United States Supreme Court Issued an Opinion in the McGirt Case That Found That the Northeast Half of Oklahoma Is Tribal Land
Video Transcribed: Hey cannabis business owners in Oklahoma. Did the recent Supreme Court case of McGirt just make medical marijuana illegal in half of Oklahoma?
I’m Tulsa attorney James Wirth and we’re about to talk about the potential affects the McGirt decisions has on the medical marijuana industry in Oklahoma.
So on July 9th of 2020, the United States Supreme Court issued an opinion in the McGirt case that found that the Northeast half of Oklahoma is actually tribal land. It’s actually part of a tribal reservations from the five tribes.
The court made a finding specific to the Muscogee Creek Nation, but the impact of it is that the same reasoning will likely apply to the five civilized tribes which cover about half of the
Northeast side of the state. And what that means is that when we thought that those reservations, established most recently in 1863, that we thought that those were disestablished either as part of Oklahoma becoming a state, or over the passage of time thereafter through a multitude of things that occurred over the years.
The United States Supreme Court says no, they were never actually disestablished and all of that portion of the state is still part of Indian country, is still part of the reservations.
So how does that affect medical marijuana businesses and medical marijuana itself in Oklahoma? Well, there’s still some debate on that. There’s a lot of people that say it’s not going to have any effect at all. There’s a lot of people that are screaming that it changes everything. Well, nothing has happened so far. About a couple of weeks have passed since that decision came down. There’s been no extreme changes yet, but there’s definitely some concerning things. And the people out there that say it’s all going to be all right, I have not seen them answering these concerns.
So it does make sense to address these. So what are the potential ramifications? Well, first off, in Oklahoma law, we’re dealing with both statutes and regulatory and Indian land is referenced as part of that. So specifically in Oklahoma statutes Title 63 Section 430 that deals specifically with medical marijuana waste disposal licenses, it says as part of Oklahoma law, that in order to get one of those license, you have to attest, you have to swear under oath, that your business or commercial entity will not be located on tribal land.
Well, now most of Tulsa is tribal land. Most of Northeast Oklahoma is tribal land under the McGirt decision. So that’s a problem. And you have to renew those licenses. When you do, you also have to attest that it’s not on tribal land. But that statute just applies to the medical marijuana waste disposal because that was decided by the Oklahoma legislature, not by a proposition.
The other medical marijuana industry initially was created under 780 and that was through proposition and it doesn’t have that language, but what it does have is the authority from the regulatory agency and the Oklahoma State Department of Health has put forward rules regarding the regulation, and those rules require for licensing an applicant for a commercial establishment license or renewal thereof shall submit a form and they also have to attest under oath to certain things, and part of the things that they require under Oklahoma regulation is an attestation that the commercial entity will not be located on tribal lands.
Well, that means that pretty much anybody in Northeast, Oklahoma, that has a medical marijuana business, a cannabis business, that has been licensed has sworn under oath that they’re not on tribal land and it turns out they may not have been telling the truth. Of course, nobody knew it at the time, but according to McGirt, Northeast Oklahoma, most of Northeast Oklahoma, has been tribal land, has been reservation land since at least 1866 to the present. So those are false statements that were made under oath.
Now, I don’t think anybody’s going to be charged with perjury or anything like that because certainly nobody that was signing those knew that it was tribal land, but now we’ve got the problem when people go for renewals, how do you answer those questions? Because it’s tribal land. And how are those issues going to be flushed out? That’s yet to be seen, but it’s definitely a concern.
So that’s the one big concern. Another big concern is that now that this part of the country is tribal land, there’s some dual sovereignty, and the tribe is able to regulate issues as part of that, so there’s a concern that there may be travel regulations in addition to state regulations regarding the industry. That’s not going to happen immediately because of problem number three.
Problem number three is most of those tribes, if not all of those tribes, have not legalized medical marijuana. Once Oklahoma did, many tribes came forward with statements. In the media, there were media stories talking about saying, Hey, just because Oklahoma made medical marijuana legal, remember it is still illegal under tribal law. So if you’re on tribal land, then you’re not going to want to participate in that because it’s illegal.
Well now tribal land just got way more expansive and the tribes still has limits on who they can prosecute. They, for the most part, can’t prosecute non tribal members, but for tribal members now, anywhere pretty much in Northeast Oklahoma with limited exceptions, if they’re using medical marijuana that’s perfectly legal under Oklahoma law, it’s still illegal under tribal law and they could be arrested and prosecuted by tribal authorities.
I don’t think that started to happen yet, and my guess is that the tribes probably aren’t going to start doing that anytime soon, but those are decisions that the tribes are going to have to make and that everyone else is going to have to make is how to deal with this. Do they need to change their laws? They can allow their laws to still be on the books and just not enforce them, or are they going to come up with a way to legalize it in order to provide their own regulatory and taxing of it?
So those are all concerns. So some people might say, well, I mean, technically the whole industry is illegal under federal law, and that hasn’t caused us any problems, so we shouldn’t expect that it being illegal in tribal law is going to cause any problems. Well, that reasoning doesn’t necessarily make sense because there are limitations on what the federal government is able to do that don’t generally apply to tribal governments, although tribal governments have separate limitations.
So essentially what that comes from, and what I want to talk about, is under federal law, they’re limited by the constitution, and the constitution has enumerated authorities for the federal government and we have the 10th amendment, which says, “The powers not delegated to the United States by the constitution nor prohibited by it to the States are reserved to the States respectively or to the people.” So anything not specifically enumerated as being under the federal control is reserved for the states.
So how is the federal government able to control medical marijuana? Well, most things like that, they get through through the commerce clause, which is enumerated, and the commerce clause says, “The Congress shall have the power to regulate commerce with foreign nations and among the several states and with the Indian tribes.” So in order to keep the federal government out of the medical marijuana industry in Oklahoma, a lot of thought and attention was put into we need to have the medical marijuana industry in Oklahoma and not impact interstate commerce. We need to keep it all in Oklahoma.
So a lot of the regulations talk about can’t cross state lines, everything has to stay in Oklahoma. You have to be an Oklahoma resident. All of those things are at least partially designed to keep the federal government out of it so as not to cause a conflict with federal law.
So as long as it doesn’t affect interstate commerce at all, then the medical marijuana industry was fine here. But we have seen in California with the Gonzalez case that the standards for affecting interstate commerce are extremely low. So there always was some risk that the feds might get involved, but there’s not the political will to do that in the current climate.
However, these restraints related to interstate commerce, not applicable to the tribe. They don’t have that limitation, one, and two, now that this is actually tribal land, they’re right there in it. And it also potentially opens more up to the federal government because now that the tribes are involved, you can look at the commerce clause and it deals with not only interstate commerce, but commerce with the tribes.
So that actually opens the door, perhaps to the extent that it was closed by limitations on the commerce clause, opens it up by this being tribal land. So all of these things put together, it should be concerning. Not nightmare scenario. Shouldn’t keep you up at night right away, but medical marijuana businesses, the cannabis industry in Northeast Oklahoma needs to be aware of these concerns and look out for how they’re being resolved and being proactive to make sure that their businesses are protected because things definitely could happen. There are risks here.
And anybody out there that’s saying, it’s all going to be fine. Well, that may be the case, but unless they’ve got answers to these issues, they don’t know. They’re just being hopeful. And I think it’s better to be prepared than just to be hopeful on those. So with my office, we actually have a Cannabis business attorney, Isaiah Brydie with oklahomamedicalmarijuana.attorney, who almost the entirety of his practice is involved with helping cannabis businesses in Oklahoma. So if you are in that industry, have questions, have concerns, issues going on, contact my office. You can do that by going to makelaweasy.com. We can get you with Isaiah Brydie and see if he can answer those questions for you.