United States v. Smiskin, 05-30590.

• Decision Date: 18 May 2007
• Docket Number: No. 05-30590.,No. 05-30591.,05-30590.,05-30591.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Harry James SMISKIN, Defendant-Appellee, Yakama Nation Commerce Association; Yakama Nation, Applicants-Intervenors. United States of America, Plaintiff-Appellant, v. Kato Smiskin, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

487 F.3d 1260

UNITED STATES of America, Plaintiff-Appellant, v. Harry James SMISKIN, Defendant-Appellee, Yakama Nation Commerce Association; Yakama Nation, Applicants-Intervenors.

United States of America, Plaintiff-Appellant, v. Kato Smiskin, Defendant-Appellee.

No. 05-30590.

No. 05-30591.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 17, 2006.

Filed May 18, 2007.

James A. McDevitt, United States Attorney, and Jane Kirk, Assistant United States Attorney, Yakima, WA, for the plaintiff-appellant.

Rebecca L. Pennell, Federal Defenders of Eastern Washington and Idaho, Yakima, WA, for defendant-appellee Kato Smiskin.

Russell Mazzola, Mazzola Law Office, Yakima, WA, for defendant-appellee Harry James Smiskin.

Sharon I. Haensly, Debora Juarez, Gabriel S. Galanda, and Daniel W. Ferm, Williams, Kastner & Gibbs PLLC, Seattle, WA, for amicus The Yakama Nation.

Jack W. Fiander, Towtnuk Law Offices, Ltd., Sacred Ground Legal Services, Inc., Yakima, WA, for amicus Yakama Nation Commerce Association.

Appeal from the United States District Court for the Eastern District of Washington; Edward F. Shea, District Judge, Presiding. D.C. Nos. CR-04-02107-EFS, CR-04-02108-EFS.

Before D.W. NELSON, DAVID R. THOMPSON, and RICHARD A. PAEZ, Circuit Judges.

PAEZ, Circuit Judge.

The Right to Travel provision of the Yakama Treaty of 1855 secures to Yakama tribal members the right to travel upon the public highways.¹ Applying this treaty provision, the district court dismissed the Government's indictment charging tribal members Kato and Harry Smiskin ("Smiskins") with violations of the federal Contraband Cigarette Trafficking Act ("CCTA"). At issue in this appeal is whether the Government's basis for maintaining a CCTA prosecution against the Smiskins—their alleged failure to comply with the State of Washington's requirement that individuals give notice to state officials prior to transporting unstamped cigarettes within the State—violated the Right to Travel provision of the Yakama Treaty. The district court determined that the State's pre-notification requirement, as applied to Yakama tribal members, did indeed violate the Treaty, and, therefore, that the unstamped cigarettes that the Smiskins allegedly transported could not be considered contraband within the meaning of the CCTA. Finding no legal basis for the Government's prosecution of the Smiskins under the CCTA, the court dismissed the indictment. The Government timely appeals.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo legal determinations and applications of law to fact, including the interpretation and application of treaty language. See Cree v. Flores, 157 F.3d 762, 768 (9th Cir.1998) ("Cree II"); United States v. Washington, 969 F.2d 752, 754 (9th Cir.1992). We hold that the district court did not err in interpreting and applying the Yakama Treaty to dismiss the indictment against the Smiskins. We affirm.²

I. Background

Defendants Kato and Harry Smiskin are members of the Confederated Tribes and Bands of the Yakama Nation ("Yakama Nation"). In June 2004, Agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") seized 4,205 cartons of unstamped cigarettes from Harry Smiskin's residence, located on the Yakama Indian Reservation.³ Based on previous investigation and surveillance, ATF Agents suspected the Smiskins of transporting unstamped cigarettes from smoke shops on an Idaho Indian reservation to smoke shops on various Indian reservations in Washington.

The Smiskins were indicted on charges of violating the federal Contraband Cigarette Trafficking Act, 18 U.S.C. § 2342(a). Under the CCTA, it is "unlawful for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes." Id. The CCTA incorporates state law to define "contraband cigarettes:" "`Contraband cigarettes' means a quantity in excess of 10,000 cigarettes, which bear no evidence of the payment of applicable State or local cigarette taxes in the State or locality where such cigarettes are found," and which are in the possession of a person not otherwise authorized by the State to possess such cigarettes. Id. § 2341(2).

Thus, whether the Smiskins transported contraband cigarettes under the CCTA turns on Washington State law. The State generally requires wholesalers to affix either a "tax paid" or "tax exempt" stamp to cigarette packaging prior to sale. See Rev.Code Wash. § 82.24.030. Individuals other than licensed wholesalers may only transport unstamped cigarettes if they have "given notice to the [Liquor Control Board] in advance of the commencement of transportation." Id. § 82.24.250(1). State law does not exempt Yakama tribal members from this pre-notification requirement.⁴

Because the Smiskins did not provide notice to the State prior to transporting unstamped cigarettes,⁵ the cigarettes were unauthorized under State law and contraband under the CCTA. As a result, the Smiskins' possession and transportation of the contraband cigarettes violated the terms of the CCTA. The question that remains is whether a violation of the State's pre-notification requirement can provide a valid basis for a CCTA prosecution of Yakama tribal members.

II. Discussion

A. Applicability of the CCTA

Federal laws of general applicability are presumed to apply with equal force to Indian tribes. See United States v. Baker, 63 F.3d 1478, 1484 (9th Cir.1995); United States v. Farris, 624 F.2d 890, 893 (9th Cir.1980). We held in Baker that the CCTA is a law of general applicability. See 63 F.3d at 1484. There are three established exceptions, however, that preclude the application of an otherwise generally applicable federal law to Indian tribes. See id. at 1485; Farris, 624 F.2d at 893-94. The Smiskins argue that this case falls within the Indian treaty exception. As we explained in Baker, 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."⁶ 63 F.3d at 1485 (internal quotation marks omitted). Congress must therefore expressly apply a statute to Indians in order to abrogate their treaty rights. See Farris, 624 F.2d at 893 ("[I]t is presumed that Congress does not intend to abrogate rights guaranteed by Indian treaties when it passes general laws, unless it makes specific reference to Indians.").

There is no evidence that Congress intended to abrogate Indian treaty rights through adoption of the CCTA. Congress did not expressly make the CCTA applicable to Indian tribes, see Baker, 63 F.3d at 1485-86, and, if anything, the relevant legislative history suggests the opposite. See H.R. Conf. Rep. No. 1778, 95th Cong., 2d Sess. 1, 9 n. 1, reprinted in 1978 U.S.Code Cong. & Admin.News 5535, 5538 ("[The CCTA is] not intended to affect transportation or sale by Indians or Indian tribes acting in accordance with legally established rights."). But see Baker, 63 F.3d at 1486 (interpreting this language as referring only to rights granted to Indian tribes by the states).

The critical question, then, is whether applying the State of Washington's pre-notification requirement to Yakama tribal members who possess and transport unstamped cigarettes violates the Yakama Treaty of 1855. If it does, the Smiskins cannot be prosecuted under the CCTA on the basis of this state requirement. In light of our interpretation of the Right to Travel provision of the Yakama Treaty in Cree II, 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.

B. The Yakama Treaty of 1855

The text of a treaty must be construed as the Indians would naturally have understood it at the time of the treaty, with doubtful or ambiguous expressions resolved in the Indians' favor. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196, 200, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999) ("Mille Lacs Band"); see also Tulee v. Washington, 315 U.S. 681, 684-85, 62 S.Ct. 862, 86 L.Ed. 1115 (1942) ("It is our responsibility to see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council and in a spirit which generously recognizes the full obligation of this nation to protect [tribal] interests. . . ."). The Supreme Court has repeatedly applied this rule of treaty construction in construing Article III of the Yakama Treaty. See Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 676, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) ("This rule, in fact, has thrice been explicitly relied on by the Court in broadly interpreting these very treaties in the Indians' favor."). We have also applied this rule of construction in interpreting the Yakama Treaty, and the Right to Travel provision in particular. See Cree II, 157 F.3d at 769.

As the starting point in its analysis, the district court thus properly turned to Cree II, where we addressed at length the Right to Travel provision of the Yakama Treaty.⁷ In Cree II, the State of Washington had issued citations to truck drivers for logging companies owned by Yakama tribal members, because the companies had not paid the license and permit fees that the State imposed on trucks used to transport lumber to sale. See id. at 765. We held that applying the fees to the tribal members violated the Yakama Treaty's Right to Travel provision because the provision guarantees them the "right to transport goods to market over public highways without payment of fees for that use." Id. at 769.

The Government suggests that we limit Cree II to its holding that the Yakamas' right to travel precludes the State of Washington from imposing fees that impinge...