indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Native American Bank - Native people investing in Native communities
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
Yakama treaty protects smokeshop owners from prosecution
Monday, May 21, 2007
Filed Under: Law

Members of the Yakama Nation of Washington can't be prosecuted under a tobacco contraband law, a federal appeals court ruled on Friday.

After their smokeshop was raided in June 2004, Harry Smiskin and his son, Kato, were indicted for allegedly violating the federal Contraband Cigarette Trafficking Act. According to government prosecutors, the two men failed to notify the state of Washington that they were transporting large quantities of cigarettes without state tax stamps.

But in a unanimous decision, the 9th Circuit Court of Appeals threw out the charges against the Smiskins. A three-judge panel said prosecution under the contraband law violates the Yakama Treaty of 1855 because it prevents tribal members from free use of public highways and interferes with tribal commerce.

"Tribal members were not required to notify anyone prior to transporting goods to market at the time of the treaty, and the treaty guaranteed to them the same rights today," Judge Richard A. Paez wrote for the majority.

The 20-page decision builds on an earlier case involving the "Right to Travel" provision of the treaty. In Cree v. Flores, the 9th Circuit blocked the state of Washington from issuing citations to Yakama logging businesses that lacked state licenses.

"We have already established that the Right to Travel provision 'guarantee[s] the Yakamas the right to transport goods to market for 'trade and other purposes,'" the court said, quoting Cree.

The decision comes amid federal and state efforts that have targeted reservation smokeshops. Just last Tuesday, federal agents raided three Indian businesses in Washington as part of "Operation Chainsmoker," a major investigation into alleged sales of cigarettes without state tax stamps.

That same day, a federal grand jury indicted an Indian business owner for allegedly selling untaxed cigarettes. And back in June 2003, federal agents made a record-breaking seizure of tobacco products on reservations in Washington and Idaho.

Additionally, the state of Washington terminated its tobacco compact with the Yakama Nation this past February. State officials claimed the tribe allowed tobacco to be sold without proper tax stamps -- a major issue in the Smiskin case.

Under the compact, the Yakama Nation collected a tax equivalent to the state's but retained all of the revenues -- even on sales to non-Indians. Under a U.S. Supreme Court case from 1980, the state has a right to tax tobacco sales to non-tribal members.

But without an agreement, the state Department of Revenue said the tribe has to turn over tax revenues from non-Indian transactions. Cindi Holmstrom, the director, said she would inform the Bureau of Alcohol, Tobacco, Firearms and Explosives to start enforcing the Contraband Cigarette Trafficking Act on the tribe.

However, the 9th Circuit's decision affects a key enforcement mechanism in the law. Congress defined "contraband" as 10,000 or more cigarettes that "bear no evidence of the payment of applicable state or local cigarette taxes in the state or locality where such cigarettes are found" -- in other words, it's illegal in Washington to transport tobacco products without state notification.

The Department of Justice argued that notification is critical because it allows the state to enforce tax collections on the sale of goods to non-Indians. But the court said nothing in the law changes the Yakama treaty.

"There is no evidence that Congress intended to abrogate Indian treaty rights through adoption of the CCTA," Paez wrote.

The 9th Circuit also said there are other ways for the state to enforce its rights without trampling on the treaty. "As the [Supreme] Court noted, states have a number of 'adequate alternatives' available to enforce taxes on cigarettes sales to non-Indians by tribal members," Paez wrote.

In tribe filed an amicus brief to defend its treaty rights. "The Yakama Nation thus understandably assigned a special significance to each part of the treaty at the time of signing and continues to view the treaty as a sacred document today," the court noted.

Chairwoman Lavina Washines, the first woman to run the tribe, questioned the tobacco tax compact after she was elected. Along with a separate agreement for gasoline taxes, she said they were signed without proper approval of the tribal council.

"It's an everyday fight to protect our rights, even this day in 2007," Washines told The Yakima Herald-Republic of efforts to impose state laws on the tribe.

Get the Decision:
US v. Smiskin (May 18, 2007)

Related Stories:
Stillaguamish family defends smokeshop after raid (5/17)
Three Washington reservation smokeshops raided (5/16)
Editorial: Respect tribal sovereignty in state (03/27)
Washington GOP tries to limit tribal donations (3/15)
State to terminate Yakama cigarette compact (02/09)
Judge hears case against tribal tobacco retailers (11/15)
Court to hear Yakama tobacco smuggling case (10/17)
Yakama Nation considers withdrawing tax deals (09/19)
Washington Republicans question gas tax deals (08/08)
Two Washington tribes reach tax deal with state (7/31)
Two Washington tribes collect own gasoline tax (05/30)
Editorial: Don't get too worked up about gas tax (5/16)
State seeks gasoline tax agreement with tribes (5/15)
Washington tribes meet with state over taxes (5/1)
Two Washington tribes reach deal on state gas tax (01/27)
Washington to use gas tax decision against tribes (12/7)
Supreme Court upholds state tax on reservation fuel (12/7)
Indian smokeshops face pressure over taxation (9/27)
House leader vows fight against tobacco tax bill (2/4)
Tobacco tax bill has broad group of supporters (2/2)
Tobacco tax bill still poses challenges for Indian Country (12/16)
Tribes left out of Internet and cigarette tax bills (11/19)

Copyright © Indianz.Com
More headlines...
Stay Connected:

Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Tim Giago: Remember the victims of massacre at Wounded Knee (12/22)
Native Sun News: Cheyenne River Sioux teen serves as role model (12/22)
Harlan McKosato: It's time to bring Jim Thorpe home to Oklahoma (12/22)
Some South Dakota tribes said to be interested in legal marijuana (12/22)
Opinion: A solution for the Washington NFL team's racist mascot (12/22)
Opinion: Water deal is great for Hualapai Tribe but not for county (12/22)
Oneida Nation plans to open $20M 'Wizard of Oz'-themed casino (12/22)
Bill to stop Tohono O'odham Nation casino fails to clear Congress (12/22)
Opinion: Tribal and state governments should get out of casinos (12/22)
Editorial: Expansion of gaming pushed as quick fix for New York (12/22)
Native Sun News: Pine Ridge's David Michaud wins fighting match (12/19)
Mark Trahant: Old school budgets a better deal for Indian Country (12/19)
Ruth Hopkins: Boycott a repeat offender of cultural appropriation (12/19)
8th Circuit sides with Omaha Tribe in reservation boundary case (12/19)
BIA finalizes rule to add Alaska tribes to land-into-trust process (12/19)
Obama signs measure to extend VAWA tribal provision to Alaska (12/19)
Wyandotte Nation set to break ground on $1.4M cultural center (12/19)
Man from Standing Rock Sioux Tribe charged for cousin's murder (12/19)
Opponents of Cowlitz Tribe plan appeal of gaming land decision (12/19)
Menominee Nation off-reservation casino supporters hold rally (12/19)
Bear River Band hires tribal member as casino general manager (12/19)
Column: Poarch Creek gaming is only thing working in Alabama (12/19)
Column: Wait for decision on Mashpee Wampanoag Tribe casino (12/19)
Native Sun News: Oglala Sioux Tribe inaugurates new leadership (12/18)
Walt Lamar: Cooperation helps address crime in Indian Country (12/18)
Brandon Ecoffey: Tournament shows hope of the Lakota people (12/18)
Editorial: Showing caution for marijuana sales in Indian Country (12/18)
Editorial: New York governor makes right call to outlaw fracking (12/18)
Fines for foes of Tohono O'odham Nation off-reservation casino (12/18)
New York passes over tribes for first commercial casino licenses (12/18)
Factions of Cayuga Nation in court over Class II gaming facility (12/18)
Deadline extended for commercial casino eyed by Quapaw Tribe (12/18)
Opinion: Another casino isn't answer to Connecticut's problems (12/18)
Native Sun News: Youth take on lead role in Dakota memorial ride (12/17)
Mark Trahant: NCAI launches new campaign against racist mascot (12/17)
Norm DeWeaver: Job market is a disaster zone in Indian Country (12/17)
Amanda Blackhorse: Fake chiefs and fake headdresses must go (12/17)
DOI makes $9M in buy-back offers on Coeur d'Alene Reservation (12/17)
Shoshone-Bannock Tribes see success with two bills in Congress (12/17)
Boyd Cothran: Torture justified by treatment of Indian prisoners (12/17)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.