(CN) - A cigarette seller can renew its challenge to a tax contract between the Puyallup Indian Tribe and the state of Washington, the 9th Circuit said Monday.
Tribe member and store owner Paul Matheson and two non-Indian customers object to a $30-per-carton tax on cigarettes sold on the Puyallup Indian Reservation in Tacoma. Matheson's case has failed in state court, tribal court, U.S. District Court and, late last year, in the 9th Circuit.
The contract allows the Puyallup tribe to charge a cigarette tax similar to that levied by the state, as long as the proceeds go to fund tribal services, such as health care.
Matheson and other Indian retailers must purchase cigarettes only from licensed Washington wholesalers under the deal.
He and co-plaintiffs Daniel Miller and Amber Lanphere said the tax restricts trade and violates federal antitrust laws. But a three-judge appellate panel in Seattle ruled
in November that the doctrine of res judicata bars the case.
However, a short time later the Puyallup Tribe filed an objection to "footnote 4" of the panel's ruling, which states:
"Neither in the district court nor on appeal do Miller, Lanphere, and Matheson allege a separate and distinct claim for injunctive or declaratory relief against the officials qua officials. We therefore express no opinion as to the viability of such a claim against the officials themselves."
In a brief order published Monday, the Seattle-based court deleted the footnote and, construing the objection as one for panel rehearing, agreed to reconsider the issue before the original three-judge panel.
The Puyallup argue that Matheson in fact "did make claims for injunctive and declaratory relief against the tribal officials in their official capacities."
"Footnote 4 risks creating the false impression that changing the label attached to the tribal officials might get Matheson past their immunity," the request states. "Another lawsuit on this subject (or a trip back to the district court in this case) would waste even more time and resources of the parties, the district court, and this court." (Parentheses in original.)
The tribe added that the request is not "simply a technical detail."
"As a practical matter, Matheson has demonstrated with three previous lawsuits in this chain (including an attempt to bring the matter to federal court prematurely, dismissed by the district court,upheld by this court, that they have no hesitation to file repeated lawsuit." (Parentheses in original.)
Attorneys John Bell and Andrea George authored the request for the Puyallup and tribal chairman Herman Dillon Sr. Miller Nash attorney James Jordan joined in the request for the tribe's tax enforcement officer Chad Wright.