indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Indian Law Online Master Degree
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:
Elizabeth Cook-Lynn: Indian children exploited for fundraisers (11/28)
House to consider bill to reauthorize Indian housing programs (11/28)
First Nations Development Institute awards grants to colleges (11/28)
Migizi Pensoneau: Sen. Tester betrays our people on Keystone (11/28)
Ned Blackhawk: Remember the Sand Creek Massacre of 1864 (11/28)
Steven Newcomb: Leadership and the liberation of our nations (11/28)
Dina Gilio-Whitaker: Native Hawaiians working for sovereignty (11/28)
Hechinger Report: Tribal colleges see lower graduation rates (11/28)
Native women ask city in New York to find new name for park (11/28)
North Dakota tribe puts oil refinery on pause to review plans (11/28)
Al Jazeera: NMAI highlights jewelry of talented Navajo family (11/28)
African-American lawmakers seek probe into Pamunkey Tribe (11/28)
Colorado River Indian Tribes report armed robbery at casino (11/28)
Wyandotte Nation to debut part of $30M expansion at casino (11/28)
Mashantucket Tribe seeks to expand sale of alcohol at casino (11/28)
Mohegan Tribe still pushing for commercial casino in New York (11/28)
Native Sun News: Urban Indian organization seeks new center (11/26)
Tentative schedule for White House Tribal Nations Conference (11/26)
White House invites youth to DC for Tribal Nations Conference (11/26)
Leslie Wheelock: Touting nation-to-nation trading and tourism (11/26)
Kevin Abourezk: A mystery of Indian agents with same name (11/26)
Michael Allen: My ancestor took part in Sand Creek Massacre (11/26)
Dean Suagee: EPA's Clean Power Plan affects Indian Country (11/26)
Mark Rogers: Finding something to be thankful for this holiday (11/26)
Former convicted leader of Crow Tribe seeks to clear his name (11/26)
Blackfeet Nation denies political motive in arrest of ex-leader (11/26)
Appeal set in dispute over Navajo Nation presidential hopeful (11/26)
Judge allows NFL team lawsuit against young Native activists (11/26)
NPR: Alaska Natives put traditional spin on Thanksgiving meal (11/26)
Column: Group helps rescue dogs from Pine Ridge Reservation (11/26)
First Nation offers reward for information about missing man (11/26)
First Nations face loss of funds over failure to submit salaries (11/26)
Santa Ysabel Band responds to state lawsuit over online bingo (11/26)
Citizen Potawatomi Nation to meet over liquor sales at casino (11/26)
Flandreau Santee Sioux Tribe could lose casino's liquor license (11/26)
Mashantucket Tribe looks to shift revenues away from gaming (11/26)
Agua Caliente Band selects planner to revamp land near casino (11/26)
Washington gaming panel cuts jobs as non-Indian revenue falls (11/26)
Native Sun News: Oglala Sioux Tribe to issue IDs at tournament (11/25)
James Giago Davies: Polygamy and shunning in Lakota culture (11/25)
Ben Shelly: There's a lot to be thankful for on the Navajo Nation (11/25)
Cara Cowan Watts: Share the blessings of the Cherokee Nation (11/25)
Joe Sexton: BIA's 'ugly' land policies stuck in the 19th century (11/25)
Jenny Durkan: Cop who killed Native man wasn't charged either (11/25)
Oklahoma claims Citizen Potawatomi Nation must collect taxes (11/25)
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.