Chuck Pumps It Up

Obviously emboldened by the fact that either no one cares about his role in this disaster or no one understands how deep his involvement is, Schumer and his PR machine have continued to push the envelope of denial while pointing a crooked finger in the direction of everything but himself and the robber barons on Wall Street he has been protecting since taking office.

Charles Schumer Oil Shell Game
This fancy chart is another great way for me not to tell you why gas is so high at the pump

A couple of weeks ago Sen. Charles Schumer responded to a piece I had written claiming that he alone was responsible for the high price of oil. The point of the column was to illustrate the responsibility inherent in his position as the one senator who sits on the committees with oversight and authority to investigate and recommend legislation that would restore prudent checks and balances to the wildly unregulated commodity exchanges at the root of skyrocketing gasoline prices.

Because I was hoping to provoke a legitimate response from New York’s Democratic senator, I stopped short of detailing how intimately involved Schumer was in creating and subsequently covering for the irresponsible deregulation that allowed investment banks and oil companies to trade oil futures contracts without any oversight of a completely opaque and shadowy marketplace.

I was being polite.

As a result, the senator’s minions clearly viewed my rebuke as somewhat tongue-in-cheek, answering with the exact type of benign platitudinous response Americans have been conditioned to accept from our public officials. Schumer’s letter to the editor, which we published in its entirety the following week, ran sans snarky commentary from yours truly. (Those comments were left for my website.) Obviously emboldened by the fact that either no one cares about his role in this disaster or no one understands how deep his involvement is, Schumer and his PR machine have continued to push the envelope of denial while pointing a crooked finger in the direction of everything but himself and the robber barons on Wall Street he has been protecting since taking office.

His most recent diversion was to send a letter to Jon Leibowitz, chairman of the Federal Trade Commission, asking him to investigate U.S. oil refineries in connection with price fixing. Sounds logical, right? That’s our Chuck. Man of the people. But this is the perfect example of “gorilla dust” whereby two gorillas face off against one another in a spectacle of chest-thumping and screaming, throwing dirt in the air to create a commotion for the purpose of actually avoiding an altercation. The problem is that Schumer equivocates so often on this issue that his face and words have become wallpaper to Americans. He’s beating our collective will into submission by the sheer volume of deceptive statements.

To highlight the senator’s subterfuge, I have taken the liberty of explaining or translating his statements. Hopefully you will find this helpful.

Schumer: “Recent reports have indicated that U.S. refiners are cutting back on U.S. gasoline stockpiles in order to artificially keep prices high and inflate their bottom line… while gasoline use is declining, U.S. gasoline inventories remain below average and refining margins continue to rise.”
Planet Earth: The truth is that we have an over-supply of oil right now because, as Schumer admits, we are using less gasoline. The refiner doesn’t choose how much oil to refine, the market does. The market also determines how much the refinery is paid, and the oil companies such as Exxon Mobil and investment banks such as Morgan Stanley and Goldman Sachs are the market. All Chuckles is trying to do here is shoot the messenger and create a distraction from his beloved Wall Street funding sources.

Schumer: “I’ve called for the elimination of (oil) subsidies to help reduce our deficit and stop wasting taxpayer money subsidizing oil companies that don’t need any help.”
Planet Earth: Talk of eliminating oil subsidies is politically sexy and practically worthless unless we put an end to Big Oil’s ability to manipulate the market by simultaneously setting prices and driving the volume of trading. Eliminating the subsidies without fixing the fundamental market problem will bring in, or retain, more revenue for the government but the oil companies would have already taken it out of the consumer’s pocket to achieve the same bottom line margin by jacking prices at the pump.

Schumer: “I helped to protect a $100 million loan guarantee to build the Taylor Biomass Energy facility in Orange County that uses a process called gasification to convert over 95 percent of the waste received at its facility into cleaner energy.”
Planet Earth. Gasification, indeed. There’s only one thing spouting hot gas right now, and it ain’t the Taylor Biomass Energy facility. For the record, these projects are great for reducing greenhouse gas emissions. But let’s be clear about the energy potential. The energy captured from the average landfill is enough to power approximately 7,200 homes annually. That’s the equivalent of two on-shore GE wind turbines. Two, yes, two.

The well-documented back-room maneuverings done by Schumer to repeal Glass-Steagal in 1999, his assistance in creating the Enron Loophole in the Commodities Futures Modernization Act in 2000 and his silence as a member of the banking committee when the Bush administration obliterated all transparency in the commodities and derivatives market in 2006 makes him a central accomplice in the dirty dealings that precipitated the global financial meltdown and today’s spike in oil prices. His chicanery in addressing a fearful public represents the true nadir of the crisis.

So let me be absolutely clear this time in addressing our fair senator and be assured, sir, that my tongue is neither planted in my cheek nor forked as yours appears to be. Rather, it speaks a truth some part of you understands but no part of you wants to acknowledge. Save your minions the time and effort of responding as there is no more room in this paper for your spurious replies. As you are funded by the oil and bank oligarchy you helped to create, I hardly expect you to continue this conversation anyway. Regardless, for every dishonest press release you issue or diversionary press conference you hold, a growing number of informed citizens will know to offer this refrain:

Chuck Schumer is responsible for the price of gas.
Chuck Schumer is responsible for the price of gas.
Chuck Schumer is responsible for the price of gas.

Now, go forth and spread this word. If you made it all the way to the end of this column and have connected the dots that draw a picture of corruption please forward, digg, like, stumble, reddit, send it to everyone you know who is watching their savings flow from their wallets and into the coffers of Wall Street and Big Oil.

Chuck Schumer Is Responsible For The Price Of Gas

A market where only a handful of powerful people determine the price of commodities, buy and sell them at will, and reap huge rewards while starving millions of people worldwide and decimating the savings of Americans almost overnight is anything but moral.

Bubble, Bubble, Oil and Trouble

We assemble around the pumps staring at gas prices like hominids around the monolith, shrieking and beating our chests. But whereas Stanley Kubrick’s primates in 2001 were willing to touch the slab and receive the divine, other-worldly intelligence it offered, we simply tighten the cap and blithely go about our day, all the while filling the wallets of oil companies and banks that conspire to pick every last nickel, dime and piece of lint from our pockets.

The ongoing drama in the Beltway, quibbling over mere billions of a multi-trillion dollar problem, is the ultimate subterfuge blinding us from the true budgetary crisis in our nation and the world. The $39 billion compromise achieved on Capitol Hill last week is a billion shy of ExxonMobil’s profit for 2008, the last time oil prices crippled the nation and filled the corporation’s coffers. This was the largest profit ever posted by an American public company. Once again analysts are predicting record profits when the publicly traded oil companies release their first quarter earnings in the coming weeks.

I’m officially calling bullshit; calling it on the whole stinking lot of them. While oil companies reap historic profits and politicians try to out-Ayn Rand one another, espousing free market ideals they completely misinterpret, Wall Street and Big Oil are about to deliver the coup de grace on the American people and the world at large.

The Intercontinental Exchange (ICE), in partnership with NASDAQ, recently upped the ante to purchase the historic New York Stock Exchange (NYSE Eurodex). Naturally, your next questions should be: “What does this have to do with the price of gasoline at the pumps?”  “Why is this important?” “Why should I care?” and “What can I do about it?”

Glad you asked.

What does this have to do with the price of gasoline at the pumps? Everything. Here’s the short version of exactly why gas is so high right now. All you have to do is memorize the following paragraph to be able to shut anyone up at a party who claims that Middle East uprisings are responsible for driving up oil prices.

Nearly 20 years ago Wendy Gramm and her senator husband Phil Gramm created the Enron loophole when Mrs. Gramm chaired the Commodities Futures Trading Commission (CFTC) under President George H.W. Bush that cleared the way for trading energy futures on the commodities exchanges. On December 21, 2000, President Bill Clinton signed it into law. In 2001, the two largest investment banks in the nation, Goldman Sachs and Morgan Stanley, teamed up with British Petroleum (BP) to start their own exchange called the Intercontinental Exchange (ICE) to handle commodities transactions. In January of 2006, George W. Bush made it possible for anyone investing in commodities to hide their identity, turning the ICE into a powerhouse exchange overnight. When the Glass Steagall Act was repealed, deregulating the banking industry, banks and investment banks merged; further, because of the commodities deregulation under Clinton, then Bush, banks are now able to set the price of commodities by having their analysts forecast pricing and purchase large quantities of commodities through the banking end on exchanges they own and control.

There you have it. I mention all of the presidents involved in this fiasco to illustrate that this is not a partisan issue. Both parties have blood on their hands. They have created a trading exchange that, despite being only 10 years old, is so big and powerful it can partner on an $11 billion bid to acquire the New York Stock Exchange.

Why is this important? The obvious, most immediate reason is the pain at the pump that you’re experiencing personally and the pain that threatens the global economic recovery. But there’s a larger problem. The International Monetary Fund and the World Bank have been vociferously warning anyone who will listen that there is a direct correlation between sharply rising crude oil prices and starvation.

There are three reasons for this: 1) The surge in oil prices has increased demand for bio-fuel substitutes, so instead of feeding people we feed our vehicles. 2) Higher oil prices means higher production costs. At the farm level the hard production costs of fertilizer and irrigation rise in lockstep with crude oil prices. 3) Lastly, the cost of transporting goods from farm to table increases directly and dramatically.

So, the answer to the first question is: This is important because high oil prices kill people.

Why should I care? Another wonderful question. Well, apart from the obvious fact that we are all part of the human race and should care about things like forced hunger and starvation, there is a distinctly American reason to care about this issue: Fairness.

Politicians, lobbyists, policy makers, and pundits are all mixing metaphors and messing with the essential American principles of fairness. Tea Partiers, conservative radio hosts, radical free-market freshmen Republicans in Congress and kooky presidential candidates are carrying weathered copies of Atlas Shrugged and the Bible, and screaming from the mountaintops, “Set my market free!” (The Bible-toting Objectivist is my new favorite American oxymoron.)

Talking about “free-markets” is fun, but there are seriously flawed fundamentals at work here. As we have learned from every bubble burst in the era of deregulation, the markets do not self-police nor are they inherently moral. Markets, like people, must be guided by regulations and boundaries; investors must have the freedom to maneuver within these parameters, and suffer punishments for exceeding them. Free market radicals should understand better than anyone that a market without regulations is like the Bible without Commandments.

A market where only a handful of powerful people determine the price of commodities, buy and sell them at will, and reap huge rewards while starving millions of people worldwide and decimating the savings of Americans almost overnight is anything but moral. It’s exactly immoral and completely un-American.

 What can I do about it? Plenty.But we have to work together. It starts with understanding the fundamentals behind oil pricing and then figuring out who’s lying. First and foremost, Goldman Sachs and Morgan Stanley are both lying unabashedly through their teeth by blaming political unrest and upheaval for potentially hindering supply and causing speculative panic in the market. They’re ignoring that the United States and OPEC oil reserves are at an all-time high, that actual demand is still sluggish, and that we continue to build more energy-efficient vehicles and access natural gas and renewable resources. 

Now they’re playing a game of chicken and managing our expectations, sending mixed signals about “demand destruction” and how high energy prices might have a deleterious effect on the global economic recovery even though their own analysts set the price of oil futures contracts and their own bankers buy them up. What they’re doing is establishing a new low, an artificial floor. It’s genius. Get us used to the idea of $5 per gallon pricing so that $4 doesn’t seem so bad. This is a test and we’re eating up their lies.

There are four primary solutions to the global oil problem. They’re a heavy lift and you should know what they are, but don’t be overly concerned with these details; your part comes later. Briefly, the solutions are as follows: (1) Reinstate Glass-Steagall, (2) Incentivize oil companies to invest in renewable energy by levying enormous fees on non-compliant companies, (3) Strip the ICE of its foreign-based exchange status to restore transparency to the commodities and derivative market and (4) Kill all speculative conflicts of interest by crafting legislation that prohibits investment banks from owning a controlling interest in any oil-related corporation.

202-224-6542. Give him a jingle.

Sounds like a crazy, impossible pipe dream. Not to worry. Thankfully there is one man with the power to get all of this done. Who is that powerful you ask? New York’s own Sen. Charles Schumer.

Schumer sits on the Rules, Economic, Judiciary, Finance and Banking committees. When it comes to anything related to finance, Charles Schumer is the single most important man in America. Now for your part: Because his office doesn’t accept emails, please call his office at 202-224-6542 and tell whoever answers the phone that you would like Sen. Schumer to please lower the price of gas at the pump. Don’t take no for an answer.

Then we go viral. It’s on. Tweet and post a link to this article with the message: “Only Chuck Schumer can lower the price of gas. If he doesn’t, I guess he’s responsible.”

Good luck and Godspeed. Remember, there are tens of millions of starving people counting on you to tweet our demands.


Charles knows enough to cancel the subsidies (starting around 1:30).

Click on the following links to read other oil-related entries

LIBYA. MORE BLOOD FOR OIL. “Crude Behavior” March 23, 2011 – JedMorey.com

BEHIND THE BUSINESS OF EXCHANGES. $4 Per Gallon: Beating the Oil Drum. March 9, 2011 – JedMorey.com

HAPPY NEW YEAR AMERICA. OIL’S HEADING TO $4. “Why Is Oil So High?” Crude: Part II – Long Island Press

OP-ED: INITIAL REACTION TO BP OIL SPILL. “Our Addiction To Oil” June 24, 2010. – JedMorey.com

CRUDE: HOW WALL STREET SCREWED AMERICA IN THE SUMMER OF 2008 – Long Island Press

Republicans Force Tax Breaks (Down Our Throats). Merry X-Mas America.

In this photo rendered from video via C-SPAN, shows the final vote tally on the bill to avoid income tax increases on Jan. 1. Acting with uncommon speed, Congress moved toward final passage Thursday night Dec. 16, 2010 of sweeping, bipartisan legislation to avoid a Jan. 1 spike in income taxes for millions and renew jobless benefits for victims of the worst recession in 80 years. (AP Photo/C-Span)

When the Republicans took control of Congress during President Bill Clinton’s first term, it took a while before the “Gingrich Republicans” imploded. Newt Gingrich rose to prominence as Speaker of the House by helping to craft and deliver the Republicans’ “Contract with America,” a document outlining their legislative initiatives. One of the young Turks in Gingrich’s inner circle was John Boehner, the man who is about to take over the position once occupied by his former mentor.

Boehner has been getting a good deal of face time and ink lately. Although he has been around the national political scene for two decades, the country is now getting to know the man with the tan and the new plan for America. Borrowing a page from the Gingrich playbook and delivering the Republicans’ “Pledge to America,” Boehner has put himself on the front lines of the war against President Barack Obama alongside Senate Minority Leader Mitch McConnell, the man who stated that his No. 1 objective is to ensure that Obama is a one-term president.

Both men are unapologetic when it comes to defending big business, tax cuts for the wealthiest Americans and political campaign donations. McConnell’s all-night filibuster against the McCain-Feingold bill for campaign finance reform and the infamous incident when Boehner handed out contributions from tobacco companies to his colleagues on the House floor speak volumes about what makes them tick.

And that’s cool. It illustrates who they are and what their intentions are: power and control. But lately the platitudes they’re offering through McConnell’s measured speeches about wanting Obama to change and Boehner’s public blubbering on 60 Minutes sound disingenuous, particularly in light of Republicans strong-arming Congress to push through the Tax Relief Unemployment Extension Bill, extending what are known colloquially as the “Bush Era Tax Cuts.”

Douglas Adams, author of The Hitchhiker’s Guide to the Galaxy, famously wrote, “If it looks like a duck, and quacks like a duck, we have at least to consider the possibility that we have a small aquatic bird of the family Anatidae on our hands.” Perhaps an appropriate update might be: “If it looks like a duck, quacks like a duck, and shits all over your living room carpet while flapping about and knocking over your valuables, we have to consider the possibility it’s actually an elephant in duck’s clothing.” And this is no lame duck we’re talking about here. In fact, this duck is vibrant enough to hobble America with its arrogance.

The bill has Americans quibbling over the fine points, namely the extension of tax breaks to the wealthiest Americans. While this might be deplorable, it’s hardly the most outrageous thing happening at the moment. The bill is essentially a third-round stimulus package that pumps nearly $1 trillion back into the economy over the next two years, requiring the federal government to dig deeper into debt while we attempt to pull out of the Great Recession. It’s a gamble that may actually boost President Obama’s approval ratings in the coming months if consumers begin to feel that things are turning around. Or not.

Either way, the real crime here is the way in which Democrats and Republicans alike have negotiated this bill and the $8 billion of proposed earmarks that come along with it.  What’s remarkable about this number is that it exceeds the entire amount requested in the Zadroga bill to compensate 9/11 responders who are dealing with illnesses related to cleaning up the toxic aftermath of the World Trade Center collapse. (Watch Jon Stewart’s reaction piece to Republican hypocrisy related to 9/11 – you’ll laugh through your tears.)

The wave of anger that swept away so many incumbents and installed an entirely new cadre of jackals in November was powerful and effective. But anger burns faster than Boehner’s two-pack-a-day habit.

President Obama may be taking hits for being cool and aloof, but by the time the next election cycle comes around he may look like the only sane one in the room. As president, maybe he should be calm, cool and collected. What has me flummoxed is how the tri-state congressmen and senators aren’t publicly losing their minds every day like Rep. Anthony Weiner did with Rep. Peter King – and that was an argument over procedure by two guys who favor the Zadroga bill.While Republicans in Congress have been busy masquerading as thinking, feeling human beings, the Democrats are busy feasting on their favorite meal: themselves. Any hope that they would muster some palpable outrage to aid the Zadroga bill quietly drowned in the tidal wave of tax cut rhetoric. Not even Sen. Charles Schumer, one of the most powerful Senators in modern times, could marshal enough votes to bring the bill forward, let alone raise his voice. As he took the Senate floor to urge his colleagues to “step up to the plate” and pass the 9/11 Health Care bill, he calmly yielded the floor four minutes later. At least Boehner cries when he thinks about billionaires having to pay 3 percent more on their taxes.

Big Tobacco and US Government Seek to crush Indian Cigarette Trade

An economic noose is being gradually slipped over Native Americans, who are being quietly led to the gallows, as they have been so many times before. Under the executioner’s mask is the tobacco industry, preparing to pull the lever and release the floor beneath them.

Press Cigarette Cover
Cover Image from the Long Island Press cover story

Tucked away along a waterway in Mastic, Long Island is Poospatuck, the smallest Indian reservation in New York State. It means “Where the water meets” and is home to 400 enrolled members of the Unkechaug tribe of Native Americans. It’s difficult to discern where exactly the reservation begins and ends. There are no visible signs to guide your way, no glow from a towering casino to mark the spot. Once you happen upon Poospatuck, however, there’s no mistaking you have arrived.

Large billboards advertising native-brand cigarettes adorn the façades of several homes converted to tobacco shops and traffic moves briskly in and out of parking areas. People are finding their way here for one reason only: cheap cigarettes.

Harry Wallace is the elected chief of the Unkechaug Nation who has found himself at the center of one of the largest controversies facing Indian nations today. He is also the owner of Poospatuck Smoke Shop, a bustling retail enterprise nestled in a wooded area deep within the reservation. Hanging boldly from the deck of the quaint wood shop on Wallace’s property is a sign that reads “Sovereignty Yes, Taxes No.”

Behind the shop is an office where Wallace conducts the business of his enterprise and the tribe. On the right side of the office is a wall of legal books that remind visitors that Wallace is not just an entrepreneur but a lawyer, a skill that has proven vital to the survival of Poospatuck. As I enter, he is talking to his staff and admits to being slightly irritable due to a strict diet and having recently kicked the caffeine habit.

“I’m trying to take care of my health,” he says.

Poospatuck Smoke Shop
A front view of the Poospatuck Smoke Shop, owned by Unkechaug Chief Harry Wallace.

Wallace was recently diagnosed with diabetes, one of the most common diseases plaguing Native Americans. This affliction makes him a statistic. Harry Wallace hates being a statistic.

Born in Flushing, Queens, Wallace lived there until his grandmother’s house burned down, forcing his family to move to Williamsburg, Brooklyn. As a kid he would make frequent trips to Poospatuck and recalls a beautiful place.

“People built their own homes and kept the powwow grounds in good shape,” he remembers. “They had socials and there was this old dock with rowboats and you could actually swim in the river.”

In the early ’70s, Wallace got what was then a rare opportunity for a financially supported college education at Dartmouth College in New Hampshire. This chapter in his life would change him forever and connect him with his heritage in a way he never conceived of before.

As it turns out, the Dartmouth years provided as much education as they did turbulence, as Wallace was at times confronted with blatant racism. “I ran into a conflict the first day I got there,” he laughs, recollecting a fight stemming from a racist comment made by a football player.

After college, Wallace moved back to Brooklyn to start a family and received his law degree from New York Law School. He began practicing law in New York City in 1983, which he did for nearly 10 years before returning to Poospatuck.

“My mother asked me to,” shrugs Wallace. “She said, ‘We need your help to take care of our land.’”
Upon his return he describes finding only “desolation.”

Gone were the pristine waters of his youth, sullied, he says, by industry and the refuse from duck farms at the mouth of the canal that Poospatuck lies adjacent to. The shellfish were gone and many of the residents who had existed on a marine economy had fallen into abject poverty; not an unfamiliar condition on reservation land throughout the country. Time and natural resources had run out for the inhabitants of this tiny reservation until the most unlikely of scenarios provided a dubious light at the end of a dark tunnel.

“It’s cigarettes, man.”

Because so many states have driven up the cost of cigarettes due to tax levies, they are cheaper to purchase from retailers on Indian reservations who don’t recognize government taxes on retail tobacco. The disparity has led to an economic boon that is creating newfound wealth and generating badly needed funds in some of the most poverty-stricken areas of the country.

But not everyone is happy about the burgeoning success of Native Americans. Many state and federal elected officials feel as though they are being cheated out of sorely needed tax dollars and anti-cancer advocates claim that tobacco consumption hasn’t decreased as a result of taxes; demand has merely shifted toward the unregulated Indian marketplace. Ironically, the biggest threat to the native cigarette industry may actually be from the cigarette companies themselves.

With the Great Recession as the backdrop to this unfolding drama, the stage is set for a David versus Goliath battle between Indian Country, the US government and Big Tobacco.

The price disparity between cigarettes available from reservations and traditional American-based retailers is at an all-time high. A carton of Marlboro cigarettes, the most popular brand in America, will run the consumer as much as $95 in New York City (NYC), where Mayor Michael Bloomberg has initiated an all-out war on smoking. The same carton costs somewhere in the neighborhood of $43 at a Native American-owned smoke shop on reservation land. This is the result of so-called “sin taxes” applied by state and local governments who use the additional tax to balance budgets and discourage consumption for public health reasons. While retailers and local municipalities have cried foul for several years about the inequity of cigarette pricing, it wasn’t until recently that these cries reached a fever pitch.

But the rise of the Native American tobacco entrepreneur has also contributed positively to the overall economic conditions on some reservation territories. The burgeoning Indian cigarette trade is having the ironic effect of creating tribe-funded public welfare systems that address health issues such as diabetes, drug addiction and heart disease that have crippled Native Americans.

The stunning growth of the Indian tobacco trade has drawn the ire of some powerful people and corporations, and together they are collaborating with remarkable efficiency to wage an epic political and economic war against Native American tribes. The cast of characters involved in the battle is like something out of the movie The Insider. Senators, governors, congressmen and women, local politicians, the U.S. Postal Service, Homeland Security and the mayor of Gotham are all playing key roles in targeting the native Indian tobacco trade. But it is Big Tobacco that is controlling the game and moving these powerful interests around the chess board like a master.

Don’t Tread on Us

New York State (NYS) is ground zero for the attack on the native cigarette trade. On one end of the spectrum, the 55-acre Poospatuck reservation is being called a bootlegger’s paradise and is a defendant in several high-profile lawsuits from neighboring municipalities. At the other end is this highly organized and extremely well-funded Seneca Nation, located on three territories in upstate New York. If Poospatuck is a minor league ball team in this scenario, then the Seneca Nation is the New York Yankees. Both tribes are fighting enormous, yet entirely different, political battles.

Chief Harry Wallace
Unkechaug Chief Harry Wallace is spearheading the fight to save the native cigarette trade on the Poospatuck Reservation

Despite the differences in size and resources, both nations cite the same reason for why the US government, at any level, is forbidden from interceding in their affairs: sovereignty. To understand sovereignty, it is helpful to think of these nations not as territories within US borders, but as geographically and politically independent nations far away. In every instance the theory of sovereignty is invoked by Native Americans, imagine it being invoked by leaders of small nations abroad instead of in your backyard.

The economic extremes that Poospatuck and Seneca Nation represent are as divergent as their take on the nature of sovereignty and the legal rights associated with it. For its part, Poospatuck is not federally recognized as a reservation, but it is recognized by NYS. Chief Wallace of Poospatuck believes that the fact the Unkechaug never sought federal recognition is perhaps an even greater claim of sovereignty than any agreement could possibly provide.

“The BIA [Bureau of Indian Affairs] cannot confer sovereignty,” scoffs Wallace. “All it was, all it is and continues to be, is an agency that manages funds. This whole notion of sovereignty was created as fiction during the Nixon administration. You cannot confer sovereignty, you can only recognize it.”

Conversely, the Seneca believe their sovereign rights are superior to other tribes who are federally recognized because Seneca territories in western New York are protected by what is known colloquially as the Buffalo Creek Treaty of 1842. The treaty explicitly states that the “lands of the Seneca Indians, within the State of New York” are protected from “all taxes.” For the Seneca people this is impenetrable language and the basis of their claim of total sovereignty and independence.

But as one quickly learns from reporting on Indian issues, nothing is absolute in Indian Country.

Chief Wallace believes that the Seneca stance may have deleterious repercussions on Poospatuck’s assertion of sovereignty. “When we negotiated with the state in the past we had a unified coalition with the League of First Nations,” says Wallace. “Most of the Indian Nations were a part of that coalition. That unified front is not there today.”

Robert Odawi Porter, the senior policy advisor and counsel to the Seneca Nation, offers a slightly different viewpoint. “We’re still united with other nations in the state but our constitutional government is what sets us apart. We’re a stronger and more functional government.” Then he carefully adds, “There are times that our advocacy is common.”

NYS Senate Hearing on Tobacco Taxation
Tribal members from all over New York gather at the State Senate hearing at Manhattan Community College.

Standing together at this time may be more important than ever before, as impending federal laws and mounting legal challenges against these nations have everyone running for cover, leaving the tribes to defend their economic rights on their own. Even a representative from the New York Civil Liberties Union said that Native American issues are “not our area of expertise” and declined to comment on the issue.

As to why no organizations or individuals are likely to come to their defense, it’s simple. As Chief Wallace says, “It’s cigarettes, man.”

The Long and Winding Trail

Because cigarettes have such a deservedly unsympathetic role in modern society, it’s no wonder there is little support for any cigarette retailers. Questions of fairness and free enterprise fly out the window due to the simple fact that cigarettes kill people. Even still, Wallace is incredulous at the attack on the Native American smoke trade for reasons beyond the economic peril it places them in.

“They’re the ones that turned a Native American sacrament into a carcinogen,” he says in disgust.

When America declared itself free, indigenous people were herded like animals onto isolated areas of the burgeoning nation. Stretches of remote desert lands and parcels nestled in the secluded woodland areas became homesteads for Native Americans. Their numbers were decimated and the survivors were humiliated. Yet, in the beginning, there was still food to eat and some freedom to move about. But the influx just kept coming.

Says Porter: “Personally I don’t think it sunk in with our people that the usage of our land was so severely restricted. We weren’t used to lines being drawn on a map.”

Over time, a sea of white faces pushed deeper and deeper into the country—slowly at first, then like a dam bursting, they rushed through the forests and across the plains. Pretty soon they were everywhere. They brought machines and ushered in the Industrial Revolution. Gradually, the skies turned gray, the waters turned brown and the earth lay fallow.

This part of the story took 400 years. The next part took much less time.

Native Americans became like prison inmates adapting to life on the “inside.” By the mid-20th century the Native American population living on reservation land was among the poorest on Earth. The game was long gone and the earth and seas were poisoned. Fast food, low-wage jobs and hustling were part of the daily routine. If you stayed, you hustled. And you probably drank. If you were a woman, there was a one-in-three chance of being raped in your lifetime.

This was life on “the res” and for many tribes, it still is.

JC Seneca
JC Seneca

For the most part, reservations are rural ghettos, forgotten wastelands with few opportunities to get ahead. This concept of “getting ahead” in America usually starts very simply. Find a job. Buy a home. Take out a home equity loan to start your business. As the business grows, you have the option of paying off that loan and securing business financing. But this is precisely where the Indian economic dream ends.

Because reservation land cannot be owned by anyone, the land and any structure on it cannot be leveraged. Put simply, if it cannot be repossessed, you can’t take out a loan on it. Therefore, even the most industrious Indian entrepreneur has been unable to tap into the source of financing that is behind nearly every great American story of growth and industry.

As an attorney, Chief Wallace was able to make a living practicing in New York City and save enough to open a business on the reservation. He credits his business savvy to this experience, saying, “I always worked for myself as a lawyer and not in a firm.” But expanding his business was more challenging. “I have tried many times to get credit. When [lenders] realize they can’t secure my building, the conversation always ends there.”

Then along came the ’80s and, for some tribes, everything changed.

The Indian Gaming Regulatory Act of 1988 articulated a one-size-fits-all approach to establishing gambling on Indian lands. For some tribes gambling brought indescribable wealth. For others it was marginally effective. For most it had little impact because their remote locations made it nearly impossible to draw large enough crowds to ensure profitability.

Other tribes, particularly in western states, found economic success by exploiting the natural resources beneath reservation lands. In one of the more ironic twists of fate, the barren lands turned out to be more resource rich than anyone would have anticipated. But just as selling cigarettes and running casinos present moral challenges, blasting apart the earth to retrieve fuel for an increasingly industrial world presents an ethical challenge to a population long considered to be stewards of the environment. But when faced with third-world poverty and few prospects for a better life, you do what you have to do.

Of all the paths that lead out of poverty, selling cigarettes became by far the most consistent and profitable trade for most reservations.

Tobacco Wars: In the Trenches

In January 2009, NYS Assemblyman Michael Benjamin (D-Bronx) floated a bill to remove “the Poospatuck Indian Reservation from being recognized as an Indian Tribe in NYS.” Benjamin introduced the legislation “in response to a New York Times investigation of the Poospatuck Indian tribe, which seems to be nothing more than a criminal enterprise.” When I visited Wallace late last year, he had choice words for Benjamin, calling him “a political hack whose premise is based on newspaper articles. You don’t deserve the seat you hold. No wonder the state is fucked up if you’re indicative of the talent that emanates from that office.”

But people like Benjamin are more of an annoyance than the gathering storm of deadly serious lawsuits that Poospatuck finds itself defending. In 2009, Judge Carol Amon of the U.S. District Court for the Eastern District of New York issued a ruling requiring Poospatuck to pay taxes on all cigarettes sold to non-natives from reservation smoke shops. Amon essentially ruled that Poospatuck could not claim protection as a sovereign entity.

With the Amon decision on appeal, the tribe caught a break shortly thereafter when Judge Kiyo Matsumoto, also of the Eastern District, issued a vastly differing opinion on a separate suit brought by Gristedes. Matsumoto found that the Unkechaug people of Poospatuck met the burden of proof of establishing that they are legally recognized as a sovereign tribe by federal standards. Although this is different than federal recognition by the BIA, for Poospatuck it is just as powerful and has provided temporary cover. While Wallace is confident that the judicial system will ultimately clear Poospatuck of the immediate hurdles, the fight is taking its toll.

Through it all, NYC and NYS assert that Poospatuck is little more than a weigh station for cheap, untaxed and unstamped cigarettes that are being sold in massive quantities off the reservation. The state, during the waning days of the Cuomo administration, crafted legislation to establish a couponing system that would track these sales and require reservations to pay taxes on all cigarettes sold to non-native customers. Any cigarettes sold to enrolled members of the tribe would be exempt from the tax. The New York tribes were up in arms, having not been consulted on the matter, and argued that any law passed by a foreign government such as New York that is not recognized and adopted by the tribes themselves is unenforceable.

The Pataki administration attempted to enforce the regulations, known as 471-e, in 1992 and 1997. Both attempts were met with angry throngs of organized and armed Indians who blockaded the NYS Thruway, held up traffic and burned tires in protest, ending in a standoff with state troopers. Wishing to avoid further conflict, the Pataki administration instituted a policy of forbearance, which basically acknowledges that although New York deems the law to be valid, without tribal consent there is no clear and official method of enforcement, and the issue was dropped.

Desperate to close a rapidly expanding budget deficit yet anxious to avoid similar conflict, NYS Gov. David Paterson sent a letter last September to the U.S. Attorney’s Office, inquiring as to the level of support NYS could expect if it decided to pursue visiting a coupon program on Indian reservations.

It was the last line of the letter, which was leaked almost immediately, that provoked strong interest in several channels and brought the debate back to the front lines. In it, Paterson wrote: “I would be grateful if you would please review this matter and provide me with your assessment as to the likelihood of violence and civil unrest should the Tax Department begin the implementation of Tax Law 471-e. Furthermore, I would appreciate your operational commitment to help mitigate any disturbances that might occur in each of your Districts if implementation were to occur.”

Tribes throughout New York saw this as a shot across the bow and all eyes shifted to the Seneca Nation.

Richard Nephew
Richard Nephew, co-chair of the Seneca Nation of Indians Foreign Relations Committee

With the state running out of money, Mayor Bloomberg on the offensive in court and unrest among the tribes, the state legislature turned its focus to the tribes’ booming cigarette trade. In October 2009, the Senate Standing Committee on Investigations chaired by NYS Sen. Craig Johnson (D-Nassau) held a hearing to determine the extent of the loss in tax revenue to New York. In a spirited session before a packed room of Indians from nations across New York, the panel attempted to nail down an answer, which proved to be nearly impossible.

According to the testimony of William J. Comiskey, the deputy commissioner in the Office of Tax Enforcement, the department estimates “that if all cigarette transactions conducted through Native American merchants with non-Indians were properly taxed, New York would collect additional state revenue of approximately $220 million. Because complete compliance is not likely, the actual number achievable would be less.”

Eric Proshansky, from the Corporation Counsel of the City of New York, zeroes in on the Poospatuck Reservation in his testimony claiming that the deliveries to Poospatuck “amounted to a $155 million tax loss in 2007 alone, for the State alone.” He then concluded that “if those cartons replaced sales in the City, as the evidenced proved that many of them did, that amounts to City tax loss of up to another $155 million in 2007 alone.”

Steve Rosenthal, former tobacco retailer and frequent testifier at tobacco hearings, estimated the annual loss of tax revenue to NYS to be approximately $1.6 billion.

For his part, Proshansky is largely critical of the Paterson administration, stating that the “failure of the State of New York to enforce the laws with respect to reservation sales is directly responsible for the loss of many billions of dollars that rightfully should have gone into the public treasury.” He went on to say that, “It hardly seems like good public policy to leave so much lawful tax money in the pockets of bootleggers.”

Richard Nephew of the Seneca Foreign Relations Committee dismisses the city’s claims altogether. “Long before the Indians started selling cigarettes there was a black market of cigarettes heading into New York City,” Nephew tells the Press. “They’re just utilizing us as scapegoats.”

Yet with all of the talk about numbers of cartons and billions of dollars lost to reservations, the city and state are reluctant to talk about how much is lost to bordering states and states as far away as North Carolina due to lower state tax penalties. For all of the attention that focuses on Indian reservations there is no discussion of requiring other states to curb the sale of tobacco to New York residents. Theoretically, if it abided by the same regulation, it is attempting to pass with respect to Indian reservations, then NYS should be sending state troopers into Pennsylvania demanding the records of all tobacco transactions to New Yorkers and payment thereof. This, of course, is never going to happen.

Up In Smoke?

The hearing began to head down a slippery slope when the panel brought JC Seneca, Tribal Councillor for Seneca Nation, up to testify. During the question and answer period, NYS Sen. Martin Golden (R-Brooklyn) said it was only fair that the New York tribes share the burden of the financial crisis, sending the crowd and the Seneca members into a frenzy. Sensing the growing anger of the attendees and referencing the conflicts during the Pataki years, Golden tried to strike a conciliatory note with JC Seneca, saying he didn’t seem like the type of person that would resort to violence. Seneca simply replied, “Then you don’t know me very well.”

Not wanting to agitate the situation further during the hearing, the committee members turned their attention to the governor’s representative. But Peter Kiernan, counsel to Governor Paterson, refused to take the bait when pressed aggressively by the committee. Reluctant to engage either the legislature or the tribes present, Kiernan offered testimony that included language like: “A US dollar spent on an Indian reservation in New York is a dollar put into motion in the New York State economy. Every time that dollar is re-spent or invested is good for New York.”

But with Gov. Paterson barely holding onto his office, there is blood in the water. On March 2, NYS Sen. Carl Kruger (D-Brooklyn) called for full compliance and the revocation of the forbearance policy and went as far as to call Gov. Paterson “a willing and active partner in a longstanding travesty that has hurt legitimate businesses and robbed billions from our state.”

In a statement issued exclusively to the Press, Seneca’s Richard Nephew fired back, saying: “It should occur to some that we are heading into an important election year for New York State politicians. I believe this is largely politics being played out for the public. Paterson, Klein, Kruger, Golden and others may be blowing their own brand of smoke, engaging in political theatrics against the backdrop of New York’s economic crisis.”

Perhaps in an effort to show strength during a troubled time, Gov. Paterson reversed his stance in recent weeks, proposing a new set of regulations that would essentially choke the supply to reservations located in New York.

Included in the regulations are exact calculations for how many cigarettes would be allowed to be delivered to reservations from certain state-approved wholesalers. The law calculates Poospatuck, for example, would only be allowed to take delivery of 8,100 packs of cigarettes every quarter. The calculations are based upon the number of enrolled members each tribe reports and the theoretical consumption on Indians who live on the reservation. Sales of any other tobacco in the state that is not through these approved retailers would be strictly prohibited and the manufacturers would then bear the burden and risk losing the ability to do business in New York.

This proposal is currently in the public comment period and will most likely be met with several reservation-based challenges for the courts to untangle once again. But in a state with as many problems as New York right now, these efforts are child’s play compared to what is taking place on the federal level.

Gods and Generals

There is impending doom for the tribes in federal legislation that seeks to curtail the growing Indian cigarette trade, known as Prevent All Cigarette Trafficking Act of 2009 (PACT). It’s an act that has the support of almost every sitting politician in America today. The act itself would prevent retailers from mailing cigarettes purchased by catalog or on the Internet through the U.S. Postal Service (USPS). Private delivery services such as United Parcel Service and Federal Express already have voluntary bans in place to prevent bulk mail order purchases of tobacco, but the USPS operates under no such agreement. Cancer organizations and elected officials are supporting PACT for the obvious reason of protecting public health by cutting off part of the cigarette supply chain, but there is another unlikely supporter of this bill: Big Tobacco.

The growing cigarette trade on tribal lands was never much of a concern to the multi-billion dollar tobacco industry until Native American retailers began manufacturing and promoting native-owned brands. Brands such as King Mountain and Seneca (unrelated to the tribe) have gained a tremendous following and begun encroaching on Philip Morris’ territory by gaining market share. This phenomenon has turned the relationship between Big Tobacco and Indian smoke shops on its ear. As the tobacco industry and US government combine efforts to attack Indian cigarette sales, the dispute between Big Tobacco and Indian Country grows by the day. Wallace has already banned all Philip Morris products and claims to have felt only a minimal impact to his gross sales.

As this relationship erodes, Philip Morris has ratcheted up its lobbying effort to support the government ban on shipping cigarettes through the mail. It’s a stance that on the surface seems confusing, but the tobacco industry is no stranger to the upside of paradox.

One of the most notable examples was the effect of the cigarette advertising ban on television and radio imposed in 1970. Due to the ban on broadcast advertising, the major tobacco companies at the top of the industry were able to protect their positions because a new entrant to the market was unable to effectively advertise its brand to a broad audience. Indeed, the advertising ban has contributed to freezing these positions in a time capsule with companies such as R.J. Reynolds (Camel), Lorillard (Newport) and worldwide leader Philip Morris (Marlboro) maintaining levels of market share domestically.

A more recent example was in 1998 when it appeared as though Big Tobacco might be dealt a significant blow. Under pressure from several states with massive pending lawsuits against them, Big Tobacco entered into a landmark agreement known as the Master Settlement Agreement (MSA). Under the terms of the deal, the tobacco companies would fork over $200 billion over a 20-year period to 46 states that enjoined in an action against the major tobacco companies. The states who received this money were then supposed to put the funds to good use toward health care and anti-smoking initiatives. In return, the tobacco companies would be indemnified from future claims against them.

Instead of Big Tobacco’s wallet being negatively impacted by the MSA, the opposite occurred, with the tobacco manufacturers simply hiking the base price of cigarettes to a level that covered the payments to the states while receiving full indemnification against future claims.

Big Tobacco’s ability to display contrition and a willingness to address public health concerns while reaping huge rewards as a result of this behavior provides a useful context in which to understand its support of the PACT Act. The only businesses affected by the ban on cigarettes in the mail are the native retailers who have exploited the tax disparity issue and reinvested into native-owned brands. By targeting this methodology, Big Tobacco gives the appearance of cooperating with the government, showing a concern for public health and eliminating competition for market share.

Native American entrepreneurs in turn became victims of their own success.

The last remaining step in the process, or nail in the coffin, is to guarantee passage of the PACT Act. So Big Tobacco tied it to an issue that most elected officials would never argue with: Terrorism.

Terrorism and Tobacco

In April 2008, U.S. Rep. Peter King (R-Seaford) issued a report titled “Tobacco and Terror.” The report attempts to draw a straight line between the sale of untaxed cigarettes on Indian reservations to non-Native Americans and terrorist groups such as Hezbollah. In it, King wrote: “It is possible for these Arab networks to rely on suppliers in lower tax states such as Virginia and North Carolina as well as Hezbollah-linked front companies in various free trade zones around Latin America. However, sources told the committee that in NYS the smuggling networks rely primarily on access to the Native American Indian reservations for tax-free cigarettes—for obvious financial reasons.”

King’s primary evidence is “a North Carolina based operation that forwarded a total sum of $100,000 to Hezbollah in 2000.” Before 9/11. Based upon this data, the report arrives at the conclusion that: “In just two months of illicit cigarette trade operations, a motivated terrorist cell could generate sufficient funds to carry out another September 11th-style attack, in which operational costs were estimated to be $500,000.”

That’s a pretty sensational conclusion from the evidence proffered in this report. But it may be all the fuel necessary to provide the impetus to pass the PACT Act. The link to terrorism has many, including Chief Wallace, concerned beyond the impact of this bill. “National Security interests,” he says, “may play a part in taking the rest of our land.”

PACT has seen relatively few bumps along the road to passage—quite a feat given the climate of severe partisanship that currently chokes Washington. The key to this lies in the main body of the bill authored by U.S. Sen. Herbert Kohl (D-WI), which says: “We can no longer continue to let terrorist organizations exploit weaknesses in our tobacco laws to generate significant amounts of money.” With that, Kohl closed the loop begun by King by linking the Altria (Philip Morris)-backed bill to prevent mail- and Internet-order tobacco retailing. Seneca Nation saw this coming.

“When Peter King came out with his report,” sighs Seneca’s Porter, “that was the brush that all Indians were painted with. Those types of propaganda are hard to fight against.”

JC Seneca was, however, not impressed with the new strategy. “We’ve been fighting terrorism since 1492. The issue is sovereignty. To protect what we have today like what our ancestors fought for.”

PACT has already passed the House with unanimous support from all of New York’s Congressmen and women. The U.S. Senate version lists Senators Charles Schumer and Kirsten Gillibrand, both Democrats, as co-sponsors. While Schumer recently opened the door to listening to the Seneca Nation, which would be most affected by the bill’s passage, Gillibrand has remained publicly silent on the issue. This has Indian Country enraged and crying foul at Gillibrand’s much-touted ties to Altria, the parent company of Philip Morris, who Porter alleges to be the one “banging the drum” for the passage of PACT. According to a New York Times report, while an attorney, Gillibrand represented Philip Morris in a sensitive case and as senator she has taken in tens of thousands of contribution dollars from the tobacco giant.

But another Times article this week indicates that the Senecas have been actively lobbying elected officials with some measure of success. According to the report, “two or three Democratic senators” are trying to stop the bill. But with the PACT Act being shopped as an anti-terrorism bill, time may be running out for New York’s Indians.

The Inevitable Conclusion

The past 20 years have brought a sense of optimism and independence to Native Americans, who have begun to create infrastructure on reservation land and become, in some cases, a vital part of the economic engine in the regions they exist within. In western New York, according to the Seneca Annual Report, the Nation “operates a $1.1 billion economy that employs more than 6,300 people, Seneca and non-Seneca.”

As the Seneca economy grew over the past two decades, it poured funds back into areas like health care and badly needed projects. Seneca’s Richard Nephew takes a shot at the U.S. government, saying: “We’re a government that provides for our people,” moreover, “we’re not emptying people’s pockets.” Porter likewise adds, “We have what Americans are fighting for: top-to-bottom health care.”

JC Seneca cites the problem New York has in losing big business to other regions of the country and wonders why politicians, particularly an upstate official like Gillibrand, wouldn’t want to work together with the Seneca people. “We’re not a company that’s going to pack up and head out of state.”

Though not on the same scale, Chief Wallace also argues that Poospatuck has increasingly contributed to the local economy.

“We approved fuel oil for our seniors from a local company,” he says proudly. “We spent $1.8 million on home improvement with approved contractors through the [Suffolk] county. We spent about $200,000 hooking up water to municipal services. Put drains in, improved powwow grounds and purchased a new building.” Wallace points out that a local contractor was chosen to construct a new community center at the heart of the reservation.

Perhaps most impressively, the leaders of Poospatuck created a fund that last year gave every household $15,500 toward home improvement. The funds had to be made payable to an approved third party home improvement contractor to ensure that they went exclusively toward construction and beautification. Tribal members call it the “fifteen five.”

Wallace Wilson, a 29-year-old member of the tribe who works for Chief Wallace, says: “The impact of the fifteen five was a complete change. Just last year it was a dump.”

In New York, the new regulations proposed by Paterson would restrict the flow of cigarettes to reservations while the PACT Act will block Indian retailers from fulfilling cigarette orders through the mail. If the US government is successful in clamping down on the cigarette trade on reservation lands, then this brief encounter with prosperity will most likely come to an unceremonious end. An economic noose is being gradually slipped over Native Americans, who are being quietly led to the gallows, as they have been so many times before. Under the executioner’s mask is the tobacco industry, preparing to pull the lever and release the floor beneath them.

But the tribes have vowed that they won’t go down without a fight. “There are two paths we can go on,” states JC Seneca. “Diplomacy or controversy and confrontation. They want controversy and confrontation? They’ll get it.”

Should the tribes find themselves on the losing side of the battle, they may be forced back into another prolonged era of poverty and hopelessness. The resulting job losses and increased dependence upon social services and welfare may have the ironic effect of forcing the states to pick up the tab.

The only winner here is Big Tobacco, able to once again manipulate the public and our politicians at will to maintain dominant market share. Their products are addicting to people and their power is intoxicating to politicians, because, as Wallace so aptly puts it: “It’s cigarettes, man.”