Antitrust Law Daily Wrap Up, ANTITRUST NEWS: High Court Asked to Consider Antitrust Immunity of Indian Tribe, (Apr 15, 2013)

By Jeffrey May, J.D.

Cigarette vendors have asked the U.S. Supreme Court to review a decision of the U.S. Court of Appeals in San Francisco (705 F.3d 919, 2012-2 Trade Cases ¶78,132), rejecting their antitrust claims against the Puyallup Indian Tribe of Washington State based on tribal sovereignty. At issue is whether the tribe, a cigarette retailer in the market, is immune from suits alleging federal antitrust violations. The vendors filed their petition for certiorari on April 9, 2013 (Miller v. Wright, Dkt. 12-1237).

The Ninth Circuit affirmed a trial court's dismissal based on lack of subject matter jurisdiction over the case, which involved cigarette sales in tribal lands. It was held that the tribe did not implicitly waive its sovereign immunity by entering into a cigarette tax contract with Washington State.

Moreover, the appellate court ruled that federal antitrust law did not explicitly abrogate tribal immunity. Abrogation of tribal immunity by Congress had to be expressed in explicit legislation. It could not be implied.

Neither the Sherman Act nor the Clayton Act unequivocally expressed such abrogation. Nowhere did either statute employ the sort of language held at the federal appellate level to unequivocally abrogate tribal sovereign immunity, according to the appellate court.

In their petition for review, the cigarette vendors ask: (1) whether Indian tribal immunity from suit allows an Indian tribe, a price fixing competitor, to be immune from federal antitrust laws; and (2) whether the officials of an Indian tribe, acting beyond their authority, can be protected by tribal immunity when prospective relief is sought. According to the petition, sovereign immunity must be abrogated where price is willfully applied by a tribe that is a market competitor.

Attorneys: Robert E. Kovacevich for Daniel T. Miller.

News: Antitrust