FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.

HARRY JAMES SMISKIN, No. 05-30590

Defendant-Appellee,  D.C. No.

CR-04-02107-EFS

YAKAMA NATION COMMERCE

ASSOCIATION; YAKAMA NATION,

Applicants-Intervenors. 

UNITED STATES OF AMERICA, 

No. 05-30591 Plaintiff-Appellant,

D.C. No.

v.  CR-04-02108-EFS

KATO SMISKIN,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Washington

Edward F. Shea, District Judge, Presiding

Argued and Submitted

October 17, 2006—Seattle, Washington

Filed May 18, 2007

Before: Dorothy W. Nelson, David R. Thompson, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

5837
COUNSEL

James A. McDevitt, United States Attorney, and Jane Kirk,

Assistant United States Attorney, Yakima, Washington, for

the plaintiff-appellant. 

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

Kato Smiskin. 

Russell Mazzola, Mazzola Law Office, Yakima, Washington,

for defendant-appellee Harry James Smiskin. 

Sharon I. Haensly, Debora Juarez, Gabriel S. Galanda, and

Daniel W. Ferm, Williams, Kastner & Gibbs PLLC, Seattle,

Washington, for amicus The Yakama Nation. 

Jack W. Fiander, Towtnuk Law Offices, Ltd., Sacred Ground

Legal Services, Inc., Yakima, Washington, for amicus

Yakama Nation Commerce Association. 

OPINION

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

1Article III of the Treaty provides in relevant part: 

And provided, 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. 

Treaty with the Yakamas, Art. III, 12 Stat. 951, 952-53 (1855) (second

emphasis added). 

UNITED STATES v. SMISKIN 5841
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 prenotification 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

2Because we affirm the district court’s order granting the Smiskins’

motion to dismiss, we do not address their alternative argument invoking

the rule of lenity. 

5842 UNITED STATES v. SMISKIN
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

3These facts were presented in exhibits that the parties submitted to the

district court, and which the court considered in ruling on the Smiskins’

motion to dismiss. 

4Although states cannot tax cigarettes sold to tribal members on Indian

reservations, they may tax on-reservation sales to non-Indians. See Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134,

160-61 (1980) (“Colville”); Moe v. Confederated Salish and Kootenai

Tribes of the Flathead Reservation, 425 U.S. 463, 480-81 (1976). By

requiring notice from tribal members before they transport unstamped cigarettes within the State, Washington is able to track cigarette imports for

the purpose of enforcing the lawful tax on sales to non-Indians. 

UNITED STATES v. SMISKIN 5843
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

[1] 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

5We presume the allegations of an indictment to be true for purposes of

reviewing a district court’s ruling on a motion to dismiss. See United

States v. Blinder, 10 F.3d 1468, 1471 (9th Cir. 1993). 

6The other two exceptions, which do not apply here, arise if the statute

is silent regarding applicability to Indian tribes and either: (1) the law

touches “exclusive rights of self-governance in purely intramural matters”

or (2) there is proof “by legislative history or some other means that Congress intended [the law] not to apply to Indians.” Baker, 63 F.3d at 1485

(alteration in original). 

5844 UNITED STATES v. SMISKIN
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.”). 

[2] 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). 

[3] 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 (1999) (“Mille Lacs Band”); see

also Tulee v. Washington, 315 U.S. 681, 684-85 (1942) (“It

UNITED STATES v. SMISKIN 5845
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 (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. 

[4] 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 on this right.

Because the state pre-notification requirement at issue here

does not impose any fee, the Government argues that Cree II

7

In Cree II, we affirmed the district court’s judgment in Yakama Indian

Nation v. Flores, 955 F. Supp. 1229 (E.D. Wash. 1997), following our

remand in Cree v. Waterbury, 78 F.3d 1400 (9th Cir. 1996) (“Cree I”). 

5846 UNITED STATES v. SMISKIN
does not apply and that the requirement does not violate the

Yakama Treaty. We decline to draw such a distinction. 

In Cree II, we expressly relied on the extensive factual

findings made by the district court in that case — the Yakama

Indian Nation district court. As we noted:

The district court eloquently set forth its findings

that travel was of great importance to the Yakamas,

that they enjoyed free access to travel routes for

trade and other purposes at Treaty time, and that they

understood the Treaty to grant them valuable rights

that would permit them to continue in their ways.

We agree with the district court that, in light of those

and its other findings, the Treaty clause must be

interpreted to guarantee the Yakamas the right to

transport goods to market over public highways

without payment of fees for that use. 

Id. at 769. Indeed, the Yakama Indian Nation district court

conducted a “careful inquiry into the intentions of the parties”

at the time of the Treaty, and considered extensive testimony

from three experts and hundreds of exhibits. See id. at 774. 

Further, in light of the detailed factual findings in Yakama

Indian Nation, we have little difficulty in concluding that the

Yakamas’ treaty right extends to the case at hand. In Yakama

Indian Nation, the district court determined that the Yakama

Treaty, and the Right to Travel provision in particular, were

of tremendous importance to the Yakama Nation when the

Treaty was signed. See 955 F. Supp. at 1238. At that time, the

Yakamas exercised free and open access to transport goods as

a central part of a trading network running from the Western

Coastal tribes to the Eastern Plains tribes. See id. Agents for

the United States thus repeatedly emphasized in negotiations

that tribal members would retain the “same liberties . . . to go

on the roads to market.” Id. at 1244, 1247. Indeed, although

the United States “negotiated with the Northwest tribes many

UNITED STATES v. SMISKIN 5847
treaties containing parallel provisions,” a “public highways

clause” promising a right to travel is found in only one other

treaty. Cree II, 157 F.3d at 772. 

[5] The United States also promised the Yakamas that they

could rely on “all [the Treaty’s] provisions being carried out

strictly,” id. at 767, and the Yakamas forever ceded about 10

million acres, or 90 percent of their land, in exchange for

these rights. See Yakama Indian Nation, 955 F. Supp. at 1248,

1254; County of Yakima v. Confederated Tribes and Bands of

the Yakima Indian Nation, 502 U.S. 251, 256 (1992). The

Yakama Nation thus understandably assigned a special significance to each part of the Treaty at the time of signing and

continues to view the Treaty as a sacred document today. See

Yakama Indian Nation, 955 F. Supp. at 1262. 

[6] Based on these findings, the Yakama Indian Nation district court concluded that the Yakamas understood the Treaty

at the time of signing to “unambiguously reserve[ ] to [them]

the right to travel the public highways without restriction for

purposes of hauling goods to market.” Id. at 1248 (emphasis

added). The court further determined that “both parties to the

treaty expressly intended that the Yakamas would retain their

right to travel outside reservation boundaries, with no conditions attached.” Id. at 1251 (emphasis added). Finally, it

found that “the Treaty was clearly intended to reserve the

Yakamas’ right to travel on the public highways to engage in

future trading endeavors.” Id. at 1253 (emphasis in original).

[7] In light of these findings, which we did not disturb in

Cree II, the district court in the instant case properly concluded that the pre-notification requirement is a “restriction”

and “condition” on the right to travel that violates the Yakama

Treaty. Tribal members were not required to notify anyone

prior to transporting goods to market at the time of the treaty,8

8As the Yakama Nation argues in its Amicus Brief, the Government

“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.” 

5848 UNITED STATES v. SMISKIN
and the Treaty guaranteed to them the same rights today. We

agree with the district court that there is no basis in either the

language of the Treaty or our cases interpreting it for distinguishing restrictions that impose a fee from those, as here,

that impose some other requirement. Applying either type of

requirement to the Yakamas imposes a condition on travel

that violates their treaty right to transport goods to market

without restriction.9 Thus, just as the State cannot issue citations to tribal members for not paying fees before they bring

lumber to market, the federal government cannot impose

criminal sanctions on tribal members for not providing notice

to the State before transporting tobacco for sale or trade. 

Similarly, we refuse to draw what would amount to an arbitrary line between travel and trade in this context, holding, as

the Government suggests, that the Yakama Treaty does not

protect the “commerce” at issue in the Smiskins’ case. We

have already established that the Right to Travel provision

“guarantee[s] the Yakamas the right to transport goods to

market” for “trade and other purposes.” Cree II, 157 F.3d at

769 (emphases added). Thus, whether the goods at issue are

timber or tobacco products,10 the right to travel overlaps with

the right to trade under the Yakama Treaty such that excluding commercial exchanges from its purview would effectively

abrogate our decision in Cree II and render the Right to

Travel provision truly impotent. See Puyallup Tribe v. Dep’t

of Game of Wash., 391 U.S. 392, 397 (1968) (“To construe

the treaty as giving the Indians no rights but such as they

would have without the treaty would be an impotent outcome

9

Indeed, were we to agree with the Government, Yakama tribal members who transport cigarettes without providing notice to the State would

face felony charges under the CCTA and up to five years in prison and

$250,000 in fines. See 18 U.S.C. §§ 2344(a), 3571(3). As a practical matter, we fail to see how this criminal penalty would impede less on the

Yakamas’ right to travel than the minimal fines at issue in Cree II. 

10As the Yakama Nation notes in its Amicus Brief, eyewitness accounts

confirm that tobacco had been a significant medium of trade for the Yakamas for over fifty years when the Treaty was signed in 1855. 

UNITED STATES v. SMISKIN 5849
to negotiations and a convention which seemed to promise

more, and give the word of the Nation for more.” (citations

omitted) (internal quotation marks omitted)). 

Neither do we find our decision in Baker determinative. In

Baker, we held that the CCTA validly applied to members of

the Puyallup Indian Tribe notwithstanding a “right to trade”

allegedly promised the Tribe in the Medicine Creek Treaty.

See 63 F.3d at 1485. Similar to the present case, the Puyallup

tribal members had trafficked in unstamped cigarettes without

obtaining prior approval from the State of Washington, in violation of Washington Administrative Code section 458-20-

192. The cigarettes were therefore unauthorized under state

law and contraband under the CCTA. 

The Supreme Court’s jurisprudence makes clear, however,

that we must interpret a treaty right in light of the particular

tribe’s understanding of that right at the time the treaty was

made,11 and Baker addressed a different tribe, a different

treaty, and a different right. Indeed, the relevant portion of the

Medicine Creek Treaty involved in Baker did not expressly

grant any right to the Puyallup Tribe, providing only that,

“[t]he said tribes and bands finally agree not to trade at Vancouver’s Island, or elsewhere out of the dominions of the

United States.” Id. Thus, the defendant tribal members could

only argue that, by including such a restriction, the Treaty

intended no other restrictions on Indian trade. See id. This

ambiguous treaty language stands in stark contrast to the text

of the Yakama Treaty, which expressly grants the “right to

travel . . . upon all public highways,” and our interpretation

of the Treaty in Cree II.

12 Further, although we held in Baker

11See, e.g., Mille Lacs Band, 526 U.S. at 201-02 (noting that similar language in two treaties may have different meanings because the Court

examines “the historical record and . . . the context of the treaty negotiations to discern what the parties intended by their choice of words”); Fishing Vessel, 443 U.S. at 675 (“Accordingly, it is the intention of the parties

. . . that must control any attempt to interpret the treaties.”). 

12For similar reasons, our decision in Farris is inapposite. There, we

concluded that another provision of the Medicine Creek Treaty, promising

5850 UNITED STATES v. SMISKIN
that the CCTA did not violate the Medicine Creek Treaty

even “assuming the defendants are correct about the expectations of the signers,” we addressed only the “trading right”

allegedly guaranteed by the Medicine Creek Treaty, not the

very different “right to travel” promised by the Yakama

Treaty. See 63 F.3d at 1485. 

Additionally, in Baker, we did not find the characteristics

of the state requirement then at issue relevant to our holding.

Instead, we simply held that the “CCTA is not an impermissible restriction on a trading right guaranteed by the [Medicine

Creek] Treaty.” Id. This broad holding cannot apply with similar force to the Yakama Treaty. In light of Cree II, the CCTA

would certainly be an impermissible restriction on the Yakamas’ right to travel if the Government could rely on it to

enforce against tribal members a state fee on the transport of

unstamped cigarettes. Consequently, because Baker did not

draw a distinction between such a fee based requirement and

other types of requirements, it sheds no light on the critical

question we resolve here: whether the State of Washington’s

pre-notification requirement is distinguishable from the fee

based requirements at issue in Cree II, such that applying it

to Yakama tribal members would not violate their treaty right

to travel. 

[8] Finally, the Government argues that the Yakamas’ right

to travel applies only to “tribal goods,” which it defines as

goods that are either collectively owned or produced on the

reservation by the Tribe. Hence, the Treaty would apply to the

reservation produced timber at issue in Cree II, but not to the

cigarettes at issue here, which the Government alleges are not

“exclusive use” of reservation land, was not specific enough to preempt

a federal gambling statute. See 624 F.2d at 893. The Yakama Treaty’s

more detailed public highways clause, which sets forth a specific right to

travel and has been the subject of extensive judicial interpretation, is sufficiently specific to preclude application of Washington’s pre-notification

requirement through the CCTA. 

UNITED STATES v. SMISKIN 5851
tribally owned or produced. The Government makes two

points in support of its position. First, it calls our attention to

the occasional references to “tribal goods” in Yakama Indian

Nation and Cree II. See Yakama Indian, 995 F. Supp. at 1249;

Cree II, 157 F.3d at 768. However, we referred simply to

“goods,” not “tribal goods,” in ultimately defining the Yakamas’ right to travel in Cree II. See 157 F.3d at 769; see also

Yakama Indian Nation, 995 F. Supp. at 1248 (defining the

Treaty right as protecting “goods”). Further, we held that the

Yakama Treaty precluded the State from issuing citations to

the plaintiff logging companies, which were privately owned

by individual tribal members. See Cree II, 157 F.3d at 765.

We also cited with approval Yakama Indian Nation’s ruling

that the Treaty right to travel “can be exercised by its individual members,” id. at 774 (quoting Yakama Indian Nation, 955

F. Supp. at 1260) (emphasis added), which is in accord with

the Supreme Court’s jurisprudence. See Puyallup Tribe, Inc.

v. Dep’t of Game of Wash., 433 U.S. 165, 171 (1977) (stating

that “individual defendants were members of the Tribe and

therefore entitled to the benefits of the Treaty”). Thus, we

conclude that the use of the term “tribal goods” in Yakama

Indian Nation and Cree II meant only that the “goods” must

be transported by “tribal” members. 

[9] Also in support of its position, the Government directs

us to the district court’s finding in Yakama Indian Nation that

“[t]rucks owned by individual Indians have never been

exempt from [vehicle] license fees.” 955 F. Supp. at 1232-33

(emphasis added); see also Cree II, 157 F.3d at 765 (noting

this finding). Although the court did not explain the relevance

of this fact, the Government suggests that the State’s imposition of such fees on the property of individual Indians shows

that the parties did not understand the Treaty to protect nontribal goods. However, it is well established that parties’ posttreaty actions are relevant only insofar as they reflect on the

determinative issue, the parties’ intent at the time the treaty

was signed. See Cree I, 78 F.3d at 1403; see also Yakama

Indian Nation, 955 F. Supp. at 1254 (discussing Supreme

5852 UNITED STATES v. SMISKIN
Court cases that “clearly hold that subsequent actions cannot

rewrite or expand a treaty beyond its clear terms”). Here,

there is evidence from the time of treaty suggesting that the

Yakamas then understood the right to travel to extend beyond

tribal goods. Specifically, given the Tribe’s centrally located

position as part of an inter-tribal trading network, it is likely

that the Yakamas transported not only their own goods but

also goods produced by other tribes in the network.13 See

Yakama Indian Nation, 955 F. Supp. at 1238. In sum, we disagree with the Government’s argument that the Yakamas’

treaty right to travel protects only collectively owned or reservation derived goods. 

C. The “Regulatory” Exception

[10] In resolving conflicts between state laws and Indian

treaties, the Supreme Court has provided a narrow exception

to the inviolability of treaty rights, holding that “pure regulations” — restrictions imposed for a public purpose unrelated

to revenue generation — may be validly applied to tribal

members, treaty rights notwithstanding. For instance, in

addressing the State of Washington’s fishing license fees and

the “right to fish” provided by the Yakama Treaty, the Court

held that the State retained the “power to impose on Indians

equally with others such restrictions of a purely regulatory

nature . . . as are necessary for the conservation of fish.”

Tulee, 315 U.S. at 684 (emphasis added); see also Puyallup

Tribe, 391 U.S. at 401 n.14 (“As to a ‘regulation’ concerning

the time and manner of fishing outside the reservation (as

opposed to a ‘tax’), we said that the power of the State was

to be measured by whether it was ‘necessary for the conserva13Also, it is not clear that post-treaty conduct points in the direction that

the Government suggests. See Yakama Indian Nation, 955 F. Supp. at

1245 (noting that most individual Indian vehicle owners did not in fact

license their vehicles despite the State’s requirement); see also Cree II,

157 F.3d at 773 (“While examining the parties’ actions may be helpful in

construing a treaty, in this case, post-Treaty activity is inconclusive.”

(citation omitted)). 

UNITED STATES v. SMISKIN 5853
tion of fish.’ ” (quoting Tulee, 315 U.S. at 684)). The Court

concluded, however, that the State’s fishing license fees did

not fall within this exception, and thus could not be imposed

on tribal members, because they were “regulatory as well as

revenue producing” and were not indispensable to the regulatory purpose of fish conservation. Tulee, 315 U.S. at 685. As

the Court noted, the stated purpose of the licensing act was to

generate revenue for “the support of the state government and

its existing public institutions.” Id.

[11] Similarly here, Washington’s stated purpose for

requiring cigarette stamps, and hence for requiring notice

before unstamped cigarettes are transported within the State,

is to “enforce collection of the tax hereby levied.” Rev. Code

Wash. § 82.24.030; see also Baker, 63 F.3d at 1486-87 (discussing in detail the State’s scheme for enforcing cigarette

taxes through these requirements). Because the primary purpose of tax collection is to generate state revenue, the district

court in the instant case correctly determined that the State’s

notice requirement does not fall within the Court’s “purely

regulatory” exception, and that its application to Yakama

tribal members is precluded by the Yakama Treaty.14

[12] The Government’s suggestion that the State’s tax collection efforts have a purpose beyond revenue generation does

not change our analysis. Arguably, the State seeks to enforce

14Although we did not expressly address the regulatory exception in

Cree II, the district court’s analysis in Yakama Indian Nation is instructive. Yakama Indian Nation held that the State license and permit fees

could not supersede the Yakamas’ treaty right because the fees were “predominantly revenue-raising rather than regulatory” and not “indispensable” to any regulatory purpose. 955 F. Supp. at 1256. The court properly

recognized, however, that tribal members must still comply with State

“regulations designed to preserve and maintain the condition of roads” and

“registration requirements solely for identification purposes,” insofar as

the regulations do not impose any fees (presumably, the imposition of fees

would be compelling evidence of an impermissible revenue generating

purpose on top of the regulatory purpose). Id. at 1260; see also id. at 1257.

5854 UNITED STATES v. SMISKIN
taxes on cigarette sales from Indians to non-Indians in part to

ensure a “fair playing field” for Indian and non-Indian cigarette retailers. 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. Additionally, a state regulation must be “necessary” to

its regulatory purpose to supersede a treaty right. The prenotification 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.15 See infra Part II. E. 

D. The Minimal Burden Test

[13] The district court also properly held that the minimal

burden test, which the Supreme Court has used in balancing

state laws against inherent tribal sovereignty rights,16 is not

applicable here. Neither the Supreme Court nor this Circuit

have applied such a balancing test in the context of treaty

rights. The Supreme Court decisions cited by the Government

only briefly mention Indian treaties, if at all, and apply the

minimal burden test solely in relation to tribal sovereignty

rights. See Colville, 447 U.S. 134; Moe, 425 U.S. 463. Similarly, in our decisions discussing both treaty rights and the

minimal burden test, we conduct two separate analyses: first,

15Additionally, if this alleged purpose — leveling the playing field —

were sufficient to meet the regulatory exception, it would call our holding

in Cree II into question. The “fair playing field” argument applies with

equal force to the State’s efforts to collect truck license and permit fees

from Indian-owned timber companies. 

16Indian tribes retain “inherent sovereign powers” that they “enjoy[ ]

apart from express provision by treaty or statute.” Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997); see also Merrion v. Jicarilla Apache

Tribe, 455 U.S. 130, 137-41 (1982) (discussing tribal sovereignty). However, state laws that impose only minimal burdens on these rights may be

permissible. See Colville, 447 U.S. at 151; Moe, 425 U.S. at 483. 

UNITED STATES v. SMISKIN 5855
we determine whether the state law violates a specific treaty

right; then, only if no treaty right is violated, we ask whether

the state law nonetheless imposes more than a minimal burden on tribal sovereignty rights. See, e.g., Baker, 63 F.3d

1478. Because the Yakamas’ treaty right to travel is violated

here, we do not reach the second step. The district court’s

decision is further supported by the Court’s analysis in Tulee,

which did not apply a minimal burden test despite describing

the state law as not particularly intrusive.17 See 315 U.S. at

864-65 (“Even though this method may be both convenient

and, in its general impact fair, it acts upon the Indians as a

charge for exercising the very right their ancestors intended to

reserve.”). 

E. Additional Concerns

[14] Finally, we agree with the district court that its decision does not pose the dangers suggested by the Government.

First, the Government contends that the court’s ruling, if

affirmed, would preclude the State of Washington and the

federal government from regulating tribal transportation of

other “restricted goods,” such as illegal narcotics and “forbidden fruits [and] vegetables.” This concern is unfounded, if not

disingenuous. As the Government argued extensively in its

brief to this court, and as we discussed above, 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

17Also, the Government misconstrues statements by the Court that tribal

sovereignty provides a “backdrop” to understanding Indian treaties. See,

e.g., McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164, 172-73

(1973). The Court made these statements in explaining that tribal sovereignty rights are the basis for construing Indian treaties in favor of the

tribes, not to suggest that treaty rights are subject to the same minimal burden test as tribal sovereignty rights. 

5856 UNITED STATES v. SMISKIN
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). 

Further, we note 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 a 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. 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. 

[15] The Government also expresses concern that the State

will suffer large revenue losses if we affirm the district court’s

UNITED STATES v. SMISKIN 5857
decision, arguing that the State will be unable to enforce its

cigarette taxes against the Yakama Nation if it cannot require

notice from tribal members before they transport unstamped

cigarettes within the State. The Supreme Court has held, however, that tribal rights may preclude a state “from pursuing the

most efficient remedy” to enforce a valid cigarette tax on Indians.18 See Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 514 (1991). As the

Court noted, states have a number of “adequate alternatives”

available to enforce taxes on cigarettes sales to non-Indians

by tribal members.19 See id. 

III. Conclusion

In sum, we affirm the district court’s orders denying reconsideration and dismissing the charges against the Smiskins.

The Government cannot rely on the State of Washington’s

pre-notification requirement as the basis for pursuing a CCTA

prosecution against tribal members of the Yakama Nation.

The State’s requirement is not purely regulatory in nature and

applying it to tribal members would restrict a uniquely important right to travel that the Yakama nation understood both at

the time of the treaty and now as critical to the preservation

of their culture, economy, and way of life. Therefore, the

Smiskins’ alleged transportation and possession of unstamped

cigarettes without providing notice to the State cannot be the

18Notably, the Government has not alleged that the Smiskins, whom it

believes to be delivering cigarettes from one tribe to another, have sold

any unstamped cigarettes to non-Indians. 

19For instance, as has been successful in similar situations, the State

could attempt to reach a mutually satisfactory agreement with the Yakama

Nation regarding the enforcement of cigarette taxes. Indeed, the State’s

Department of Revenue has an official policy of working with tribes “on

a government-to-government basis to discuss and resolve areas of mutual

concern.” Wash. Admin. Code § 458-20-192(1). 

5858 UNITED STATES v. SMISKIN
basis for prosecution under the CCTA. 

AFFIRMED. 

UNITED STATES v. SMISKIN 5859