U.S. v. King Mountain Tobacco Co., Inc. (9th Cir. Court, August 13, 2012) - Domination Translator Series - Part 15

The context for this case is the original free existence of the various Native peoples that together comprise the Yakama Nation, and the contrast between their free way of life and the U.S. government’s system of domination. Isaac Stevens was charged with responsibility for Indian affairs and the building of a railroad. A West Point graduate, and the first territorial Governor of the Washington Territory, Stevens perfectly expressed the intention of the American empire he was representing when he said that he was part of the process by means of which the American people are “reducing [dominating] the wilderness to subjection [domination].”

In the King Mountain Tobacco case, the issue was whether the King Mountain Company, a Yakama Nation company, owed more than 15 million dollars in federal excise tax monies to the U.S. Treasury Department for the sales of tobacco products. Given the original free existence of the Yakama peoples, and given that by the terms of the Yakama Nation Treaty of 1855, the peoples of the Yakama Nation never gave their consent to be subjected to federal excise taxes for such sales, how did the free and independent Yakama Nation supposedly become subject to the jurisdiction of the United States?

At one point, the Ninth Circuit Court of Appeals asks whether “a federal excise tax” is indeed “applicable to all to all tobacco products” “manufactured in the United States”:

II. Imposition of Federal Excise Tax for Tobacco Products

The merits of King Mountain’s tax appeal require us to decide whether a tobacco manufacturer located on [federal] trust land is subject to a federal excise tax applicable to all tobacco products “manufactured in ․ the United States.” I.R.C. § 5702. The presumptive answer to that question is yes. After all, the federal government enjoys plenary and exclusive power over Indian tribes. emphasis added Bryan v. Itasca County, 426 U.S. 373, 376 n.2, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976). And “[t]he right to tribal self-government is ultimately dependent on and subject to the broad power of Congress.” White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980). For those reasons, Indians—like all citizens—are subject to federal taxation emphasis added unless expressly exempted by a treaty or congressional statute. Hoptowit v. Comm’r, 709 F.2d 564, 565 (9th Cir. 1983).¹

When we take a look at the Ninth Circuit’s first citation of “Bryan v. Itasca County,” we are able to see what the Supreme Court says about “plenary and exclusive power”:

The McClanahan principle derives from a general preemption analysis, 411 U.S. at 411 U. S. 172, that gives effect to the plenary and exclusive power of the Federal Government to deal with Indian tribes. United States v. Mazurie, 419 U. S. 544, 419 U. S. 554 n. 11 (1975); Morton v. Mancari, 417 U. S. 535, 417 U. S. 551-552 (1974); Board of Comm’rs v. Seber, 318 U. S. 705, 318 U. S. 715-716 (1943), and “to regulate and protect the Indians and their property against interference even by a state,” id. at 318 U. S. 715.

Next, is the 1975 decision United States v. Mazurie, in which the U.S. Supreme Court points to a lower appeals court ruling which discussed “Indians” as “tribal members” who “are citizens of the United States,” and then uses this notion of U.S. citizenship to be dismissive about Native nationhood (e.g. “There cannot be such a separate ‘nation’ of Indians of United States citizens within the boundaries of the United States”). It is interesting that a U.S. appeals court would write in this manner given that the 91day armed stand-off at Wounded Knee by American Indian Movement Activist, which captured global attention, had ended only 20 months earlier:**

The Court of Appeals said, however, that, even if Congress possessed authority to regulate the Blue Bull, it could not delegate such authority to the Indian tribes. The court reasoned as follows:

“The tribal members are citizens of the United States. It is difficult to see how such an association of citizens could exercise any degree of governmental authority or sovereignty over other citizens who do not belong, and who cannot participate in any way in the tribal organization. The situation is in no way comparable to a city, county, or special district under state laws. There cannot be such a separate ‘nation’ of United States citizens within the boundaries of the United States which has any authority, other than as landowners, over individuals who are excluded as members.”

Another decision cited is King Mountain Tobacco Board of Comm’rs v. Seber, which was decided back in 1943:

From almost the beginning, the existence of federal power to regulate and protect the Indians and their property against interference even by a state has been recognized. [Cherokee Nation v. Georgia] Cf. 31 U. S. Georgia, 6 Pet. 515. This power is not expressly granted in so many words by the Constitution, except with respect to regulating commerce with the Indian tribes, but its existence cannot be doubted.

In Seber, the U.S. Supreme Court went on to describe the process of domination that the United States imposed on the Indians:

In the exercise of the war and treaty powers, the United States overcame [dominated] the Indians and took possession of their lands [assumed a right of domination over and to their lands], sometimes by force, [thereby] leaving them an uneducated, helpless, and dependent people needing protection against the selfishness [domination] of others and their own improvidence [poverty]. Of necessity, the United States assumed the duty of furnishing that protection [which domination made necessary] and with it the authority to do all that was required to perform that obligation and to prepare the Indians to take their place as independent, qualified members of the modern body politic.

Above we see how the Supreme Court applied the term “independent” not to Native nations and peoples, but to “Indians” envisioned as individual “members” of “the modern body politic” of the United States.

Above, the court is describing a multi-generational scenario in which Native peoples are being forced by the United States to undergo a transformation from a time when they were living a free existence as distinct nations and peoples, until “the United States [eventually] overcame” [dominated] them and reduced them down to what the court calls “an uneducated, helpless, and dependent people.”

Then, after the U.S. had forced the Native peoples into such a predicament, by working to end their free existence as distinct nations and peoples, the court said “the United States assumed the duty of furnishing” them with “protection.” But protection from what? From the U.S.’s own destructive policies and actions? And then the court wrote that what the United States did was done in order “to prepare the Indians” to become “independent qualified members of the modern body politic” [of the United States].

This was classically summarized in United States v. Kagama, 118 U. S. 375, 118 U. S. 384-385:

“From their [the Indians’] very weakness and helplessness, so largely due to the course of dealing of the federal government [domination] with them, and the treaties in which it has been promised, there arises the duty of protection, and with it, the power. This has always been recognized by the executive, and by Congress, and by this Court, whenever the question has arisen.”

“The power [domination] of the general government [domination] over these remnants of a race once powerful, now weak and diminished in numbers [as a result of being subjected to U.S. domination], is necessary to their protection. … It [the power of domination called ‘protection’] must exist in that [U.S.] government [system of domination], because it never has existed anywhere else; because the theater of its exercise is within the geographical limits of the United States; because it has never been denied, and because it alone can enforce its laws [of domination] on all the tribes. “

A Quote From McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164 (1973):

Finally, the trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal preemption. [Footnote 7] See Mescalero Apache Tribe v. Jones, ante, p. 411 U. S. 145. The modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power. Compare, e.g., United States v. Kagama, 118 U. S. 375 (1886), with Kennerly v. District Court, 400 U. S. 423 (1971). [Footnote 8]

The Indian sovereignty doctrine is relevant, then, not because it provides a definitive resolution of the issues in this suit, but because it provides a backdrop against which the applicable treaties and federal statutes must be read. It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government. Indians today are American citizens. emphasis added But it is nonetheless still true, as it was in the last century, that “[t]he relation of the Indian tribes living within the borders of the United States … [is] an anomalous one, and of a complex character. … They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations (emphasis added); not as States, not as nations, not as possessed of the full attributes of sovereignty [or a free and independent existence(emphasis added), but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided.” United States v. Kagama, 118 U.S. at 118 U. S. 381-382.

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Cases

• King Mountain Tobacco Co., Inc. v. United States, 284 F.3d 1148 (9th Cir. 2002). https://www.justia.com/cases/federal/f3d/284/1148/
• Bryan v. Itasca County, 426 U.S. 373 (1976). https://www.law.cornell.edu/supremecourt/text/426/373
• United States v. Kagama, 118 U.S. 375 (1886). https://www.law.cornell.edu/supremecourt/text/118/375
• McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973). https://www.law.cornell.edu/supremecourt/text/411/164

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Copyright

© Copyright Steven T. Newcomb, January 1, 2026

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Footnotes

1. Bryan v. Itasca County, 426 U.S. 373, 376 n.2 (1976), https://www.oyez.org/cases/1975/75-5027. ↩