The authority of the Tribal Council of the Port Gamble S’Klallam Tribe to adopt this ordinance as codified in this title is found in the Constitution of the Port Gamble S’Klallam Tribe and in the inherent sovereignty of the Port Gamble S’Klallam Tribe to regulate its own territory and activities therein.
(Res. 03 A 148, 10/28/2003)
The Tribal Council of the Port Gamble S’Klallam Tribe finds that regulation of the sale of cigarettes is essential to the health and welfare of the Port Gamble S’Klallam Tribe and its members. The Tribal Council further finds that a tax base is essential to the Tribe’s ability to provide goods and services, and to finance government operations and economic development, for the safety, health and welfare of the Port Gamble S’Klallam Tribe, its members, and those who work on, live on, and visit the Tribe’s Tribal Lands. Therefore, in the public interest and for the welfare of the people of the Port Gamble S’Klallam Tribe, its employees, the residents of and visitors to Tribal Lands, the Port Gamble S’Klallam Tribal Council, in the exercise of its authority under the Tribal Constitution, declares its purpose by the provisions of this chapter to regulate the sale of cigarettes and to impose, collect and administer taxes on the retail sale of cigarettes.
(Res. 03 A 148, 10/28/2003)
(a) 
Application. This chapter shall apply to the full extent of the sovereign jurisdiction of the Port Gamble S’Klallam Tribe in Tribal Lands.
(b) 
Compliance with this chapter is hereby made a condition of the use of any land or premises in Tribal Lands.
(c) 
Deemed to Consent. Any person who resides, conducts business, engages in a business transaction, receives benefits from the Tribal government, including police, fire or emergency services, acts under Tribal authority, or enters the Tribal Lands under the jurisdiction of the Port Gamble S’Klallam Tribe, shall be deemed thereby to have consented to the following:
(1) 
To be bound by the terms of this chapter;
(2) 
To the exercise of civil jurisdiction by the Port Gamble S’Klallam Tribal Court over said person in legal actions arising pursuant to this chapter, and
(3) 
To detainment, service of summons and process, and search and seizure, in conjunction with legal actions arising pursuant to this chapter.
(Res. 03 A 148, 10/28/2003)
The following definitions apply throughout this chapter unless otherwise specified or the context clearly indicates otherwise:
(a) 
“Auditor”
means an independent third party auditor selected pursuant to section 23.01.10 of this chapter.
(b) 
“Carton” or “Carton of Cigarettes”
means a carton of two hundred (200) cigarettes.
(c) 
“Cigarette”
means any roll for smoking made wholly or in part of tobacco, irrespective of size or shape and irrespective of the tobacco being flavored, adulterated, or mixed with any other ingredient, where such roll has a wrapper or cover made of paper or any material, except where such wrapper is wholly or in the greater part made of natural leaf tobacco in its natural state.
(d) 
“Cigarette Compact”
means the Cigarette Tax Compact entered into by the Port Gamble S’Klallam Tribe and the State of Washington.
(e) 
“Court”
means the Port Gamble S'Klallam Community Court, and includes the Port Gamble S’Klallam Court of Appeals.
(f) 
“Department”
means the state of Washington Department of Revenue.
(g) 
“Essential Government Services”
means services provided by the Tribe, including, but not limited to, Tribal administration, public facilities, fire, police, public health, education, job services, sewer, water, environmental and land use, transportation, utility services, and economic development., and as more fully defined in Part XIII, Section 8. of the Compact to wit:
“Essential Government Services” includes, but is not limited to: government services to provide and maintain infrastructure such as sidewalks, roads, and utilities; services such as fire protection and law enforcement; the costs of administering the Tribal Cigarette Tax stamp program under this Compact, including all deductions and exemptions similar to those available to retailers, Wholesalers and others under State law, further including transportation vehicles and related costs; Tribal administration activities such as tax functions, contracting for health benefits, economic development, natural resources, and the provision of job services; and distribution of moneys related to trust funds, education, general assistance, such activities as land and building acquisitions, and building development and construction.
(h) 
“General Fund”
means the Port Gamble S’Klallam Tribe general fund.
(i) 
“Tribal Lands”
means lands owned by the Tribe and held for the benefit of the Tribe.
(j) 
“Local Retail Sales Tax”
means the combined Washington local retail sales taxes applicable in the area.
(k) 
“NonIndian”
means an individual who is neither a Tribal member nor a nonmember Indian.
(l) 
“Nonmember Indian”
means an enrolled member of a federally recognized Indian Tribe other than the Port Gamble S’Klallam Tribe.
(m) 
“Person”
means and includes any natural individual, company, partnership, firm, joint venture, association, corporation, estate, trust, political entity, or other identifiable entity.
(n) 
“Retail Selling Price”
means the ordinary, customary, or usual price paid by the consumer for each package of cigarettes, which price includes the Tribal cigarette tax.
(o) 
“Self-Certified Tribal Wholesaler”
means a wholesaler who is a federally recognized Indian Tribe or a member of such a Tribe, who is not required to be licensed under any state law, and who has by letter certified to the Department that it will abide by the terms of the Cigarette Compact and who has signed a contract with the Tribe requiring it to abide by the terms of the Cigarette Compact.
(p) 
“Self-Certified Wholesaler”
means an out-of-state wholesaler who is not a self-certified tribal wholesaler and who has by letter certified to the Department that it will abide by the terms of the Cigarette Compact and who has signed a contract with the Tribe requiring it to abide by the terms of the Cigarette Compact.
(q) 
“Port Gamble S’Klallam Indian Reservation” or “Reservation”
means the area recognized as the Port Gamble S’Klallam Indian Reservation by the United States Department of the Interior.
(r) 
“State”
means the state of Washington.
(s) 
“Tobacco Products”
means cigars, cheroots, stogies, periques, granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco, snuff, snuff flour, cavendish, plug and twist tobacco, fine-cut and other chewing tobaccos, shorts, refuse scraps, clippings, cuttings and sweepings of tobacco, and other kinds and forms of tobacco, prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking. “Tobacco product” does not include cigarettes.
(t) 
“Tribal Cigarette Tax”
means the tax or taxes enacted as a provision of Tribal law on the units of cigarettes sold and on the purchase of cigarettes by retail buyers.
(u) 
“Tribal Council”
means the Port Gamble S’Klallam Tribal Council.
(v) 
“Tribal Member”
means an enrolled member of the Port Gamble S’Klallam Tribe.
(w) 
“Tribal Retailer”
means a cigarette retailer wholly owned by the Port Gamble S’Klallam Tribe and located in Tribal Lands.
(x) 
“Tribal Tax Stamp”
means the stamp or stamps that indicate the Port Gamble S’Klallam Tribal cigarette tax imposed under the Cigarette Compact is paid or that identify those cigarettes with respect to which no tax or another Tribal tax is imposed.
(y) 
“Tribe” or “Tribal”
means or refers to the Port Gamble S’Klallam Tribe.
(z) 
“Wholesaler”
means every person who purchases, sells, or distributes cigarettes for the purpose of resale only.
(Res. 03 A 148, 10/28/2003)
The Tribe entered into a compact with the State of Washington regarding the sale and taxation of cigarettes in Tribal Lands (the “Cigarette Compact”). In accordance with the terms of the Cigarette Compact and during its term:
(a) 
The Tribe shall not engage in mail order type sales, such as internet, catalog, and telephone sales, to Washington residents outside of Tribal Lands, unless and until the State and the Tribe have entered into a memorandum of agreement in regard to the taxability of such sales.
(b) 
“Tribal retailer” refers to the Gliding Eagle Marketplace and the Point Casino and Hotel.
(1) 
The Tribe will notify the Department thirty (30) days prior to the start up of cigarette sales by any other Tribal retailer.
(2) 
The Tribe will provide information regarding the status of land upon which any Tribal retailer is located at least thirty 30 days prior to the startup of any new cigarette sales by such retailer.
(c) 
Tribal retailers may purchase cigarettes for sale in Tribal Lands only from:
(1) 
Wholesalers or manufacturers licensed to do business in the State of Washington;
(2) 
Self-certified wholesalers who meet the requirements of Part VI section 2 of the Cigarette Compact;
(3) 
Self-certified tribal wholesalers who meet the requirements of Part VI section 3 of the Cigarette Compact; and
(4) 
The Tribe or its enterprises as a Tribal manufacturer.
(d) 
All cigarettes sold by the Tribal retailer shall bear a Tribal tax stamp, including cigarettes subject to the Tribal cigarette tax, the Tribal member cigarette tax, or exempt from either of these taxes. The stamps shall be purchased and affixed in accordance with the terms of the Cigarette Compact.
(e) 
The Port Gamble S’Klallam Tribe, or its designee, shall notify the state Department of Revenue 72 hours in advance of all shipments of cigarettes by the self-certified wholesaler or self-certified tribal wholesaler to the Tribe or Tribal retailers. Such notice shall include who is making the shipment (meaning who is the wholesaler), detail regarding both quantity and brand, and the invoice order number.
(f) 
No person shall sell or give, or permit to be sold or given, cigarettes to any person under the age of 18. If a violation of this subsection 23.01.05(f) is reported to the Tribe:
(1) 
The Tribe shall investigate the allegation; and
(2) 
When there is probable cause to believe a violation has occurred, cite the individual who is alleged to have made a sale or gift in violation of this subsection 23.01.05(f) for such violation and apply the following penalties to the individual:
(i) 
Upon a first violation, a fine of $250.00;
(ii) 
Upon a second violation within any rolling one-year period, a fine of $500.00;
(iii) 
Upon a third violation within any rolling one-year period, a fine of $750.00;
(iv) 
Upon a fourth violation within any rolling two-year period, a fine of $1,000.00; and
(v) 
Upon a fifth violation within any rolling two-year period, a fine of $1,000.00 and termination from employment. Upon the fifth violation within any rolling two-year period, the individual shall no longer be permitted to make cigarette sales in Tribal Lands for a period of no less than one year.
(3) 
It shall be no defense to a citation for a violation of this subsection 23.01.05(f) that the purchaser acted, or was believed by the defendant to act, as agent or representative of another.
(4) 
It shall be a defense to a citation for a violation of this subsection 23.01.05(f) that the person making a sale reasonably relied on officially issued identification that shows the purchaser’s age and bears his or her signature and photograph.
(Res. 03 A 148, 10/28/2003)
(a) 
Beginning no later than the effective date of the Cigarette Compact, the Tribe shall impose taxes, pursuant to the terms of this section, on all sales by Tribal retailers of cigarettes to nonIndian and nonmember Indian purchasers within Tribal Lands.
(b) 
The Tribal tax rate shall be as follows:
(1) 
For the first 36 months (“phase-in period”), the tax rate shall equal no less than the sum of an amount equal to 80 percent of the State cigarette tax, which is expressed in cents per cigarette, plus an amount equal to 80 percent of the state and local retail sales taxes. This phase-in period may be reduced in accordance with subsection 23.01.06(c).
(2) 
No later than 36 months after the initial imposition of tax under this section 23.01.06(c) and subject to the phase-in period reduction under subsection 23.01.06(c) the Tribal tax rate shall be no less than the sum of an amount equal to 100 percent of the state cigarette tax, which is expressed in cents per cigarette, plus an amount equal to 100 percent of the state and local retail sales taxes.
(c) 
If during any quarter the number of cartons of cigarettes, excluding those manufactured by the Port Gamble S’Klallam Tribe or its enterprises, that are sold at retail exceeds by at least 10 percent the quarterly average sales of the six months preceding the imposition of the Tribal cigarette tax, the 36-month phase-in period shall be reduced by three months. These reductions will be cumulative. The quarterly average sales baseline shall be determined by the Auditor. For the purposes of this provision:
(1) 
“Quarter” means a three-month period, each quarter immediately succeeding the next. The first quarter begins the first day of the first month the Tribal cigarette tax is imposed, if the imposition of the tax is on or before the 15th of the month, or begins the first day of the second month the Tribal cigarette tax is imposed, if the imposition of the tax is after the 15th of the month; and
(2) 
The “quarterly average sales” means the sum of the retail sales made during the two quarters divided by two.
(d) 
During the term of the Cigarette Compact, upon any future increase in the state cigarette tax, state retail sales tax, or local retail sales tax, the Tribal tax on cigarettes shall increase by no less than 100 percent of the increase in the combined state and local tax rates; provided, however, that during the phase-in period the Tribal tax rate shall be set that it is at least equal to 80 percent of the then-current combined state cigarette tax and state and local sales tax.
(e) 
During the term of the Cigarette Compact, upon any future decrease in the state cigarette tax, state retail sales tax, or local retail sales tax, the Tribal tax on cigarettes may decrease to a minimum of no less than 100 percent of the combined state and local tax rates; provided, however, that during the phase-in period the Tribal tax rate shall be set that it is at least equal to 80 percent of the then-current combined state cigarette tax and state and local sales tax.
(f) 
The following sales shall not be subject to a general Tribal sales tax levy under other provision of Tribal law:
(1) 
All cigarettes manufactured by the Port Gamble S’Klallam Tribe or its enterprises in Tribal Lands;
(2) 
All other cigarettes whenever a Tribal cigarette tax or Tribal member cigarette tax is imposed on those cigarettes during the term of a compact with the state of Washington.
(Res. 03 A 148, 10/28/2003)
The following shall not be subject to the cigarette tax levy:
(a) 
Sales of tobacco products;
(b) 
Sales of cigarettes to enrolled members of the Port Gamble S’Klallam Tribe. However, such sales are subject to a Tribal member cigarette tax, which shall be equal to the tax levied under section 23.01.06 on sales to nonIndians and nonmember Indians. The tax revenue from sales to enrolled members of the Port Gamble S’Klallam Tribe shall be exempt from the prohibition on subsidization in section 23.01.09.
(c) 
Sales of cigarettes manufactured by the Port Gamble S’Klallam Tribe or its enterprises within Tribal Lands.
(d) 
Mail order type sales of cigarettes, such as internet, catalog, and telephone sales, to purchasers outside of Tribal Lands and outside of Washington state.
(Res. 03 A 148, 10/28/2003)
(a) 
Every person engaged in retail sales of cigarettes in Tribal Lands who is liable for collecting the Tribal cigarette tax levy or Tribal member cigarette tax levy, shall maintain accurate written records of the purchase, stamping, and retail sales of cigarettes, and shall make such records available for inspection by the Tribal finance officer and/or Auditor retained by the Tribe. Records shall be maintained for no less than three years after the audit is accepted by the appropriate federal oversight agency.
(b) 
All applicable taxes shall be paid prior to the sale, distribution, or transfer of possession of any cigarettes. During the term of the Cigarette Compact, the terms of the Cigarette Compact regarding the purchase, stamping, transportation and sale of cigarettes shall apply.
(c) 
Whenever cigarette taxes are paid by any person other than the consumer, user or possessor, that payment shall be considered a pre-collection of such taxes due. When the tax is prepaid by another, this amount is part of the selling price of the cigarette to the retail purchaser.
(Res. 03 A 148, 10/28/2003)
(a) 
Tribal cigarette tax revenue shall be used only for essential government services, and may not be used to subsidize Tribal cigarette and food retailers. For the purposes of this section, “subsidize” means that proceeds from the Tribal cigarette tax pursuant to the Cigarette Compact cannot be expended on the enterprise activities of the Tribal retail cigarette business. In addition, where the cigarette business is co-located with a retail food business, the proceeds cannot be expended to support that business.
(1) 
“Enterprise activities” include paying wages, benefits, bonuses or expenses, related to the maintenance and operation of the retail facility or typically considered to be part of a business’ operating expenses and overhead.
(2) 
“Non-enterprise activities” include, but are not limited to: government services to provide and maintain infrastructure such as sidewalks, roads, and utilities; services such as fire protection and law enforcement; the costs of administering deductions and exemptions similar to those available to retailers, wholesalers and others under state law; Tribal administration activities such as tax functions, contracting for health benefits, economic development, natural resources, and the provision of job services; and distribution of moneys related to trust funds, education, and general assistance.
(b) 
Tribal member cigarette tax revenue is not subject to the requirements of this section 23.01.09.
(Res. 03 A 148, 10/28/2003)
The Tribe shall retain a third-party independent auditor for the purposes of verifying compliance with the Cigarette Compact. The Auditor shall perform all work required under Part VIII of the Cigarette Compact.
(Res. 03 A 148, 10/28/2003)
Prior Tribal Council resolutions dealing with the levy of Tribal cigarette taxes are superseded by this chapter.
(Res. 03 A 148, 10/28/2003)
If any provision of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provision to other persons or circumstances, is not affected.
(Res. 03 A 148, 10/28/2003)