A U.S. District Judge said the U.S. Department of Justice did nothing arbitrary or capricious when the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) blocked the Twenty-Nine Palms Band of Mission Indians from shipping cigarettes. Judge Sunshine S. Sykes said Twenty-Nine Palms was fine to sell untaxed cigarettes to other Native nation tribes, but when those cigarettes were then resold to “non-Native nation customers” without collecting California taxes it was a violation of the Prevent All Cigarette Trafficking Act.
The tribe did not dispute that the cigarettes were resold without being taxed but instead argued that when the ATF initially put it on the non-compliance list it incorrectly listed the sale to Native-nation customers as the reason before changing it to non-Native nation customers.
“Even if the court were to hold that ATF’s argument that the tribe’s Native nation customers violate the [California Licensing Act] were improper post-hoc legal justifications, ATF’s decision remains on solid ground,” the judge said.
In its opposition to summary judgment, the tribe said ATF’s logic undercuts tribal sovereignty, forcing tribal nations to be subject to state laws.
“Subjecting Indian tribes to a state-licensing scheme as a condition of doing business with their own tribal members is simply unconscionable and would violate the most basic inherent sovereign right of tribes to make their own laws and be ruled by them,” the tribe said. “ATF’s failure to consider whether the application of California law as adopted in the decision allows for tribes to conduct on reservation business with their members free of state taxation and regulation was arbitrary and capricious.”