Smiskin

The Right to Travel provision of the Yakama Treaty of 1855 secures to Yakama tribal members the right to travel upon the public highways. Applying this treaty provision, the district court dismissed the Government’s indictment charging tribal members Kato and Harry Smiskin (“Smis-kins”) 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 pre-notification 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…