A partial victory for the tribe came in April 2023 when a federal district court ruled that the state could not collect revenue from tobacco sales made on the Winnebago Reservation. However, the state was allowed to continue regulating sales outside the tribe’s land. This decision was mostly overturned by the Eighth Circuit in August, which ruled that Nebraska can regulate tobacco sales made to nonmembers on the reservation, even if all transactions occur within tribal boundaries.
The tobacco companies argue that this ruling conflicts with Supreme Court precedents such as California v. Cabazon Band of Mission Indians (1987), which affirmed that states cannot regulate tribal activities that are not in conflict with federal law. They further contend that the Eighth Circuit wrongly applied the Bracker balancing test without establishing the “exceptional circumstances” required for state intervention in tribal affairs, as outlined in the 1983 ruling New Mexico v. Mescalero Apache Tribe.
The petition also criticizes the Eighth Circuit’s ruling for creating practical issues, including how a manufacturer could determine whether a customer is a tribal member or nonmember. The companies argue that such regulations would be burdensome and would stifle the tribe’s ability to manage its businesses effectively.
