SCOTUS Denies Cert in Mitchell v. Tulalip; Teck Metals v. Colville; and King Mountain Tobacco

Here is the order list.

Mitchell materials here.

Teck Metals materials here.

King Mountain materials here.

King Mountain Tobacco v. US Cert Petition


cert petition

Questions presented:

1. Whether the Ninth Circuit erred in holding that the Yakama Treaty must include  express exemptive language” to create an exemption from a federal tax or fee. 

2. Whether the Ninth Circuit erred in holding that the federal tobacco excise tax, 26 U.S.C. § 5701-5703, and the Fair and Equitable Tobacco Reform Act (“FETRA”), 7 U.S.C. § 518-519, apply to the Yakama Indians even though (1) the Yakama Treaty creates a right to travel in order to protect the Yakama Indians’ ability to trade and (2) these taxes and fees are triggered by the transport of goods – rather than by sale or manufacture.

Lower court materials here. Case tag here.



Ninth Circuit Rejects Treaty Defense in United States v. King Mountain Tobacco (Nos. 14-36055, 16-35607)

Here is the opinion.

An excerpt:

We affirm our longstanding rule that Indians—like all citizens—are subject to federal taxation unless expressly exempted by a treaty or congressional statute. Hoptowit, 709 F.2d at 566. In this case, neither the General Allotment Act nor the Treaty with the Yakamas expressly exempts King Mountain from the federal excise tax on manufactured tobacco products. King Mountain is therefore liable for payment of the tax and associated penalties and interest.

Briefs here.

The CA9 also rejected an appeal on a discovery issue in this matter (docket number 16-35956):

Memorandum Opinion

Briefs in that matter here.


County Sues BIA Over Boundary Dispute and Retrocession on Yakama Reservation

Download materials in the matter of Klickitat County v. U.S. Department of Interior (E.D. Wash.):

Doc. 1 Complaint for Declaratory and Injunctive Relief

Link to previous coverage here.

Confederated Tribes and Bands of the Yakama Indian Reservation v. McKenna Cert Petition


cert petition

Question presented:

Whether federal courts called upon to enforce Indian treaty protections in tribal challenges to State regulation may enter judgment against the Indian Tribe without considering evidence and entering findings of fact on the Indians’ understanding of the United States’ treaty promises.

Lower court materials here.

Ninth Circuit Rejects Treaty Argument in King Mountain Tobacco v. McKenna

Here is the opinion.

The court’s syllabus:

Affirming the district court’s summary judgment, the panel held that the Yakama Treaty of 1855 did not preclude enforcement of the State of Washington’s escrow statute, which requires tobacco companies to place money from cigarette sales into escrow to reimburse the State for health care costs related to the use of tobacco products.

The panel held that Washington’s escrow statute was a nondiscriminatory law and that the activities of King Mountain Tobacco Co., a company owned and operated by an enrolled member of the Yakama Indian Nation, were largely off-reservation. Accordingly, absent express federal law to the contrary, King Mountain was subject to the escrow statute. The panel held that the plain text of the Yakama Treaty did not create a federal exemption from the escrow statute. Specifically, Article II of the Treaty, which established the boundaries of the Yakama reservation and reserved it for Yakama use and benefit, was not an express federal law that exempted King Mountain from the escrow statute. Nor was Article III, which reserved to the tribe the right to travel on public highways and the right to hunt and fish. The panel held that the district court did not err by declining to make findings regarding the Treaty’s meaning to the Yakama people at the time of its signing because the meaning to the Yakama people could not overcome the clear words of the Treaty.

Briefs here.

Ninth Circuit Materials in King Mountain Tobacco v. McKenna

Here are the briefs:

King Mountain Opening Brief 

Washington Answer Brief

King Mtn Reply Brief

Oral argument link here.

Lower court materials here.

Federal Court Rules Against King Mountain Tobacco in Dispute with Washington State

Here are the materials in King Mt. Tobacco Co. v. McKenna (E.D. Wash.):

DCT Order

Washington AG Motion for Summary J

King Mountain Opposition

Washington AG Reply

King Mountain Tobacco Motion for Summary J

Washington AG Opposition

King Mountain Reply

An excerpt:

Based on the finding above that the finished cigarettes and roll-your-own tobacco [24] are not directly derived from trust land, King Mountain can prove no set of facts in support of the claim that Washington’s escrow statutes are in conflict with the Treaty or federal law which would entitle Plaintiffs to relief. Escrow is required for all non-exempt sales subject to the State’s cigarette taxes, regardless whether those sales occur on or off the reservation. Escrow isnotrequired for tax exempt King Mountain sales of cigarettes purchased directly by enrolled members of federally recognized Indian tribes from an Indian tribal jurisdiction of the member’s tribe for the member’s own use. If there were any past sales that were exempt from state excise tax, but for which King Mountain has deposited money into escrow anyway, King Mountain has failed to offer evidence in support of a refund claim and the court expresses no opinion concerning the same. Accordingly, King Mountain, a NPM, is required to comply with the escrow statute for all past and future sales deemed “units sold.”

Amended Complaint in Yakama Indian Nation Claims against FBI’s Invasion of Yakama Reservation


Yakama v. Holder Filed Second Amended Complaint.

Apparently, the FBI’s raid on the Yakama reservation included law enforcement units from local counties and, remarkably, from jurisdictions in Mississippi and Virginia.