disparities of tribal members in the state’s system. 

Currently there are 375 CSKT…

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