Published in Indian Country Today Media Network | August 22, 2012 | Circulation: 300,000 unique monthly visitors / 22,500 (magazine)

The Manitoba government has seized nearly $500,000 in legal cigarettes from a Dakota smoke shop that has been raided five times by the Royal Canadian Mounted Police (RCMP), alleges one of the chiefs behind the shop.

Several bands in the province are bracing for a protracted legal battle over the Dakota Chundee Smoke Shop, located outside Brandon, who appeared again in court on August 9. But with the Dakota leadership arguing they do not recognize the court’s authority, the battle may end up on the streets, as happened when regalia-clad chiefs rode through Winnipeg on horses on May 31 to protest the raids.

“We’re acting as a sovereign nation—with rights to act and behave as a sovereign nation,” Chief Frank Brown, of Canupawakpa Dakota First Nation, told Indian Country Today Media Network. “If we don’t have a treaty with Canada, then our territory is still our territory. Right now, we’re saying to both governments—the province and Canada—that we are standing on the first law: the law of the land, the law that we lived under before the White Man came. It’s our law to do nation-to-nation business. The RCMP said the cigarettes are legal and our smoke shop is legal. But the province is wanting taxes. We refuse to pay taxes to the province, because we don’t have a treaty with Canada.”

The smoke shop opened last year, selling half-price cigarettes from the Quebec-based Rainbow Tobacco, a federally licensed plant on Kahnawake Mohawk Territory.

“This action follows repeated seizures of contraband tobacco at this location, and the failure of those operating the smoke shop to follow provincial laws,” Jodee Mason, a Manitoba government spokesperson, told ICTMN. “The Tobacco Tax Act applies province-wide, including on First Nations, and prohibits the sale of non-Manitoba marked products. This includes tobacco sales on- and off-reserve, as well as by aboriginal owned or non-aboriginal owned businesses. We expect everyone to follow the law and regulations.”

But while the Dakota argument hinges on the nation’s sovereignty in the context of the disputed 1871 Treaty 2—which he claims was not signed by legal band representatives—the cigarettes are legal federally.

“The federal taxes have been paid on them; they’re legal cigarettes,” Manitoba RCMP spokesperson Sgt. Line Karpish, told the National Post. However, she subsequently told ICTMN that provincial tax laws must be met for them to be legally sold in Manitoba.

“Unless both the Provincial and Federal requirements are met, the cigarettes are not legally sold in the Province of Manitoba,” Karpish said. “Not only can a business or individual be charged for selling unmarked tobacco, it is an offence to be found in possession of such tobacco.”

Brown said the RCMP have approached him and other Chiefs with offers to help mediate a solution to the impasse.

“We did meet with the Dakota Chiefs mid-June,” Karpish confirmed. “The meeting was to urge compliance with the recent court injunction. As the police force of jurisdiction, we are continuing to dialogue in the peaceful resolution of this matter.”

This week, the court offered the Dakota one month to decide if they will call expert witnesses to assert their sovereignty claims.

“It is a sovereign issue,” Brown said. “Who can be an expert in the law of our land? Only we can do that; only the people of the land are experts on that law… That’s the decision that we have to make, but personally I do not recognize their courts… It’s their Crown, their judge, their house, their laws. They can change those laws to suit their needs.”

Eight people, including Brown, are facing a combined 66 charges, including possession and sale of unmarked cigarettes, possession of tobacco for sale without a license, and operation of a business without valid tax authorization, Mason confirmed. On May 30, a judge granted a temporary injunction against the shop, but turned down requests for a broader ban. Meanwhile, Dakota Chundee’s doors remain open.

“We’re doing all sorts of stuff for our people through our tobacco business,” Brown said, adding that one community purchased a fire truck with cigarette revenues. “We’re helping our people with post-secondary education.”

As for the repeated raids, Brown estimated that nearly $500,000 has been confiscated from the band—more than 100,000 cigarettes. But the shop will stay open, and the leaders behind it say they are willing to go to jail rather than back down.

“That will set us back a little bit, but we’ll get it back,” he said. “We’ll win it back. We’re not going to stop either… We’re confident we’re going to win, and they’re going to pay for whatever they took.”

The former chief of Roseau River First Nation, Terrance Nelson—who ran unsuccessfully for National Chief in the recent Assembly of First Nations election—said the province has no right to collect taxes on reserves.

“Chief Frank Brown is doing something on his own in Manitoba—something being done already by all the smoke shops in Ontario,” Nelson told ICTMN. “The reality is that the smoke shop situation in Manitoba will break open. There’s no question about it.”