Taxation of Non-Indians on Indian land

[dtwarren]

Originally posted by Curmudgeon
"Your references to other states and countries is not analogous to indian nations/tribes and is therefore comparing apples to oranges."

I don't buy that. The res is a autonomous region set up by the federal gov't and the only govt entity the res has to negotiate with is the Fed. We may not like it, but that's the way it is.
To say that differing taxation on reservations vs. neighboring states "is comparing apples to oranges" seems more wishful thinking to me rather than fact. The res is completely free to set whatever taxation policy (or lack thereof) they want.

"As for the sales tax issue you mention that is now a fait accompli. The Legislature as part of its budget amended the Tax Law to compel the Tax Commissioner to promulgate regulations for the collection of State Sales Tax on sales to non-Indians on Indian Land by September. Six State Tax Officials have been deputized as Federal Marshals to assist in this enforcement."

How sad. I assume that means undercover agents will be prowling reservation borders looking to see who filled up their gas tank. Sounds like a pathetic policy doomed to failure. Will we also see "revenue agents" patrolling the 219 at the border of Pennsylvania looking for "tax cheats" there as well? Avoiding sales tax by going to another state IS indistinguishable from going to the res in the eyes of the law.

What NYS is doing is trying to circumvent the free market, and the free market wins every time....
Lower the taxes to compete with other regions. It's that simple.
That's why the founding fathers created the states and the 6th amendment. They knew that state govts would have to compete with one another, and that is good for commerce.

This was orriginally part of a thread on the Casino issue but since we started to get off-topic it is probably best to start a more appropriate thread.

The often used analogy that puts Indian governmental entities on the same level with Canada or even other States is not accurate. The United States Supreme Court has stated in Nevada v. Hicks that "Our cases make clear that the Indians' right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation's border. Though tribes are often referred to as "sovereign" entities, it was "long ago" that "the Court departed from Chief Justice Marshall's view that "the laws of [a State] can have no force" within reservation boundaries. Ordinarily, it is now clear, an Indian reservation is considered part of the territory of the State." In fact Congress has given the State of New York criminal and civil jurisdiction on Indian land (25 USC §§ 232, 233). Additionally, in June 2002 Judge Arcara dismissed the Grand Island Land Claim in part because this was not the aboriginal land of the Seneca (who sided with the British in the Revolutionary War and also sided with the confederacy in the Civil War).

The U.S. Supreme Court stated in its 1980 decision, Washington State v. Confederated Tribes, "We do not believe that principles of federal Indian law, whether stated in terms of pre-emption, tribal self-government, or otherwise, authorize Indian tribes thus to market an exemption from state taxation to persons who would normally do their business elsewhere." The Court also noted that the State of Washington had the right to seize unstamped cigarettes to enforce its valid taxes.

Given the fiscal crisis we are facing in New York, the State's policy of enforcing its lawful tax laws on only non-Indian businesses can no longer be tolerated nor accepted. The New York Court of Appeals in Snyder v. Wetzler and a unanimous United States Supreme Court held in Department of Taxation & Fin. of N.Y. v Milhelm Attea & Bros., held that the State may place minimal burdens on Indian retailers and tribes to collect taxes from non-Indians on Indian Land. With the exception of actions taken in the Spring of 1997 nothing has been done to collect this revenue. Some reports have placed this lost revenue in the billions. Governor Pataki acknowledged the need for legislative approval of his policy of non-enforcement in his press release of May 22, 1997, where he stated "Let me make my message to all Indian Nations clear: It is your land, we respect your sovereignty and, if the Legislature acts as I am requesting, you will have the right to sell tax-free gasoline and cigarettes free from interference from New York State." The governor even introduced a bill to effect this change. In a Buffalo News article dated July 18, 1997 by Tom Precious entitled "Pataki's sales tax plan for Indian reservations gets pushed aside" that appeared in The Buffalo News Speaker Silver was quoted as saying that this is a "complex issue" and that "[b]efore we deal with it, we have to take a significant look at it, so I don't think anything is going to happen on it this year." Speaker Silver was correct, in fact nothing has happened for the last 6 years. This despite our State Constitution prohibition against any tax exemption that is not enacted by a general law (Article XVI § 1). This section also separately prohibits any attempt to contract away the power of taxation unless sanctioned by the people themselves.

As I said before honest taxpayers should not have to bear the burden of carrying tax evaders. No one likes paying taxes, and no one likes paying theirs as well as someone elses who don't pay but receives the same services.

Dan

[Curmudgeon]

I don't pretend to be an expert on the history of reservation/state relations. I'm no advocate of the indians, but apparently there has been an erosion of indian soverignity when it is convienent for the state.
To sum it up, I think the root of the problem is obscenely high taxes and consumer behavior that results in taxation avoidance. To beat up on the indians soils the hands of everyone involved in the process. There are many people who have prefected the art of taxation avoidance by leaving the state, as the US census figures will tell you.
The indians are a symptom, not the disease...

[WNYresident]

Talkign about experts...


what do we all think about the town baords in lancaster? cheektowaga? amherst that are PRO development at the expense of the residents?

Plus i never want to hear how the developemtn offsets taxes, thats a load of horse crap too, if it did we wouldn't see the tax increases we do.

[Unregistered]

We have a way that you can stop all this CRAP you speak of up above...........

Stop sitting on your BEHIND and run for something....... Lets see if you can or your friends can make a diffrence. I think I am happy with what I pay for the services that I recieve.

If you think its that bad move to the City and pay les Taxes oh by the way see if you get the same Service there as well.

[WNYresident]

Other than Police, Trash, and plowing.. what do we get that we don't pay a fee other than taxes for?

The whole point is we can pay less for the services we are getting, plan and simple.

[Unregistered]

Sounds like you need some cheese w/ that WHINE of yours.

Like I said do something about it just dont bitch about it

[WNYresident]

I"m not whining as you put it, I'm stating facts.

I am doing something about it, I started this site to allow people to air out thier concerns.

[dtwarren]

Originally posted by WNYresident
I"m not whining as you put it, I'm stating facts.

I am doing something about it, I started this site to allow people to air out thier concerns.

I have done something as well: http://www.warren-v-pataki.com

Dan

[Curmudgeon]

"Stop sitting on your BEHIND and run for something....... Lets see if you can or your friends can make a diffrence. I think I am happy with what I pay for the services that I recieve."

well if you're happy with paying the highest taxes in the nation for a pretty crappy product, than I have a bunch of stuff I'd like to sell you... Please contact me - I'd like to sell you my Salad Shooter - I'm sure you won't mind paying top dollar for it even if it sucks and is used... :)

[WNYresident]

How if Indians have children and the buy homes around the casino in Cheektowaga, do they go to cheektowaga central? Or what ever school that district is?

If they do, then do they cover the school tax then?

How will local businesses be able to compete if the indians sell gas and goods?

Why is the supervisor not looking out for the people that pay his paycheck?

[sbGUY27]

Is the land that the Indians are moving onto part of the Casino land ? If an Indian buys a house is he/she exempt from property tax? Where is the famous photo op wench that this state of idiots elected into office. Why is she not hanging out in churches listening to you about this mess. Oh that is right your leaders were elected, mostly unopposed or by landslide, so they don't have to listen anymore,you have given them a mandate. DUH.

[WNYresident]

you mean hillary? Isn't she out promoting her book? Lets not interupt her, I mean she spent all that time writing her book while collecting a paycheck from he taxpayer.


I'm surprized we pay these people FULL TIME paychecks while they have the time to do all this other stuff.

I think it's time to pull the riens of the money tree from all of them.

:)

[dtwarren]

Originally posted by WNYresident
you mean hillary? Isn't she out promoting her book? Lets not interupt her, I mean she spent all that time writing her book while collecting a paycheck from he taxpayer.


I'm surprized we pay these people FULL TIME paychecks while they have the time to do all this other stuff.

I think it's time to pull the riens of the money tree from all of them.

:)

What strikes me is that both her and her husband swore under oath they could not recall various thing for 8 years and now they can write books based on their memories!

[WNYresident]

It's called political BS. If you noticed we have the wrong type of people in elected positions. Too many ME ME ME people. I thought they are supposed to work for the people not special interest groups.

[Unregistered]

The Indians are praticeing their own form of manifest destiny. We did it to them when the white man decided to move west. So it is just history repeating itself in reverse. I hope to live on seneca land one day. I can live tax free because I will be my own soverignstate within the seneca nation.

Don't worry when they get too big for their britches they will have to start taxing to pay for schools for their growing families and for their full time government.

Why don't we get them drunk like the moutain men used to do then negotiate with them. Maybe we can all get wives out of the deal!

[Unregistered]

Oh i forgot blankets ridden with antrax and sars.

[dtwarren]

Two recent decisions by the United States District Court for the Western District of New York signal the court's position on the taxation and regulation of Indian sales of cigarettes to non-Indians. The first is United States of America v. 1,920,000 cigarettes, Case # 02-437A, in which Judge Arcarra denied the claimant's motion to dismiss based on arguments that Cigarette Contraband Trafficing Act (CCTA) was not applicable to Indians. The court held that if the government proves what it alleged in its complaint it would have a prima facie case for seizure of the cigarettes under the CCTA and Wire Fraud (18 USC 1343) statutes. The second decision was handed down by Judge Skretny in OLTRA, Inc. v. Pataki, Case # 03-cv-319, where Judge Skretny denied the plaintiff's motion for a temporary restraining order that would prohibit the State of New York from enforcing New York Public Health Law section 1399-II which prohibits mail order shipment of cigarettes. Judge Skretny held that in light of the United States Court of Appeals for the Second Circuit's decision in Brown & Williamson Tobacco, Corp. v. Pataki, 320 F.3d 200, that it is unlikely that the plaintiffs would succeed on their dormant commerce clause challenge to the statute.

The decisions in the above cases can be viewed on our website at http://www.upstate-citizens.org .

Also we have posted our position on the Land Claims in New York on our website and have added an FAQ page. If you have a question that you would like to see on the site please e-mail them to me.

Sincerely,

Daniel T. Warren
Chair, Niagara Frontier Chapter of Upstate Citizens for Equality

[morphinebrian]

as someone who is, as a matter of fact, half native american, i just want to throw in my two cents in here.
1. native americans were ripped off beyond beleif. anyway you look at it, that is the cold hard truth. any amount of money they may "steal" through tax avoidance of NYS citizens pales in comparison to the amount that was stolen from them through "treaties" (which most were sign this or I'll kill you) and plain theft.
2. don't ever expect native americans to give up one privledge they have now, without a fight to the death. any sense of right or wrong, good or bad, are washed away in the feelings of white people trying to take away another thing from them.

but forgetting all that, the native americans should not be looked upon as a tax burdon to Erie County. Cheektowaga Central may receive a few Native students, but, they'll make up for it in the extra tax revenue through the casino. That is the avenue that should be looked through on how best to appease and take advantage of a large local Native American population. The Senecas, because they are not part of NYS, are not subject to many of its antiquated laws and so fourth. However, by making compacts and deals with this population, we can find ways to use eachother to reach a desired solution for both. facing the native americans as an adversary is no solution to anything but bloodshed. and lets face it, its not them that are avoiding taxes, its the non-indians. should the united states go to war with jamica for setting up a place for US corporations to avoid taxes? i know that arguement isn't all together strong, but what i'm saying is the local tribes aren't unreasonable people, they are in fact very rational. we just have to realize they are always going to go after what is best in there interests, so we should figure out how to appease and exploit it to boths benefit.

[Curmudgeon]

I've said before and I'll say it again - if NYYS taxes wern't so criminally high relative to other states, the indian "problem" wouldn't even exist. The indians are a symptom, not the cause of a much larger problem. WNY citizens are driven to commit the crime of sales tax avoidance because of the huge disparity in taxation rates. They are committing the same crime if they drive to the reservation or if they drive to Pennsylvaina. It's exactly the same thing.

Fix the problem of outragous public expenditure and the indians will have their gaming, and that's it. Oh, and businesses and young people will probably stop fleeing the area as well, if anyone cares about that....

[dtwarren]

Why not just amend the State Constitution and open it up to the free market rather than granting yet another monopoly?

[Curmudgeon]

you're absolutely correct. I have no problem with that at all. my 2 favorite words - "free market". But, in lieu of that, the indians should do what they want.

[morphinebrian]

The high taxation on cigarettes serve as a detterent to smoking due to the high costs of treating lung cancer. If the Native Americans were paying for there customer's treatment, I'd say there is nothing wrong with selling cigarettes at low prices. That not being the case, NYS has to figure out a way to get the Native American population to agree to stop selling them. Its not even a tax issue, its a public health issue. However, to face them head on through comfrontation is not the solution. It would be wiser to appease them through other means than to mandate change via force.

[Curmudgeon]

<<<The high taxation on cigarettes serve as a detterent to smoking due to the high costs of treating lung cancer. >>>

Sounds good but it's not really true. The high taxation is a REVENUE STREAM. The tobacco settlement turned the states into SHAREHOLDERS who have a VESTED INTEREST in preserving the revenue stream. If that wern't the case, tobacco would be $10 a pack all across the united states.
It's already been shown that people who smoke die quickly and earlier, saving the gov't big money on Social Security and geriatric care. South carolina spends 80% of it's tobacco settlement money on tobacco marketing.

It's got nothing to do with public health policy, it's all about THE MONEY. The tobacco lawyers really earned their money the day they signed the "settlement" - they guarenteed that cigaretts would remain legal for eternity.

Don't let the people who are trying to screw over the indians use the "public health" argument - they are full of BS.

Follow the money - it will lead you to the truth every time.

[Unregistered]

Heart disease is believed to be the most common result of smoking, followed by COPD, CAD etc. Lung cancer is also a result but not the top malady.

Cigarette sales taxes are not astronomical so funds can be used to treat lung ca. That is why our health insurance rates are out of this world.

I can't believe people still think that the reason cigarettes are taxed so highly has to do with health issues. The government of NY is capitalizing on part of it's population's ADDICTION to a substance, one that still happens to be legal. I'd LOVE it if smoking drastically declined to a point where their taxes no longer netted a profit ( which despite the Indians, still indeed does).

How long do you think it would be before they started taxing beer and liquor to exorbitant degrees? Travel taxes to go into cities? Forget the toll booths going away anytime soon. The possibilities as most of you know are endless, so be careful which Genie you let out of the bottle.

[morphinebrian]

Perhaps I'm wrong about high cigarette taxes serving as a detterent to smoking. Its just a poor tax then.


"How long do you think it would be before they started taxing beer and liquor to exorbitant degrees? "

When only a small minority of people do it.

[dtwarren]

Recently UCE received a response from Erie County Legislator Jeanne Chase from our introduction letter to her. This letter inquired about her position on this taxation issue. You may view the letter and our reply on our website http://www.upstate-citizens.org .

Respectfully,

Daniel T. Warren
Chair, Niagara Frontier Chapter of Upstate Citizens for Equality
http://www.upstate-citizens.org

[dtwarren]

Recently, the Department of Taxation and Finance published its proposed amendments to the Tax Regulations in order to comply with the recent Tax Law changes. These changes require that non-Indians must pay taxes on cigarettes, gas and all other goods and services on Indian Land. These proposed regulations are available on our web site at http://www.upstate-citizens.org.

[Curmudgeon]

Bla Bla Bla,
I'm all for the indians selling stuff and not collecting tax as an incentive for this state to reduce its laughable tax burden it imposes. Low tax states don't have an "indian problem" because there isn't the economic incentive for the citizens to avoid the tax! Your retailers lobby would be better served by trying to get government to tax less. I'm just wondering when you're going to sue neighboring states for charging less tax than New York. Perhaps the state should build "tax compliance stations" all along the border to inspect what people bring from other states to insure the tax is being collected. I would think your lobby would be more concerned with the enormous population exodus in western new york and all the consumer dollars that have left with those people. It's not easy being in retail when your customers move away from your facility. I find your diatribe against the indians self-serving and maudlin. There's nothing more sleazy than a business lobby dressing up as a grass-roots movement. And, I'm about as pro-business as one can be.

[dtwarren]

First, if you are so pro business then you understand what a level playing field is and why it is important. If you would take a step back and look at the big picture this is also necessary first step in order to even think about eliminating the "temporary" 1% sales tax.

[Curmudgeon]

Well, the playing field is exactly the size of the state of new york. Since you can't control what occurs beyond the state border, this strategy is doomed to fail. Screwing with the indians is about as helpful to your membership as throwing a chair off the Titanic. It will slow the sinking, but so what? If you are alluding to the assumption that the sales tax revenue lost to the indians will make up for the elimination of the temporary 1% tax. I find that laughable. And besides, we need to reduce rax revenue consumption, not increase tax revenue sources. That's the #1 problem with WNY and the #1 problem facing retailers here today.
If the taxes wern't so high, people wouldn't have the economic incentive to drive to the reservation. or to PA. or to Ohio. If taxes wern't so high, people and business that feed retail wouldn't be leaving.

I see you contributing to the problem. The indians are but a by-product of really bad policy. The house is on fire and you're worried about saving the patio furniture.

It's a shame that you are all fighting over the revenues generated by a product that kills people daily.

[dtwarren]

"Well, the playing field is exactly the size of the state of new york. Since you can't control what occurs beyond the state border, this strategy is doomed to fail." This statement demonstrates that you are either mis-informed or uninformed. If they were truly beyond the State's police power then why do they have the right to vote in state, county and local elections? If this is so then why did Congress in 1924 made the citizens of the United States and States wherein they reside? Simply because they are not outside the police power of the State. The United States Supreme Court stated in Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed. 2d 398 (2001), "Our cases make clear that the Indians' right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation's border. Though tribes are often referred to as "sovereign" entities, it was "long ago" that "the Court departed from Chief Justice Marshall's view that `the laws of [a State] can have no force' within reservation boundaries. Worcester v. Georgia, 6 Pet. 515, 561 (1832)," White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 141 (1980). "Ordinarily," it is now clear, "an Indian reservation is considered part of the territory of the State." U. S. Dept. of Interior, Federal Indian Law 510, and n. 1 (1958), citing Utah & Northern R. Co. v. Fisher, 116 U. S. 28 (1885); see also Organized Village of Kake v. Egan, 369 U. S. 60, 72 (1962)." and lastly Congress gave New York jurisdiction over "all offenses committed by or against Indians on indian reservations within the State of New York to the same extent as the courts of the State have jurisdiction over offenses committed elsewhere within the State as defined by the laws of the State." 25 USC 232.

It is now abundantly clear that when confronted with fact and law you stick to your own myopic views and attempt to rationalize them with only anecdotal evidence instead of obsorbing the fact and law and re-evaluating your position based thereon. This is not only based on this thread but others in which you have participated in.

[Curmudgeon]

"Well, the playing field is exactly the size of the state of new york. Since you can't control what occurs beyond the state border, this strategy is doomed to fail."

I was referring to the states adjacent to new york, not the reservations within new york. I thought that was apparent by the use of the word "beyond".

No one seems to be addressing this obvious threat to NY retail. Why is that?

Obviously I'm not a lawyer. Just because a law exists doesn't mean it is correct or can't be overturned. Ask any African-American. Think of all the bogus laws created over the years that subjugated them.

[dtwarren]

Well lets examine this issue with some concrete facts. The average price per pack in New York is $5.66 (this average includes the $1.50 NYC tax because NYC accounts for 50% of all purchases) Pennsylvania is $3.95 and Ohio is $3.56. New York total tax (State only) per pack is $1.73, Pennsylvania is $1.22 and Ohio is $0.77. The tax as a percentage of average price per pack is New York 30.57%; Pennsylvania 30.89% and Ohio 21.63%. The cost per pack each state has to expend to treat smoking related ailments are New York $12.83, Pennsylvania $7.50 and Ohio $6.66. Therefore New York is recouping only 13.48% of its expenses; Pennsylvania 16.27% and Ohio 11.56% of its cigarette related costs through state taxation of cigarettes. As of 2002 figures 23.9 % of the New York population regularly smoke, Pennsylvania 24.5% and Ohio 27.6% compared to a national average of 22.9%. So the smoking population and taxes as a percentage of price are not substantially disproportionate so what accounts for the high price in NY? Lets look at markup because the manufacturers price is $2.12 per pack on average. New York retailers and distributors mark up the price by $1.42 per pack while those in PA markup only $0.22 and Ohio $0.28.

Even if you eliminated state taxes on cigarettes you still would not be gaining anything. Actually you would be losing because it would have to be recouped somewhere else income taxes, fees, even higher state sales taxes on things other than cigarettes etc.

[dtwarren]

Originally posted by morphinebrian
Perhaps I'm wrong about high cigarette taxes serving as a detterent to smoking. Its just a poor tax then.


"How long do you think it would be before they started taxing beer and liquor to exorbitant degrees? "

When only a small minority of people do it.

Because smoking levels are highest among people with low incomes, the cigarette companies try to argue that cigarette tax increases are regressive taxes that fall disproportionately hard on lower-income persons. But this argument turns reality upside down. Higher smoking rates among lower-income groups means that lower-income families and communities are now suffering the most from smoking and will consequently benefit the most from any effective new measures to reduce smoking, including increased state cigarette taxes.

In poll after poll, lower-income Americans (along with all other Americans) strongly support higher cigarette taxes. A 2002 poll in Indiana, for example, found that 77 percent of voters with family incomes less than $25,000 per year supported a 50-cent increase.

Most notably, according to the Centers for Disease Control, smokers with family incomes at or below the national median are four times as likely to quit because of cigarette price increases as those with higher incomes.

[Curmudgeon]

Even if you eliminated state taxes on cigarettes you still would not be gaining anything. Actually you would be losing because it would have to be recouped somewhere else income taxes, fees, even higher state sales taxes on things other than cigarettes etc.
That is sliding down the slippery slope of justifying ANY tax based on the reasoning that we have to pay for fixed expenditures no matter what. The biggest problem in NYS is not reducing those expenditures and not setting taxation rates competitively with other states.

New York total tax (State only) per pack is $1.73, Pennsylvania is $1.22 and Ohio is $0.77.
This is the only figure relevant to this discussion. Ohio's tax is only 44% of NYS. That is not competitive.


Higher smoking rates among lower-income groups means that lower-income families and communities are now suffering the most from smoking and will consequently benefit the most from any effective new measures to reduce smoking, including increased state cigarette taxes.
It seems duplicitous to me that your group on the one hand is battling intensely for a greater stake in the tobacco revenue stream and on the other hand talking about the "benefits of measures to reduce smoking". I would think that the last thing your group would want is any "measure" that effectively reduces the smoking population. I think that the state comptrollers office also feels the same way. An illustration of the genius of the tobacco settlement by the tobacco companies for sure....


Lets look at markup because the manufacturers price is $2.12 per pack on average. New York retailers and distributors mark up the price by $1.42 per pack while those in PA markup only $0.22 and Ohio $0.28.
We have no absolutely no control over what private industry charges for their product so this is irrelevant. Clearly Big Tobacco has run the numbers and they find New Yorkers will tolerate price increases more then their peers in Ohio. They can't raise prices too much, or people will quit smoking. And we can't have that, can we!!


Please don't try to appear concerned about the smokers or their cost to society. It seems a bit phony. I DO have complete respect for your lobby and supporting the viability of NYS business but I think the Indians are a symptom, and not the cause of the TAXATION PROBLEM. That you are NOT concurrently attacking the TAXATION PROBLEM might be a wise strategy. It would be difficult to get support in stabbing the Indians in the back in Albany if you were also calling for reducing taxation in general. The vested interests that live off these revenue streams might feel threatened by your attempt to take away their money (and power). In fact, part of the deal in stabbing the Indians in the back is that Albany gets MORE money! That makes it a little easier to get support from the various parties that have to sign off on "the stabbing"...

That is why I think you have not acknowledged that there is a taxation problem at all. It might be a deal-killer. And that is what Albany is all about: deals. And I think you know that…

[dtwarren]

Originally posted by dtwarren
Recently, the Department of Taxation and Finance published its proposed amendments to the Tax Regulations in order to comply with the recent Tax Law changes. These changes require that non-Indians must pay taxes on cigarettes, gas and all other goods and services on Indian Land. These proposed regulations are available on our web site at http://www.upstate-citizens.org.

The comment period ends November 6, 2003. UCE will be submitting comments on the proposed regulations and will publish them on its website.

[dtwarren]

Below is the text of the letter to the New York State Department of Taxation and Finance with our comments on the proposed tax regulations:

October 24, 2003

Marilyn Kaltenborn
Director, Taxpayer Services Div.
NYS Dept. of Taxation and Finance
Bldg. 9
State Campus, Albany, NY 12227

RE: Comment on Proposed Regulations dated September 10, 2003

Dear Mrs./Ms. Kaltenborn:

Upstate Citizens for Equality represents over 10,000 citizens of the State of New York. Our organization has been pushing for the collection of taxes on sales to non-Indians for purchases made on Indian land for quite some time. There are individuals and organizations that are writing to urge the Department of Taxation and Finance not to implement or enforce these regulations. As you are aware the Tax Commissioner has no discretion on this matter now that the Legislature has enacted various amendments to the Tax Law in Chapter 62 of the Laws of 2003. Below are some points that I would like you to consider with regard to possible changes to the proposed regulations:

· In sections 76.6(f), 414.6(f), 431.1(f), “Tax agreements with Indian nations or tribes.” Should be removed The New York Constitution Article XVI § 1 provides "The power of taxation shall never be surrendered, suspended or contracted away, except as to securities issued for public purposes pursuant to law.“ Therefore no one is empowered to enter into any contract or agreement of this nature. "A contract for a pre-established limit on tax liability, whether it be considered as conferring 'tax exemption' or 'tax savings', or tax relief by any other label, is clearly barred by this sweeping prohibition." (Matter of Roosevelt Raceway v. Monaghan, 9 N.Y.2d 293, 308-309; app. dsmd. 368 U.S. 12.)

· In section 76.6(d)(1) should only permit the Indian nation or tribe to purchase cigarettes for its own use packages that are conspicuously marked “NOT FOR RESALE” without payment of the cigarette tax.

· Section 89.1(b) should require that a sign alerting the non-Indian consumer of his/her tax liability be conspicuously posted and require the reservation cigarette seller to have on hand appropriate tax forms that
must be given to such purchaser(s) upon request.

Thank you for your attention in this and all future matters. Upon final consideration please advise the undersigned of any changes to these proposed regulations based on the comments received.

Sincerely,

Daniel T. Warren
Chair
Niagara Frontier Chapter of Upstate Citizens for Equality

[dtwarren]

The Seneca Nation has embarked on a media campaign that is marked with misinformation in order to keep an illegal and anti-competitive advantage over honest businesses. In their recent advertisement they cite The 1842 Treaty of Buffalo Creek as the source of the tax free status they claim precludes taxation of non-Indians on Indian land. This is simply not true. In fact Barry Snyder, a former president of the Seneca Nation and then owner of Seneca Hawk raised this treaty in his defense against the imposition of taxes and penalties due for his failure to collect these taxes from non-Indians. This position was rejected by the Appellate Division of the New York Supreme Court, Third Department in Snyder v. Wetzler, 193 A.D.2d 329. In that decision the court held that the provisions of that treaty regarding taxation was only with regard to property taxes. This decision was affirmed by the New York Court of Appeals on December 1, 1994, in Snyder v. Wetzler, 84 N.Y.2d 941. What the advertisements also do not tell you is that the Seneca Nation by its attorney Joseph Crangle filed a friend of the Court brief and argued their case in support of Mr. Snyder and Mr. Snyder still lost.

Sincerely,

Daniel T. Warren
Chair
Niagara Frontier Chapter of Upstate Citizens for Equality

[Curmudgeon]

Beware of Lobbyist Lawyers handing out Smallpox Blankets!

[sbGUY27]

Well it was only a matter of time. We all knew that NYS wants money. NYC can't sustain itself. NYC gobbels up more than it produces (can't tax skyscrapers airspace only the lot it sit on.)and the rest of the state has to pick up the slack.

Politicans love that cigarette tax money.

I have a friend whos parents go to other states all the time to shop. Basically every weekend they are gone bulk shopping to save money (They need to on a fixed income) . I can see people going to other state to buy cigarettes by the case (not to be confused with carton)load. Filling up their trunks for months of smoking pleasure.

My parents have been smoking for 45 years. They don't plan to quit. They see many a drive to Pennsylvania in their future. 2 hour drives seem a small price to pay for some people to save a few bucks.

[WNYresident]

I say we boycott the lotteries. Starve them out and only start playing hte lottery games once the money is completely earmarked for it's intended use with the minimum administration cost possible.

Sometimes taking away someones cash makes them realize how value that cash was before hand.

Didn't someoene tell me the lottery somehow goes through the general type funds?

[beachwe]

I've got a quote for you,"Get a Life".

[Curmudgeon]

I've got a quote for you,"Get a Life".

He does have a life. I *think* DT warren is a lawyer/lobbyist who has a paid position that involves running a "grass roots" political organization which is really the convienence store lobby. He is just doing his job by lurking on this web forum pretending to be a concerned citizen. I bet he bills hours for the time he spends here. There's a lot of "undercover marketing" these days. The hot babe at the bar who is drinking some new liquor may actually be working - and exposing the new product. The guy in the web forum telling you how great "the hulk" movie was may actually be working for the studio. DT Warren is WORKING when he comes here. And there's nothing wrong with that. I just think everyone should know who he is and why he's here. I also bet that if the Indians offered him double what he's getting now, he'd jump sides and do a great job arguing the virtues of tax-free cigarettes. That's what good lawyers are supposed to do...

I'll bet DT Warren does have a life, and a pretty good one at that! :)

[dtwarren]

Originally posted by Curmudgeon
I've got a quote for you,"Get a Life".

He does have a life. I *think* DT warren is a lawyer/lobbyist who has a paid position that involves running a "grass roots" political organization which is really the convienence store lobby. He is just doing his job by lurking on this web forum pretending to be a concerned citizen. I bet he bills hours for the time he spends here. There's a lot of "undercover marketing" these days. The hot babe at the bar who is drinking some new liquor may actually be working - and exposing the new product. The guy in the web forum telling you how great "the hulk" movie was may actually be working for the studio. DT Warren is WORKING when he comes here. And there's nothing wrong with that. I just think everyone should know who he is and why he's here. I also bet that if the Indians offered him double what he's getting now, he'd jump sides and do a great job arguing the virtues of tax-free cigarettes. That's what good lawyers are supposed to do...

I'll bet DT Warren does have a life, and a pretty good one at that! :)

Curm,

You give me too much credit. By day I am a computer programmer analyst. In my spare time I formed the Niagara Frontier Chapter of UCE. BTW, when I speak in my official representative capacity I always include my position and organization name. I am not a lawyer, however I must admit it is a long term goal of mine (attending school intermittently on a part time basis it is very long term). Perhaps we should arrange a happy hour downtown for the posters to attend and meet if they choose?

Dan

[Curmudgeon]

warren:

when I speak in my official representative capacity I always include my position and organization name
this is true.


I shall take you at your word. I was engaging in speculation regarding your background and intent. Your WHOIS info regarding the union backer and his whistleblower URL registration makes more sense to me now.

I am usually pretty good at seeing between the lines. Not this time.

I do have to ask - what the hell did those indians do to you to incur your wrath? :)

[dtwarren]

It is not so much the Indians than Pataki. I am a firm believer in the rule of law. What happened in 1997 was mob rule and the Governor backed down. Regardless of whether you believe that sales to non-Indians on Indian land should be tax-free or not, the law is the law. If you do not like the law there are procedures to be followed in changing it. By backing down the Governor set a dangerous precedent. (Imagine how fast the troopers will be in South Buffalo if all the bars started to remit the taxes they collected to the IRA instead of New York!)

The three men in Albany have no regard for the State Constitution or their oathes of office. They have repeatedly took action that is in direct conflict with our constitution. Every time they even think of it now I will be yelling.

[WNYresident]

People shouldn't jump to conclusions about other people curm... :) I think most of the people reading this board are regular people. I don't think politicians are really going to put thier two cents in here. They like as little in writing as possible. Less in writing the less proof there is when they screw up.

[Curmudgeon]

People shouldn't jump to conclusions about other people curm...

I can't help it - usually I'm right. As in the case of the www.eriewhistlebower.com web site being run by the civil service union leadership, as our own DT Warren uncovered...

Besides, I fully admitted that I was incorrect in my conclusions.

[WNYresident]

True you did admit you were wrong..

so when was the last time we heard a townboard or elected official site they were wrong? :)

Lets not jump to conclusions too fast otherwise other people will not put thier two cents in.

[azsumme2003]

I have a question. I have been told that when the Indians buy ANY land it immediately becomes sovereign land. Once it is considered sovereign land it can no longer be taxed or policed. Is that true? IF that is the case, I'd be very concerned. Not just as a New York State resident, but as an American. Please set the record straight for me so I can see the situation through clear eyes. Thanks! :D

[beachwe]

Ease your little mind, no it is not true- the Indians are not going to take over your sub-division, they are treated individually the same as you on land purchases, they pay property tax the same as you. When an Indian Nation purchases land it is considered sovereign. I just find it amusing that some people are so concerned about Indian Nations getting back a few acres of land? It is ludicrous to deny Native Americans the means of any self-improvement, after what the government has done to them as a whole.

[azsumme2003]

Well now, I believe you have humbled me. I do know a tiny bit about Indian culture. My inquiry was because I hadn't heard of such a law before and I wanted to see if I could verify it before continuing on with an opinion. Look, after 1970 (no, I think it was 1969 actually) at the First Convoation of American Indian Scholars, where the Indians spoke indignantly of either the ignoring or the insulting of Indians in textbooks the Indian Historian Press was founded. It (the IHP) evaluated 400 textbooks in elementary and secondary schools and found that not one of them gave an acurte diepiction fo the Indian. Then I believe somtime in 1973, came a powerful affirmation that the Indians of N. Americ were still alive. It was on the site of the 1890 massacre at Pine Ridge reservation that several hundred Oglala Sioux occupied WOUnded Knee as a symbol of the demand for Indian Land and Indian rights. in 1973 (I'm pretty sure) about 300 hundred or so Oglala Sioux (tons were members of a militant organization called AMerican Indian Movement (AIM) entered the village of Wounded Knee and declared it liberated territory (go Indians!) All this added up to many gun battles and deaths. Finally, a negotiated peace was signed (how big of the American government). Did you know that the US government promised to investigate Indians affairs and a presidential commision was to reexamine the 1868 treaty. Unfortunately the US government said that it had reexamined the 1868 treaty and found it valid, but that is was superseded by the US power of "iminent domain" -- I believe that's the government's power to take land......... That is why I was asking. I am in Arizona now and I was unsure whether NY had changed something in the few years I have not lived there. Evidently, not. <grin>

[dtwarren]

Interesting article on point:

http://www.timesunion.com/AspStories/story.asp?storyID=242997&category=STATE&newsdate=4/28/2004


Push on to get Indian sales tax
Albany -- Bill introduced to require Pataki administration to enforce collection of taxes from Native American merchants

By JAMES M. ODATO, Capitol bureau
First published: Wednesday, April 28, 2004

Key members of the Senate and Assembly want to force a reluctant Pataki administration to collect taxes on Native American fuel and tobacco sales.

Sen. Nicholas Spano, R-Yonkers, introduced a bill that would require Tax Commissioner Andrew Eristoff to enforce the regulations his department created at the insistence of the Legislature over Gov. George Pataki's vetoes last year. Eristoff has declined to enforce the regulations.

Assemblyman William Magee, D-Nelson, said he will also introduce the bill.

Spano also released a report by his Senate Committee on Investigations, Taxation and Government claiming the state would reap $1 billion more a year by collecting sales and excise taxes from Indian merchants who sell to non-Indians.

"What we're trying to do is help nudge the process forward," Spano said.

Eristoff has said the estimates of how much is being lost by not collecting taxes from Indian retailers are greatly exaggerated by the convenience store industry and beverage distributors, who came up with the economic study used in Spano's report. Eristoff pegs the figure at $40 million a year, with much of the Indian sales going out of state by phone or Internet transactions.

The tax department postponed implementation of the regulations to do more analysis of the impact and give Pataki a chance to negotiate deals that would result in higher prices at Indian stores to address complaints of unfair competition.

"The state wants to deal with the tribes in good faith through cooperation, not confrontation," said Thomas Bergin, Eristoff's spokesman.

The measure is expected to be voted on this session, as Senate Majority Leader Joseph Bruno and Assembly Speaker Sheldon Silver have been outspoken that the tax department should be enforcing sales and excise tax rules on Indian businesses.

The issue has been extremely controversial among the 11 New York tribes that operate dozens of tobacco and fuel businesses that don't charge taxes.

The biggest player, the Seneca Nation of Indians, has waged a campaign alleging that collecting the taxes from Indian merchants would violate federal treaty. The tribe, which has seen violence break out in its reservation in western New York in the past when the state tried to enforce tax rules, has threatened lawsuits.

"It is disappointing that some people are still pushing for this tax plan even though the majority of New Yorkers do not want it. Most New Yorkers recognize that this tax plan would violate Seneca treaties and therefore the U.S. Constitution," said Seneca President Rickey Armstrong. "Our sovereignty includes our right to conduct business on our own territory without involvement by state government."

Spano, joined by fellow GOP senators Nancy Larraine Hoffman of Syracuse and Michael Nozzolio of the Finger Lakes, said the Seneca campaign is misleading. He said the Legislature respects Indian sovereignty, noting that his legislation would collect taxes from distributors who provide products to the Indian stores. Indian customers would continue to be eligible to purchase products tax-free, he said.

Magee said violence is unlikely because tribes want things from the state, including casino compacts. "I don't understand why the governor's office continues to drag their feet," he said.

[citymouse]

[QUOTE]Originally posted by Curmudgeon
[B]People shouldn't jump to conclusions about other people curm...

I can't help it - usually I'm right.


There goes that ego again.

[Curmudgeon]

"It ain't braggin' if you can back it up." - Dizzy Dean - MLB Hall of Fame Pitcher.

[citymouse]

Comparing yourself to some one "Dizzy"

Kind of say's it all.

[Curmudgeon]

"Dizzy" is in the baseball hall of fame. Your're some guy calling himself a mouse who rides around on the back of a garbage truck. Which begs the question: If you're a garbageman, why are you here everyday during work hours?

[citymouse]

You make assumptions as to what I do and what my hours are. I never told you. I may be retired. I might work nights. Maybe I have a laptop that I use on my lunch and breaks from a remote site. What's the difference?
I don't know what you do, Don't care what you do or when you do it. Why are you so obssesed with my proffesion and hours?
I am sure there is some physcalogical dysfunction in one of your textbooks that would discribe the type of behaviour you are displaying.
Look it up and let me know.

[citymouse]

I also know who Dizzy Dean was.
I was just pointing out th irony of you quoting some one named "Dizzy" and you being dizzy from spinning everything to fit your agenda.

[WNYresident]

Why are you so obssesed with my profession and hours?

Do you know why we should be obessesed with all government employees hours/salaries? BECAUSE we the taxpayer pay the bill. If i had an employee that was paid by me, believe me thier hours/duties are my concern.

Our local political parties and politicians grew "our" government to large. IT's not my concern if a political helper needs a patronage job or not. They can fend for themselves in the private real world.

Thats why we the tax payer are concerned about your profession/hours.

[Curmudgeon]

What's the difference?
I never told you.

I see inconsistencies of who you say you are. I'm wondering if we are wasting our time listening to a compulsive liar and fraud. That's all...

[citymouse]

So you again call me a liar. Fraud like the bank scandals of the Reagan years?
Maybe I am a communist infiltrator.
I don't care who you think I am. That has nothing to do with my opinion. You have this hang up on what people do for a living and how much money they make and that shapes your feelings about what thier station in life should be.
Pretty shallow, and tells a lot of kind of person you are.
Somebody I wouldn't enjoy a beer with. Too bitter (you, Not the beer).
I would hate to use the term bigot, but if it applies, it applies.
well you are only in your thirties you still have time.

[citymouse]

[QUOTE]Originally posted by WNYresident
[B]Do you know why we should be obessesed with all government employees hours/salaries? BECAUSE we the taxpayer pay the bill. If i had an employee that was paid by me, believe me thier hours/duties are my concern.

I was speaking to the closet skin head his obsession seems on a more personal level.

[Curmudgeon]

A new low in the annals of "I'm the victim" thinking here in WNY....

People who actually demand ficsal accountability in how local government is operated are now SKIN HEADS.


You have this hang up on what people do for a living and how much money they make and that shapes your feelings about what thier station in life should be.

If I'm compelled to pay for services, I want the people who collect that money from me to ensure we (the taxpayer) are paying fair market value for those services. No more, No less.

THAT ISN'T HAPPENING HERE! THAT'S THE PROBLEM!

It's not a "hang up" or a "feeling". I don't give a rat's ass about "stations in life". Silly.

[CheektowagaFan]

When will you learn you can not have a conversation with the ILL MINDED?

Curmmie does have a nasty attitude towards the people that help him have a better day. I still say it has failed some kind of Civil Servic e Test.

Curmmie reminds me of the old movie the SCROOGE! Maybe even a couple fries short of a HAPPY MEAL as well.

You know what I pay my Salary as well CURMMIE and Im not pissed. Ill bet you do not even own a Home. My feeling is this..... If you are not going to do something about it shut up and get back up on the porch as , you can hang with the big dogs it looks like.

[citymouse]

Right.
I don't doubt that you pay for services and resent that.
Welcome to the real world. We all have to pay for services, Not just you.
It is too bad that you as an individual can't control how much you pay. neither can any other individual.
My problem with you is you have to take it out on the people who provide those services and you don't even realize how you sound.
You come across as arrogant, bitter, bigoted, egotistical know it all. Who's myway-or the highway thinking gorws tiresome.
But this is an open forum so I guess we just have to bear your intolerence and name calling and just chalk it up to the kind of person you are.
Most of us were raised better.

[Curmudgeon]

Funny - a lot of people here don't find it tiresome at all. In fact, I get a lot of support. You, on the other hand, have te same old cadre of 3 or 4 civil servants who are basically in the same boat you are. That it. Your entire constituency.

I guess that's the "lynch mob" mentatity you refer to. I bet anybody who is completely out of touch with the electorate sense the presence of a "lynch mob".

You are a "Garbagemanasorous". Extinction of your kind is inevitable....

[citymouse]

Another name calling session. Ok.
You are a bore-a-asourus. An ill mannered all to common creature who, unfortunatly, is not in danger of extinction but should be.
Sorry to bust your bubble pal, but I am going no where.
you are easily detected by your massive ego and the aire of superiority you place around yourself.
Luckily, you are harmless and amusing species.
Your only natural enemies are the Union worker, liberal, and civil servant who you fear most of all.
To find a picture look in the encyclopidia under "pompus".

[dtwarren]

In a letter to Erie County District Attorney Frank Clark, UCE asks why has there never been any prosecution of any Indian retailer for a violation of the provisions of the Tax Law imposing criminal sanctions for the possession and offering for sale unstamped cigarettes despite the ample evidence and the blatant violations by the Indian retailers?

May 16, 2004

Hon. Frank J. Clark
Erie County District Attorney
200 Erie County Hall
25 Delaware Avenue
Buffalo, NY 14202

Dear Mr. Clark:

I am writing to you on behalf of the membership of Upstate Citizens for Equality. There are currently, rampant and blatant violations of the criminal provisions of the Tax Law being committed in Erie County. We would like to hear from you why these violations of law are not being prosecuted. Below is our view and position on why these laws are enforceable by your office.

As you are aware the District Attorney’s Office has no common-law duties, except those as are imposed by statute. The duties of the office as set forth in County Law § 700(1) include the duty "to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he shall have been elected or appointed". Although the District Attorneys have plenary prosecutorial power in the counties wherein they are elected, the Attorney General has no such general authority and is "without any prosecutorial power except when specifically authorized by statute" (Della Pietra v State of NY, 71 NY2d 792, 797; see, County Law §§ 700, 927). Various provisions of Article 37 of the Tax Law criminalizes certain acts and omissions and classifies them as misdemeanors and felonies. For example Tax Law § 1814 (d) provides “Any person, other than an agent licensed by the commissioner, who possesses or transports for the purpose of sale any unstamped or unlawfully stamped packages of cigarettes subject to tax imposed by section four hundred seventy-one of this chapter, or who sells or offers for sale unstamped or unlawfully stamped packages of cigarettes in violation of the provisions of article twenty of this chapter shall be guilty of a misdemeanor. Any person who violates the provisions of this subdivision after having previously been convicted of a violation of this subdivision within the preceding five years shall be guilty of a class E felony.” Furthermore Tax Law § 1814(f) provides “For the purposes of this section, the possession or transportation within this state by any person, other than an agent, at any one time of five thousand or more cigarettes in unstamped or unlawfully stamped packages shall be presumptive evidence that such cigarettes are possessed or transported for the purpose of sale and are subject to the tax imposed by section four hundred seventy-one of this chapter. With respect to such possession or transportation any provisions of article twenty of this chapter providing for a time period during which a use tax imposed by such article may be paid on unstamped cigarettes or unlawfully or improperly stamped cigarettes or during which such cigarettes may be returned to an agent shall not apply. The possession within this state of more than four hundred cigarettes in unstamped or unlawfully stamped packages by any person other than an agent at any one time shall be presumptive evidence that such cigarettes are subject to tax as provided by article twenty of this chapter.” As you can see your office has the power and the duty to enforce the Tax Law where it does impose criminal sanctions for its non-compliance.

Your office and the Courts of this State also have jurisdiction on Indian Land. The United States Supreme Court in Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed. 2d 398 stated “Our cases make clear that the Indians' right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation's border. Though tribes are often referred to as "sovereign" entities, it was "long ago" that "the Court departed from Chief Justice Marshall's view that `the laws of [a State] can have no force' within reservation boundaries. Worcester v. Georgia, 6 Pet. 515, 561 (1832)," White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 141 (1980). "Ordinarily," it is now clear, "an Indian reservation is considered part of the territory of the State." U. S. Dept. of Interior, Federal Indian Law 510, and n. 1 (1958), citing Utah & Northern R. Co. v. Fisher, 116 U. S. 28 (1885); see also Organized Village of Kake v. Egan, 369 U. S. 60, 72 (1962).” Additionally, 25 USC § 232, passed in 1948, extends the State of New York's criminal jurisdiction to "offenses committed by or against Indians on Indian reservations within the [state]." “[S]ection 232 extended concurrent jurisdiction to the State of New York.” United States v. Cook, 922 F.2d 1026 (2nd Cir. 01/07/1991) In interpreting this federal statute the Appellate Division, Fourth Department of the New York Supreme Court ruled in People v. Debo, 652 N.Y.S.2d 174, 234 AD2d 944, lv denied 89 NY2d 984 “The Village of Seneca Falls is not "Indian country" (18 USC § 1151), but even assuming, arguendo, that it is, we nonetheless reject the contention that the court lacked jurisdiction over the offense (see, 25 USC § 232; People v Edwards, 64 N.Y.2d 658, 485 N.Y.S.2d 252, 474 N.E.2d 612, affg 97 A.D.2d 987 for reasons stated at 78 A.D.2d 582).” And in People v. Gunton, 604 N.Y.S.2d 445, 198 A.D.2d 890 lv denied 610 N.Y.S.2d 163; 82 N.Y.2d 896; it ruled “We reject defendant's contention that 25 USC § 232, which confers jurisdiction upon New York State over criminal offenses occurring on Native American reservations, is invalid because it violates the Treaty of 1794 (7 U.S. Stat 44). The validity as well as the constitutionality of 25 USC § 232 is well settled (see, People v Boots, 106 Misc. 2d 522; Gunton v Cattaraugus County, F. Supp [decided Aug. 27, 1993]; see also, United States v Cook, 922 F2d 1026, cert denied sub nom. Tarbell v U.S., U.S. , 111 S Ct 2235).” More recently the United States District Court for the District of Rhode Island held that "The issue of enforcement of the criminal provisions of the Cigarette Tax Scheme, while related to, is not the same as the imposition of the tax itself. It is worth repeating that the alleged criminal violation is the holding for sale of unstamped cigarettes, not the failure to pay taxes on sales of those cigarettes. This may be a fine distinction, but it is a relevant one nevertheless. Therefore, in this writer’s view, the special treatment which the Supreme Court has reserved for direct taxation of tribes by states does not apply to the criminal enforcement provisions of such laws, particularly where, as here, the Court holds that the Cigarette Tax is not a direct tax upon the Tribe." The Court went on to hold "In sum, whether a “retained right of sovereignty,” as used in the context of Indian law and as applied in this case, may shield a particular activity from the enforcement of State law, comes down to this: whether the persons affected by the particular activity in which a tribe is engaged are tribal members; and whether the activity may properly be described as “governmental” in nature (i.e. when the Tribe acts “qua Tribe”). The Tribe’s decision to operate the Smoke Shop, without complying with the Cigarette Tax Scheme’s obligations with respect to acquiring and affixing tax stamps, fails to satisfy either criterion. This activity (1) directly and primarily affects non-members, and (2) is not inherently governmental or political in nature, for all of the reasons discussed previously. Operating the Smoke Shop while avoiding the obligations imposed by the State’s Cigarette Tax is not a right of sovereignty retained by the Tribe, and the State consequently may enforce the Cigarette Tax by lawful entry onto the Settlement Lands and seizure of contraband cigarettes." (Narragansett Indian Tribe of Rhode Island v. The State of Rhode Island, et al, C.A. No. 03-296S)

As you are aware that there is evidence, based on various federal prosecutions, that Indian Retailers have been used to funnel the proceeds of the illegal sale of untaxed cigarettes to various terrorist organizations such as Hezbollah and Al-Qeada. If these laws are enforced it will greatly reduce this funding of our enemies and provide some level of security for the residents of your county and country. Additionally it will also increase sales tax revenue for Erie County. Which leads to the question why has there never been any prosecution of any Indian retailer for a violation of the provisions of the Tax Law imposing criminal sanctions for the possession and offering for sale unstamped cigarettes despite the ample evidence and the blatant violations by the Indian retailers?

Sincerely,

Daniel T. Warren
Chair
Niagara Frontier Chapter of Upstate Citizens for Equality

[WNYresident]

Originally posted by Curmudgeon
Funny - a lot of people here don't find it tiresome at all. In fact, I get a lot of support. You, on the other hand, have te same old cadre of 3 or 4 civil servants who are basically in the same boat you are. That it. Your entire constituency.

I guess that's the "lynch mob" mentatity you refer to. I bet anybody who is completely out of touch with the electorate sense the presence of a "lynch mob".

You are a "Garbagemanasorous". Extinction of your kind is inevitable....

Curm you are not getting support for calling people names, you are getting support on some of your opinions because they are good opinions. I do find the name calling tiresome seeing it does bother a lot of people who come here to voice thier opinion. Remember this is the USA and we are allowed to have our own opinions even if they differ with other opinions.

[Curmudgeon]

I can say with a high degree of certianty that all name-calling incidents began with another party, which was responded to by myself. In other words, they called me names first. You're free to find any instance here where this is not true - all the posts are here for all to see.

[Marc]

Originally posted by Curmudgeon
I can say with a high degree of certianty that all name-calling incidents began with another party, which was responded to by myself. In other words, they called me names first. You're free to find any instance here where this is not true - all the posts are here for all to see.

Curm I agree with you on a great many issues, but seriously, nobody cares who did it first.

[WNYresident]

Originally posted by Curmudgeon
I can say with a high degree of certianty that all name-calling incidents began with another party, which was responded to by myself. In other words, they called me names first. You're free to find any instance here where this is not true - all the posts are here for all to see.

Curm your correct and you are above calling other name callers names back. I know people who are idiots too but I dont go calling them idiots in public. People realize who the idiots are jsut by listening to them. We actually don't need to point them out, they do it themselves rather often. :)

[citymouse]

Some people get off on the name calling thing. Some people also feel superior and think they can dispute a point by attacking the intelligence of the author rather then the point made or opinion expressed.
If something is said thet you disagree with then say why you disagree. Don't attack the person disagreeinug with you because you don't like what they do for a living or because the are a bleeding heart liberal.
For every argument I make you never fail to mention that I am in a union, or a civil servant or a fifty year old garbageman or a liberal. That is not a counter point. Thats how your argument loses credibility.

[citymouse]

I have been an advocate for the Indians rights to tax exemption.
But after what I have been reading in the news the last few days I am beginning to wonder if I may be mistaken. It seems a priviliged few are using something the whole nation should be benefiting from while the majority live in poverty.
Has any one else been following this expose?

[dtwarren]

Now that it appears that Agnes Palezzetti is no longer covering them a more accurate picture is being reported.

[dtwarren]

Below is the text of an e-mail that was sent to each member of the NY Senate. I would like to encourage each person to call, write, fax, e-mail their legislators and tell them to vote for this bill and not to gamble with our children's education!

__________________________________________________ ___


On behalf of Upstate Citizens for Equality and its approximately 8,000 members I am writing to you to urge you to Support and vote for Bill S06822 and to compel the Governor and Tax Commissioner to perform their constitutional duty.

UCE has worked hard in getting the governor to enforce these valid tax laws for close to a decade. In fact Governor Pataki ran his initial campaign on promising to collect these taxes. Last year over the Governor’s veto you passed Chapter 62 of the Laws of 2003 which included amendments to the Tax Law that would require the Tax Commissioner to collect these taxes. The Governor and Tax Commissioner are flaunting their wishes over the authority of State Legislature and the people of the State of New York. Earlier this year UCE initiated a call for his impeachment. Many thought this was ridiculous, however as more and more people learn of this issue they are coming to the realization that what the Governor is doing is an impeachable offense. In fact a member of the Seneca County Legislature, Richard Ricci was quoted as saying “Enforce the law,” Ricci said, noting that by not collecting taxes “What Pataki is doing is an impeachable offense.” By the Finger Lakes Times (http://www.fltimes.com/Main.asp?SectionID=38&SubSectionID=121&ArticleID=4902 ) It is imperative that the State Legislature take a stand and one way or another compel the Governor to enforce the law as it enacts it. Otherwise we will no longer be a government of laws, but a government of men. As Supreme Court Justice Felix Frankfurter once said "If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. Legal process is an essential part of the democratic process."

The State must come up with a way to meet its Constitutional obligation to provide a free basic education to its children as directed by the New York Court of Appeals in Campaign for Fiscal Equality v. Pataki. Although that case was specific to New York City schools the problem is statewide. This is not going to be an easy task and should not be funded on speculative and contingent revenue streams but from steady and predictable ones. Our State Constitution permits a state operated lottery “in aid or support of education.” This provision of our Constitution was intended to provide an additional revenue stream to our educational system not replace or reduce the State’s obligation to fund it. Therefore the revenue generated in this manner should not be considered in any funding formula for meeting the State’s Constitutional obligation.

The budget as proposed by the Governor is based on contingent revenues. These contingent revenues are receipts from Class III Indian gaming in the state. Since the enactment of Chapter 383 of the Laws of 2001 only one casino has opened and the state has received only one payment of approximately $38 million. However, the continued vitality of this revenue stream is in serious question. There are currently two lawsuits challenging the constitutionality of the authorizing act. The first is Dalton v. Pataki which is currently before the Appellate Division, Third Department. The second is Warren v. Pataki just commenced in the New York Supreme Court, Erie County. This revenue stream should not be counted on to fund core obligations of the state to its citizens. Specifically the Executive Budget relies on $2 billion dollars of receipts from the VLT expansion to 8 racetracks. This number is highly speculative because since the enactment of the challenged enabling act and prior to the drafting of the budget not one VLT had been installed and therefore it is not even based on an extrapolation of current installations. It is also too early to draw any meaningful data to extrapolate from the recently installed VLTs. That despite adverse court rulings and a failed attempt at seeking review from the U.S. Supreme Court in Saratoga County Chamber of Commerce the Governor has taken no steps to halt the expenditure of tax money at illegal Class III gaming facilities.

For these reasons the enforcement of our tax laws as they relate to non-members on Indian land should not be delayed any longer and the proposed revenue sources that are contingent or speculative should not be considered for core obligations such as education and therefore alternate sources of cost savings and revenue generation should be considered.

Sincerely,

Daniel T. Warren
Chair
Niagara Frontier Chapter of Upstate Citizens for Equality
http://www.upstate-citizens.org

[amamo]

This is just my feelings and if someone doesn't like it to bad.
The American Indian is truely the only real American the rest of us came from other countries many years ago and took over their land by force. Yes there where many white men killed then but wouldn't you fight for your land, people,your food. There were many American Indians killed also. Our so called wonderful government took these people from there land and shoved them on plots of land that you could do anything with. If you lived out west the only place you knew and were forced to move to Florida,and the government said here is what you get swamp land how would you respond. The white man said they were savages, they fought for thier land the only way they knew how and how did the white man become better then, them. Civilized
white man not sure about that one. There were many treaties sent up with the American Indian and many were broken or bent by our government to suit them.
So many people talk and think about what Hilter did and many of us even care to think what our ancesters did to the American Indian.
In my eyes the American Indian has the right to get and do what ever they can.
The white man is a greedy bunch and has no respect for the land we live on.
Oh I am not an American Indian my family came from Germany.

[dtwarren]

This is not about taxing Indians, in fact implicit in our position is that THEY are tax exempt. Non-Indians are not. Therefore non-Indians making purchases on Indian land are subject to taxation.

Daniel T. Warren
Chairman
Upstate Citizens for Equality, Niagara Frontier Chapter
http://www.upstate-citizens.org

[therising]

I hope I'm not oversimplifying Anamo's point, but I think what she's trying to say is:

"We committed genocide. Let's cut 'em a few breaks". And to say non-taxation between themselves is almost meaningless. They're not going to make a living sellling smokes to each other.

[amamo]

I want to Thank you for understanding my point about the American Indian. Your right their not going to get rich selling items to each other

[dtwarren]

Originally posted by therising
I hope I'm not oversimplifying Anamo's point, but I think what she's trying to say is:

"We committed genocide. Let's cut 'em a few breaks". And to say non-taxation between themselves is almost meaningless. They're not going to make a living sellling smokes to each other.

So have they committed genocide. What do you think the Senecas did to the Wenro, Neutrals and Erie. Their break is that they are tax exempt and whatever other benefits they obtain by virtue of their status. They can sell anything to anyone, but it must be on the same level playing field.

[therising]

dtwarren - you obviously have a problem with them (the indians).

why?

please don't say "i don't mind them being tax-exempt among themselves, just not w/ non-indians"....you know they would never make a living selling to each other.

[dtwarren]

Why do you think that selling cigarettes and gas is all that they have? I know many Indians that do not. Some are lawyers, some fellow programmers, etc. They are not bound to the reservation they have choices. If they chose to sell cigarettes and gas they must adhere to the law that is applicable thereto.

[amamo]

This question is directed to dtwarren.

Have you purchased any thing over the internet, from out of state??? If so then you didn't pay New York State Tax. What is the difference???

[dtwarren]

Originally posted by amamo
This question is directed to dtwarren.

Have you purchased any thing over the internet, from out of state??? If so then you didn't pay New York State Tax. What is the difference???

Actually, just a couple of months ago I ordered a Dell Dimension 4600C from Dell in Texas. Guess what they charged me $11.85 in NY State Sales Tax. Most reputable national companies are charging State Sales Taxes on all purchases. In the event they do not you are required to compute this and complete line 56 on your State income taxes each year. The difference is one is not required and your responsibility to report is mandatory. In the other they are required and they refuse to do so and you are required to report this as well. Where they and you refuse it is called tax evasion and is a crime.

[Curmudgeon]

You have correctly stated that is up to the consumer to report purchases that they have made when sales tax is not collected (internet, out-of-state,etc..). So, a mechanism already exists to facilitate tax collection. If an individual consumer chooses to NOT report a purchase, then that is betweeen him and the state of New York.

To tilt at windmills at the evil indians seems a bit disengenuous. Would you also advocate the installation of "merchandise inspection stations" at state lines that are adjacent to low-tax states? How about hiring private contractor private detectives to follow NYS residents around in the Bradford, PA Sears with a hidden camera to document those low-tax appliance purchases? How about getting the parcel shipping histories from Fed-Ex and UPS to see just who is buying what!

The real crime here is the absurd rates of taxation that NYS continues to impose on people and businesses who are foolish enough to remain here. I support any entity that provides competitive pressure on our local and state governments to be more cost effective.

[dtwarren]

Whether or not one has a problem with the rate of taxation is not at issue. The avenue for redress of this type of grievance is through the legislative body that imposed the rate or type of tax.

First the State is not seeking to tax Indians, it is seeking to enforce already existing laws on their non-Indian patrons. Currently, non-Indians purchasing any goods or services on Indian land where the taxes are not collected at the time of purchase must fill out a tax form (either a CG-15 or ST-130 depending on what was purchased) and pay the appropriate tax due within 24 hours of the purchase. Failure to do so is a misdemeanor and may result in fines and/or imprisonment. Let us be clear who is being taxed in this tax scheme, it is non-Indians not Indians. The Indian retailer is merely a conduit for the tax to be collected and remitted to the state. Indians making purchases on their land are still tax exempt. Also there is no treaty or statute that provides non-Indian consumers with an exemption from taxation on or off Indian land. The loss of this tax revenue increases the burden of honest taxpayers in Erie County as well as the State. It is also harmful to our local economy in that honest businessmen are put at a competitive disadvantage.

Since people have failed to do what was legally required of them it has come necessary to use coercive measures to insure collection of these taxes. The U.S. Supreme Court stated in its 1980 decision, Washington State v. Confederated Tribes, stated "We do not believe that principles of federal Indian law, whether stated in terms of pre-emption, tribal self-government, or otherwise, authorize Indian tribes thus to market an exemption from state taxation to persons who would normally do their business elsewhere." The Court also noted that the State of Washington had the right to seize unstamped cigarettes to enforce its valid taxes.

[Curmudgeon]

To attempt to implement coercive measures ONLY with indian purchases shows a selective enforcement of the law and a clear bais against indians. Why not implement coercive measures againt Pennsylvania or coercive measures against the ultimate enablers of tax evasion - Fed-Ex, UPS and the USPS? Why not measure the gas of each and every car entering NYS with a NYS license plate and impose a tax upon the gas in the tank?

If a large percentage of people are violating the law, perhaps it's time to re-evaluate the law!

[joehajduk]

This tread has many interesting points of view and makes for good discussion. From where I'm coming from it is my belief that all this controversy about collecting taxes from non Native Americans comes from a political issue. This state is starving for money, why, because those who we have elected to office have not been faithful to those who put them there ( Native Americans do not have the right to vote in our public ekections ) We put these politicians there. Our elected officials are giving away land to the Native Americans to generate revenue to enhance state coffers. Native Americans as well as any other business is under law supposed to collect sales tax. How much more do taxpayers have to pay annually to make up for uncollected sales tax from Native Americans? How about the non Native American just down the street trying to earn a living to support his family and pay his fair share in taxes? Native Americans being allowed exclusivity in operating casinos in New York is the same as Financial rape of hard working residents. They take all the profits and leave us with financial ruin. You could look at this as the war of 2004, Native Americans winning without firing one bullet...... I do respect everyone's opinion in this matter. I certainly hope some will understand mine.
Joe Hajduk, insidecheektowaga.com

[amamo]

Right now we are taxed on just about everything we do here in New York State. I was in Ohio last week and was glad to see that I only had to pay a $1.73 per gallon of gas. On my way home when I crossed into New York gas jumped to $2.13 a gallon. Then I had to pay $2.10 to the troll to drive here. From Pa state line all the way into Ohio down to Dayton on tolls were paid. It cost me more in taxes and surcharges to have my natural gas delivered to my home then the gas cost me to use.
You pay sewer tax twice once on your water bill then again on your city tax bill. There are taxes upon taxes, we are being taxed to death here in New York.

To dtwarren, you did really well with your computer a Dell Dimension 4600C if they only charged you eleven something in taxes at 4% the tax should have been more. Congrats

[dtwarren]

Originally posted by amamo
Right now we are taxed on just about everything we do here in New York State. I was in Ohio last week and was glad to see that I only had to pay a $1.73 per gallon of gas. On my way home when I crossed into New York gas jumped to $2.13 a gallon. Then I had to pay $2.10 to the troll to drive here. From Pa state line all the way into Ohio down to Dayton on tolls were paid. It cost me more in taxes and surcharges to have my natural gas delivered to my home then the gas cost me to use.
You pay sewer tax twice once on your water bill then again on your city tax bill. There are taxes upon taxes, we are being taxed to death here in New York.

To dtwarren, you did really well with your computer a Dell Dimension 4600C if they only charged you eleven something in taxes at 4% the tax should have been more. Congrats

Ooops, I looked at my receipt from the printer I bought the tax on my system was $53.09.

[WNYresident]

53.09 for not doing anything.. Not a bad racket huh?