The Fort Peck Reservation this week is a case study in the inter-jurisdictional issues that shadow the medical marijuana trade.
Lt. Patrick O'Connor of the Roosevelt County Sheriff's Office was trying to clear up enforcement questions for a Wolf Point dispensary owner. At a meeting with Fort Peck Tribal Council members Thursday, he got his answer.
"Today, in council, they talked about it for a long time," he said. "It’s official: Marijuana is not legal to possess for tribal members anywhere on the reservation.”
But for non-tribal members, medical marijuana can be purchased and possessed under state law. O'Connor said that this might present an issue in Wolf Point, which is on the Fort Peck Reservation. A large portion of the dispensary's customer base are enrolled tribal members.
It adds another wrinkle into the legal story of medical marijuana. There's already ambiguity created from differences in state and federal law. Montana law allows medical marijuana, while the substance remains an illegal drug under federal law.
On reservations, tribal governments are sovereign but get oversight and funding from the federal government. State law is less applicable there, O'Connor said.
That's why in this case, the Fort Peck Tribal Council outlaws medical marijuana under federal law and its own tribal law, despite a legal state program. Council members said during Thursday's meeting that they didn't want to risk federal funds.
For law enforcement, it affects how different people are policed. Officers there are cross-deputized, meaning a Roosevelt County deputy can enforce state law in the county or tribal law on the reservation.
O'Connor gave a hypothetical example. Say he's dealing with two people in possession of marijuana on the reservation, and both of them have legal medical marijuana cards from the state of Montana. If one is an enrolled tribal member and one isn't, then O'Connor has to enforce tribal law on the tribal member and state law on the other.
“If the tribal member has a green card and marijuana on the reservation, essentially I have to charge him,” he said.
The non-tribal member would be in the clear.
Medical marijuana on the reservation
In January 2015, the Fort Peck Tribal Council passed a resolution to allow medical marijuana on the reservation by late spring. The intent was to recognize Montana's medical marijuana card system for enrolled tribal members.
That came months after the U.S. Department of Justice urged federal prosecutors and law enforcement to take a hands-off approach to marijuana enforcement in Indian Country. The focus should be on high-level activities like trafficking and selling to minors, according to the memo.
That policy was an extension of the Cole Memo, which dealt more broadly with marijuana enforcement in states with legal recreational or medical marijuana.
Under the Trump administration, the DOJ rescinded previous marijuana policies like those in the Cole Memo. That raised questions for states that have been increasingly easing laws against marijuana.
As for the Fort Peck Tribal Council's resolution, it was never enacted.
The U.S. Bureau of Indian Affairs is required to sign off on all tribal resolutions. Council members said Thursday that, because BIA is a federal entity, it couldn't violate federal law to sign the resolution, according to videos of the meetings.
“It’s missing the signature of the superintendent of the BIA," said O'Connor, who spoke with the council at Thursday's meetings. "The superintendent of the BIA can't sign it because it would be violating federal law.”
Asked to clarify the BIA's position on marijuana on reservations, bureau spokeswoman Nedra Darling sent a statement saying that marijuana is illegal under federal law, and Congress has not passed a law to change that.
Thus, the original Fort Peck Tribes law prohibiting the sale or possession of marijuana remained unchanged.
Meanwhile, a medical marijuana provider opened a dispensary in Wolf Point. The owner declined to comment for this story.
After months of debate, the Wolf Point City Council passed an ordinance in June to allow dispensaries in the town and regulate their zoning. Many other cities in Montana have done the same.
Mayor Chris Dschaak said because the town is on the Fort Peck Reservation, they tend to work closely with the tribal government. In this case, he said they ultimately decided they shouldn't turn away a business that's legal by state law.
“I don’t think that we overstepped our bounds in doing what we did," Dschaak said. "We were operating on a states' rights issue, a state law issue.”
The dispensary is owned by a non-tribal member. Before, the business would have to differentiate between those who are registered medical marijuana cardholders and those who aren't. Now another distinction must be made between tribal and non-tribal members.
Wolf Point is the town at the center of all this. Enrolled tribal members and non-members live there. County, state and tribal law enforcement have presences there. The laws of separate jurisdictions overlap in some places.
Some are allowed access to medical marijuana. Others are not.
“The separate set of laws are even more confusing now,” Dschaak said.