United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2018 Decided July 3, 2018

No. 17-5140

HO-CHUNK, INC., ET AL.,

APPELLANTS

v.

JEFF SESSIONS, IN HIS OFFICIAL CAPACITY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-01652)

B. Benjamin Fenner argued the cause for appellants. With

him on the briefs were Patricia A. Marks and Joseph V.

Messineo. Peter D. Lepsch entered an appearance. 

William E. Havemann, Attorney, U.S. Department of

Justice, argued the cause for appellees. With him on the brief

were Jessie K. Liu, U.S. Attorney, and Mark B. Stern, Attorney. 

R. Craig Lawrence and Benton G. Peterson, Assistant U.S.

Attorneys, entered appearances.

Before: ROGERS and PILLARD, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.
2

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge: Historically, the “HoChunk” Tribe occupied portions of what are now several

midwestern states. In the 1800’s the Tribe entered into treaties

with the United States and divided into two branches: the HoChunk Nation of Wisconsin and the Winnebago Tribe of

Nebraska. Both are federally-recognized Indian tribes with

federal reservations. See 83 Fed. Reg. 4,235, 4,237, 4,239 (Jan.

30, 2018).

The four appellants in this case – a parent corporation and

three of its subsidiaries – are incorporated under the laws of the

Winnebago Tribe of Nebraska. Ho-Chunk, Inc., the parent

corporation, is the Tribe’s wholly-owned economic development

arm. Among its wholly-owned subsidiaries are the three

corporations who are also parties here. They are involved in the

manufacture and distribution of cigarettes. Each corporation’s

principal place of business is the Tribe’s reservation in

Winnebago, Nebraska.

Appellant Rock River Manufacturing Company, one of

these corporations, manufactures and imports tobacco products,

including cigarettes. Rock River sells its products to another

subsidiary corporation, HCI Distribution Company, as well as

to state-licensed distributors. HCI Distribution resells these

products to businesses owned or licensed by other Indian tribes. 

Woodlands Distribution Company, the third subsidiary

corporation, sells tobacco products to off- and on-reservation

companies.

In 2016, the federal Bureau of Alcohol, Tobacco, Firearms

and Explosives sent letters to Rock River, HCI Distribution, and

Woodlands. The letters notified the companies that the Bureau
3

intended to inspect and copy their records of tobacco

transactions and asked them to name a mutually-acceptable

inspection date within fifteen business days from receipt of the

letters.

The companies and their parent responded with a complaint

seeking a declaratory judgment that they are not subject to

federal recordkeeping laws dealing with the distribution of

cigarettes. The district court entered summary judgment against

them. Ho-Chunk, Inc. v. Sessions, 253 F. Supp. 3d 303, 304

(D.D.C. 2017). Their appeal presents a question of statutory

interpretation – do the federal recordkeeping laws cover these

corporations? 

ATF, as the Bureau is commonly known, issued its

inspection notices pursuant to the Contraband Cigarette

Trafficking Act of 1978, as amended. See 18 U.S.C. § 2343(c). 

The Act sought to remedy the “problem of organized crime and

other large scale operations of interstate cigarette bootlegging

and to help provide law enforcement assistance and relief to

cities and States.” S. Rep. 95-962, at 3 (1978).1

 To this end,

“[a]ny person who ships, sells, or distributes any quantity of

cigarettes in excess of 10,000 . . . in a single transaction . . .

[must] keep such information as the Attorney General considers

appropriate . . ..” 18 U.S.C. § 2343(a). This may include

1

 The Act makes it a crime for “any person knowingly to ship,

transport, receive, possess, sell, distribute, or purchase contraband

cigarettes or contraband smokeless tobacco.” 18 U.S.C. § 2342(a). 

“[C]ontraband cigarettes” are “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, if the State or local government requires a stamp, impression,

or other indication . . . [of] payment of cigarette taxes . . ..” 18 U.S.C.

§ 2341(2).
4

identifying information about cigarette purchasers and

declarations of the purchasers’ purposes in receiving the

cigarettes. Id. § 2343(a)(1)–(3).

Rock River, HCI Distribution, and Woodlands claim that

they are exempt from the Act’s recordkeeping requirements. 

They are exempt, they say, because the statute and the

regulations do not cover wholly-owned corporations of a

federally-recognized Indian tribe. 

Over the years, the Supreme Court has dealt with issues

regarding Indian tribes and their sale of cigarettes. The law, as

the Court has developed it, now stands as follows. Indians and

Indian tribes may sell untaxed cigarettes on their reservations to

tribal members for their personal consumption. See Moe v.

Confederated Salish & Kootenai Tribes of the Flathead

Reservation, 425 U.S. 463, 480–81 (1976). States, however,

retain the authority to tax non-Indian customers of Indian

cigarette distributors on the reservation. See Washington v.

Confederated Tribes of the Colville Indian Reservation, 447

U.S. 134, 150–51 (1980). Under Moe and Colville, “a State may

require Indian retailers to collect a tax imposed on non-Indian

purchasers of cigarettes.” Dep’t of Taxation & Fin. of N.Y. v.

Milhelm Attea & Bros., Inc., 512 U.S. 61, 68 (1994). And a

state may require tribal retailers selling cigarettes on the

reservation to nonmembers of the tribe “to keep extensive

records concerning these transactions.” Id. at 71–72.

Although Indian tribes are thus subject to state

recordkeeping requirements for cigarette sales, the corporations

here claim they are exempt from the federal laws imposing

similar requirements. One of their arguments rests on the

following reasoning. The federal statute and regulations define

“State” as a “State of the United States, the District of

Columbia, the Commonwealth of Puerto Rico, or the Virgin
5

Islands.” 18 U.S.C. § 2341(4); 27 C.F.R. § 646.143. These

corporations are headquartered on the Tribe’s reservation. An

Indian reservation is within “Indian country.” See 18 U.S.C.

§ 1151. The Act’s definition of “State” does not mention

“Indian country.” Therefore the Act’s recordkeeping

requirements do not apply to these corporations.

The argument suffers from several flaws. The most obvious

is that the Act’s recordkeeping requirements do not turn on any

territorial determination. See 18 U.S.C. § 2343(a). That these

three corporations have their principal place of business on the

Tribe’s reservation in Nebraska says nothing about whether

federal law requires them to keep records. More than that, if the

corporations were correct that the Act’s regulation of contraband

cigarettes does not apply to sales to non-Indians in Indian

country, this would not only be senseless but would also

contravene decades of settled law upholding enforcement of the

Act against individuals and entities operating on reservations.

See, e.g., United States v. Morrison, 686 F.3d 94, 96 (2d Cir.

2012); Grey Poplars Inc. v. One Million Three Hundred

Seventy-One Thousand One Hundred (1,371,100) Assorted

Brands of Cigarettes, 282 F.3d 1175, 1177 (9th Cir. 2002);

United States v. Baker, 63 F.3d 1478, 1485–86 (9th Cir. 1995).

Neither the Act nor the implementing regulations contain

any language exempting tribal entities operating on Indian

reservations from the federal recordkeeping requirements. 

“Ordinarily, . . . an Indian reservation is considered part of the

territory of the State.” Nevada v. Hicks, 533 U.S. 353, 361–62

(2001) (citations and internal quotation marks omitted). The

corporate appellants conceded as much at oral argument. The

district court gave additional reasons for rejecting the

corporations’ “Indian country” argument. Ho-Chunk, Inc., 253

F. Supp. 3d at 307–09. We agree with the district court and

deem it unnecessary to repeat the court’s reasoning.
6

The corporations’ main argument is that § 2343(a) – the

recordkeeping provision – applies only to “[a]ny person” and

they are not “persons.” They are not “persons,” they argue,

because they are “tribal instrumentalities,” which assumes that

a tribal instrumentality – and for that matter, a tribe itself –

cannot be a “person.” Both assumptions are mistaken.

The cigarette act does not define “person.” Therefore, an

interpreter of this legislation must consult the Dictionary Act, 1

U.S.C. § 1, as the Conference Committee on the cigarette act

acknowledged, H.R. Rep. No. 95-1778, at 10 (1978) (Conf.

Rep.). The Dictionary Act states: “In determining the meaning

of any Act of Congress, unless the context indicates otherwise

. . . the words ‘person’ and ‘whoever’ include corporations,

companies, associations, firms, partnerships, societies, and joint

stock companies, as well as individuals.” 

This would seem to doom the corporations’ we-are-not-aperson argument, regardless whether the Tribe itself is a

“person.” As to Ho-Chunk, Inc. and its subsidiaries, the obvious

progression is this: the Act’s § 2343(a) recordkeeping

requirements apply to “[a]ny person”; under federal law,

“person” includes “corporations”; these appellants are

“corporations”; they are therefore “persons” and the Act’s

recordkeeping requirements apply to them. 

The government, relying on San Manuel Indian Bingo &

Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007), makes an

argument much the same as the one we have just described from

the Dictionary Act. The Indian tribe in San Manuel operated an

on-reservation casino. The question was whether the tribe itself

was a “person” and thus an “employer” within the meaning of

the National Labor Relations Act. Section 2(2) of the NLRA

defines “employer” to include “any person,” with exceptions for

the federal government and “any State or political subdivision
7

thereof.” 29 U.S.C. § 152(2). The NLRA defines the term

“person” in much the same terms as the Dictionary Act. Id.

§ 152(1). Our court, agreeing with the National Labor Relations

Board, held that the tribe was an “employer” and thus subject to

the NLRA. In so holding, the court necessarily decided that the

tribe was a “person.”2

If, as in San Manuel, an Indian tribe operating an onreservation commercial enterprise may itself be considered a

“person” subject to federal law, so too may the commercial

corporations established under the laws of the Winnebago Tribe.

It is no answer to say, as the corporations do, that they are tribal

instrumentalities and that the term “person” usually excludes

federal, state, and local governments and their agencies. See Vt.

Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 780

(2000). The statute in San Manuel, 29 U.S.C. § 152(2),

explicitly contained such an exclusion, yet our court held that an

Indian tribe running a casino was a “person” and thus an

“employer.” See also supra note 2.

There is another reason why the district court correctly held

that Congress did not exempt the corporate appellants from the

Act’s recordkeeping provision: statutory context. See Vt.

Agency, 529 U.S. at 781; United States v. Persichilli, 608 F.3d

2 See also CFPB v. Great Plains Lending, LLC, 846 F.3d 1049,

1058 (9th Cir. 2017) (Indian tribes and their for-profit lending

companies are “person[s]” who may be investigated by the Consumer

Financial Protection Bureau under the Consumer Financial Protection

Act); Chickasaw Nation v. United States, 208 F.3d 871, 878–80 (10th

Cir. 2000), aff’d, 534 U.S. 84 (2001) (Indian tribe is a “person”

subject to federal wagering excise taxes); Fla. Paraplegic, Ass’n v.

Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 1134–35 (11th

Cir. 1999) (Indian tribe is a “person” subject to federal, but not

private, enforcement under the Americans with Disabilities Act). 
8

34, 37 (1st Cir. 2010); see also 1 U.S.C. § 1 (statutory terms

depart from Dictionary Act defaults if “the context indicates

otherwise”). Subsection (a) of § 2343 specifies the

recordkeeping requirements applicable to “[a]ny person.” The

next subsection – § 2343(b) – requires periodic reports to the

Attorney General of large cigarette transactions.3 Subsection (b)

applies to “[a]ny person, except for a tribal government” who

distributes cigarettes. Assume the corporate appellants in this

case are “a tribal government” even though they seem to be

exclusively involved in commercial transactions. That would

exempt them from subsection (b)’s reporting requirements. But

the issue in this case deals with subsection (a)’s recordkeeping

requirements. Subsection (a) contains no exception for “a tribal

government,” let alone for a corporation formed under tribal law

and engaged in the cigarette business. As the district court

recognized, the exception in (b) for tribal governments would

have been unnecessary if “persons” in § 2343 did not include

tribes. Ho-Chunk, Inc., 253 F. Supp. 3d at 311. The district

court added: “To the extent the goal was to cut down on

cigarette taxation avoidance, it would have made little sense to

wholly exempt tribal agencies and instrumentalities from the

Act—thus offering cigarette bootlegging organizations a clearly

demarcated shelter from enforcement.” Id.4

3

 Congress added § 2343(b) in 2006. See Pub. L. No. 109-177,

§ 121(c), 120 Stat. 192, 222–23. 

4

 The Ho-Chunk corporations invoke the canon that statutes

should be liberally construed in favor of Indians. See Montana v.

Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985). But this canon

applies only to statutes that are both ambiguous and passed for the

benefit of Indian tribes. See El Paso Nat. Gas Co. v. United States,

632 F.3d 1272, 1278 (D.C. Cir. 2011); San Manuel, 475 F.3d at

1311–15. The recordkeeping provision of the Act is not ambiguous

and neither that provision, nor the Act itself, was passed for the benefit

of Indian tribes.
9

The corporations also claim that the position of the Bureau

of Alcohol, Tobacco, Firearms and Explosives regarding

§ 2343(a), as set forth in its 2016 inspection letters, is an

unexplained and arbitrary departure from agency policy in

violation of the Administrative Procedure Act, 5 U.S.C.

§ 706(2)(A), and that the Bureau violated the APA when it

adopted its position without engaging in notice and comment

rulemaking. The premise is that the inspection letters

represented a change in the Bureau’s position regarding whether

the Act applies to the Ho-Chunk corporations.5

 The

corporations did not present their APA arguments to the district

court before it entered summary judgment and we therefore will

not consider them. See, e.g., Potter v. District of Columbia, 558

F.3d 542, 547–51 (D.C. Cir. 2009). 

We have reviewed and rejected the appellants’ other

contentions.

Affirmed.

5

 The government disputes this and points out that in 2013 the

Department of Justice brought an enforcement action against HCI

Distribution Company – one of the subsidiary corporations in this case

– and senior employees of the company for violations of the Act,

obtaining a $300,000 penalty from the company in lieu of prosecution

and extracting plea agreements from the employees. See Press

Release, Department of Justice, Independence Business Owner,

Wichita Attorney among 18 Indicted in $18 Million Conspiracy to

Traffic in Contraband Cigarettes (Aug. 14, 2013),

https://www.justice.gov/usao-wdmo/pr/independence-business-own

er-wichita-attorney-among-18-indicted-18-million-conspiracy; United

States v. Frenchman, No. 13-291 (W.D. Mo. Feb. 13, 2015), ECF No.

336 (plea agreement of HCI Distribution’s warehouse manager);

United States v. Guerrero, No. 13-419 (W.D. Mo. Dec. 11, 2013),

ECF No. 5 (plea agreement of officer in charge of operating HCI

Distribution).