Marijuana possession and use on the Flathead Reservation closely mirrors State law | News

Char-Koosta News 

It’s here and it’s legal. Marijuana, that is. 

In the November 2020 election Montana voters passed Constitutional initiatives 118 and 190 that set forth the legalization of recreational marijuana for adults 21 years of age and older. In 2021 the Montana Legislature passed House Bill 701 that established guidelines to address the amounts of marijuana an adult could have in their possession as well as issues of licensing and revenue, e.g., taxation.  

Then beginning on January 1, 2021 criminal possession or use of less than one ounce (or 8 grams of concentrate) of marijuana no longer apply under State law for adults 21 and older. 

Sales for adult-use marijuana began on January 1, 2022 through licensed medical marijuana providers, and on January 1, 2023 sales through licensed adult-use dispensaries in counties where the Initiative was passed by voters will begin.  

On October 14, 2021 the Tribal Council passed a resolution that amended Ordinance 103-A (CSKT Laws Codified) to address legalized recreational marijuana on the Flathead Indian Reservation. 

According to Confederated Salish and Kootenai Tribes Executive Officer Rick Eneas, the amended Ordinance 103-A has similar legal ramifications as State law for possession of legal or illegal amounts of marijuana or its equivalent in concentrates, and edibles.

However, there is a noteworthy difference between the State and the CSKT legal possession amount limits. The State allows for possession of one ounce of marijuana or its THC equivalent in concentrates, and edibles. The CSKT Ordinance 103-A allows for twice that much, or two ounces or its THC equivalent in concentrates, and edibles.

Eneas was quick to point out that CSKT tribal members and other Indians and Alaska Natives living on the Flathead Reservation that fall under the jurisdiction of the Tribal Court should follow the State possession limit and storage when in transit off the reservation. 

According to State law, any marijuana or its legal derivatives in transit must be stored outside the vehicle’s “passenger area” either in a locked glove compartment; in the trunk, luggage compartment, truck bed or cargo compartment; behind the last upright seat of a motor vehicle that is not equipped with a trunk; or in a closed container in an area of a motor vehicle that is not equipped with a trunk and that is not normally occupied by the driver or a passenger.

Eneas also cautioned that regardless of the possession of legal amounts and location, it is against State and CSKT laws to drive under the influence of drugs and alcohol. 

Although recreational and medical marijuana is legal in Montana there is somewhat of an issue on Indian reservations, including the Flathead Reservation, due to the fact that the federal government still considers marijuana illegal. 

The Drug Enforcement Agency classifies Marijuana as a Schedule I substance under the Controlled Substances Act. According to the DEA Schedule I drugs have a high potential for abuse and the potential to create severe psychological and/or physical dependence.

According to the Department of Justice marijuana/cannabis is a mind-altering (psychoactive) drug, produced by the Cannabis sativa plant. Marijuana has over 480 constituents. THC (delta- 9-tetrahydrocannabinol) is believed to be the main ingredient that produces the psychoactive effect. 

According to federal law it is illegal to possess marijuana on federal lands, which includes Indian reservations.

However, Deputy Executive Officer Shane Morigeau said the federal government in 2010 began looking the other way and deferred to state laws when it came to marijuana penalties and legalization. In August 2013, the Attorney General’s office issued a memorandum stating that federal resources would not be used to prosecute marijuana related crimes in states that have legalized marijuana. Also, at that same time the U.S. Department of Justice issued a memorandum stating that federal law enforcement in Indian Country, related to marijuana would align with state laws. And in late-2014, the Justice Department issued a memorandum that it wouldn’t stop American Indians governments from growing or selling marijuana or reservation lands. 

Regardless of the hands-off marijuana outlook of the federal government, Morigeau remains concerned that the federal government’s hands-off approach in Indian Country could one day put the hands-on squeeze back into effect. The U.S. Congress’s plenary powers over Tribal Nations loom largely in Indian Country, and the political winds of today can switch directions tomorrow.

But for now, Morigeau said, “The Tribes (CSKT) decimalized marijuana; everybody is treated the same regardless of jurisdiction. The federal (marijuana) law is not enforced on the Flathead Reservation.”

Although it’s legal for the Tribal Nations to get into the commercial business of growing and selling marijuana, Morigeau said that is not something the Flathead Nation is ready to do at this point. The Tribes don’t have the regulatory infrastructure set up to manage cultivation and sale of marijuana. 

“The State has all the regulatory structure that covers marijuana from seed to sale,” Morigeau said. “The Tribes (CSKT) are not yet interested in getting into the regulatory arena but the Legal Department is looking into it.”

Morigeau said tribal members could get into the commercial marijuana sales business on the Flathead Reservation beginning January 1, 2023 if they follow State marijuana business laws but presently there are not any CSKT regulations that are applicable to such a business.


Montana Marijuana Frequently Asked Questions

Who can buy marijuana in Montana?

Starting Jan. 1, 2022, any adult age 21 or older can purchase marijuana and marijuana products. That includes Montana residents, residents of other American states and territories and international travelers with valid identification. 

What do I need to bring with me to a dispensary?

Bring identification proving that you are 21 years of age.

Virtually all marijuana transactions are in cash due to ongoing federal restrictions on banking services for the industry. Bring your own to avoid paying ATM fees at the shop. 

Will the state track my purchases?

No. While a business can make a scan of your identification “to determine the consumer’s age,” per House Bill 701, the state’s legalization framework bill, it can only keep those records for 180 days. Furthermore, dispensaries are not permitted to share that information with the state, nor can they transfer or sell it to a third party. 

What kinds of products can I purchase?

Customers will be able to purchase a wide array of products including marijuana flower (the smokable green buds), edibles, tinctures, vaporizer cartridges, concentrates and topicals. These products must be produced within the state of Montana.

Marijuana flower cannot contain more than 35% THC, the most common psychoactive compound in the cannabis plant. Flower typically contains between 15% and 25% THC, and is available in various strains.

Edibles are available in many forms, including chocolates, gummies, infused olive oils and more. A package of recreational market edibles cannot contain more than 100mg of THC (again, this does not apply to medical patients).

Businesses will also be able to sell CBD products. CBD (technically known as cannabidiol) is typically derived from federally legal hemp, and is sold in edible, tincture, topical and other forms. Those products can be manufactured within Montana or imported from other states.

Pot shops cannot sell hemp plant material. 

Is marijuana tested in Montana?

Yes. All products must be tested for a wide range of bacteria, mold and heavy metals, as well as for potency and the various compounds they contain. The state is home to several testing labs; Fidelity Diagnostics and Stillwater Laboratories are the two largest facilities. 

How much can I purchase at a time?

Customers will be able to purchase up to one ounce of marijuana per transaction, or the THC equivalent in other forms: 800 milligrams of edibles or 8 grams of concentrate.

Customers are not limited to a single type of product, and can mix and match up to the limit between different forms. 

Will my purchase be taxed?

Yes. All recreational marijuana purchases will be subject to a flat 20% sales tax. As of this writing, Missoula, Park and Yellowstone counties have enacted an additional local-option 3% tax. 

How late can dispensaries stay open?

Per House Bill 701, recreational and medical marijuana businesses cannot open before 9 a.m. or stay open past 8 p.m. 

Can one shop sell another business’ products?

Yes. Although Montana’s medical marijuana industry was previously vertically integrated, meaning that any medical dispensary was required to grow its own cannabis plants and produce any other additional products themselves, that restriction has been removed from both the medical and recreational markets in the adult-use legalization bill. As a result, a shop can now purchase wholesale and sell another grower’s marijuana flower, gummies, vape cartridges and tinctures. 

Can I buy marijuana anywhere in Montana?

No. Per HB 701, only counties where a majority of residents voted in favor of cannabis legalization during the 2020 election have authorized recreational sales, and are referred to as “green counties.” Counties that did not vote in favor of legalization, however, have the right to take a re-vote on the question and switch from a “red county” to a “green county.”

Richland County is a “green county” but Sidney city officials have been reluctant to move forward with regulations for sales within the city. 

How much marijuana can I legally possess?

Possession of up to one ounce of marijuana, or its THC equivalent in edibles, concentrates and other products, is legal in the state of Montana.

Possession of larger quantities of marijuana remains illegal in Montana. Possession of between one and two ounces is considered a civil infraction and subject to fines of up to $500. Possession of more than two ounces is considered a felony punishable by up to five years in prison and/or fines up to $45,000. 

Can I drive with marijuana in my vehicle?

Yes, but there’s a huge caveat: It must be in its unopened, original packaging and stored outside of the car’s “passenger area.” In other words, it’s required to be, per HB 701, either (a) in a locked glove compartment or storage compartment; (b) in a trunk, luggage compartment, truck bed or cargo compartment; © behind the last upright seat of a motor vehicle that is not equipped with a trunk; or (d) in a closed container in the area of a motor vehicle that is not equipped with a trunk and that is not normally occupied by the driver or a passenger.

The law notes that a person convicted of the offense of unlawful possession of a legally permitted quantity of marijuana in a motor vehicle “shall be fined an amount not to exceed $100.” 

Is it legal to drive under the influence of marijuana?

No. As the Montana Cannabis Guild’s Petersen explained, law enforcement officers have the jurisdiction to stop anyone driving erratically. If the officer has reason to believe the driver is under the influence of marijuana — i.e., if they can smell marijuana in the car, or the driver’s eyes are red — they can transport the driver to a hospital to administer a DUI test. Refusing a blood test can result in a temporary suspension of a driver’s license.

As the drug policy organization NORML points out, a first offense for drugged driving can result in imprisonment for between 24 hours and six months and fines between $300 and $1,000. Subsequent offenses carry more serious consequences. 

Can I possess or consume marijuana in national parks?

No. Since national parks, including Glacier and Yellowstone, are federal land, the federal prohibition of marijuana remains in effect there as well. Getting caught with marijuana in a national park can lead to a misdemeanor charge.

As the cannabis news outlet Leafly points out, even visitors to national parks from states with legal marijuana who get charged with possession in a national park can be subject to urine tests even after they return home to their legal-marijuana state.

Can I consume marijuana in public in Montana?

No. Consuming marijuana in public is punishable by civil fines of up to $50. 

Can I leave Montana with marijuana in my possession?

No. It is illegal to cross state lines with marijuana in your possession. Montana’s neighbor states Idaho and Wyoming maintain strict laws criminalizing marijuana possession.

It is also illegal to fly with marijuana. 

Can I grow my own marijuana?

Yes. Montana residents are permitted to grow and possess up to two mature marijuana plants and two seedlings at home. Those plants cannot be publicly visible — failing to conceal them from view can result in a civil fine of up to $250 and forfeiture of the plants. House Bill 701 suggests that residents can possess more than one ounce of homegrown marijuana at home, as long as it is kept in a locked container and not visible to the public, but does not specify a limit.

Montana Free Press


Title II

Chapter 1 – Tribal offenses

Part 14 – Offenses involving dangerous drugs

New section as follows:

2-1-1403. Marijuana violations for adults ages 18-21, and adults 21 years old and over 

1 Unless otherwise permitted under the provisions of Montana Code Annotated Title 50, chapter 46, part 3, possessing, purchasing, obtaining, using, ingesting, inhaling, transporting, transferring, delivering, or distributing marijuana by a person 18 or 21 years old of is punishable by:

(a) For a first violation, forfeiture of the marijuana and a warning citation;

(b) – For second violation, a forfeiture of the marijuana and the person’s choice between a civil fine not exceeding $50 or up to four hours of community service in lieu of the fine;

(c) – A third violation, forfeiture of the marijuana and the person’s choice between a civil fine not exceeding $100 or completing up to six hours of community service in lieu of the fine;

(d) – A fourth or subsequent violation, forfeiture of the marijuana and the person’s choice between a civil fine not exceeding $250 or completing up to eight hours of community service in lieu of the fine or completing a chemical dependency assessment and recommendations in lieu of a fine or community service;

2 – (a) An adult over the age of 21 is not subject to criminal or civil penalty if that first person possesses, purchases, obtains, uses, ingests, inhales, transports, transfers, delivers, or distributes less than two ounces of marijuana of marijuana, except less that 16 grams may be in a concentrated form.

(b) Subject to the limitations and amounts identified under this section an individual is subject to the limitations, allowable acts, and penalties specified in Montana Code Sections 16-12-106 (1)(c)-(e)…is subject to valid court orders where marijuana is prohibited or included as a condition of probation or parole where there is a nexus related to the underlying offense.

(c) All other allowable acts and penalties specified under MCA Chapter 12, Title 16 are not applicable, unless CSKT Tribal Council adopts a policy that specifies otherwise.

(d) All amendments to the above-mentioned provisions of the MCA shall operate to amend this Code until Tribal law provides otherwise. Nothing in this section shall diminish the authority of the Tribal Council to delete, amend, or supplement the above-mentioned provisions of the MCA.

3 – Possessing, purchasing, obtaining, using, ingesting, inhaling, transporting, transferring, delivering, or distributing marijuana by adults between the age of 18 or 21 is a Class A offense over which the Tribes (CSKT) have exclusive jurisdiction.

4 – Any offense specified under CSKT Laws Codified 2-1-1403 (2) is a Class A offense over which the Tribes have exclusive jurisdiction.

5 – Unless specified by above, all civil offenses under this section that do not specify a civil penalty shall not exceed $500 or more than eight hours of community service.


Montana Marijuana Possession Law 

Section 41. Section 16-12-106, MCA, is amended to read: 

“16-12-106. Personal use and cultivation of marijuana — penalties. 

(1) Subject to the limitations in 16-12-108, the following acts are lawful and may not be an offense under state law or the laws of any local government within the state, be a basis to impose a civil fine, penalty, or sanction, or be a basis to detain, search, or arrest, or otherwise deny any right or privilege, or to seize or forfeit assets under state law or the laws of any local government for a person who is 21 years of age or older: 

(a) possessing, purchasing, obtaining, using, ingesting, inhaling, or transporting 1 ounce or less of usable marijuana, except that not more than 8 grams may be in a concentrated form and not more than 800 milligrams of THC may be in edible marijuana products meant to be eaten or swallowed in solid form; 

(b) transferring, delivering, or distributing without consideration, to a person who is 21 years of age or older, 1 ounce or less of usable marijuana, except that not more than 8 grams may be in a concentrated form and not more than 800 milligrams of THC may be in edible marijuana products meant to be eaten or swallowed in solid form; 

(c) in or on the grounds of a private residence, possessing, planting, or cultivating up to four two mature marijuana plants and four two seedlings, or four mature marijuana plants and four seedlings for a registered cardholder, and possessing, harvesting, drying, processing, or manufacturing the marijuana, provided that: 

(i) marijuana plants and any marijuana produced by the plants in excess of 1 ounce must be kept in a locked space in or on the grounds of one private residence and may not be visible by normal, unaided vision from a public place; 

(ii) not more than twice the number of marijuana plants permitted under this subsection (1)(c) may be cultivated in or on the grounds of a single private residence simultaneously; 

(iii) a person growing or storing marijuana plants under this subsection (1)(c) must own the private residence where the plants are cultivated and stored or obtain written permission to cultivate and store marijuana from the owner of the private residence; and 

(iv) no portion of a private residence used for cultivation of marijuana and manufacture of marijuana- infused marijuana products for personal use may be shared with, rented, or leased to an adult-use provider or an adult-use marijuana-infused products provider a marijuana business; 

(d) assisting another person who is at least 21 years of age in any of the acts permitted by this section, including allowing another person to use one’s personal residence for any of the acts described in this section; and 

(e) possessing, purchasing, using, delivering, distributing, manufacturing, transferring, or selling to persons 18 years of age or older paraphernalia relating to marijuana. 

(2) A person who cultivates marijuana plants that are visible by normal, unaided vision from a public place in violation of subsection (1)(c)(i) is subject to a civil fine not exceeding $250 and forfeiture of the marijuana. 

(3) A person who cultivates marijuana plants or stores marijuana outside of a locked space is subject to a civil fine not exceeding $250 and forfeiture of the marijuana. 

(4) A person who smokes marijuana in a public place, other than in an area licensed for that activity by the department, is subject to a civil fine not exceeding $50.

(5) For a person who is under 21 years of age and is not a registered cardholder, possession, use, ingestion, inhalation, transportation, delivery without consideration, or distribution without consideration of 1 ounce or less of marijuana is punishable by forfeiture of the marijuana and the underage person’s choice between: 

1. (a)  a civil fine not to exceed $100; or 

2. (b)  up to 4 hours of drug education or counseling in lieu of the fine. 

(6) For a person who is under 18 years of age and is not a registered cardholder, possession, use, transportation, delivery without consideration, or distribution without consideration of marijuana paraphernalia is punishable by forfeiture of the marijuana paraphernalia and the underage person’s choice between: 

1. (a)  a civil fine not to exceed $100; or 

2. (b)  up to 4 hours of drug education or counseling in lieu of the fine. 

(7) Unless otherwise permitted under the provisions of Title 50, chapter 46, part 3 [sections 9 through 23], the possession, production, delivery without consideration to a person 21 years of age or older, or possession with intent to deliver more than 1 ounce but less than 2 ounces of marijuana or more than 8 grams but less than 16 grams of marijuana in a concentrated form is punishable by forfeiture of the marijuana and: 

(a) for a first violation, the person’s choice between a civil fine not exceeding $200 or completing up to 4 hours of community service in lieu of the fine; 

(b) for a second violation, the person’s choice between a civil fine not exceeding $300 or completing up to 6 hours of community service in lieu of the fine; 

(c) for a third or subsequent violation, the person’s choice between a civil fine not exceeding $500 or completing up to 8 hours of community service in lieu of the fine; and 

(d) for a person under 21 years of age, the person’s choice between a civil fine not to exceed $200 or attending up to 8 hours of drug education or counseling in lieu of the fine. 

(8) A person may not be denied adoption, custody, or visitation rights relative to a minor solely for conduct that is permitted by this chapter. 

(9) A person may not be denied access to or priority for an organ transplant or denied access to health care solely for conduct that is permitted by this chapter.”

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