US Court of Appeals for the Ninth Circuit Upholds Tribal Sovereign Immunity in Cigarette Tax Case

Editor’s Note: The US Court of Appeals for the Ninth Circuit’s Opinion in QUINAULT INDIAN NATION [No. 15-35263 and No. 15-35267; D.C. No. 3:10-cv-05345-BHS] is available here. Below is an excerpt.

     Once again, the issue of tribal sovereign immunity and cigarette taxes is back in the federal courts. In this iteration, the Quinault Indian Nation (the “Nation”) sued Edward A. Comenout, Jr.; Robert R. Comenout, Sr.; and other defendants for engaging in a scheme to defraud the Nation of taxes. When the Nation later asked the district court to dismiss its action, Edward’s estate (the “Estate”) sought to keep the litigation alive, asserting that maintaining the suit was necessary to litigate its counterclaims against the Nation.

The district court dismissed the counterclaims as barred by the Nation’s sovereign immunity. Because the court correctly held that the Nation retains its sovereign immunity as to the counterclaims, these claims were properly dismissed. We agree that the Estate cannot hold up dismissal of the suit. We affirm.


Edward Comenout, now deceased, was an enrolled member of the Quinault Indian Nation, a federally recognized Indian tribe. Beginning in 1971, he operated a convenience store, the Indian Country Store, on land held in trust by the United States in Puyallup, Washington. The store, which is now run by his brother Robert Comenout, sells cigarettes and tobacco products. For years, the Comenouts have been embroiled in litigation about whether they must pay cigarette taxes. They have contested the authority of the State of Washington and the Nation to tax them at every turn. For example, in criminal proceedings initiated in 2008, they contended that they are exempt from Washington’s cigarette tax, but the Washington Supreme Court disagreed. State v. Comenout, 267 P.3d 355, 358 (Wash. 2011).1 Similarly, in litigation with the Nation, including the lawsuit on appeal here, the Comenouts have continually disputed the Nation’s ability to collect cigarette taxes pursuant to an agreement with Washington. See, e.g., Comenout v. Whitener, No. 15-35261, 2017 WL 2591272 (9th Cir. June 15, 2017);Comenout v. Wash. State Liquor Control Bd., 195 Wash. App. 1035 (2016). The legal battles rage on.


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