your internet resource on facebook on twitter on Google+ on soundcloud
phone: 202 630 8439
Dynamic Homes
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
Appeals court allows cigarette prosecution despite treaty
Friday, October 24, 2008
Filed Under: Business | Law

Members of the Yakama Nation of Washington can't be prosecuted under a tobacco contraband law but they can face charges for racketeering, a federal appeals court ruled on Thursday.

In May 2007, the 9th Circuit Court of Appeals set precedent and ruled that the Yakama Treaty of 1855 bars tribal members from being charged under the federal Contraband Cigarette Trafficking Act. The unanimous decision said the treaty preserves the right for Yakamas to bring goods to the public market without being taxed.

But in a new case, the 9th Circuit said tribal member Roger Fiander can be prosecuted for transporting cigarettes under the federal Racketeer Influenced and Corrupt Organizations Act. The court said the Yakama man conspired with non-tribal members who aren't protected by the treaty.

As a result, while Fiander can't be prosecuted "for a substantive violation of the CCTA because of his status as a member of the Yakama Nation, he may be prosecuted for a RICO conspiracy in which the racketeering activity is contraband cigarette trafficking," Judge A. Wallace Tashima, a nominee of President Bill Clinton, wrote for the majority.

The decision revives an indictment against Fiander that had been dismissed by Judge Robert H. Whaley of the Eastern District of Washington. Whaley had thrown out the racketeering charges, citing the May 2007 precedent in US v. Smiskin.

Smiskin is one in a series of cases that focused on the Yakama Treaty of 1855. For the most part, the 9th Circuit has sided with tribal members by ruling that the "Right to Travel" provision of the treaty protects their right to engage in business activities like selling cigarettes or harvesting timber without state interference.

But officials in Washington say business owners on the Yakama Nation are skirting state and federal law by selling cigarettes without state taxes. Earlier this year, the state canceled its tobacco compact with the tribe.

The tribe, along with several business owners on the reservation, responded with a lawsuit in federal court last month. The Yakamas are again citing the 1855 treaty, as well as the 9th Circuit's decisions, to prevent the state from imposing its tobacco tax on Indian retailers. No decisions have been reached in the case.

Officials in Washington has gone after Indian retailers across the state, seizing millions of dollars in tobacco products. The state contends it has a right to collect taxes on the sale of goods to non-Indians.

In Smiskin, the 9th said there are ways for the state to collect taxes without trampling on Yakama Nation's 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," the court said, pointing to government-to-government negotiations.

Peter Mahoney, a member of the Coeur d'Alene Tribe of Idaho, was convicted for doing business with Fiander. In an unpublished opinion, the 9th Circuit last week said he could be prosecuted under the Contraband Cigarette Trafficking Act.

"The Coeur d'Alene Tribe, of which Mahoney is a member, is not a signatory to any treaty containing language analogous to the travel provision discussed in Smiskin," the October 16 decision stated.

9th Circuit Decisions:
US v. Fiander (October 23, 2008) | US v. Mahoney (October 16, 2008)

9th Circuit Precedent:
US v. Smiskin (May 18, 2007)

Related Stories:
Yakama Nation sues over tobacco compact (9/5)
Washington cancels Yakama Nation tobacco compact (7/8)
Yakama Nation judge blocks tobacco compact (2/5)
Yakama Nation sued over tobacco tax compact (01/17)
Editorial: Yakama cigarette deal good for all (12/19)
Yakama treaty protects smokeshop owners from prosecution (5/21)
State to terminate Yakama cigarette compact (2/9)
Judge hears case against tribal tobacco retailers (11/15)
Court to hear Yakama tobacco smuggling case (10/17)
Court: Tribal members must pay federal tax (9/12)

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

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Republicans push controversial Indian energy bill through House (10/9)
Navajo Nation leaders headed to campus following fatal shooting (10/9)
Native Sun News: South Dakota community honors Code Talkers (10/9)
Lakota Country Times: Native Americans arrested at high rates (10/9)
Ivan Star Comes Out: Lakota immersion remains our only hope (10/9)
Steve Russell: Indian people stuck with the laws of colonizers (10/9)
Doug George-Kanentiio: Native people play key role in politics (10/9)
Julian Brave NoiseCat: Trading tribal sovereignty for marijuana (10/9)
Studio denies theft of tribal artifacts from ranch in New Mexico (10/9)
Omaha Tribe hosts basketball stars Shoni and Jude Schimmel (10/9)
Winnebago Tribe chooses eight in special election for council (10/9)
Students from Salish Kootenai College send satellite to space (10/9)
Pamunkey Tribe sees challenge to federal recognition decision (10/9)
Six indicted for stealing funds from Sisseton-Wahpeton Oyate (10/9)
Kris Lane: Columbus was clearly not a friend to Native peoples (10/9)
Researchers adapt Korean alphabet for use in Native language (10/9)
Excavation at Indian city uncovers numerous signs of conflict (10/9)
Thomas St. Dennis: Don't let rival tribe stop Little River casino (10/9)
Viejas Band opens new gaming floor and hotel with expansion (10/9)
White Earth Nation plans hotel and RV park at third casino site (10/9)
Eastern Shoshone Tribe to debut expansion of casino in 2016 (10/9)
Mashpee Wampanoag Tribe adds competition to casino scene (10/9)
White House blasts Native American Energy Act ahead of vote (10/8)
House Natural Resources Committee approves two Indian bills (10/8)
First Nations Development Institute awards $250K for ranching (10/8)
Four Native chefs participate in unique food event in New Mexico (10/8)
Native Sun News: Lone Indian voice opposes mountain lion hunt (10/8)
Lakota Country Times: Wind power comes to Rosebud community (10/8)
Delphine Red Shirt: Scandal shuts down program for Indian youth (10/8)
Vince Two Eagles: Native medicine goes back thousands of years (10/8)
Jay Daniels: Indian lands still face threat from state governments (10/8)
Steven Newcomb: Religious doctrine guides Indian law and policy (10/8)
Brian Pierson: Recent federal court decisions affecting Indian law (10/8)
Choctaw Nation and Chickasaw Nation celebrate trust settlement (10/8)
Actor joked about taking tribal artifacts from ranch in New Mexico (10/8)
Tuolumne Band of Me-Wuk Indians gives $100K for cancer center (10/8)
Radio station brings news and more to Yankton Sioux Reservation (10/8)
Indian gaming industry grew 116 percent between 2001 and 2013 (10/8)
Arizona tribes on road to recovery with $1.81B in casino revenues (10/8)
Pojoaque Pueblo secures injunction in New Mexico casino dispute (10/8)
Little River Band sees off-reservation casino as boost for revenue (10/8)
Pioneering tribes share experiences with prosecuting non-Indians (10/7)
Senate Committee on Indian Affairs approves two bills at meeting (10/7)
Congress approves land-into-trust bill for Pueblos in New Mexico (10/7)
House Natural Resources Committee holds markup on Indian bills (10/7)
Native Sun News: Rival teams meet on football field at Pine Ridge (10/7)
Lakota Country Times: Tribes receive $940M in Ramah settlement (10/7)
James Giago Davies: Embrace distance running in Indian Country (10/7)
Brandon Ecoffey: Powerful forces aim to keep out the Native vote (10/7)
Thomas Perez: Youth on Wind River Reservation share high hopes (10/7)
Stephen Corry: Native people displaced for sake of 'conservation' (10/7)
States oppose tribal jurisdiction in upcoming Supreme Court case (10/7)
Cheyenne River Sioux Tribe challenges Indian education reforms (10/7)
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.