Cherokee establishes medical cannabis program
The Eastern Band of Cherokee Indians will establish a medical marijuana program on tribal lands even as the drug remains illegal in the state of North Carolina, following a divided vote on Thursday, Aug. 5.
“It’s been surreal,” said Governmental Affairs Liaison Jeremy Wilson, one of the ordinance’s three submitters. “It’s one of those feelings where you spend four years on something, and it finally happens and you’re not really sure how to feel. It’s very exciting — we just want to make sure we do it right.”
SEE ALSO: Medical cannabis advancing through General Assembly
Wilson has been advocating for legalization of medical cannabis since his election to Tribal Council in 2017. He lost his re-election bid in 2019 but continued his efforts after Principal Chief Richard Sneed hired him to his current position in the executive office. Sneed and Secretary of Agriculture and Natural Resources Joey Owle have also been proponents of the program, and their names are listed on the 42-page ordinance’s “submitted by” portion as well.
Creating the framework
The ordinance creates the legal framework for a medical cannabis program, but many of the specific regulations have yet to be created, as it will be the job of a newly created board to write them. Wilson said that his “hopeful timeline” is that 12 months from now, medical cardholders will be able to purchase cannabis from a dispensary on the Qualla Boundary, but that timeframe could easily change depending on how things progress.
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The ordinance creates a new Eastern Band of Cherokee Indians Cannabis Advisory Commission that will study cannabis-related issues and make regulatory recommendations. Meanwhile, a new EBCI Cannabis Control Board will set the regulations.
The seven-member Advisory Commission will consist of the principal chief, Tribal Council chairman, Community Club chair, secretary of agriculture and natural resources, secretary of public health and human services, chief of police and CEO of the Cherokee Indian Hospital Authority. Any of the named members may appoint a designee in their stead to serve up to three consecutive two-year terms on the board. Commission members will not be compensated for their service.
Members of the five-person Control Board, however, will receive a salary — $40,000 for the chairman and $30,000 for other members. The principal chief nominates members, and Tribal Council confirms them.
The membership must include at least three members of the EBCI or another federally recognized tribe. Beyond that, it must include a certified public accountant with at least five years of experience and comprehensive knowledge of corporate finance; somebody with training and experience in investigation, financial auditing or corporate compliance; a licensed attorney with expertise in regulatory compliance; and somebody with knowledge and expertise in the cannabis industry. The version of the ordinance attached to the agenda stipulated that the fifth member be a physician. But Associate Attorney General Vince Hyatt told Council that a new version passed out the day of the vote — but not made available to The Smoky Mountain News — stated that the member must be “very well versed” in a medical field such as mental health or public health but need not be a physician.
“I wasn’t sure if actually being part of the Cannabis Control Board could put someone’s (medical) license at risk,” he explained.
The new version contained some other substantive changes as well, which Hyatt outlined to Council.
The ordinance ultimately passed with eight councilmembers in favor and four opposed, for a weighted vote of 74-26. In favor were Wolfetown Representatives Chelsea Saunooke and Bo Crowe; Birdtown Representatives Albert Rose and Boyd Owle; Big Cove Representatives Perry Shell and Richard French; Snowbird/Cherokee County Representative Bucky Brown and Chairman Adam Wachacha. Opposed were Painttown Representatives Tommye Saunooke and Dike Sneed, Yellowtown Representative Tom Wahnetah and Vice Chairman David Wolfe. Tommye Saunooke said during the meeting that she was in favor of medical marijuana but opposed to voting on the ordinance minutes after a final version was handed out.
The law requires ratification from Chief Sneed to become effective, which can take place after the 10-day protest period expires Aug. 15.
Secretary of Agriculture and Natural Resources Joey Owle addresses Tribal Council Aug. 5. EBCI image
‘Seed to sale’
Cherokee’s medical marijuana program will be a “seed to sale” operation controlled by Kituwah Medical LLC, an entity wholly owned by the EBCI. The company has identified potential locations that would be “ideal” for private growers on the Qualla Boundary to produce medical cannabis for sale at on-Boundary dispensaries, Wilson said. These locations would be discrete and not visible from the road.
During the first three years the law is in effect, medical cannabis cardholders will be limited to buying one ounce of medical marijuana per day and 6 ounces per month. In an ordinance change passed in May, the tribe removed criminal penalties for possessing an ounce or less of the drug.
There will be a limit of 2,500 milligrams of THC in medical cannabis products sold to an individual cardholder per day and 10,000 milligrams per month during those first three years. Additionally, there may not be more than two medical cannabis dispensary locations, and only Kituwah Medical LLC or one of its wholly owned subsidiaries may be issued medical cannabis establishment licenses.
Once the three-year period ends, the Control Board may consider policies in conflict with those to be stipulated for the initial 36 months.
Dispensaries may not be within 1,000 feet of a pre-existing school or community facility such as a park, playground, day care, swimming pool, community club building or church, according to an approved amendment offered by Representative Sneed. The Control Board will be responsible for establishing a program to issue the cards, which may be given only to people age 21 and older. If the person’s health care provider later diagnoses them as no longer having the condition that originally qualified them for the card, the person must return the card.
Among the questions to be answered by the not-yet-created Control Board regulations is who exactly can obtain a medical cannabis card.
“When you look at how the ordinance is written, it applies to everyone that’s on the Qualla Boundary, including enrolled members and non-enrolled members,” said Secretary Owle. “How that specifically is going to work has not been developed yet. That will come on as the Commission gathers and starts to work.”
Legal considerations
While alcohol has been a historically contentious issue on the Qualla Boundary, tribal members have demonstrated widespread support for legalizing medical marijuana, with the audience in Council last week breaking out into applause after the vote. During a 2017 public meeting that drew 100 people almost uniformly opposed to the expansion of alcohol sales on the Boundary, multiple speakers voiced support for medical marijuana — a topic that wasn’t even on the agenda for discussion.
However, during the Aug. 8 meeting tribal member Robert Osley Saunooke, an attorney licensed in Florida, warned Tribal Council against passing the measure due to marijuana’s continued status as an illegal drug, under both state and federal law.
“If you open a facility here today and you give tribal members cannabis, the tribe, the members, the people who do it, will be subject to arrest,” he said. “This is an illegal action. Nothing can change that currently. In the future it might change, but don’t pass laws based on what might happen in the future.”
“What a wonderful day to make history to exercise our sovereignty,” Secretary Owle replied. “If it were an issue for the federal government about cannabis legalization , it would have addressed it with the 36 states, the four territories that allow medical cannabis. It would have addressed it with the 18 states, two territories and the District of Columbia that have legalized it for adult use.”
However, not all of the land in federal trust for the EBCI is contiguous — most notably, reaching tribal land in Graham and Cherokee counties from Cherokee requires an hour or more of travel over state-controlled land. Should a tribal member with a valid medical cannabis card be stopped by law enforcement during that drive, he or she could face criminal charges. While possession of less than 1.5 ounces isn’t a felony, possession of any amount carries at least a fine.
Wilson said he hasn’t had any formal, sit-down meetings with non-tribal law enforcement leaders regarding the medical marijuana program but has had various informal conversions with prosecutors, attorneys and officers. He has not met much pushback in those encounters, he said.
“If it’s simple weed, simple possession, your ounce or under, that’s stuff that typically law enforcement these days don’t generally want to spend a lot of their time worrying about, unless you’re being just crazy with your products,” said Wilson.
During the Aug. 8 meeting, the new Cherokee Indian Police Chief Josh Taylor spoke in favor of the ordinance, and especially of a provision criminalizing open containers.
While medical card holders will not face tribal prosecution for possessing cannabis products they are entitled to have under the new law, transporting medical cannabis in the passenger area of the car in any container other than the manufacturer’s original, unopened container will be illegal. Consuming medical cannabis while driving will also be a criminal offense. Either would be punishable by a fine of $25-$500 or up to 30 days in jail.
“We are really lost right now when it comes to enforcing laws when it has to do with marijuana,” Taylor told Council.
It’s still illegal, but it’s a low priority for law enforcement battling drugs that are far more dangerous to people’s health and likely to be linked to violent crimes — in the last 12 months, he said, the police department has not responded to a single marijuana-related assault. Additionally, the legalization of some forms of cannabis that are visually indistinguishable from the illegal form has complicated probable cause. Courts are reluctant to pursue or prioritize possession cases.
“We need some help to know what we can and cannot enforce,” he said. “There’s some of these laws that you guys are talking about passing, which actually gives our probable cause back to us when it comes to the open container.”
While medical marijuana is still illegal in the state, several bills are under consideration that would legalize its use as a pharmaceutical Wilson said it’s important for Cherokee to get its program up and running first so that the tribe can act as a pilot program for the state and “have a seat at the table” should a medical program be legalized statewide. The latest version of the bill with the most momentum, the N.C. Compassionate Care Act, includes a limit of 10 licenses statewide to produce and sell medical marijuana. Wilson wants to see the EBCI claim one of those licenses.
“My hopeful approach is we showcase that we can do this,” he said. “We showcase how it can be done safely and regulated and be that gold standard to — we can do this business and we can help North Carolina out.”
