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Harjo: Northwest Indian tobacco wars

Two important events occurred in mid-May in the Northwest Indian tobacco wars. First, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives made its largest smokeshop raid in Washington since its record-breaking busts on Northwest reservations in 2003. Second, a federal appeals court upheld Yakama treaty rights and threw out indictments stemming from a 2004 raid at Yakama Nation.

On May 15, the ATF raided three Indian smokeshops and two homes in Washington, confiscating undisclosed quantities of cigarettes, money, records and computers.

The ATF raids, part of ''Operation Chainsmoker,'' targeted the Blue Stilly Smoke Shop on the Stillaguamish Indian Tribe's land; the Trading Post at Match Point on the Swinomish Indian Tribe's land; and the Frank's Landing Indian Trade on the Frank's Landing Indian Community's land.

Frank's Landing has been negotiating with the state since 2005 to achieve a tobacco agreement. Frank's Landing was at the heart of the Northwest fish wars when Washington relentlessly violated treaty fishing rights, until the U.S. Supreme Court stopped the state with its 1979 ruling upholding the landmark Boldt decision.

On May 18, the U.S. Ninth Circuit Court of Appeals handed down a unanimous decision upholding a lower court ruling that indictments against a Yakama family in a smokeshop raid three years ago violated the Yakama Treaty of 1855.

Harry Smiskin and his son, Kato, both Yakama citizens, were indicted in June 2004 under the federal Contraband Cigarette Trafficking Act because they didn't notify state officials that they were transporting a large amount of cigarettes lacking the state's tax stamp.

The Appeals Court decision reads: ''In light of our interpretation of the Right to Travel provision of the Yakama Treaty ... as well as the canons of construction for interpreting Indian treaties, we conclude that applying the State's pre-notification requirement to the Smiskins violates the right to travel guaranteed in Article III of the Treaty.''

The Appeals Court agreed with the Smiskins that the Indian treaty exception precludes the application of the CCTA to their case: ''As we explained in Baker [v . USA], a 'federal statute of general applicability that is silent on the issue of applicability to Indian tribes will not apply to them if ... the application of the law to the tribe would abrogate rights guaranteed by Indian treaties' ... Congress must therefore expressly apply a statute to Indians in order to abrogate their treaty rights ...

''There is no evidence that Congress intended to abrogate Indian treaty rights through adoption of the CCTA.''

Article III of the Yakama Treaty specifically secures to Yakama citizens the right to travel upon the public highways. It provides, in part: ''That, if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them; as also the right, in common with citizens of the United States, to travel upon all public highways.''

This right to travel provision does not appear in the earlier treaties involved in the May 15 raids, but the Appeals Court decision addresses other matters that would apply to the other Northwest treaties.

Federal prosecutors argued that the state's compelling interest was in ''leveling the playing field'' for other cigarette sellers. But the Appeals Court wrote: ''However, even assuming that the State has such a purpose, a restriction must be purely regulatory to supersede an Indian treaty right. Because revenue generation is at least a significant purpose of the State's cigarette tax scheme, as the Government concedes, the scheme is not purely regulatory.''

The decision goes on to say that ''a state regulation must be 'necessary' to its regulatory purpose to supersede a treaty right. The pre-notification requirement is not necessary to the State's alleged purpose of leveling the playing field because there are other ways it could enforce the tax on cigarette sales by Indian tribes to non-Indians.''

Federal lawyers also argued that an appellate ruling affirming the district court's decision would pose a danger to both state and federal regulation of drugs and ''forbidden fruits [and] vegetables.'' But the Appeals Court disagreed:

''This concern is unfounded, if not disingenuous ... regulations with a purely regulatory purpose can be applied to Indians, treaty rights notwithstanding. The restricted goods to which the Government refers are regulated for the public safety, not for a revenue generating purpose. Drug laws, for instance, have the stated purpose of protecting the public from the dangers of drug use and the drug trade, and are not intended to generate revenue for the government. To the contrary, cigarettes are generally legal, and unstamped cigarettes are deemed contraband when individuals transport them without providing notice to the State only for the sake of improving the collection of cigarette taxes and increasing State revenues ['fair playing field' arguments aside].''

The Appeals Court noted the ''more practical response to such concerns,'' which the Yakama Nation presented in its amicus brief:

''The Yakama Nation is a sovereign nation, with its own government, laws and courts, not a rogue organization or menace to civil order. The Yakama Nation does not and never has asserted that its members have the right under its treaty to traffic in narcotics. For the government of the United States to be suggesting otherwise is irresponsible.

''The Yakama Nation must and will intercede as litigant or amicus to protect its members' treaty right to travel when the federal government overreaches, as it has here. But the Nation has no interest in promoting, condoning or protecting activities by its members that pose real dangers to public health, public safety, natural resources, or public infrastructure ... not only because irresponsible overreaching on its part would likely prompt Congress to exercise its constitutional/political power to abrogate or limit the treaty right to travel, but also because the Yakama Nation and its members share the interest all citizens have in public health, public safety, conservation and equitable exploitation of natural resources, and adequate public infrastructure.''

Suzan Shown Harjo, Cheyenne and Hodulgee Muscogee, is president of the Morning Star Institute in Washington, D.C., and a columnist for Indian Country Today.