A Tale of Two Cases

By John Kane - from the February 12, 2014 issue of the Two Row Times

Last week two stories about the ongoing battle by New York State and the U.S. federal government against the Native tobacco trade hit the papers.

In the state case (http://www.mpcourier.com/article/20140204/DCO/702049802), the government prosecutor joined with defense attorneys in a motion to dismiss felony charges against two men attempting to transport tobacco products from Mohawk territory to Seneca territory in March 2012.

District Attorney Mary E. Rain told the St. Lawrence County Court Judge Jerome J. Richards that she had determined there was not enough evidence to prosecute.

Among several issues that Rain described as representing "all kinds of problems with this case" was evidence she found in the case file that was favorable to the defendants. She specifically cited emails to and from the former District Attorney Nicole M. Duve dated August 14, 2012 where "She indicated in the emails that the Mohawk tribe was being singled out and local law enforcement was being unjust."

At the federal level, the Kansas City Star reported that a "New York company admits guilt in contraband cigarette case" (http://www.kansascity.com/2014/02/06/4803205/new-york-company-admits-guilt.html).

Aaron Pierce, a Seneca and former candidate for the President of the Seneca Nation was referred to as an unindicted co-conspirator in a large federal sting operation ran out of Kansas City between June 2010 and January 2012. His company, AJ's Candy and Tobacco LLC is the "New York state tobacco wholesaler" that is the subject of the article.

According to the Star, the "wholesaler pleaded guilty Thursday in federal court in Kansas City to trafficking contraband cigarettes and agreed to pay up to $1 million in fines, forfeitures and restitution."

The dismissal of the charges in the New York State case demonstrates what many of us have suggested for years about the discriminatory nature of law and law enforcement in the state. But even with the sweeping of this case under the rug, there is still a failure to address any state policy, regulation or law that clearly establishes any legal authority to criminalize the Native tobacco trade.

In May 2011, I worked with New York State Senators George Maziarz and Timothy Kennedy, both from Western New York, to make a formal request the Commissioner of the State's Department of Taxation and Finance to state clearly and in writing exactly what the state's policy was on the Native tobacco trade and Native product, in particular. That letter and follow- ups to that request remain unanswered but clearly lead authorities away from Seneca territory and resulted in the concentration by State authorities on Mohawk territory.

The federal case involving Aaron Pierce and AJ's Candy and Tobacco raises more questions than it answers. The identity question for Aaron Pierce alone could fill volumes but the core question here, too, is whether there is any clear and legitimately established policy, regulation or law that criminalizes Native trade?

The crux of this case is the Contraband Cigarette Trafficking Act (CCTA). This law characterizes at a federal level, any cigarettes found in a state requiring a tax and stamp indicating the tax has been paid without a stamp as contraband with very specific exceptions, none of which include Native trade, Native product or Native people and lands. So what is created is an unclear federal law that uses unclear state law to criminalize Native trade that supports the economy on lands that both the state and federal governments know is not theirs.

So whether "AJ" pleads guilty to a crime, cooperates with state and federal authorities to get convictions on him and others or buys his way out of his fear of jail or a fight for sovereignty, does not mean a crime has been committed.

The question that I have for "AJ" is how can purchasing unstamped cigarettes in Kansas City for sale on Native lands be a crime between 2010 and 2012 while AJ Candy and Tobacco buys and sells unstamped Native brands everyday – including today? Is a pack of Marlboro's on the shelf of a Native smoke shop contraband while a pack of Seneca's is not? Where is that written?

Where is the line? Who draws it? And who is willing to defend it?

My immediate assessment of these cases was there could only be one of three explanations here. Either this is completely arbitrary with no real law behind it with the state and feds making it up as they go along. OR they are conceding that Native product in certain undefined areas can be traded by some people under a different set of undefined laws from non-Native product.  OR the entire Native tobacco trade is criminal and they just don't know what to do about it or when to do it.

I honestly think it’s the first one but would love to hear them admit the second.