FLANDREAU, S.D. (Aug. 23, 2021) – Last month, the first legal medical marijuana business opened in South Dakota, but it wasn’t in a place you might expect.
The Native Nations cannabis dispensary opened in Flandreau on July 1. Any person with a valid medical marijuana card from any state can buy medicinal cannabis at the facility The Flandreau Santee Sioux tribe owns and operates the business, located on reservation land.
Flandreau probably isn’t the first place you would expect to find a medical marijuana dispensary. Only about 2,200 people live in the town about 40 minutes north of Sioux Falls. But its status as a sovereign nation coupled with South Dakota’s legalization of medical marijuana last fall set the stage for the business to open even though the state’s program is far from up and running.
South Dakota legalized both medical and recreational marijuana through separate ballot initiatives in November 2020. A judge struck down the adult-use measure in a lawsuit authorized by Gov. Kristi Noem. The South Dakota Supreme Court is expected to rule on the suit in the near future.
Implementation of the state’s medical marijuana program has also been tangled in red tape. The state won’t begin issuing medical marijuana cards and state-licensed dispensaries aren’t scheduled to begin operating until next fall at the earliest. Legislative roadblocks may delay things even further. According to Forbes, the first medical marijuana sales may not begin until mid-2022. But the Native Nations dispensary can begin operating because of its location on sovereign reservation land.
An Obama-era Department of Justice memo deprioritized prosecuting cannabis businesses operated by federally recognized Indian tribes as long as they operate within state law. The Obama administration aggressively enforced federal marijuana laws through his first term, but was effectively forced to give up as more and more states legalized cannabis and refused to assist in the enforcement of federal prohibition.
Even though the state hasn’t begun licensing dispensaries or issuing medical marijuana cards, the state’s medical cannabis law went into effect on July 1, and the Native Nations dispensary can operate as long as it follows all of the state guidelines.
The Flandreau Santee passed its own cannabis regulations that apply within the boundaries of its reservation. The tribe will issue a medical marijuana card to anybody with a qualifying condition and will also recognize marijuana cards from other states. As the tribe’s Attorney General Seth Pearman explained, anybody who buys marijuana under the reservation’s own laws won’t risk prosecution even after they leave the reservation because its cannabis laws are consistent with state law.
“That individual will have legal protection under the law,” Pearman said.
According to Forbes, South Dakota authorities could try to take enforcement action against the business, but “that would be vastly unpopular.” It would also violate the reservation’s status as a sovereign nation.
Despite foot-dragging on implementing the state’s medical marijuana program, medical marijuana users have some protection under the law as of July 1. The South Dakota Department of Public Safety has issued guidelines law enforcement must follow when dealing with people who identify as medical marijuana patients. Police will not arrest individuals in possession of marijuana who meet certain qualifications. Under the guidelines, law enforcement “will not, at the scene of a stop or interaction, arrest a South Dakota resident who is unable to present an unexpired medical cannabis card,” as long each of the following apply.
- The individual possesses no more than three ounces of natural and unaltered marijuana, as defined by SDCL 22-42-1;
- The individual claims at the time of the interaction that the medical cannabis is to treat or alleviate a debilitating medical condition as defined by the Department of Health;
- The individual produces printed or electronic documentation relative to the debilitating medical condition from a licensed medical doctor.
EFFECT ON FEDERAL PROHIBITION
While marijuana has become more widely accepted across the U.S., under federal law, it remains illegal. As we’ve seen with immigration sanctuary cities, when state and local enforcement ends, the federal government has an extremely difficult time enforcing their acts.
Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.
Despite federal prohibition, South Dakota voters approved medical marijuana and removed a layer of laws punishing the possession and use of cannabis in the state, but federal prohibition remains in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.
Furthermore, figures indicate it would take 40 percent of the DEA’s yearly budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.
A GROWING MOVEMENT
Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019. New Jersey, Montana and Arizona all legalized recreational marijuana through ballot measures in the 2020 election. Earlier this year, New York, New Mexico, Virginia and Connecticut legalized marijuana through legislative action.
With 36 states allowing cannabis for medical use, and 18 legalizing for adult recreational use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.
The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations, or mandates down our throats.
The move to legalize recreational marijuana in Ohio highlights another important strategic reality. Once a state legalizes marijuana – even if only in a very limited way – the law tends to eventually expand. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. These new laws represent a further erosion of unconstitutional federal marijuana prohibition.
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