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Wednesday, November 20, 2019

Entities under Nebraska Native American tribe challenge tobacco agreement

By Noddy A. Fernandez | May 4, 2018

Law money 07

OMAHA, Neb. (Legal Newsline) – Two entities established under Native American law allege that a state's Tobacco Master Settlement Agreement cannot be enforced against it.

HCI Distribution Inc. and Rock River Manufacturing Inc. filed a complaint on April 20 in the U.S. District Court for the District of Nebraska against Nebraska Attorney General Douglas Peterson and Nebraska Tax Commissioner Tony Fulton citing the Supremacy Clause and Indian Commerce Clause.

According to the complaint, the plaintiffs are incorporated under Tribal law and owned by the development arm of federally recognized Winnebago Tribe of Nebraska. The suit states HCI purchases and resells tobacco products exclusively in Indian Country and the Rock River is a licensed cigarette manufacturer located on the tribe's reservation.

"In this suit, the tribe challenges Nebraska legislation that purports to regulate the sovereign tribe’s activity occurring within Indian Country. This activity is directed by, and benefits, the tribal government. Under pressure from the powerful forces of Big Tobacco, the state has attempted to unlawfully expand its legislative jurisdiction into Indian Country. In essence, Big Tobacco is attempting to use Nebraska law to bootstrap the (Tobacco Master Settlement Agreement) onto the Tribe. The state regulatory scheme underlying this matter cannot be enforced against plaintiffs," the suit states.

The plaintiffs seek declaration that Nebraska’s MSA Laws may not be enforced against them, award costs, fees and expenses, attorneys’ fees and grant such other further relief as this honorable court may deem just and proper. They are represented by Joseph V. Messineo and Nicole E. Ducheneaux of Fredericks Peebles & Morgan LLP in Omaha, Nebraska.

U.S. District Court for the District of Nebraska case number 8:18-cv-00173-JMG-MDN

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U.S. District Court for the District of Nebraska