It didn’t take long for Seneca Nation of Indians President Rob Odawi Porter to respond to a New York Post editorial urging Gov. Andrew Cuomo to collect cigarette state taxes from the American Indian nations whose sovereign territories are surrounded by or contiguous to New York state boundaries.
“You demean the sovereignty of our Nation, American treaties and the decisions of the American courts that enjoin the state’s predatory behavior,” Porter wrote in a letter to the editor published April 6.
One of the treaties Porter refers to is the 1842 Treaty of Buffalo, which says in part that the U.S. “will protect such lands of the Seneca Indians, within the State of New York, as may from time to time remain in their possession from all taxes, and assessments for roads, highways, or any other purpose.” The Seneca Nation maintains that the treaty’s plain language clearly means the state has no taxing authority on any transactions on Seneca territory.
Porter was responding to the Post’s April 2 editorial called “Andrew & the Indians” that revealed not only ignorant about the sovereignty of American Indian nations, but was also offensive in its language and played fast and loose with some facts.
“The Senecas—New York’s most prolific buttleggers—have withheld $228 million in casino-slots revenues in a blatant attempt to strong-arm the state,” the editorial claims.
The Seneca council voted last August to withhold the slot revenue payments, saying that the state has violated the exclusivity provision of the gaming compact by allowing private businesses and state-run racetrack casinos to operate slot machines in the Seneca’s exclusivity zone in western New York in Hamburg, Batavia and the Finger Lakes. The nation had notified the state of the compact violation in January 2010—long before the latest battle over cigarettes taxes heated up last summer—but repeated requested for meetings to address the issue were unanswered, Seneca officials said.
Peter Kiernan, counsel to then Gov. David Paterson, accused the nation last August of manufacturing the casino stalemate as a way to pressure the state over its attempt to end tax-free cigarette sales by Indian retailers and the New York Post has repeated the government’s line ever since then.
“Cuomo shouldn’t be deterred. The slots revenue and the cigarette cash are important—but the principle is critical,” the editorial continued. “The courts have repeatedly upheld New York’s right to collect the cash—the current injunctions notwithstanding—and a refusal to move forward here would be capitulation to mob coercion,” the editorial says.
The courts have actually maintained injunctions against New York State’s attempts to collect taxes from the Indian nations within its borders for a number of years now.
The cigarette tax war between New York State and the nations has gone on for decades. In the 1990s Gov. George E. Pataki adopted a “forbearance policy,’ in which the state claimed it had a right to collect taxes from cigarettes sold on sovereign Indian land but would “forbear” from doing so. The nations have maintained they are sovereign, that the state has no authority to collect taxes from commerce on their lands, and that they would never be “tax collectors” for the state.
When Gov. Mario Cuomo, Andrew’s father, tried to collect the cigarette taxes from Indian country in 1997, the Seneca Nation blocked a 30-mile stretch of the New York Thruway that passes through its territory.
Fast forward to 2007. When Gov. Eliot Spitzer included $200 million in projected revenues from Indian cigarette taxes in the state budget, Seneca responded by sending the state a $2.6 million bill in toll fees for cars passing through its territory on the thruway.
A 2008 raid on two Cayuga Nation-owned convenience stores and the seizure of hundreds of thousands of cigarettes ended with a federal court declaring the stores were on sovereign Indian lands where Cayuga has the right to sell tax-free cigarettes.
In 2009 former Gov. Paterson discarded the forbearance policy. Last year, his administration placed a $4.35 tax on each pack of cigarettes and tried to impose a system that would tax cigarettes before they arrived in Indian country. The courts have placed a continuing injunction against implementing that system.
The New York Post editorial ridicules the idea of Indian sovereignty in a way that reveals its lack of knowledge of American history, the Constitution and the nation-to-nation relationship between the federal government and the governments of federally acknowledged American Indian nations. “The Indians claim their reservations are sovereign nations. Funny, isn’t it, how rarely that topic comes up when the issue is Medicaid cash and other social-services payments to the tribes? The Indians owe the money. Cuomo needs to collect it,” the editorial says.
But Porter educated the Post on American history. “Fact is, the Seneca Nation is sovereign and always has been,” Porter wrote. The nation’s sovereignty pre-dates the creation of the U.S.A. and has always been recognized by the federal government, he wrote. “Grade-school students know that our alliance was a major part of why Americans today are not British subjects.”
Porter also refuted the editorial’s implication that the Seneca Nation looks for federal handouts in the form of social services payments. The nation has always been economically self-sufficient, he wrote. “With most of our lands stolen from us in violation of our treaties 200 years ago, our people have since suffered chronic poverty. The meager social benefits you unjustly accuse us of accepting are mere crumbs off the table of American riches built on stolen Indian land, slave labor and female subjugation.”
New York has open borders with surrounding states, Porter said, and blaming Indian nations for the state’s declining cigarette tax revenues is “laughable. Our lands have never been subject to state taxation, and we will fight at all costs to keep them that way.”