There Is a Risk of Prosecution for a Felony If You Are a Tribal Member
Video Transcribed: Is first offense, simple possession of marijuana in Oklahoma, a felony again? I’m Tulsa Criminal attorney James Wirth, and the answer to that question is yes, for some people. So let me give you a little bit of the background.
So the laws in Oklahoma and elsewhere regarding controlled and dangerous substances, they have five different schedules for lists of drugs going from the more serious to the less serious, Schedule 1, 2, 3, 4 and 5.
Marijuana is listed at Schedule 1 at the federal level, the state level and at the Muskogee (Creek) Nation tribal level. However, in Oklahoma, although initially marijuana was a felony, it was removed from the level of being a felony decades ago and had been prosecuted as a first offense for a misdemeanor.
However, more recently with State Question 780, all controlled and dangerous substances in Oklahoma for first offenses became misdemeanors. And that’s the way that it’s been for the last couple of years. And then with State Question 788, medicinal cannabis was legalized and regulated in Oklahoma.
So as long as you have your medical marijuana card, you can visit a… I’m sorry, three ounces of marijuana on your person or eight ounces at your home. And you can grow yourself, at home, a maximum of six mature plants and six seedlings.
So what has changed recently? Well, the United States Supreme Court decision in McGirt found that most of Tulsa County and much of the surrounding counties in Northeast, Oklahoma are Muskogee (Creek) Nation reservation land.
That that reservation was never disestablished through statehood, so it’s still under the criminal jurisdiction of the tribe for tribal members.
So for determining what the punishment is and what the crime is for a simple first offense, possession of marijuana, if you’re a tribal member, whether it’s membership of that tribe or another tribe, and you’re on the reservation land, meaning most of Tulsa and all of Okmulgee and all of many of the surrounding counties, you’re under that jurisdiction.
So what does that code say? Well, that code says that possession, simple possession, first offense of marijuana is a felony.
They have not removed it with the other schedules to have it for a different punishment, like the state previously had it. So all CDS on a Muskogee (Creek) Nation tribal code, simple possession for all of it, first offense, is a felony.
And the punishment initially for that was up to a year imprisonment. However, it was amended in December of 2010 to make the punishment up to three years in jail.
And I’ve heard that they actually are prosecuting those as felonies. Prosecutors do have discretion to decide what to file and what not to file. But my understanding is these are being filed.
So, you’ve got to be careful because having a State of Oklahoma OMMA medical marijuana card is not going to help you, because tribal doesn’t necessarily recognize that. Now these are all new things that are going on since the McGirt v Oklahoma in June of 2020.
So, we may see changes in the law and how to deal with this. But as of right now, there is a risk of prosecution for a felony if you are a tribal member, any tribal member, and you are possessing on Muskogee (Creek) Reservation land.
If you have any questions about that scenario, find yourself in trouble and need to speak with an attorney, want more specifics regarding your circumstances, you can contact my office by going to makelaweasy.com.