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Note: This new chapter Controlled Substances replaced the previous chapter Alcohol and Drug Related Offenses. This chapter covers drug offenses, and alcohol offenses are in a separate chapter. After serious deliberation, the Port Gamble S’Klallam Tribe has determined that present day circumstances, including the Washington State’s legalization of marijuana, make a complete ban of marijuana within Tribal Lands ineffective and unrealistic, and the Tribe has decriminalized its possession in very limited circumstances set out in this Chapter. Where there is a question regarding marijuana or the legality of a controlled substance in this chapter, reference may be made to the Revised Code of Washington State, with the exception that no individual may legally grow marijuana in his or her domicile for any purpose—medical or other.
All terms used in this chapter shall have their commonly accepted meaning. If there is a doubt as to the meaning of a term, the Court shall be guided by the definitions of the Washington State Uniform Controlled Substances Act, RCW 69.50.101. RCW 69.50.101 as it currently exists or is hereafter amended is incorporated by reference into this Chapter, to be referred to as indicated in this Chapter.
(Res. 17-A-064, 6/12/2017)
Any substance that contains any quantity of a chemical that falls within the following categories is illegal to possess without a valid prescription. The full list of chemicals contained within these categories can be found in sections of the RCW 69.50.204, 69.50.206, 69.50.208, 69.50.210, and 69.50.212 (Schedules I, II, III, IV, and V respectively) of the Washington State Uniform Controlled Substances Act. These sections as they currently exist or are hereafter amended are incorporated by reference into this Chapter, to be referred to as indicated in this Chapter. If there is any doubt as to whether a substance is illegal or not, the Court shall be guided by the provisions of the Washington State Uniform Controlled Substances Act, Chapter 69.50. Illegal substances include:
(a) 
Opiates, including but not limited to substances commonly known as opium, heroin, morphine, methadone, and codeine;
(b) 
Hallucinogenic substances, including but not limited to substances commonly known as DMA, LSD, PCP, mescaline, psilocybin, but excluding marijuana;
(c) 
Cocaine in any form, including but not limited to the powder and the rock or “crack” form;
(d) 
Depressants, including but not limited to methaqualone, diazepam (Valium), secobarbital, and pentobarbitol; and
(e) 
Stimulants, including but not limited to any form of amphetamine.
The chemical composition of a substance may be proved by any acceptable method of identification, including but not limited to identification by a trained law enforcement officer (included canine units), by field tests, or by laboratory tests.
(Originally, this section was titled Possession of Narcotics or Controlled Substances and cited to the Federal 21 CFR 1308.11-15. Res. 17-A-064, 6/12/2017 created a new chapter for controlled substances and amended this section to remove the citation to the Federal law and instead cite to the Washington State Uniform Controlled Substances Act due to the Tribe’s legalization of marijuana.)
(a) 
Possession of Illegal Substances. Any person who possesses for personal use or grows or manufactures for personal use any of the substances listed in Section 5.03.02 of this code is guilty of a Misdemeanor 1.
(b) 
Manufacturing, Delivery, or Possession with Intent to Deliver and Illegal Substance. Any person who grows, manufactures, delivers, sells, or possesses with intent to sell, deliver, or manufacture, any of the substances listed in Section 5.03.02 of this code shall be guilty of a Felony 1. The term "manufacture" shall not apply to growing marijuana for personal use.
(c) 
Possession of Materials Used to Manufacture an Illegal Substance. Any person who knowingly possesses any materials used to manufacture any of the substances listed in Section 5.03.02 of this code is guilty of a Misdemeanor 1.
(d) 
Counterfeit Illegal Substance Manufacturing or Delivering. Any person who creates, delivers, or possesses a counterfeit illegal drug shall be guilty of a Felony 2. A counterfeit illegal drug is a substance which, although not in fact containing any illegal drug, or not in fact containing the drug it purports to contain, was intended to be understood by others to be a substance listed in Section 5.03.02.
(Res. 17-A-064, 6/12/2017. This section replaced five separate sections that previously existed in Chapter 5.03 Alcohol and Drug Related Offenses. That chapter was divided into two: one for controlled substances and one for alcohol. The five previous sections separated the crimes of delivery, possession, possession with intent to deliver, possession of precursors, and manufacturing of controlled substances. This new section combined the previous five into one section and removed the citation to the federal law due to the Tribe’s legalization of marijuana; Res. 19-A-059, 6/24/2019, amended this section to add sub-section heading titles for clarity of what charge applies to a specific drug offense.)
(a) 
A person is guilty of possession or use of drug paraphernalia if that person possesses or uses drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance, possession of which is illegal under 5.03.02 of this code.
(b) 
RCW 69.50.102 as presented and enacted and as may be subsequently amended, shall be referred to by the Court as guidance on how to define "drug paraphernalia." Health professionals may lawfully distribute "drug paraphernalia" for public and private health purposes.
(c) 
In determining whether an item is drug paraphernalia or if intent to use the drug paraphernalia exists, the Court may consider all reasonable information, including proximity of the paraphernalia to controlled substances, or residue of controlled substances on the paraphernalia. Possession of Drug Paraphernalia is a Misdemeanor 1.
(Res. 10 A 063, 6/8/2010 adopted this section, and Res. 12-A-088 amended it to redefine “drugs” to mean controlled substances listed in the schedule under 21 CFR 1308.11-15; Res. 17-A-064, 6/12/2017, amended this section to cite to the Washington State code and remove the reference to the Federal law due to the Tribe’s legalization of marijuana. Also, the sentence for this offense changed from a Class B offense to a Misdemeanor 1; Res. 18-A-049, 5/14/2018, amended this section by adding “possession or” and “possesses or” in front of the words “use” and “uses” in subsection (a) so that the text matched the title of the section; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
A person is guilty of delivery of controlled substances, alcohol, or marijuana to a minor if that person delivers, gives, sells or trades to a minor under the age of 21 any controlled substance, alcoholic beverage, or marijuana, or if that person allows a minor under the age of twenty-one (21) to use such substance on his or her property. A person who has in their possession a license specifically authorizing that person to dispense a controlled substance to a minor shall be exempt.
Delivery of controlled substances, alcohol, or marijuana to a minor is a Felony 2.
(Res. 10 A 063, 6/8/2010 adopted this section; amended by Res. 12-A-088, to redefine “drugs” to mean controlled substances listed in the schedule found at 21 CFR 1308.11-15; Res. 17-A-064, 6/12/2017 retained this section while legalizing marijuana; however, “controlled substances” now refers to substances listed in the RCW and not in the federal code. Also, the sentence for this offense changed from a Class A offense to a Felony 2; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
Any person who intentionally smells or inhales the fumes of any type of substance for the purpose of intoxication or in any manner disturbing the audio, visual, or mental processes shall be guilty of a Misdemeanor 1. This section shall not apply to the inhalation of anesthesia for medical or dental purposes.
(Res. 10 A 063, 6/8/2010; Res. 17-A-064, 6/12/2017 changed the title of this section from “Unlawful Inhalation of Noxious Substances” to “Practice of Sniffing.” Also, the sentence for this offense changed from a Class B to a Misdemeanor 1; Res. 19-A-059, 6/24/2019, amended this section to change the title of the section from “Practice of Sniffing” to “Unlawful Inhalation”.)
A person shall not knowingly:
(a) 
Possess or use a prescription drug without a current and valid prescription from a licensed medical personnel. The above provision shall not apply to any practitioner acting within the scope of his/her license, or to any employee acting within the scope of the usual course of business.
(b) 
Obtain or procure the administration of a prescription drug by fraud, deceit, or misrepresentation.
(c) 
Unless authorized to do so, sell, transport for sale or import into the Port Gamble S’Klallam Reservation prescription drugs.
(d) 
Misuse or abuse a prescription drug in any way that is inconsistent with a drug’s prescribed use, regardless of whether a person has a valid prescription for the drug from a licensed medical personnel.
Unauthorized Possession, Distribution, or Misuse of Prescription Drugs is a Misdemeanor 1.
(Res. 10 A 063, 6/8/2010; amended by Res. 15-A-069, 6/8/2015, to include misuse or abuse of prescription drugs as a crime; Res. 17-A-064, 6/12/2017 changed the sentence for this offense from a Class B to a Misdemeanor 1.)
(a) 
The possession, by a person twenty-one (21) years or older, of useable marijuana, marijuana concentrates, or marijuana infused products in amounts that do not exceed those set forth in Section 23.03.05 [Commercial Marijuana Activity, Permitted Acts] of this code and in RCW 69.50.360(3) is not a violation of this section, this title, or any other provision of Tribal law.
(b) 
The Tribe shall assert no violation of any lease, sublease, or similar instrument based on a tenant's actions in compliance with this chapter. The Tribe has discretion to create any lease, sublease, or similar instrument that explicitly references this chapter and states an intent to prohibit tenant conduct that is otherwise permitted by this chapter.
(c) 
Any person 21 years of age or older who possesses more than the limits authorized in this section or who possesses any marijuana plants shall be guilty of a Misdemeanor 1.
(d) 
Any person under the age of 21 years, but at least 18 years old, who possesses, purchases, consumes, obtains or sells marijuana shall be guilty of a Misdemeanor 1, unless the person is a qualifying patient with a valid recognition card and possesses only amounts consistent with their authorization and no more than the limits set forth in RCW 69.51A.210. At sentencing, the Judge shall order the defendant to complete a mandatory substance abuse assessment.
(e) 
Any person under 18 years old who possess, purchases, consumes, obtains, or sells marijuana shall be guilty of a Misdemeanor 2, unless the person is a qualifying patient with a valid recognition card and possesses only amounts consistent with their authorization and no more than the limits set forth in RCW 69.51A.210. At hearing, the Judge shall order the defendant to complete a mandatory substance abuse assessment, and the Judge may order one or more of the following to take the place of the sentence requirements under a Misdemeanor 2:
(1) 
Zero to thirty (30) days of confinement;
(2) 
Zero to twelve (12) months of probation;
(3) 
Zero to one hundred fifty (150) hours of community service;
(4) 
A fine not to exceed five hundred dollars ($500); or
(5) 
A drug treatment alternative approved by the Port Gamble S’Klallam Court.
If the minor completes all the sentencing requirements, the Judge may dismiss the Misdemeanor 2 charge.
(f) 
Notwithstanding any other provision in this chapter, or in any provision of the laws of the State of Washington, including without limitation RCW 69.51A, no person, regardless of status as a qualifying patient under RCW 69.51A, may plant, grow, produce, cultivate, or process marijuana in any form, including all forms defined in Section 5.03.01, in their domicile or anywhere within the boundaries of the Port Gamble S’Klallam Reservation or on any tribal lands. The penalty for any violation of this subsection is covered in Sub-Section 5.03.09(a) of Marijuana Production, Processing, and Sale.
(g) 
Unless the Port Gamble S’Klallam Tribe authorizes by resolution or other tribal law, a person cannot use marijuana in any public place, or possess marijuana within public view within the jurisdiction of the Port Gamble S’Klallam Tribe. Public view includes, but is not limited to: carrying marijuana on the body of a person where it is visible to the public, in an open bag, sticking out of a shirt or pants pocket, etc. Public places include, but are not limited to: tribal government offices, tribal businesses and enterprises (except for those authorized to sell marijuana), tribal schools, tribal parking lots, tribal government vehicles, tribally-owned open spaces such as all beaches, and tribal medical clinics. Any violation of this subsection shall constitute a civil infraction punishable by a fine not to exceed fifty dollars ($50).
(Res. 17-A-064, 6/12/2017. At the Tribal Council meeting on 6/12/2017, Council heard a public comment on the issue of individual tribal members growing marijuana for medical purposes. The Council passed the resolution but also decided to deviate from Washington State law and make it illegal for any individual on the reservation to grow marijuana regardless of having a WA State medical marijuana recognition card. The code was published with this change incorporated on 7/18/2017; Res. 19-A-059, 6/24/2019, amended this chapter to move this section to the end of the chapter so that all marijuana sections are together; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
(a) 
No person may plant, grow, produce, cultivate, or process marijuana in any form, including all forms defined in Section 5.03.01 Definitions, within the boundaries of the Port Gamble S’Klallam Reservation or on any tribal lands. The penalty for violations of this subsection are as follows:
(1) 
A person who plants, grows, produces, cultivates, or processes six (6) or fewer marijuana plants shall be guilty of a Misdemeanor 2.
(2) 
A person who plants, grows, produces, cultivates, or processes between seven (7) and fifteen (15) marijuana plants shall be guilty of a Misdemeanor 1.
(3) 
A person who plants, grows, produces, cultivates, or processes over fifteen (15) marijuana plants shall be guilty of a Felony 2.
(b) 
No person may sell marijuana, marijuana concentrates, marijuana-infused products, or useable marijuana within the boundaries of the Port Gamble S’Klallam Reservation or on any tribal lands. Any violation of this subsection is a Felony 2.
The prohibitions contained in this section and in Section 5.03.03 do not apply to commercial marijuana activity authorized by the Tribal Code in Chapter 23.03, provided that such commercial marijuana activity is conducted in accordance with the Tribal Code.
The prohibitions contained in this section and in Section 5.03.03 do not apply to persons or entities as employees, agents, or vendors of any entity engaged in commercial marijuana activity authorized by the Tribal Code in Chapter 23.03, provided that such person or entity acts in accordance with the Tribal Code.
(Res. 17-A-064, 6/12/2017; Res. 17-A-093, 9/11/2017, added the penalties for growing marijuana within the Tribe’s jurisdiction; Res. 19-A-059, 6/24/2019, amended this chapter to move this section to the end of the chapter so that all marijuana sections are together.)
(a) 
Except as otherwise set forth in this section, it is not a violation of this chapter or any other provision of Tribal Law for a qualifying patient or designated provider who has been entered into the Washington State medical marijuana authorization database and who holds a valid recognition card to possess marijuana concentrates, marijuana-infused products, or usable marijuana for the personal medical use of the qualifying patient and in a manner that does not exceed the limits set forth in RCW 69.51A.210.
(b) 
If a person is both a qualifying patient and a designated provider for another qualifying patient, the person may possess no more than twice the amounts described in Section 23.03.05 of this code and in RCW 69.51A.210 for the qualifying patient and designated provider, whether the marijuana concentrates, marijuana-infused products, or usable marijuana are possessed individually or in combination between the qualifying patient and their designated provider.
(c) 
Notwithstanding any provision of the laws of the State of Washington, including, without limitation, any provision of RCW 69.50.101 and 69.51A as they currently exist or are hereafter amended, no person may plant, grow, produce, cultivate, or process marijuana in any form, including all forms defined in Section 5.03.01, within the boundaries of the Port Gamble S’Klallam Reservation or on any tribal lands. No person may form a “cooperative” as defined in RCW 69.51A.250 for the purpose of planting, growing, producing, cultivating, or processing marijuana in any form within the boundaries of the Port Gamble S’Klallam Reservation or on any tribal lands.
(d) 
No person shall grow marijuana within the jurisdiction of the Tribe despite having a medical marijuana recognition card issued by Washington State that specifies the amount of plants a patient may grow and the amount of useable marijuana that a patient may acquire from the plants.
Any violation of subsections a) or b) is a Misdemeanor 2.
Any violation of subsections c) or d) is covered in Sub-Section 5.03.04(a) of Marijuana Production, Processing, and Sale.
(Res. 17-A-064, 6/12/2017. At the Tribal Council meeting on 6/12/2017, Council heard a public comment on the issue of individual tribal members growing marijuana for medical purposes. The Council passed the resolution but also decided to deviate from Washington State law and make it illegal for any individual on the reservation to grow marijuana regardless of having a WA State medical marijuana recognition card; Res. 17-A-093, 9/11/2017, added the penalties for growing marijuana within the Tribe’s jurisdiction; Res. 19-A-059, 6/24/2019, amended this chapter to move this section to the end of the chapter so that all marijuana sections are together; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
(a) 
It is unlawful for a person to knowingly or intentionally access the medical marijuana authorization database for any reason not related to the following:
(1) 
Adding a qualifying patient or designated provider and noting the amount of product for which the qualifying patient is authorized;
(2) 
Confirming the validity of a recognition card;
(3) 
Issuing a replacement recognition card for a card that is lost or stolen; or
(4) 
A Port Gamble S’Klallam tribal police officer engaged in a bona fide specific investigation or a suspected marijuana-related activity that may be illegal under tribal law or state law to confirm validity of a recognition card.
(b) 
It is unlawful for a person to knowingly or intentionally:
(1) 
Disclose any information received from the medical marijuana authorization database in violation of the provisions contained in RCW 69.51A.230, including but not limited to, qualifying patient or designated provider names, addresses, or amount of marijuana for which they are authorized;
(2) 
Produce a recognition card or to tamper with a recognition card for the purpose of having it accepted by a tribal medical marijuana retailer in order to purchase marijuana as a qualifying patient or designated provider [or to grow marijuana plants in accordance with this chapter];
(3) 
If a person is a designated provider to a qualifying patient, sell, donate, or supply marijuana produced or obtained for the qualifying patient for the designated provider’s own personal use or benefit; or
(4) 
If the person is a qualifying patient, sell, donate, or otherwise supply marijuana produced or obtained by the qualifying patient to another person.
A person who violates this section is guilty of a Felony 2.
(Res. 17-A-064, 6/12/2017)