LANCE MORGAN: Purchase of cigarettes on a reservation may require proof of race | Chroniclers


Editor’s Note: This column originally appeared in the Omaha World Herald.

Did you know that tribal reserves are the only place where the color of your skin determines the price you pay for certain commodities?

When the foundations of Indian federal law were laid in the 1880s, tribal members were within 50 years of even being recognized as citizens of the United States. After large tracts of tribal lands were swept away, many non-Indians found themselves living on reservations and did not want to be subject to tribal rule. Through a series of United States Supreme Court rulings, a legal system emerged to limit tribal government power over non-Indians who now lived on tribal lands. When these ancient court decisions are applied in a modern context, they are hard to believe because they are so blatantly based on race.

Tribes and states moved away from some of these anachronistic decisions as tribal governments developed. Nebraska is actually quite enlightened when it comes to tribal relations. Nebraska returned criminal jurisdiction to the tribes. Nebraska addressed multiple tax issues with innovative approaches and generally allowed tribes to focus on expanding their economies with minimal state interference. However, Nebraska is being pushed by outside business interests to take an outdated approach to tribal tobacco tax issues.

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On October 1, the state of Nebraska began requiring retailers on tribal reservations to use the state’s official Form 68, which pertains to tobacco sales. Tribal retailers are required to ask and document the answers to a series of questions when someone is in line to purchase a packet of Marlboros. The most relevant of the seven questions: are you indigenous? If so, what kind of native? Can you prove it? With that initial racial and sub-racial determination made, then we can determine the price to charge.

Twenty years ago we had a shortcut button on our old cash register that was jokingly labeled “White” and if we pushed that button the state would demand that we charge a different price. Now, because of Form 68, we will probably have to add buttons for “White”, “Winnebago Indians” and “Others”.

Why is this done? In the late 1990s, Nebraska sued and settled a lawsuit with the major tobacco companies. Nebraska receives about $ 40 million a year from the settlement, but it came with conditions. The settlement essentially gave Big Tobacco a monopoly and prompted Nebraska to protect Big Tobacco’s market share. The settlement also said it applied to Indian tribes even though we were not a party to the lawsuit. Years later, Big Tobacco withheld money in Nebraska because the Winnebago tribe refused to comply with Big Tobacco’s regulations.

Nebraska settled its dispute with Big Tobacco by agreeing to implement this more restrictive race-based tax system. Nebraska is now in bad shape. He has to weigh the alienation of a relatively small tribal interest against the possibility of losing $ 40 million a year. As a history student, I don’t really like our chances.

There is a solution that does not require aboriginal people to prove that they are aboriginal every time they buy cigarettes on their own reserve. We had the same problem 15 years ago with the gas tax. The Winnebago Tribe has a tax deal with Nebraska that shares a tribal gasoline tax based on jurisdiction, not race. We have offered this option to the state several times, but Big Tobacco is lurking in the background by insisting on the more restrictive racial version, which the tribes will be opposed to in principle. I’m not really shocked that you can’t trust Big Tobacco, but hopefully Nebraska and the tribes can come to an agreement that’s more 2021 than 1880.

Lance Morgan is a member of the Winnebago Tribe of Nebraska and CEO of Ho-Chunk Inc. He is a graduate of the University of Nebraska-Lincoln and Harvard Law School.


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