Killer Attorney General Jason Ravnsborg is also having trouble keeping his story straight on medical marijuana. On Thursday, Ravsnborg’s superfluous chief of staff Tim Bormann contradicted the Highway Patrol and the Governor and said the medical marijuana cards the Flandreau Santee Sioux tribe is issuing to its cannabis customers should keep non-tribal members and genuine Indigenous folks alike out of trouble:
Tim Bormann, chief of staff for Attorney General Jason Ravnsborg, said the tribe’s ID cards are valid under state law because they are medically certified.
Bormann cited the law that states “a valid written certification issued within the previous year shall be deemed a registry identification card for a qualifying patient” [“AG: Tribal-Issued Medical Pot Cards Should be Honored,” AP, 2021.07.08].
On Friday, Ravnsborg changed his mind:
On the issue of law enforcement recognizing tribally issued cards for South Dakota residents who are not enrolled tribal members, the Highway Patrol Framework provides an approach that is consistent with IM 26’s requirements and recognizes the important issues of tribal and state sovereignty. That a tribe is a separate sovereign entitled to issue medical cannabis cards to tribal members is not disputed and is reflected in the Framework. However, the Framework also addresses a very important and separate issue – South Dakota’s jurisdiction over its residents who are not enrolled tribal members. Regardless of its decision concerning marijuana access within its own jurisdiction, a tribal government cannot dictate to a separate sovereign – the State of South Dakota – how the state’s laws apply to its own residents who are not enrolled members of a tribe when they are off reservation land and therefore wholly within the jurisdiction of the State of South Dakota.
A tribe’s medical cannabis card issued to a South Dakota resident who is not an enrolled tribal member is therefore not a substitute for the written doctor’s certification that a resident must produce under the Framework or in the future to receive a medical cannabis card from the Department of Health. In addition, for the written doctor’s certification to be valid, it must be received as part of a bona fide practitioner-patient relationship by a doctor licensed to practice medicine in the State of South Dakota [Attorney General’s Office, press release, quoted in Todd Epp, “AG Ravnsborg Changes His Position, Now Agrees that Non-Tribal Members Can’t Use a Tribal-Issued Medical Marijuana Card for Purchases,” KELO Radio, 2021.07.09].
SDCL 34-20G-40 says that any valid, written certification issued within the previous year counts as a registry identification card right now and unitl 25 days after the Department of Health quits dinking around and takes applications for state medical marijuana cards. Any does not exclude written certifications issued by those darned Indians.
The question is whether the written certifications issued by the Flandreau Santee Sioux get their medical certification from a licensed medical professional with a “bona fide practitioner-patient relationship” with the cardholder. SDCL 34-20G-1 gives three criteria for a “bona fide practitioner-patient relationship”:
- A practitioner and patient have a treatment or consulting relationship, during the course of which the practitioner has completed an assessment of the patient’s medical history and current medical condition, including an appropriate in-person physical examination;
- The practitioner has consulted with the patient with respect to the patient’s debilitating medical condition; and
- The practitioner is available to or offers to provide follow-up care and treatment to the patient, including patient examinations.
The Flandreau Santee Sioux say every card they issue “originate[s] with a recommendation from a physician.” Those recommendations may come from doctors connected via telemedicine to the tribe’s customers. Governor Noem promoted and signed into law this year a bill (2021 SB 96) allowing practitioners to provide care online without first having a face-to-face meeting with patients; thus, the online doctor visits the tribe’s customers are using to obtain tribal medical marijuana cards would appear to be as legitimate as any other doctor’s recommendation.
It thus appears that Tim Bormann got the law right on Thursday, but that the phone rang shortly thereafter with a cranky Governor demanding that the A.G.’s office cook up some contorted legal reasoning to justify reversing that opinion. Or maybe Jason simply got out of his lengthy consultations with his defense attorney and his PR firm, asked Tim what happened while he was out, and went, “Oh my gosh! We can’t say people can have marijuana! Get back on the party line!”