indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 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:

Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Leaders of Northern Cheyenne Tribe slammed (5/4)
Camaray Devalos: Colonial mindset continues to destroy tribes (5/4)
Amalia Rubin: Adam Sandler portrays Native people as 'savages' (5/4)
Opinion: Join 'Long March to Rome' to support indigenous rights (5/4)
Court rebuffs Cherokee Nation in Indian Child Welfare Act case (5/4)
Disputed leader of Chukchansi Tribe pleads guilty in casino case (5/4)
Native Sun News: Cheyenne River Sioux man debuts tattoo shop (5/1)
Mark Trahant: Budget plan means deep cuts for Indian programs (5/1)
Terese Mailhot: Still proud to serve as that 'angry Indian' woman (5/1)
Cara Cowan Watts: Make your voice heard within Cherokee Nation (5/1)
Oglala Sioux Tribe struggles with increase in suicide among youth (5/1)
Lower Brule Sioux Tribe cites treaty in bid to oust Keystone XL firm (5/1)
Change to Oglala Lakota County becomes official in South Dakota (5/1)
Makah Nation mounts strong defense of whaling at public hearing (5/1)
Northwest Indian College in Washington attracts NASA's attention (5/1)
Officers for Cheyenne River Sioux Tribe start using body cameras (5/1)
Eastern Cherokee elder Jerry Wolfe proud of Beloved Man status (5/1)
Death of five-year-old member of Hoh Tribe under investigation (5/1)
Tribes seek consultation on status of Yellowstone grizzly bears (5/1)
Leaders of Fort Peck Tribes vote to banish school superintendent (5/1)
Editorial: Russell Begaye faces hurdles as Navajo Nation's leader (5/1)
Ute Mountain Ute Tribe aims to draw in tourists with new business (5/1)
Seminole Tribe secures listing for historic oak tree on reservation (5/1)
Historians join movement to eliminate NFL team's racist mascot (5/1)
Column: Tribes fought English settlers in bloody King Philip's War (5/1)
Lawmaker slammed for comment about Pokagon Band casino bid (5/1)
Disputed leader of Chukchansi Tribe set for plea in casino dispute (5/1)
Arizona tribes send another $25.2M in gaming revenues to state (5/1)
Draft bill calls for a Class III gaming compact with Poarch Creeks (5/1)
Acoma Pueblo awaits BIA approval for Class III gaming compact (5/1)
Coeur d'Alene Tribe seeks enforcement of ban on gaming devices (5/1)
Opinion: Bid for more Connecticut casinos comes down to money (5/1)
Native Sun News: Juvenile center offers services to Native youth (4/30)
Lakota Country Times: Rosebud walk raises awareness of autism (4/30)
Clara Caufield: Off-reservation Cheyenne need a voice with tribe (4/30)
Vince Two Eagles: The top 10 influential people in Indian Country (4/30)
Allison Renville: Inviting President Obama to Sisseton-Wahpeton (4/30)
John Barrasso: More work needed to address reservation roads (4/30)
Jay Daniels: There's a whole lotta shaking going on in Oklahoma (4/30)
Brian Young: This Navajo filmmaker won't be walking off Netflix (4/30)
UNITY hosts Empower Your Lakota Story event in South Dakota (4/30)
Interview with attorney about marijuana for tribes in Oklahoma (4/30)
Silent 1920s film with all Indian cast set for commercial release (4/30)
Pechanga Band to reclaim collection of ancestors and artifacts (4/30)
Tribal members support new name for sacred Black Hills peak (4/30)
Republican lawmakers kill Indian mascot measure in Colorado (4/30)
Navajo Nation's zoo helps provide eagle feathers to members (4/30)
Crow Tribe to use $1.2M grant to establish veterans cemetery (4/30)
North Dakota tribe reconsiders agreement after oil tax change (4/30)
Judge issues lengthy sentence for Montana reservation death (4/30)
Opinion: Connecticut takes wrong approach with tribal lenders (4/30)
Tohono O'odham Nation slams action on bill that blocks casino (4/30)
NLRB won't take stance on tribal labor bill that affects casinos (4/30)
Chumash Tribe offers condolences after worker dies at casino (4/30)
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.