U.S. v. Simiskin, No. 05-30590 (5-18-07). The hortatory treaty language for Indians usually pledges rights that are trounced as soon as it suits the government or states. In an exception, the 9th (Paez joined by D. Nelson and Thompson) hold that the 1855 Yakima Indian treaty, giving the tribe the right to travel on public highways, meant that the State of Washington could not require defendants (Yakima tribal members) to give notice of transportation of unstamped cigarettes. As a result, since there was no state violation, the federal indictment charging Contraband Cigarette Trafficking must be dismissed. The 9th affirmed the dismissal of the indictment. Thus, in this case, so long as the grass grows, the streams run, and the Yakima Treaty of 1855 is not abrogated, the Yakimas transporting unstamped cigarettes can travel freely without state notification.

The state cannot tax cigarettes sold to tribal members on reservations. They can tax cigarettes sold to non-tribal members. The state wants to keep track of what was sold to whom. Thus, the state wanted the notification of unstamped cigarettes transportation so they could track the cigarettes, and collect taxes on sales to non-tribal members.

The 9th goes through the applicability of the CCTA, the applicability of the treaty, and its interpretation of "travel", which was very broad. There is no evidence that Congress meant to trump treaty rights through the CCTA. "Goods" that travel on public highways are not limited to tribal goods, and the state's interest in regulation, say of fishing for conservation, is not applicable when the purpose of the regulations are revenue.

Congrats to AFPD Rebecca Powell of the Federal Defenders of Eastern Washington.