Getting back to the subject at hand, below is Ordinance No. 140, which intends to repeal Amended Ord. 29. If you have been following this issue, Amended Ord. 29 is the Tobacco Tax Ordinance which the operators of The Marches Point Smoke Shop, Senators Marvin Wilbur Sr. and Joan Wilbur, have been in violation of for the past two decades. Demands that the taxes owed under Amended Ord. 29 date back to 1980, as we have documented but then, as now, the clear will of the people was ignored and the issue was buried.

     The issue was resurrected in 1996, and several years of stonewalling by the Tribal Senate led to the presentation of a legal, and theoretically (read constitutionally) binding, petition in 1999 which directed the Senate to "...immediately enforce Ordinance 29 in its entirety; collect all excise taxes imposed and due..." The petition also specifically forbid the Senate from allowing "...any amendments to Ordinance 29..." to even be considered prior to collecting all back taxes and implementing enforcement of Amended Ord. 29!

     A proposal to Amend Ordinance 29 and mediate a settlement on the two decades of unpaid taxes was the first proposed 'action' taken by the Senate. They announced it publicly about three months after the 1999 petition was submitted. This proposal was basically the only visible action taken by the Senate (thin soup indeed), and as it was pointed out to the Senate that the petition which spurred the proposed action forbid taking just such a course, nothing came of it. Ostensibly the Senate went back to the drawing board, but the Swinomish people heard and saw little more on the Tobacco Tax Issue through the remainder of 1999.

     The issue came up again at the 2000 Election and General Council meeting, leading to a resolution by the General Council giving the Senate yet another 90 days to resolve the issue, collect back taxes and begin collecting taxes on current tobacco sales. This did not happen either, instead the Senate wrote up Ordinance 140, sent it off for BIA approval, got that, and STILL have not collected a dime in taxes, current or past... It is against this backdrop that we present Ordinance 140.

    (Note: clicking on linked items above will open pages detailing the subjects being discussed above. The Tobacco Tax Issue is covered in the "Hot Current Issues" section of our main site page.)  
 

     WHEREAS, the Swinomish Indian Tribal Community ("Tribe") is a federally recognized Indian Tribe organized pursuant to Section Sixteen of the Indian Reorganization Act of 1934; and

     WHEREAS, the Swinomish Indian Senate ("Senate") is the duly constituted governing body of the Swinomish Indian Reservation ("Reservation") established in Article III of the Treaty of Point Elliott (12 Stat. 928) on January 22, 1855; and

     WHEREAS, the Senate finds that tobacco products have the potential of causing personal injury and harm to human health; that tobacco products are particularly injurious and hazardous to the health of youth and minors; and that revenues from the enforcement of this ordinance are needed by the Tribe to protect the health and welfare of Tribal members and the general public; and

     WHEREAS, the Senate further finds that the Tribe provides numerous services to cigarette and tobacco sellers within the Reservation, including but not limited to protection by Tribal law enforcement, the availability of a Tribal Court, Tribal land use programs and controls, Tribal environmental protection programs and regulations, access to Tribally owned property such as tidelands, beaches and parks that are open to the general public (including the John K. Bobb playfield and Widab Public park), Tribal utilities (such as sewer, water and solid waste), Tribal housing and a variety of Tribal social service programs including medical and dental services through the Tribe's dental clinic and soon to be opening medical clinic and employment and job retraining programs for displaced workers; and

     WHEREAS, under the Constitution and Bylaws of the Tribe, the Senate is charged with the duty of protecting the health, security and general welfare of the Swinomish Tribal Community; and

     WHEREAS, the Senate deems it essential to the health, security and general welfare of the Swinomish Indian Tribal Community to enact a comprehensive tobacco ordinance regulating the sale of cigarettes and other tobacco products and levying an excise tax upon their sale on the Swinomish reservation: NOW THEREFORE,

     BE IT ENACTED by the Swinomish Indian Senate that the following Ordinance is adopted as a law of the Swinomish Indian Tribal Community:

Section 1. Title

This Ordinance shall be known and referred to as the Swinomish Tobacco Ordinance.

Section 2. Constitutional Authority

This Ordinance is adopted pursuant to authority provided by the following provisions of the Swinomish Constitution and Bylaws, as amended on October 22,
1985:

Article VI, Sections 1.(h), 1.(k), and 1.(l), of the Swinomish Constitution.

Section 3. Purpose

The purpose of this Ordinance is to regulate the sale of cigarettes and tobacco products within the Swinomish Reservation and to impose an excise tax on the gross sales of such items. This ordinance also eliminates prior provisions in Amended Ordinance 29 which authorized Tribal agents to purchase, distribute and sell cigarettes and tobacco products on behalf of the Tribe in licensed, but privately owned, tobacco outlets.

Section 4. Repeal

This Ordinance repeals and replaces Amended Ordinance 29 adopted by the Senate on October 3, 1978.

Section 5. Definitions
 
 

Section 6. Tobacco License Required.

No person may sell cigarettes or tobacco products within the Reservation without a Tribal tobacco license. Any person may make written application for a tobacco license to the Manager which application shall state the name of the applicant and the address of the tobacco outlet(s) where cigarette or tobacco products are to be sold. The application shall be signed by the applicant, or if the applicant is not a natural person by a legally authorized representative of the applicant, under oath and be accompanied by a nonrefundable application fee of \$100.00.

Section 7. Tobacco License.

Upon receipt of an application for a tobacco license and applicant's compliance with the other provisions of this ordinance, the Manager shall issue the applicant a tobacco license for a one-year period which shall entitle the licensee to sell cigarettes and tobacco products at the tobacco outlets described on the tobacco license. All of the tobacco licensee's rights associated with the tobacco license shall expire at the end of the one-year period and the tobacco licensee shall not be entitled or have any right to a new license or a renewal of the former license. No tobacco license shall be issued until applicant has provided proof of a current payment bond, if one is required, pursuant to Section 19 herein, in an amount approved by Manager.

Section 8. Federal Traders License.

No tobacco license shall be issued until the applicant has obtained a Federal Indian Trader's License from the United States Bureau of Indian Affairs. Revocation of the Federal Indian Trader's License shall be grounds for immediate revocation of licensee's tobacco license. The Tribe and any Tribally owned enterprise shall be exempt from this provision.

Section 9. Cigarette Excise Tax Imposed.

There is hereby levied and imposed, a tax upon the sale of all cigarettes sold by a cigarette seller within the Reservation in the amount of five and one half percent (5.5%) of the retail selling price of the cigarettes sold. This tax is imposed upon all cigarette sellers.

Section 10. Tobacco Excise Tax Imposed.

There is hereby levied and imposed, a tax upon the sale of all tobacco products sold by a tobacco seller within the Reservation in the amount of five and one half percent (5.5%) of the retail selling price of the tobacco products sold. This tax is imposed upon all tobacco sellers.

Section 11. Tax Payments - When Due.

All cigarette taxes and all tobacco taxes shall be paid monthly for all sales made during each calendar month on the twentieth (20th) day of the month immediately following such calendar month. Monthly reports of purchases and sales during that month shall be made at the same time.

Section 12. Reports of Sales.

All cigarette sellers and all tobacco sellers shall submit to the Manager monthly reports of all sales of cigarette and tobacco products sold within the Reservation on forms approved by the Manager. Tobacco sellers shall also submit to the Manager monthly reports of all purchases of cigarettes and tobacco products on forms approved by the Manager together with copies of all invoices for such purchases. Monthly reports shall be submitted at the same time and for the same periods that taxes are required to be paid.

Section 13. Records and Audits.

All cigarette sellers and tobacco sellers shall maintain a record system that includes a "perpetual inventory" that records on a daily basis: (1) the quantity and price paid for all cigarettes and tobacco products purchased or received including any other additions to inventory stock, (2) the quantity and price of all stock on hand, and (3) the quantity and price of all sales of stock including any deletions to stock. The beginning inventory shall be verified by the Manager by making a physical count of stock on hand. Records shall be maintained either manually or on a computer and all stock on hand shall be accessible for physical inventory by Manager. Manager may audit such records and conduct a physical inventory during normal business hours, or at such other times that are agreeable with cigarette and tobacco sellers, without prior notice. All records and all stock on hand shall be kept at the Tobacco Outlet and made immediately available to Manager during Manager's audit and physical inventory. Annual financial statements audited by an independent certified public accountant shall be submitted to the Manager for the prior calendar year no later than April 1st of the following year, provided that the Manager may authorize statements for other than a calendar year to be submitted by written agreement.

Section 14. Ownership and Risk of Loss.

All tobacco products purchased by tobacco licensees shall be the property of the tobacco licensee or some person other than the Tribe, and any loss, injury or penalty shall be at the sole risk of the licensee.

Section 15. Restricted Sales to Minors.

No tobacco seller shall sell any cigarettes or tobacco products to any person under the age of 18 years.

Section 16. Other Business.

A tobacco licensee may conduct other business at tobacco outlets and shall not be required to maintain separate books of account for such other business.

Section 17. Tribal Immunity, Liability and Credit.

Tobacco licensees shall not have the authority, and shall not attempt in any way, to waive the sovereign immunity of the Tribe from suit nor shall such licensees have the authority, or attempt in any way, to create any liability on behalf of the Tribe or utilize Tribal credit. This provision shall not apply to the Tribe and tribal enterprises wholly owned by the Tribe to the extent that they have been delegated special express authority by resolution of the Swinomish Senate.

Section 18. License Required.

No person shall sell tobacco products within the Reservation without having in effect a valid tobacco license issued pursuant to this ordinance.

Section 19. Payment Bond.

In the event that a tobacco licensee fails to remit the taxes due under this ordinance for more than 60 days or is late in remitting such taxes more than twice in any twelve (12) month period, the Manager may require a tobacco licensee to maintain a payment bond that names the Tribe as the principal beneficiary and guarantees payment of all taxes required to be paid to the Tribe by this ordinance. The payment bond shall be in an amount not less than the actual or anticipated average tax payment due under this ordinance during an average six month period. The Manager may require the bond amount to be adjusted (up or down) to reflect the amount of actual taxes due during an average six month period. The Manager may require a payment bond, when applicable, and determine the appropriate amount of the bond as a condition of granting a tobacco license. Any lapse in the coverage of a tobacco licensee's payment bond shall be grounds for immediate revocation of licensee's tobacco license. The Tribe and tribal enterprises wholly owned by the Tribe shall be exempt from this provision.

Section 20. Revocation of Tobacco License.

Failure of a tobacco licensee to abide by the requirements of this ordinance shall constitute grounds for immediate revocation of the tobacco licensee's tobacco license as well as enforcement of the penalties provided in Section 21 below.

Section 21. Violations and Civil Penalties.

Any person violating any of the provisions of this ordinance shall be subject to a fine imposed by the Tribal Court in an amount not less than \$50.00 nor more than $5,000.00 per violation and forfeiture of the tobacco license held by such person. In addition to any fine or license forfeiture, any person violating this ordinance shall be required to pay any unpaid cigarette and tobacco taxes plus interest from the date such tax payment was due at a rate of eighteen percent per year compounded monthly.

Section 22. Manager's Duties.

The Manager, or his designee, shall perform all of the acts required by this ordinance to be performed by the Tribe or the Manager.

Section 23. Severability.

If any provision of this ordinance or its application to any person or circumstance is held invalid, the remainder of this ordinance, or the application of the provision to other persons or circumstances shall not be affected

     THE FOREGOING ORDINANCE was duly enacted by the Swinomish Indian Senate with a quorum present.