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Seneca Indians may have lost another court battle Monday in their attempts to keep state taxes from being collected on cigarettes sold to non-Indians on Native American land, but they say their legal battle is not complete.
Not only will Senecas head to the state’s Appellate Division seeking to overturn a decision made Monday by state Supreme Court Judge Donna Siwek that will allow for tax collections, but the nation also plans to head back to U.S. Federal District Court in hopes of convincing Judge Richard Arcara to block the way the state plans to collect the taxes.
On Monday, Judge Siwek lifted an injunction dating back to a 2006 case that prevented the state from collecting the tax until it put in place a system for Native Americans to get the products tax-free.
Under the state’s collection plan that begins Wednesday, all packs of cigarettes sold by wholesalers to tribes or tribal members must bear a state tax stamp, meaning the tax was paid. A certain amount of cigarettes, based on U.S. census data, will be delivered for tribal use and have the stamp.
For all other cigarettes, the state is requiring wholesalers to prepay the taxes before supplying reservation stores.
Questioning the system to be used, the Seneca Nation sought to keep the injunction in place so the state could not begin collecting the taxes Wednesday.
It lost that decision Monday, however, and will next appeal to a higher court to have it overturned.
Also an option for Senecas will be to ask Judge Arcara to make a decision on a case he reserved decision on last week when the nation challenged procedural aspects of the collection plan and asked Arcara to put a temporary restraining order on the state’s plan. Arcara heard arguments until the close of business Friday but reserved decision on the order to halt the tax collections, telling both sides they could return to him if necessary.
Seneca Nation officials plan to do so.
“We are disappointed State Supreme Court Justice Siwek did not keep the tax impositions injunction in place, however, our legal efforts are far from over,” said Barry E. Snyder Sr., Seneca Nation president.
He said an expedited appeal motion with the Appellate Division of State Supreme Court will be filed, along with the federal request.
“We remain hopeful Judge Arcara will grant our request for a temporary restraining order in the separate federal case,” he said, adding that court action will occur today. “It is our intention to block New York state from ever collecting a penny of tax on sales of tobacco by the Seneca Nation or any other Native American nation under this ill-conceived taxing scheme.”
While the Senecas head to court, state officials are also gearing up for the Wednesday collections.
“We will review the decision and determine the next steps to take,” was the only comment issued by Brad Maione, state Department of Taxation and Finance spokesman, about Monday’s court action.
Past attempts at collecting the tax have resulted in Seneca protests, since Senecas believe state tax collections on their land violate treaties with the federal government. Although Snyder said he supports a peaceful resolution to the issue, questions linger about whether all of the tribe’s members would agree. The last time the state tried to collect the tax, in 1997, protests erupted and tires were burned on the Thruway, shutting down a 30-mile stretch of the state’s main thoroughfare that bisects Seneca land south of Buffalo. While the Senecas say they want to reach a peaceful resolution to the situation, Paterson said state troopers will be kept off the state’s Indian reservations to avoid conflict.
“It’s a frustrating time once again,” said J.C. Seneca of the nation’s Foreign Relations Committee about the dispute that has raged between the state and Senecas for years.
He alleged the state is “trying to erode our sovereignty.”
Seneca said, however, three Native American cigarette manufacturers are located on Indian territory and can produce cigarettes without Seneca retailers having to go through a wholesaler and pay the tax. He said merchants have also secured supply lines to sell from elsewhere.
“We’ve secured supply lines,” he said.
source: .observertoday.com