No Country For Red Men

In 2011 we have new legislators, a new Cuomo, and the same old fight. Alas, the brief recurring respite Indian Country has between Election Day and Inauguration Day every few years is over, and the fight begins again.

Cuomo, Part Deux, presents the Executive Budget for NYS

Governor Cuomo contributed another brief chapter in dealing with what for centuries has been known as the “Indian Problem.” Frustrated by the rise in the Indian tobacco trade on tribal territories within New York and the state’s inability to collect taxes on this increasingly profitable enterprise, Cuomo took action and attempted to force tax collection on reservation tobacco sales—and ran into a brick wall of defiance.

No, you didn’t miss something in the first 100 days of Andrew Cuomo’s tenure. This was the 1990s under Gov. Cuomo of the Mario persuasion. But the former governor’s son has already taken his first step toward renewing this practice, by including $130 million presumptive tax dollars from taxes on Indian cigarettes in this year’s budget. Never mind the fact he is relying on reports from a department that acknowledges that 70 percent of what would be considered “bootleg” cigarettes—cigarettes purchased outside of, but consumed within, New York State—come from states bordering New York and Canada. The capriciousness of the $130 million estimate is even more suspect considering that “expert” testimony at various hearings over the years have placed the number anywhere between $65 million and $1.6 billion.

No matter how the state arrives at its figures, by inserting any number into the budget Andrew Cuomo has picked up where his father, and several others, left off.

In the waning days of Mario Cuomo’s administration, Supreme Court Justice John Paul Stevens delivered the court’s 1994 decision in a case called Milhem Attea & Bros., granting individual states the right to collect taxes on cigarettes sold to non-natives on reservation territory throughout the United States. With the so-called collection authority in place from the highest court in our land, the issue of enforcement was left to the individual states to pursue. This is where it got ugly.

After an unsuccessful attempt to force Indian tobacco retailers to open their books and provide sales figures and tax revenue to New York, the state established a coupon system whereby taxes would be applied at the wholesale level and collected in advance. Trying to coordinate this effort between manufacturers, wholesalers and individual tribal retailers and the violent reaction it stirred in Indian Country—the Seneca Nation in particular—led the governor to institute a policy of forbearance. Forbearance is another way of saying “even though I think I’m right, it’s the next guy’s problem.” The issue was essentially too complex and heated to pursue, so Cuomo punted and passed the buck to the following administration.

CLICK HERE TO READ PRESS COVER STORY ABOUT CIGARETTE TAX DISPUTE BETWEEN U.S. AND INDIAN COUNTRY

Gov. George Pataki took up the fight during his first term in office, and was met with amplified defiance from Seneca that set the new administration back on its heels. Pataki too went “four and out” and punted.

Insert “Gov. Eliot Spitzer” and “Gov. David Paterson” into the paragraph above as they both attempted to traverse this well-worn path with no success. Every governor since Mario Cuomo, once learning the nuance of policy as it relates to tribal land and sovereign rights, winds up hiding behind the policy of forbearance. Last year state Sens. Craig Johnson (gone), Carl Kruger (indicted), Pedro Espada (indicted), and Assembs. Richard Brodsky (gone) and Michael Benjamin (gone) shook their fists at hearings and press conferences urging Paterson to step up to the plate and take on New York’s tribes.

But that was so 2010. In 2011 we have new legislators, a new Cuomo, and the same old fight. Alas, the brief recurring respite Indian Country has between Election Day and Inauguration Day every few years is over, and the fight begins again. My father is fond of the phrase “every 100 years, all new people.” The more you think about that phrase the more freeing, or paralyzing, it is. For Indians it’s more like “every 10 years, all new politicians.”

I bring this up now because Andrew Cuomo is by all accounts an extremely bright guy with a long memory; a bright guy who undoubtedly understands the intricate and delicate relationship with tribal nations in New York better than any governor that came before him, his father included. He has the benefit of an institutional knowledge his father had to acquire on the job and the added bonus of witnessing each successive governor fail with respect to imposing taxes on cigarettes sold on reservation land.

Given these circumstances, quietly inserting $130 million in tax dollars is more than a warning shot. It marks the beginning of yet another skirmish in a long, tiresome and 400-year war against the indigenous people of this nation.

Testimony at Native Tax Hearing

The New York State Senate has formed a committee to investigate further ways to steal from Native Americans and continue the American Holocaust against our indigenous populations. I was honored to be allowed to testify at the hearing. This is my testimony.

New York is in dire financial straits and its politicians are seeking refuge through taxation to cover up their own negligence. They claim that the sale of cigarettes to non-natives from the reservation is unjustly enriching Native Americans and is contrary to established law in New York. Of course none of this was a real issue until our government ran out of money. So while the state is struggling to maintain solvency, several reservations are gaining economic momentum. In essence, you tolerate them so long as they’re poor but now that the tables have turned your true colors are showing.

When billions of dollars from the landmark tobacco settlements were dispersed among the 46 states enjoined in the lawsuit, New York did what it does best: took the funds in a one shot, wrapped them up in a fancy Wall Street financial instruments and bonded out our future. To make up for the further budget shortfalls the state hiked taxes on cigarettes and artificially inflated the price of tobacco thereby creating a disparity in pricing on and off the reservation and causing a rift between retailers and the tribes. New York continued to maintain its pattern of reckless spending and found itself on the wrong side of this recession.

Long before the cigarette industry was booming on reservations, Indian nations sold cigarettes as a means of basic survival. Now they are being persecuted for succeeding. Unfortunately, the very unsympathetic status cigarettes hold in our society casts a dark cloud over the critical issues of taxation and jurisdiction and places in doubt the immutable right of self determination these tribes enjoy.

Instead of working with tribal leaders the government inquires about the possibility of obtaining federal law enforcement support against these nations and crafts unilateral policies that directly affect tribal lands. But without tribal consent these unilateral policies are unenforceable and exist in a vacuum; no different than attempting to legislate activities within France or Canada.

Mr. Benjamin who testified today actually introduced legislation to abolish the Poospatuck reservation writing that it “seems to be nothing more than a criminal enterprise.” Mr. Benjamin would exile a people who Judge Matsumoto, in her October 8th decision of this year, found to have “met its burden of establishing, by a preponderance of the evidence” that they are recognized as belonging to a sovereign nation. What Mr. Benjamin and this panel don’t understand is that the very nature of sovereignty, by definition, holds that no legislative decision, judicial decision or executive decision outside reservation land has any bearing on activity conducted on reservation territory. The Supreme Court of the United State of America has repeatedly ruled that Indian Nations are sovereign nations recognized by, but not governed by, the Constitution of the United States.

In the end this is not about taxes, bootlegging or the black market. This is an issue of sovereignty and you are out of your jurisdiction, out of your league and out of your mind if you think these nations or its leaders will give up their rights with respect to it.

So before you examine the operations of the Longhouse, I suggest you turn your attention to cleaning up your own house.