Gregoire
CONFEDERATED TRIBES AND BANDS v. Gregoire
Opinion
Opinion
M. SMITH, J.
Phillip E. Katzen, Cory J. Albright, and Zach Welcker; Kanji & Katzen, PLLC, Seattle, WA, for the appellants.
Robert M. McKenna, Attorney General of Washington, Heidi A. Irvin, David M. Hankins, and Robert K. Costello, Office of the Attorney General, Olympia WA, for the appellees.
Before: JOHN T. NOONAN, JR. and MILAN D. SMITH, JR., Circuit Judges, and ANDREW J. GUILFORD, District Judge. [*]
Opinion by Judge MILAN D. SMITH, JR.; Concurrence by Judge GUILFORD.
M. SMITH, Circuit Judge:
States lack authority to tax Indian tribes or registered members of Indian tribal organizations absent a clear authorization from Congress. Cnty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 258 , 112 S.Ct. 683 , 116 L.Ed.2d 687 (1992). The Tribes of the Yakama Nation (the Yakama or Tribes) claim that this principle of Indian tax immunity has been violated by the State of Washington's current cigarette excise tax, which the Tribes argue leaves their retailers liable for payment of the tax when retailers sell cigarettes to non-Indians.
In 1978, a three-judge district court held that the legal incidence of the Washington cigarette tax did not fall on the…