1822396.3

Nos. 05-30590 and 05-30591

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

__________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellant,

v.

HARRY JAMES SMISKIN, Defendant-Appellee,

and

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

KATO SMISKIN, Defendant-Appellee.

On Appeal from the U.S. District Court for the Eastern District of Washington The Honorable Edward F. Shea

BRIEF OF AMICUS, CONSOLIDATED TRIBES AND BANDS OF THE YAKAMA NATION, IN SUPPORT OF AFFIRMANCE

Debora Juarez Gabriel S. Galanda Daniel W. Ferm Williams, Kastner & Gibbs PLLC 601 Union St., Suite 4100 Seattle, WA 98101 (206) 628-6600

Attorneys for Amicus The Yakama Nation

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TABLE OF CONTENTS I. IDENTITY AND INTEREST OF AMICUS ........................................................1

II. JURISDICTIONAL STATEMENT.....................................................................1

III. ISSUE PRESENTED..........................................................................................1

IV. STATEMENT OF THE CASE ..........................................................................2

V. STATEMENT OF THE FACTS .........................................................................3

VI. SUMMARY OF ARGUMENT..........................................................................3

VII. ARGUMENT ....................................................................................................4

A. An Indian Treaty Must be Respected and Carried Out According to How the Indians Would Have Understood Its Terms When They Consented to the Treaty, and May be Abrogated Only by Congress, Acting With Awareness of What it Is Doing...................................................4

B. Congress Did Not Indicate When it Enacted the CCTA that It Knew Enforcement of the Statute Could Conflict With the Yakamas’ Treaty Right to Travel and That It Was Choosing to Resolve the Conflict at the Expense of the Treaty Right ................................7

C. The Pre-Notification Requirement in RCW 82.24.250(1) Conflicted with the Smiskins’ Exercise of their Treaty Right to Travel ...............................................................................................................9

D. The Government’s Arguments Lack Both Merit and Proper Institutional Respect for Indian Tribes and Treaty Rights ............................10

1. It is beside the point that the CCTA is a law of general application................................................................................................11

2. It is beside the point that states have been held to have the power to impose some burdens on Indians in aid of cigarette-sales-taxing schemes .........................................................................................11

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3. The Flores decisions did not “limit” the Yakamas’ treaty right of travel to a right to transport “tribal goods” off the reservation ...............12

4. Colville does not apply ............................................................................18

5. The district court did not “misconstrue” Tulee .......................................19

6. The government’s “dire consequences” argument reflects its disrespect for the Yakama Nation and the promises the United States made in the 1855 Treaty................................................................21

VIII. CONCLUSION..............................................................................................25

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TABLE OF AUTHORITIES

CASES Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970).............................................................................................5, 13 Choctaw Nation v. United States, 318 U.S. 423 (1943).................................................................................................16 Cree v. Flores, 157 F.3d 762 (9th Cir. 1998) .......................................................................3, 7, 8, 11 Department of Taxation and Finance of New York v. Milhelm Attea & Brothers, Inc., 512 U.S. 61 (1994).............................................................................................11, 19 Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)...............................................................................................5, 6 Matheson v. Washington State Liquor Control Board, ___ Wn. App. ___, 2006 Wn. App. LEXIS 543 (Wash. Ct. App. March 28, 2006)............................................................................20 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999).................................................................................................16 Moe v. Salish & Kootenai Tribes, 425 U.S. 463 (1976)...........................................................................................11, 19 Puyallup Tribe v. Department of Game of Washington, 391 U.S. 392 (1968).............................................................................................5, 18 Tulee v. State of Washington, 315 U.S. 681 (1942).....................................................................5, 10, 18, 19, 20, 22 United States v. Baker, 63 F.3d 1478 (9th Cir. 1995), cert. denied, 516 U.S. 1097 (1996) .................7, 8, 11

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United States v. Dion, 476 U.S. 734 (1986).........................................................................................4, 6, 11 United States v. Farris, 624 F.2d 890 (1980).................................................................................................12 United States v. Fiander, 401 F. Supp. 2d 1136 (E.D. Wash. 2005)................................................................17 United States v. Santa Fe Pacific R. Co., 314 U.S. 339 (1941)...................................................................................................5 United States v. Winans, 198 U.S. 371 (1905)...................................................................................................5 Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1979).....................................................................................11, 18, 19 Yakama Nation v. Flores, 955 F. Supp. at 1236 ......................................................3, 4, 8, 13, 14, 15, 16, 17, 24

STATUTES AND RULES 18 U.S.C. § 2342(a) ...................................................................................................2 18 U.S.C. § 2344(a) .................................................................................................10 18 U.S.C. § 3571(3) .................................................................................................10 RCW Ch. 82.24........................................................................................................20 RCW 82.24.250(1)...................................................................................1, 2, 8, 9, 12 FRAP 29(a) ................................................................................................................1

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OTHER AUTHORITIES H.R. Conf. Rep. No. 1778, 95th Cong., 2d Sess., 1, 9 n.1, reprinted in 1978 U.S. Code and Cong. Admin. News 553, 5538 .........................................................7 A.J. Splawn, Ka-Mi-Akin: Last Hero of the Yakimas, (Or. Hist. Soc.) (2d ed. 1944), p. 411 ................................................................................................17 Medicine Creek Treaty of 1854 .................................................................................8 Treaty With the Yakimas, 12 Stat. 951 (1855) ............................................1, 3, 8, 16 Treaty With the Yakimas, Article III...............................................................1, 3, 13

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I. IDENTITY AND INTEREST OF AMICUS

The Consolidated Tribes and Bands of the Yakama Nation (“the Yakama

Nation”) is a sovereign federation of formerly autonomous Indian tribes, band and

villages. It has more than 9,000 members and a 1,159,676-acre reservation that

lies within the boundaries of the State of Washington. For more than 150 years, it

has been party to the United States’ Treaty With the Yakimas, 12 Stat. 951 (1855).

The appellees are members of the Yakama Nation. The Nation’s interest in

this appeal stems from the fact that the case concerns the proper construction of its

treaty and how it applies to the appellees and to the United States of America as

the other party to the treaty. The source of the Yakama Nation’s authority to file

this brief is by leave of court. FRAP 29(a).

II. JURISDICTIONAL STATEMENT

The Yakama Nation agrees with the jurisdictional statements contained in

parts I-A and I-B of the government’s opening brief (“Govt. Brief”).

III. ISSUE PRESENTED

Does the right to travel guaranteed in Article III of the Yakama Nation’s

1855 Treaty preclude prosecution of Harry and Kato Smiskin for transporting

unstamped cigarettes without complying with the pre-notification requirement in

Section 82.24.250(1) of the Revised Code of Washington?

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IV. STATEMENT OF THE CASE

Harry and Kato Smiskin are members of the Yakama Nation. They were

indicted in August 2004 under the Contraband Cigarette Trafficking Act

(“CCTA”), 18 U.S.C. § 2342(a) for allegedly shipping, transporting, and

possessing more than 60,000 unstamped cigarettes without having complied with

RCW 82.24.250(1).1 That statute, part of Washington State’s sales tax code,

requires pre-notification to state authorities before someone not a “licensed

wholesaler” may transport unstamped cigarettes, and makes unstamped cigarettes

transported in noncompliance with the statute “contraband” cigarettes. The CCTA

in turn criminalizes the transportation of cigarettes made “contraband” under state

law, and thus criminalizes noncompliance with RCW 82.24.250(1).

The Smiskins do not claim to have been “licensed wholesalers.” They each

allegedly took possession in June 2004 of more than 60,000 unstamped cigarettes

on an Idaho Indian reservation and transported the cigarettes in private motor

vehicles across eastern Washington State to Harry Smiskin’s home in Wapato, on

the Yakama Indian Reservation, where they were arrested by federal agents.

The district court granted motions to dismiss, agreeing with the Smiskins 1 The indictment lists “receiving” as well, but it appears to be undisputed that the Smiskins came into possession of the cigarettes while in Idaho, and Washington’s pre-notification provision could not have applied, even according to its terms, until the Smiskins had entered or were about to enter Washington.

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that the pre-notification requirement conflicts with the right to travel guaranteed to

Yakama tribal members under Art. III of the 1855 Treaty. The treaty right was

construed in Cree v. Flores, 157 F.3d 762 (9th Cir. 1998), as a right to travel

without restriction and without conditions attached. The government has appealed.

V. STATEMENT OF THE FACTS

The Yakama Nation accepts the parties’ statements of the pertinent facts.

VI. SUMMARY OF ARGUMENT

The Yakama Nation needs this Court to protect, against overreaching by the

executive branch, a treaty right that Congress guaranteed to the Nation and its

members, that Congress alone may take away or limit, and that Congress has

neither taken away nor limited. The Yakama Nation believes its treaty right to

travel is broader than it needs to be in order for the Smiskins to prevail in this

appeal. The right is not merely a right to transport goods to market, although it

includes that right.

The Yakama Nation’s treaty guarantees to members of the Nation the right

to travel without restriction and with no conditions attached. Treaty With the

Yakamas, 12 Stat. 951 (1855), Art. III; Cree v. Flores, 157 F.3d 762 (9th Cir.

1998), affirming Yakama Nation v. Flores, 955 F. Supp. 1229 (E.D. Wash. 1997).

The Yakama Nation was guaranteed that right as part of a treaty in which it ceded,

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forever, claims to more than 10 million acres of land. Yakama Nation v. Flores,

955 F. Supp. at 1248. Harry and Kato Smiskin, tribal members, were indicted for

noncompliance with a Washington sales tax statute that requires pre-notification to

the State before transporting more than 60,000 unstamped cigarettes. By seeking

to enforce a law that imposes a condition on travel, the indictment of the Smiskins

conflicted with the Yakamas’ treaty right to travel with no conditions attached.

When a federal statute of general application conflicts with a specific Indian treaty

right, and Congress has not indicated that it is aware of the conflict and intends the

treaty right to yield, the statute must yield. United States v. Dion, 476 U.S. 734,

738-740 (1986). Congress did not indicate in enacting the CCTA that it was aware

of a potential conflict between enforcement of the CCTA and the Yakamas’ treaty

right to travel and that it was choosing to abrogate the Yakamas’ treaty right to

resolve that conflict. This Court therefore should affirm.

VII. ARGUMENT

A. An Indian Treaty Must be Respected and Carried Out According to How the Indians Would Have Understood Its Terms When They Consented to the Treaty, and May be Abrogated Only by Congress, Acting With Awareness of What it Is Doing.

“It is,” the Supreme Court has declared, the responsibility of the federal

judiciary

. . . to see that the terms of the [Yakamas’ or any other Indian tribe’s]

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treaty are carried out, as far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the [1855] council, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.

Tulee v. State of Washington, 315 U.S. 681, 684-685 (1942). “To construe [an

Indian treaty] as giving the Indians ‘no rights but such as they would have without

the treaty’ would be ‘an impotent outcome to negotiations and a convention, which

seemed to promise more and give the word of the Nation [i.e., the United States]

for more.’” Puyallup Tribe v. Department of Game of Washington, 391 U.S. 392,

397 (1968) (quoting United States v. Winans, 198 U.S. 371, 380 (1905)).

The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arm’s-length transaction. Rather, the treaties were imposed upon them and they had no choice but to consent. As a consequence, this Court has often held that treaties with the Indians must be interpreted as they would have understood them, . . . and any doubtful expressions in them should be resolved in the Indians’ favor.

Choctaw Nation v. Oklahoma, 397 U.S. 620, 630-631 (1970).

Congress has the supreme constitutional authority and political power (if not

necessarily the moral authority) to abrogate an Indian treaty unilaterally. Lone

Wolf v. Hitchcock, 187 U.S. 553, 565-566 (1903); United States v. Santa Fe Pacific

R. Co., 314 U.S. 339, 347 (1941). The Supreme Court has expressed its

presumption that Congress’ power to abrogate an Indian treaty “will be exercised

only when circumstances arise which will not only justify the government in

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disregarding the stipulations of the treaty, but may demand, in the interests of the

country and of the Indians themselves, that it should do so.” Lone Wolf, 187 U.S.

at 566. Thus, Congress may make the political decision, in the interests of the

country, to disregard an Indian treaty. The executive branch, however, lacks the

legal and political power, as well as the discretion, to disregard an Indian treaty.

In determining whether Congress intended a federal law to abrogate an

Indian treaty right, an explicit statement of Congressional intent to abrogate the

treaty right is “preferable,” but not always essential. United States v. Dion, 476

U.S. 734, 739 (1986). However, because Indian treaty rights “are too fundamental

to be easily cast aside,” the Supreme Court has been “extremely reluctant” to infer

intent to abrogate an Indian treaty right, and Congressional intent to abrogate an

Indian treaty right will not be inferred absent legislative history clearly indicating

“that Congress actually considered the conflict between its intended action on the

one hand and Indian treaty rights on the other, and chose to resolve that conflict by

abrogating the [Indian] treaty.” Dion, 476 U.S. at 739-740 (1986).2

2 Dion recognizes that a federal criminal statute of general application must yield to a specific treaty right if there is a conflict, although the court held in that case that Congress had intended in enacting the Bald Eagle Protection Act to permit the prosecution of an Indian for shooting an eagle on his reservation, despite a treaty right to hunt on the reservation.

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B. Congress Did Not Indicate When it Enacted the CCTA that It Knew Enforcement of the Statute Could Conflict With the Yakamas’ Treaty Right to Travel and That It Was Choosing to Resolve the Conflict at the Expense of the Treaty Right.

The government’s brief points to no legislative history for the CCTA

indicating that Congress considered, and chose to resolve against the Yakamas, a

potential conflict between provisions in states sales-tax regulations requiring pre-

notification of state authorities and the Yakamas’ Treaty right to travel on the

public highways without restriction. To the extent there is arguably pertinent

legislative history, it indicates, if anything, that Congress intended not to abrogate

any Indian treaty rights with which enforcement of the CCTA might come into

conflict. According to the House Conference Report, the CCTA was “not intended

to affect transportation . . . by Indians or Indian tribes acting in accordance with

legally established rights.” H.R. Conf. Rep. No. 1778, 95th Cong., 2d Sess., 1, 9

n.1, reprinted in 1978 U.S. Code and Cong. Admin. News 553, 5538. The

Yakamas have the legally established right to travel without restriction and without

any conditions attached. Cree v. Flores, 157 F.3d 762.

In United States v. Baker, 63 F.3d 1478, 1486 (9th Cir. 1995), cert. denied,

516 U.S. 1097 (1996), this Court held that this legislative history did not indicate

that Congress had intended to make the CCTA inapplicable to Indians generally.

The court held that the prosecutions at issue were not precluded by a trading right

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reserved to the Puyallup Tribe under the Medicine Creek Treaty of 1854. 63 F.3d

at 1485. But Baker does not provide a controlling precedent for this case, for

several reasons.

First, and most simply, Baker did not involve any issue pertaining to the

travel right guaranteed to Yakama Nation members under the 1855 Treaty With the

Yakamas.

Second, the Baker court did not have available to it a prior decision

providing the kind of interpretive background for the Medicine Creek Treaty that

Yakama Nation v. Flores and Cree v. Flores provide for the Yakama Treaty right

at issue here.

Third, the appellants in Baker were not members of the tribe protected by

the Medicine Creek Treaty.3 They therefore lacked standing to assert rights under

the Medicine Creek Treaty, no matter what that treaty might have been interpreted

to guarantee to the members of signatory tribes.

Fourth, Baker did not involve, as this case does, prosecutions solely for

transporting/possessing unstamped cigarettes without having complied with the re-

notification provision in RCW 82.24.250(1). The appellants in Baker had been

3 The tribes that signed the Medicine Creek Treaty were the Puyallup, Nisqually, Muckleshoot and Squaxin Island tribes. The appellants in Baker were a non-Indian and a member of the Shoalwater Bay Tribe.

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convicted of trafficking, money laundering, conspiracy and racketeering charges.

The Yakama Nation does not contend that its treaty right to travel insulates its

members from prosecution for money laundering, racketeering, or for most illegal

conspiracies.4

C. The Pre-Notification Requirement in RCW 82.24.250(1) Conflicted with the Smiskins’ Exercise of their Treaty Right to Travel.

The Smiskins are Yakama tribal members and were indicted simply for

possessing and transporting -- which means traveling with -- cigarettes on which

no sales tax had yet come due, and of which they had taken possession lawfully in

Idaho. The Flores decisions establish that the Yakamas’ treaty right to travel is a

right owned by individual Yakamas and is an unrestricted right and one on which

no condition may be imposed. The Flores decisions hold that Yakamas cannot be

required to pay tonnage fees on their log-hauling trucks and cannot be fined for

failing to pay such fees. If being fined for not paying a tonnage fee conflicts with

and must yield to the treaty right to travel, being arrested for not pre-notifying state

4 The 1855 Treaty probably would, in the Yakama Nation’s view, preclude prosecution of a Yakama tribal member for conspiracy where the only “overt acts” alleged consist of conduct that (1) is protected by the right to travel and (2) is conduct only a Yakama tribal member has, or members have, engaged in.

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tax officers before traveling with cigarettes and being sent to prison for five years

fined $250,0005 is, too.

D. The Government’s Arguments Lack Both Merit and Proper Institutional Respect for Indian Tribes and Treaty Rights.

The government’s brief offers three main lines of argument. The first is

dismissive of the Yakamas’ treaty right: the CCTA has to apply to the Smiskins

simply because it is a law of general application, and/or because its effect is to

impose the kind of “minimally burdensome” cigarette-tax-collection regulation.

The second line of argument denigrates the treaty right by insisting that the Flores

decisions “limit” it. The third line of argument resorts to demagoguery, warning of

Yakama Indians running amok on public highways carrying forbidden fruit,

narcotics, and who knows what else unless the district court’s ruling is reversed.

In addition to lacking merit, these arguments reflect a lack of commitment

on the part of the executive branch to carrying out the terms of the Yakamas’ treaty

in what the Tulee court called for, i.e., “a spirit which generously recognizes the

full obligation of this nation” to protect the Yakamas’ interests, and “in accordance

with the meaning [that treaty terms] were understood to have by the tribal

representatives at the [treaty-making] council.” Tulee, 315 U.S. at 684-685. The

5 See 18 U.S.C. § § 2344(a) and 3571(3).

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government’s brief never faces up to the fact that it is appealing from a decision

that vindicates a specific treaty right that is almost unique to the Yakamas.6

1. It is beside the point that the CCTA is a law of general application.

This Court has held the CCTA to be a federal law of general application and

thus presumptively applicable to Indians. Govt. Brief at 7 (citing United States v.

Baker, 63 F.3d 1478). But a federal law of general application must yield to a

specific Indian treaty right if the two conflict, unless Congress has indicated its

awareness of the conflict and the intention to sacrifice the treaty right to resolve the

conflict. United States v. Dion, 476 U.S. at 739-740.

2. It is beside the point that states have been held to have the power to impose some burdens on Indians in aid of cigarette-sales-taxing schemes.

Moe v. Salish & Kootenai Tribes, 425 U.S. 463 (1976), Washington v.

Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1979), and

Dep’t of Taxation and Finance of New York v. Milhelm Attea & Brothers, Inc., 512

U.S. 61 (1994), do confirm the authority of states to impose certain types of

requirements on individual members of Indian tribes in aid of collection of state

6 See Cree v. Flores, 157 F.3d at 772 (noting that “although Governor Stevens negotiated with the Northwest tribes many treaties containing parallel provisions, only the treaties with the Yakamas and Nez Perce contained highway [travel] clauses like [the one at issue in that case and in this case]”).

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cigarette sales taxes. Govt. Brief at 5-6. None of those decisions were made in a

case involving any Indian nation’s specific treaty rights.

3. The Flores decisions did not “limit” the Yakamas’ treaty right of travel to a right to transport “tribal goods” off the reservation.

The government asserts that the district court’s ruling is erroneous because

“the [Yakamas’ 1855] Treaty simply did not deal with the issue of what goods

individual Yakama Tribal members could transport,” and because Flores “limited”

the Yakamas’ treaty right “to travel ‘while engaged in the transportation of tribal

goods’.” Govt. Brief at 9. The government also asserts that the treaty right is only

a right to travel, and not a right to transport goods, including cigarettes that are

labeled contraband upon noncompliance with the prenotification requirement in

RCW 82.24.250(1), citing United States v. Farris, 624 F.2d 890 (1980). Govt. Br.

at 17. With respect to Farris, the Yakama Nation adopts the response of appellees

Smiskin at pages 17-19 of their brief.

The government obviously views the Yakamas’ treaty right to travel as an

inconvenience to those whose job it is to enforce the state sales tax laws that

Washington has chosen to enact. And the treaty right may well be an

inconvenience. But it is unbecoming of the government to denigrate the Yakamas’

treaty right or to resort to inventing a “limitation” on the treaty right.

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The district court in Yakama Nation v. Flores considered and examined at

length the historical context for and negotiation background to the right to travel

included in Article III of the Treaty With the Yakamas. It did so with regard for

well-established principles of Indian treaty interpretation with which the

government’s brief never comes to grips. The court found and concluded that the

Yakamas in 1855 would have understood the treaty to guarantee them the right to

travel without restriction or condition. It did not construe the right as a “limited”

one that depends on what is being carried on the trip or whether the trip is from or

to the reservation, or between other points.

Because Indian treaties mean what the Indians would have understood them

to mean when they were negotiated, Choctaw Nation, 397 U.S. at 630-31, they do

not evolve or change as the federal government’s priorities or states’ thirst for tax

revenues do. The government is bound by -- or stuck with -- the deal it solemnly

made 150 years ago. It may not wishfully insist that the Yakamas should have

understood in 1855 that federal agents would arrest and imprison tribal members

who travel with untaxed tobacco without first notifying the territorial government.

Nor may the government now wishfully insist that the Yakamas understood in

1855 that their right to travel under the treaty would allow them only to take things

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grown or made on their reservation to markets off the reservation. One cannot read

Yakama Nation v. Flores and come in good faith to such a conclusion.

Flores happened to involve the State of Washington’s insistence on

assessing licensing fees on trucks that the Yakamas were using to drive logs

harvested on the Yakama reservation to mills off the reservation, so the courts’

focus necessarily was on the right to travel for the purpose of trade. The State of

Washington was claiming in Flores that it had the power to regulate travel by

Yakamas that happened, in that case, to be for the purpose of trade. The State was

not arguing that the Yakamas’ treaty somehow limited the right to travel to a right

to transport certain types of trade goods in a certain direction.

As Judge McDonald noted, the right to travel that the Yakamas had enjoyed

traditionally, and would have understood that the 1855 Treaty was preserving for

them forever, was one to travel widely and for myriad purposes:

Prior to the signing of the Treaty, the Yakamas traveled extensively. This far-reaching travel was an intrinsic ingredient in virtually every aspect of Yakama culture. Travel was significant for many reasons, including trade, subsistence, and maintenance of religious and cultural practices. Travel was such an essential component of the Yakamas' way of life that “they could not have performed and functioned as a distinct culture in the plane in which they performed and functioned without extensive travel.” [Citing trial testimony.] [Emphasis supplied.]

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Yakama Nation v. Flores, 955 F. Supp. at 1438. “[Y]ou will be permitted to travel

the roads outside the reservation” was but one assurance made by the United States

government in 1855 to induce the Yakamas to accede to a demand that they limit

their lands to a reservation. Id. at 1244 (quoting Treaty minutes at p. 29).

The government’s assertion that the Flores decisions “limit” the Yakamas’

treaty right to a right to take “tribal goods” to market -- and thus, by implication,

not for the purpose of bringing traded-for cigarettes or other goods back to the

reservation -- ignores Judge McDonald’s description of what the evidence he heard

established concerning the richness of the Yakamas’ traditional trading activity:

Travel was particularly important for the purpose of trade. A network involving the exchange and interchangeability of goods and services existed between Indian tribes of the Northwest and surrounding areas, and the Yakamas were a central part of the network due to their location between Northwest Coast tribes to the west and the Plains tribes to the east. . . . Within this network, the Yakamas traded goods, such as dried salmon, at various tribal trade centers throughout the Northwest and beyond. . .

The Yakamas’ way of life depended on goods that were not available in the immediate area; therefore, they were required to travel to the Pacific Coast, the Columbia River, the Willamette Valley, California, and the plains of Wyoming and Montana to engage in trade. . . . Additionally, trading was constant between the fourteen bands of tribes that comprise the Yakama Nation. . . . Finally, Yakama Indians traded goods with non-Indians as whites expanded trading centers into the region, specifically those of the Hudson’s Bay Company. . .

Goods that Yakamas traded included fir trees, pumice-like lava rocks, horses, and most importantly, salmon. . . The Yakamas traded these

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items for goods such buffalo products, especially buffalo hide and dried buffalo meat. . . Finally, the Yakamas traded goods obtained from the Plains Indians for items from the coastal tribes. From the coastal tribes, the Yakamas primarily sought shellfish, which was significant for cultural as well as subsistence purposes. . .

Yakama Nation v. Flores, 955 F. Supp. at 1238 (record citations omitted).

Judge McDonald adhered to the admonition of the Supreme Court in

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196 (1999), to

approach the task of construing an Indian treaty by looking “beyond the written

words to the larger context. . ., including ‘the history of the treaty, the negotiations,

and the practical considerations adopted by the parties’.”7 In so doing, he found

that the travel right preserved for and guaranteed in the Yakamas’ 1855 Treaty -- to

individual Yakama tribal members8 -- was not only a right to take goods to market,

but a right to “general use” of the highways9 and to travel for “future economic

endeavors,” not just to the particular “economic endeavors” that the Yakamas of

1855 and earlier had engaged.10

In this case, the Smiskins were indicted for traveling with tobacco without

complying with the state pre-notification provision. Had the precise question of

traveling with tobacco been presented in Flores, and had it been necessary to 7 Quoting Choctaw Nation v. United States, 318 U.S. 423, 432 (1943). 8 Yakama Nation v. Flores, 955 F. Supp. at 1266 (Finding of Fact No. 80). 9 Id., at 1265 (Finding 61). 10 Id., at 1266 (Finding 70).

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consider evidence on the matter and decide the question, Judge McDonald surely

would have found that the Yakamas retained under Article III of their Treaty the

right to travel specifically for the purpose of trading not only in commodities like

fish and hides, but in tobacco. When the 1855 Treaty was made, tobacco had long

been among the goods actively traded by the Yakama and other Northwest tribes.

According to Ka-Mi-Akin: Last Hero of the Yakimas, by A.J. Splawn11, at 411,

The principal pipe stone quarry, for central Washington tribes, was in the Wenatchee country. Pipes were in existence in 1805, when Lewis and Clarke [sic] came; at that time they [the tribes, not Lewis and Clark] used the native tobacco Kin-e-ki-nick. They craved tobacco from the beginning of its introduction among them and would pay any price for it, mixing it with the Kin-e-ki-nick for the sake of economy. . . . The medicine-pipe is a sacred pledge of friendship among all the Pacific Northwestern tribes.

According to the same author, at the Great Council of 1855 at Walla Walla (at the

conclusion of which the Treaty With the Yakimas was signed), the first half hour

of the first day “was consumed in smoking, a ceremony which must precede all

business with an Indian.”12

11 Binsford & Mort for the Oregon Historical Society, 2d ed., 1944. The first edition evidently was published in 1917. Ki-Mi-Akin, or Kamiakin, was one of the three principal chiefs of the Yakamas with whom Isaac Stevens negotiated the 1855 Treaty. Yakama Nation v. Flores, 955 F. Supp. at 1236. 12 Id. at page 29. And see United States v. Fiander, 401 F. Supp. 2d 1136, 1144 (E.D. Wash. 2005) (acknowledging “credible [though unspecified] evidence of the historical importance of the trade of goods for tobacco to the Yakama Tribe,” in

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The government’s argument for construing the Yakamas’ treaty right to

travel narrowly is contrary to the Flores decisions. It is contrary to the rule of

construction requiring that terms in Indian treaties be given the meaning that the

Indians who were forced into accepting the treaties would have understood them to

have at the time. Tulee v. State of Washington, 315 U.S. 684-685. It is contrary to

the Supreme Court’s admonition against construing an Indian treaty “as giving the

Indians ‘no rights but such as they would have without the treaty’.” Puyallup

Tribe, 391 U.S. at 397.

4. Colville does not apply.

Despite the fact that it was a case that involved no treaty-rights issue, the

government argues that Colville, 447 U.S. 134, “applies” to this appeal. Govt.

Brief at 11. Colville held (wrongly and unfairly, in the Yakamas’ view) that the

general sovereignty rights retained by Indian tribes do not preclude imposition by

states of some “minimally burdensome” regulations on reservation smoke shops

(because, in the court’s view, Indians ought not to be able to “market” a sales tax

exemption to solicit trade that they could not otherwise possibly attract to the

rejecting an argument by the government that the Yakamas’ treaty right to travel, as construed in Flores, is limited to taking “tribal goods” to market).

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reservation13). No Supreme Court decision has held that a specific treaty right --

let alone a treaty right that has been construed by prior decisions to be a right to

travel without conditions attached -- is subject to state or federal regulations that

are “minimally” burdensome. As the Smiskins correctly explain at pages 39-41 of

their brief, evaluation of the “burdensomeness” of a revenue-generating regulation

is not part of the inquiry when a specific treaty right is at issue. Moe, Colville and

Milhelm Attea have no lesson to teach for this case.

5. The district court did not “misconstrue” Tulee.

The government seems to argue that the district court should be reversed

because Tulee, 315 U.S. 684, allows the enforcement of any law that does not

require an Indian pay a fee. Govt. Brief at 13-14.

To the contrary, and as the district court below reasoned in this case, Tulee

established a distinction according to which (a) state “regulatory” laws that have a

restrictive effect on the exercise of treaty fishing rights of the Yakamas (and by

implication the specific treaty rights of other Indian nations) are enforceable, but 13 See Colville, 447 U.S. at 155 (lest Indian tribes “open chains of discount stores at reservation borders, selling goods of all descriptions at deep discounts and drawing custom from surrounding areas. . . principles of federal Indian law . . . [do not] authorize Indian tribes . . . to market an exemption from state taxation to persons who would normally do their business elsewhere”), and at 157 (“Washington’s taxes are reasonably designed to prevent the Tribes from marketing their tax exemption to nonmembers who do not receive significant tribal services and who would otherwise purchase their cigarettes outside the reservations”).

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(b) laws that have different, non-“regulatory” purposes -- such as the production of

state tax revenue -- are invalid and unenforceable when they restrict the exercise of

specific Indian treaty rights. Tulee, 315 U.S. at 685. The generation of revenue is

the state interest that RCW Chapter 82.24 promotes. Matheson v. Washington

State Liquor Control Board, ___ Wn. App. ___, 2006 Wn. App. Lexis 543 *8

(Wash. Ct. App. March 28, 2006).

The Yakama Nation does not concede that Tulee’s “regulatory-versus-

nonregulatory-purpose” framework will always be the proper approach to

resolving whatever conflicts may arise between the Yakamas’ specific treaty right

to travel and any federal or state law of general application. But, if it is a valid

approach and is the framework that is always to be used, its application here would

not favor the government’s arguments for reinstating its prosecution of the

Smiskins. As the Smiskins’ Joint Brief points out, the CCTA enforces a state tax-

collection regulation that, under Tulee, would be classified as a “non-regulatory”

law, which means the parts of it that the Smiskins were charged with violating

would have to yield to the specific treaty right here at issue. The Washington laws

that the Smiskins were charged under the CCTA for not complying with are laws

that regulate what may be done with “contraband” cigarettes not out of a

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“regulatory” purpose -- they were not enacted to protect public health, for example

-- but to help the State collect sales taxes.14

6. The government’s “dire consequences” argument reflects its disrespect for the Yakama Nation and the promises the United States made in the 1855 Treaty.

The government falls back, ultimately, on a “dire consequences” argument.

The district court’s ruling, it argues:

. . . permits the treaty right [to travel] to transform any otherwise regulated good into a non-regulated good as long as a Yakama Tribal member touches the commodity. . . [T]his exemption can create a moveable chain of Yakima discount stores. . . [S]imply by touching contraband cigarettes, Yakamas change the cigarettes into legal goods, a new, state-wide market has been created. . . Also, because there are no limits placed on the Yakamas’ travel right, it can extend to any state regulated good, anywhere. For instance, Yakamas could not be prohibited from carrying otherwise forbidden fruits, vegetables, plants or animals throughout the United States. .

Govt. Brief at 14-15. The government goes on to raise the specter of Yakamas

roaming with impunity throughout America carrying illegal narcotics, which, it

asserts, “are virtually the same” as contraband cigarettes. The government allows

itself to become alarmed unnecessarily.

A sense of perspective is in order. Harry and Kato Smiskin lawfully came

into possession of cigarettes in Idaho. They were not charged with transporting

stolen goods, or with being part of a conspiracy, and they did not fail to collect

14 And, ironically, taxes that the State has had difficulty making non-Indians pay.

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sales tax on sales of cigarettes to someone not a fellow Yakama tribal member.

They were not charged with disobeying traffic safety rules while driving on the

highways. All the Smiskins were charged with doing was traveling with cigarettes

in Washington without having pre-notified Washington tax-revenue authorities.

“What ifs” are not at issue here. Whether Yakama tribal members may

travel with unstamped cigarettes in Washington (or in another state) free from

conditions that a “regulatory” criminal law -- such as one outlawing cigarettes as

public-health hazards -- might impose is not before this Court (although Tulee at

least arguably would provide the government with authority to support an

argument for prosecution under such a law).15 Such questions should await a

proper case.

Ultimately, though, the executive branch needs to give the Yakama Nation

more respect. 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 a right under its

treaty to traffic in narcotics. For the government of the United States to be

suggesting otherwise is irresponsible.

15 Whether the Yakamas’ treaty right of travel gives tribal members the right to travel without restriction beyond what in 1855 had been their traditional “range” of travel also is a question not presented by this case.

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The Yakama Nation must and will intercede as a 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. The Nation has no such interest 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.

It may take future cases, in some instances with evidentiary hearings, to

establish exactly the contours and limits of the Yakama Nation’s treaty right to

travel. The Yakama Nation may choose to enter into compacts with states, or even

to acquiesce in some types of regulation when the public good is served by

allowing the imposition of conditions on its members’ treaty right to travel that are

inconsistent with how the right would have been understood by Yakamas in 1855.

But this is not a close case or one over which the Yakama Nation needs to agonize.

This case involves a sales-tax statute that the government cannot plausibly claim

was enacted to protect public health, public safety, natural resources, or public

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infrastructure. The government’s effort to imprison and fine the Smiskins for

traveling in noncompliance with the conditions of that statute must yield to the

promises made to the Yakama Nation in 1855.

As Judge McDonald more wisely observed in Yakama Nation v. Flores:

Treaties are a country’s contracts. The solemn commitment of great nations, like the given word of good men, should be honored. It should not matter if the erosion of time and the bright glare of hindsight demonstrate that they were extravagant or ill-advised. The promises made at Walla Walla all those years ago were unconditional. They will be so enforced by this court.

955 F. Supp. at 1260. The executive branch obviously chafes at being told that

commitments made to the Yakamas all those years ago at Walla Walla must be

honored. The executive branch wishes Isaac Stevens had negotiated with the

Yakamas a more limited right to travel or, better yet, none at all. But he did not

and, Congress having never abrogated or limited the right, the commitment the

United States made in 1855 is a commitment that survives into the 21st century.

The Smiskins had the same treaty right in 2004 that Kamiakin had in 1860. It

conflicts with that treaty right to prosecute a Yakama tribal member for

noncompliance with a pre-notification condition imposed by the State of

Washington on his or her right to transport cigarettes of which he took possession

lawfully.

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VIII. CONCLUSION

For the foregoing reasons, the Yakama Indian Nation believes this Court

should affirm the ruling of the district court.

RESPECTFULLY SUBMITTED this 20th day of April, 2006. WILLIAMS, KASTNER & GIBBS PLLC

By Debora Juarez Gabriel S. Galanda Daniel W. Ferm Attorneys for the Yakama Indian Nation

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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7)(C) and CIRCUIT RULE 32-1 FOR CASE NUMBER 03-36053

I certify that: 1. Pursuant to Fed. R. App. P. 32(a)(7)(C) and the Ninth Circuit Rule 32-1,

the attached answering brief is

Proportionately spaced, has a type of 14 points or more and contains 10,006 words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must to exceed 7,000 words),

or is ___ Monospaced, has a 10.5 or fewer characters per inch and contains

_____ words or ______ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words 1,300 lines of text; reply briefs must to exceed 7,000 words or 650 lines of text).

___2. The attached brief is not subject to the type-volume limitations of Fed. R.

App. P. 32(a)(7)(B) because

___ This brief complies with Fed. R. App. P. 32(a)(1)-(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages;

___ This brief complies with a page or size-volume limitation established

by separate court order dated _______ and is

___ Proportionately spaced, has a typeface of 14 points or more and contains ________ words,

or is

___ Monospaced, has 10.5 or fewer characters per inch and contains ____ pages or ____ words or ____ lines of text.

___3. Briefs in Capital Cases.

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___ This brief is being filed in a capital case pursuant to the type-volume

limitations set forth at Circuit Rules 32-4 and is

___ Proportionately spaced, has a type of 14 points or more and contains _____ words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 21,000 words; reply briefs must to exceed 9,800 words),

or is

___ Monospaced, has 10.5 or fewer characters per inch and contains ____ words or ____ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 75 pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).

X 4. Amicus Briefs.

X Pursuant to Fed. R. App. P. 29(d) and 9th Circuit Rule 32-1, the attached amicus brief is proportionately spaced, has a typeface of 14 points or more and contains 7000 words or less,

or is

___ Monospaced, has 10.5 fewer characters per inch and contains not more than either 7000 words or 650 lines of text,

or is

___ Not subject to the type-volume limitations because it is an amicus brief of no more than 15 pages and complies with Fed. R. App. P. 32(a)(1)(5).

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Dated: WILLIAMS, KASTNER & GIBBS, PLLC By Daniel W. Ferm, WSBA #11466 Attorneys for Yakima Indian Nation

1822396.3 1822396.3

CERTIFICATE OF SERVICE AND FILING

I hereby certify that on the 20th day of April, 2006, I served, by mailing said

documents first class United States mail, postage prepaid, two copies of the

attached Brief of Amicus Yakama Indian Nation, on:

Counsel for USA: Jane M. Kirk, Assistant U.S. Attorney James A. McDevitt, United States Attorney Eastern District of WA 402 E. Yakima Avenue, Suite 210 Yakima, WA 98901-2760 Counsel for Kato Smiskin: Rebecca L. Pennell Federal Defenders of Eastern Washington and Idaho 306 E. Chestnut Avenue Yakima, WA 98901 Counsel for Harry James Smiskin: Russell James Mazzola Mazzola Law Firm 314 North 2nd Street Yakima, WA 98901 I further certify that I filed the original and 15 copies of the Brief of Amicus

Yakima Indian Nation with:

Ms. Cathy Catterson Clerk Ninth Circuit Court of Appeals P.O. Box 193939

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San Francisco, CA 94119-3939 by mailing said documents first class United States mail, postage prepaid.

Daniel W. Ferm