Guest column: Marijuana prohibition re-established in Chickasaw nation
As the fallout from the U.S. Supreme Court’s decision in McGirt v. Oklahoma continues to be felt in our community, one unforeseen consequence is what amounts to the reversal of State Question 788 as it relates to Indians within the boundaries of the Chickasaw Nation.
Post-McGirt, the state of Oklahoma does not have jurisdiction to prosecute members of any federally-recognized Indian tribe for crimes that occur within the boundaries of the Chickasaw Nation.
Instead, enforcement of criminal laws lies exclusively with the federal government and the Chickasaw Tribal Court, depending on the type of crime alleged.
The federal government has a long-standing policy of not prosecuting marijuana offenses when those offenses are considered legal under the laws of the state where they occurred.
The Chickasaw Nation has no such policy and their Code does not provide a clearly-worded exception for holders of OMMA business or patient licenses.
I was contacted last weekend by an individual who was arrested, jailed for three days, and charged for possessing less than one ounce of medical marijuana.
The Lighthorse Police Officer who arrested this man informed him that his status as an OMMA patient license holder was not relevant, and I have since confirmed that the Chickasaw prosecutors share the same opinion and are actively prosecuting these cases.
Section 17-402.2 of the Chickasaw Code prohibits the possession of any controlled dangerous substance, including marijuana, “unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his or her professional practice.”
Since the Oklahoma Medical Marijuana Authority requires a referral from a licensed physician, I plan to argue that a medical marijuana card is “pursuant to a valid prescription,” but the Chickasaw legislature should amend their code to specifically provide protection for those individuals.
The Choctaw Nation addressed this issue on April 20, when their tribal council voted 11-1 to decriminalize marijuana possession for Indians who possess marijuana pursuant to an OMMA patient or business license within their boundaries.
It is doubtful that the Chickasaw Legislature or Chickasaw Governor Bill Anoatubby ever intended for Indians to be arrested and prosecuted for possessing marijuana pursuant to a state license, but action must be taken to ensure that what happened to my client does not happen to the thousands of Indians who rely on medical marijuana for their health or livelihood.
On September 18, I emailed the entire Chickasaw Legislature asking that their Code be amended to provide protection for OMMA patient and business license holders.
I have received information that at least two Chickasaw legislators and several other high-ranking officials within the Chickasaw Nation, are actively involved in the cultivation and distribution of medical marijuana, which would lead me to believe that they will amend their laws quickly to avoid continuing to break the law themselves.
In the meantime, if you are a member of ANY federally-recognized Indian tribe, you are subject to arrest within the boundaries of the Chickasaw Nation if you are caught with ANY amount of marijuana in your possession.
This would include any product containing any amount of THC, including raw marijuana plants, and includes not only patients, but also owners and employees of medical marijuana businesses.
If you are Chickasaw, I would highly recommend that you contact your tribal legislator and ask that they immediately amend their code to correct this issue.
If you come in contact with law enforcement, never admit to having marijuana in your possession or consent to a search of your vehicle, home, or person.
If you, or a loved one, find yourself in this position, please immediately contact an attorney licensed to practice in the Chickasaw Tribal Court.
— Jason May is a defense attorney located in Ardmore.