Antitrust Law Daily Wrap Up, ANTITRUST NEWS: High Court Rejects Petition Challenging Indian Tribe's Immunity in Action Brought by Cigarette Vendors, (Jun 17, 2013)

By Jeffrey May, J.D.

Cigarette vendors have been denied U.S. Supreme Court review of 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 was whether the tribe, a cigarette retailer in the market, was immune from suits alleging federal antitrust violations. The vendors'petition for certiorari, which was filed on April 9, 2013, was denied today (Miller v. Wright, Dkt. 12-1237).

In their petition for review, the cigarette vendors asked: (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.

Left standing is the Ninth Circuit's decision affirming the 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.

The appellate court also 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.

Attorneys: Robert E. Kovacevich for Daniel T. Miller. John Howard Bell for Puyallup Indian Tribe.

News: Antitrust