your internet resource on facebook on twitter on Google+ on soundcloud
phone: 202 630 8439
The University of Tulsa College of Law - Master's in Indian Law
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:
Native Sun News Today: Sheriff makes biggest #NoDAPL roundup (10/27)
Democracy Now: Dakota Access security guards weren't licensed (10/27)
Lakota Country Times: Pine Ridge youth center stresses safety (10/27)
James Giago Davies: Corruption keeps the privileged in power (10/27)
Dana Lone Hill: Indian people won't stop fighting for our rights (10/27)
Dave Archambault Sr.: Dehumanizing the #NoDAPL movement (10/27)
Steven Newcomb: Reconciliation means covering up the truth (10/27)
Standing Rock Sioux Tribe sees decline in business at casino (10/27)
Republican Donald Trump invested in Dakota Access Pipeline (10/27)
The Sioux Chef on track to open indigenous restaurant in 2017 (10/27)
Yakama Nation secures $30M loan to expand utility company (10/27)
Jury restarts deliberations in armed standoff on tribal territory (10/27)
Scotts Valley Band envisions casino as part of new homeland (10/27)
Seneca Nation on track to complete $40M expansion at casino (10/27)
Cowlitz Tribe spends $32M for highway project at new casino (10/27)
Native youth pressure Hillary Clinton to take a #NoDAPL stand (10/26)
Native candidate in South Dakota gets a big boost from Obama (10/26)
Landowners from Bad River Band see $6.6M in buy-back offers (10/26)
Navajo Nation lawmaker warns further action needed on hemp (10/26)
Former Obama administration official joins Native owned firm (10/26)
Justice Department opens criminal databases to more tribes (10/26)
Mark Trahant: Native candidates for Congress in final stretch (10/26)
Lakota Country Times: Oglala Sioux Tribe reacts to shootings (10/26)
Native Sun News Today: Pine Ridge football team impresses (10/26)
Brandon Ecoffey: Strong fixes needed for reservation crime (10/26)
Raúl Grijalva: Republicans still won't listen to Indian Country (10/26)
Steve Russell: The magic of Donald Trump's 'plan' for America (10/26)
Harlan McKosato: Film pays tribute to 'warrior' Elouise Cobell (10/26)
Haskell University expelled student who was victim of assault (10/26)
Jury deliberates verdicts in armed standoff on tribal territory (10/26)
Aquinnah Wampanoag Tribe gets court date in gaming lawsuit (10/26)
Tule River Tribe gains support for moving casino to a new site (10/26)
First Nations casino in Saskatchewan pays out $1.5M jackpot (10/26)
Dakota Access ramps up spending on lobbying and politicians (10/25)
Cheyenne River Sioux Tribe presses Obama on Dakota Access (10/25)
Indian National Finals Rodeo gears up for big crowds in Vegas (10/25)
Mark Trahant: Native candidates benefit from Clinton landslide (10/25)
Lakota Country Times: Shooting pushes Pine Ridge into action (10/25)
Native Sun News Today: Sisters want police help for stolen car (10/25)
Delphine Red Shirt: Teach the language like our elders wanted (10/25)
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.