indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Health Coverage for American Indians and Alaska Natives
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:
First Lady Michelle Obama shares story of hope with Indian school (5/26)
Remarks by First Lady Michelle Obama at Santa Fe Indian School (5/26)
Gary Davis of NCAIED joins Small Business Administration council (5/26)
Arne Vainio: A mother's gift carried me through many life journeys (5/26)
Native Sun News: Tribes score big in fights against energy projects (5/26)
Lakota Country Times: Education Secretary hears from Pine Ridge (5/26)
Ivan Star Comes Out: Ending Whiteclay beer sales starts at home (5/26)
Vi Waln: Rosebud Sioux youth lead efforts to bring relatives home (5/26)
Gyasi Ross: Drug epidemic sweeping through Native communities (5/26)
Jacqueline Keeler: Shameful and skewed poll on racist NFL name (5/26)
Interview with Melvin Monette about Cobell scholarship program (5/26)
Auction house in France won't stop sale of sacred tribal property (5/26)
United Keetoowah Band installs new leader after impeachment (5/26)
Kewa Pueblo builds new community around historic trading post (5/26)
Eastern Cherokee elder translates 'Charlotte's Web' into Tsalagi (5/26)
Puyallup Tribe works to keep language alive for new generations (5/26)
Iowa Tribe offers free play on poker website ahead of full launch (5/26)
Alabama-Coushatta Tribe offers gaming options closer to home (5/26)
Kaw Nation receives national award for tribal gaming initiatives (5/26)
Indian Health Service reform efforts gaining steam on Capitol Hill (5/25)
Indian Health Service announces more hires at troubled hospital (5/25)
Keepseagle attorneys open application process for $38M in grants (5/25)
Three tribes enter cooperative agreements for buy-back program (5/25)
New leader selected for HUD's Office of Native American Programs (5/25)
Indian relay racers gear up for event hosted by Muckleshoot Tribe (5/25)
Cronkite News: Tribes seek return of property up for sale in France (5/25)
Native Sun News: Anti-suicide effort incorporates tribal traditions (5/25)
Lakota Country Times: Pine Ridge youth showcase film projects (5/25)
Mark Trahant: Native vote victory for Tawna Sanchez in Oregon (5/25)
Brandon Ecoffey: Lakota people come together in times of need (5/25)
Editorial: Tribes must come up with plan for return of Black Hills (5/25)
John McCoy: Disenrollment and blood quantum are not our way (5/25)
Adrian Jawort: Addressing race relations and healing in Montana (5/25)
Fort Peck Tribes oppose new directive on transgender students (5/25)
Leader of United Keetoowah Band ousted through impeachment (5/25)
Agua Caliente Band launches software development company (5/25)
Sen. Barrasso to chair platform committee for GOP convention (5/25)
Cowlitz Tribe welcomes discussions with opponent over casino (5/25)
Little Traverse Bay Bands open doors to Class II gaming facility (5/25)
Tuolumne Band celebrates 15th birthday with casino expansion (5/25)
Former Winnebago Tribe casino employee denies theft charge (5/25)
Proposed rule brings LGBT equality to tribal housing programs (5/24)
Chairman of Quapaw Tribe endorses Democrat Hillary Clinton (5/24)
Appropriations bill blocks new federal recognition regulation (5/24)
Native American Children's Safety Act clears final Hill hurdle (5/24)
9th Circuit won't rehear Tohono O'odham Nation gaming case (5/24)
Lakota Country Times: Army promises return of tribal children (5/24)
Native Sun News: New business sprouts up at Wounded Knee (5/24)
Mark Trahant: Tulalip citizen lands role in Democratic platform (5/24)
Brandon Ecoffey: Pine Ridge unites for search of missing men (5/24)
Men who went missing found dead on Pine Ridge Reservation (5/24)
Billy Mills: Flawed poll can't justify use of team's racist mascot (5/24)
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.