Why Does the UNDRIP Recognize What Many of Us Don't?

I am in a constant debate with many Native people over where our Sovereignty and general "rights" come from. I grow frustrated with those that suggest that "treaties" grant us our sovereignty or our rights to and on our own land. I openly condemn the "treaties" that so many hold sacred. They were not pursued by us, written by us and they were rarely, if ever, properly ratified by us (or them for that matter). They do not define us or nor do they limit by their exclusion what our rights are (that is to say that if a "right" or "privelge" isn't spelled out in a treaty that it doesn't exist).
While I am not completely sold on the merits of the United Nations Declaration on the Rights of Indigenous Peoples, it is amazing that every participating nation of the UN (with some holdback from the US and Canada) recognized the following:

Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources,

Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States,

Note that the Declaration associates land rights and resources with "inherent rights" not "treaty rights". And that the Nations of the world specify rights "affirmed in treaties" not granted in them.
Our people have to understand these distinctions and stand with the rest of the people of the world in declaring what they already seem to know and should be so obvious to us.

The State Clears Another Hurdle to Cut Off Its Supply to Native Stores

I have to start off by clarifying certain misrepresented facts. Nothing the state is doing will force tax collection on sales of tobacco products on Native lands. The whole scheme is designed to stop New York State wholesalers from supplying unstamped and untaxed cigarettes to Native wholesalers and retailers. No law has been passed to prohibit our sales; stamp or no stamp. The state knows they cannot do this. There is also no law that prohibits a non-native person from making un-taxed purchases from our territories. The fact remains that, under NYS law, ANYONE(of legal age) can bring up to two cartons of cigarettes into the state from any where for use and consumption without NYS tax or its stamp applied or any liability for that tax and that includes purchases from Native retailers.

The new law, when and if it ever does come into effect, will serve only to put a few NYS licensed wholesalers out of business. The state will not only see no revenue from this but will actually lose money from a whole range of areas directly from its actions. The job loss is one direct cost but so will the loss in MSA payments from Big Tobacco as more consumers shift to Native brands from those that pay millions to the state. Native brands will go from representing 80% of the sales from Native retailers to 100%. Of course the occasional load of Marlboros and Newports will still make it to the shelves of Native retailers but they will come from other states that will receive those MSA payments. The state will also have to decide how much they are willing to spend on enforcement. We have seen the state spend as much as $23 million per month in state police alone over this issue in the past.

The other cost to all this is the political cost and the damage in the relationship between the state and Native people. These types of disputes also tend to polarize the public not just on the issue at hand but on racial issues in general. One only needs to read comments to the mainstream media coverage of the issue to see comments that cross well into racism.

I'm Making The Trip Back To Albany

I've been invited to be on The Capitol Pressroom with Susan Arbetter again. Ms. Arbetter told me she has learned more about our battle with the state on my two appearances than she has learned in all her years of covering the issue with other guests. As such, she is having me back on Thursday, June 2nd. The show will be following a hearing on the 1st in Buffalo that may or may not clear the way for the New York State to prohibit its licensed wholesalers from selling unstamped/untaxed cigarettes to Native wholesalers and retailers on Native lands. This move will undoubtedly put several state licensed wholesalers out of business and cause Native retailers to shift from what is now between 80 to 90% of their sales to 100% being Native brands. The state will essentially be prohibiting their licensed wholesalers from carrying Native brands because they cannot bear the state's tax stamp so the distribution of those brands will return back to Native distributors and wholesalers. The New York State Department of Taxation and Finance knows their weak legal arguments stop well short of allowing them to interfere with the Native to Native trade of a Native produced product. This will likely be the dominant theme of the conversation on The Capitol Pressroom.

Adding to the drama is the call from two state senators from both major parties for the tax department to put in writing their intentions regarding Native brands. Their phone calls to the taxation department got them a response from the department officials that this falls into a "gray area". The senators stated clearly in a letter to Thomas Mattox, the NYSDTF Commissioner that they not only didn't agree with that assessment but that it was unacceptable. They told the commissioner that the state had no authority to infringe on Native to Native commerce and that doing so would be harmful the Native people and the entire regions in which they live. The senators insisted that New Yorkers and their elected representatives had a right to to know what the department was up to and that their position should be put in writing so that their intentions would be clearly known.

The letter was dated May 16, 2011 and as yet the NYSDTF has failed to respond. It is amazing that a plan by the state that has literally been in the works since 1988 still leaves the state's tax officials stumped to answer such basic questions. Between a potential court ruling on June 1st and, perhaps, a response from the NYSDTF to some fairly adamant senators, Thursday's Capitol Pressroom should be a good one. The show is carried throughout the state on NPR stations so check your local listings for the airing times in your area.

Another Good Showing in Albany

My appearance on The Capitol Pressroom went well. Jim Calvin of the New York Association of Convenience Stores was pretty easy to put away in my debate. Of course, he was at a huge disadvantage. He only had the same old talking points that our opponents have been spewing for over twenty years. The only things that anyone heard to shine a light on the issue came from me. But beyond me correcting his exaggerated interpretations of court cases and calling out his twisted view of what a level playing field is, was another interesting conversation on the show. This one was between the shows host, Susan Arbetter and the New York State Budget Director, Robert Megna on the segment before debate with Calvin.

Susan Arbetter told Robert Megna that I claimed the state was intent on shutting down our tobacco retail businesses and that to do so they plan to outlaw Native brands and to actively stop the legal distribution of those brands. She asked, "Is this the case or not?" Mr. Megna's response was, "You know...I don't think so....I mean, I haven't heard that. We know that the Native Americans produce or have begun producing their own brands of cigarettes, but I think what we have said, the State of New York has said for many years, is that we want to collect the money paid on cigarettes that were not produced by the Native Americans that are being sold by the Native Americans to New Yorkers tax free. Um...it's as simple and straight forward as that. I think the Governor's office and the Tax Department have developed a rational plan for doing that which does not involve the State infringing on the territories of Native Americans but rather working through wholesalers and saying that if you are going to sell...,you know...um, manufactured cigarettes...That all cigarettes have to have a stamp on them to ensure that those that are being sold to New Yorkers, the tax has been paid and that an allocated amount will go to Native Americans for their...for their purposes that will be tax free. This has been our policy for a long time."

This was the first indication from the State that they realize the lines they would have to cross to prohibit Native brands. As I have said repeatedly, the State has only two choices under its current law when it comes to Native brands. They can't stamp them so they must either acknowledge, as they have in the past, that they have no authority to regulate Native brands sold on our land or they will have to fight us to to kill them. According to Mr. Megna, the State may be once again looking away.

Check the side bar of my blog or go to http://thecapitolpressroom.org/the-capitol-pressroom-for-may-11-2011/ to hear the State's Budget Director and my segment with Jim Calvin.

White Men In Black Robes Do It To Us Again

ATTORNEY GENERAL SCHNEIDERMAN WINS SECOND CIRCUIT CASE TO COLLECT TAXES FROM NON-TRIBAL MEMBERS ON INDIAN RESERVATIONS

News from Attorney General Eric T Schneiderman

FOR IMMEDIATE RELEASE May 9, 2011
New York City Press Office / 212-416-8060Albany Press Office / 518-473-5525https://alb-me3.oag.lawnet/owa/NYAG.PressOffice@ag.ny.gov/UrlBlockedError.aspx


ATTORNEY GENERAL SCHNEIDERMAN WINS SECOND CIRCUIT CASE TO COLLECT TAXES FROM NON-TRIBAL MEMBERS ON INDIAN RESERVATIONS

Court's Unanimous Decision Allows for the Collection of Hundreds of Millions of Dollars in Tax Revenue

Schneiderman: Today’s Decision Respects Tribal Rights and at the Same Time Represents an Important Victory for the State to Collect Deserved Revenue and Protect Public Health

NEW YORK - Attorney General Eric T. Schneiderman today announced that the United States Court of Appeals for the Second Circuit issued a unanimous decision upholding the authority of New York State to collect taxes on cigarette sales made on reservation land to non-Indian Tribe members. The Second Circuit recognized that New York’s law carefully balances the interests of Tribal sovereignty with the State’s legitimate interests in taxing all cigarette sales made to non-Tribal members. The State estimates that the decision will enable the State to collect approximately $500,000 per day in additional tax revenue.

"Today’s decision respects Tribal rights and at the same time represents an important victory for the State to collect deserved revenue and to protect public health," said Attorney General Schneiderman. "The decision closes an enormous tax-evasion loophole that was depriving New York of hundreds of millions of dollars in tax revenue. I'd also like to commend all of the attorneys in the Attorney General's office whose extraordinary efforts on this case helped us achieve the best outcome for New Yorkers."

In 2010, the New York State Legislature passed a law requiring the collection of cigarette taxes on cigarette sales to non-Tribal members. The law provided Indian Tribes with several options for collecting those taxes while ensuring that cigarette sales to qualified Tribal members would remain tax free. The law is important for protecting the public health of New Yorkers as well as raising hundreds of millions of dollars in revenue during a time of economic hardship.

The law was intended to go into effect on September 1, 2010. However, in August 2010, several Indian Tribes sued the State in federal district court to enjoin enforcement of the new law. The Tribes asserted that the law violated their tribal sovereignty and caused them irreparable harm. Two federal trial courts stayed the enforcement of the law. The New York Attorney General’s Office filed an expedited appeal with the United States Court of Appeals for the Second Circuit.

Today's unanimous decision accepted the arguments made by Attorney General Schneiderman. The Second Circuit determined that under settled United States Supreme Court law, the Tribes have no likelihood of success on the merits. Accordingly, the Second Circuit vacated all orders staying enforcement of New York’s tax law.

Deputy Solicitor General Andrew D. Bing argued the case for the Attorney General's office. Special Counsel to the Solicitor General Alison Nathan and Assistant Solicitor General Steven C. Wu also handled the case, all under the supervision of Solicitor General Barbara D. Underwood. The initial case was also handled by Assistant Attorneys General Robert Siegfried, David Roberts and Darren Longo.

"The Sovereignty of Indian Reservations and Indian Tribes is Not Absolute"

This is the opinion of James Calvin of the New York Association of Convenience Stores (NYACS) who is clearly the foremost authority on Native sovereignty (NOT!). This statement was offered as a counter to my claim that New York State is lying to the public when they say they plan to tax reservation sales and that the true intent is to shut our convenience stores down. The exchange was produced on a segment of The Capitol Report with Susan Arbetter. http://video.wcny.org/video/1892617821

Here is Calvin's complete statement that appears on the show:

"The sovereignty of Indian reservations and Indian tribes is not absolute - That there are circumstances where...,for example, when a state is trying to collect taxes on cigarettes or other products from non-Indian customers on the reservation - The state is entitled to collect those taxes and it does not infringe on the sovereignty that the tribes have been granted."

OK, let's start with some basic definitions before I even address the ramblings of this idiot. Sovereignty by definition is the possession of supreme jurisdiction or power over a territory or region. It is the right to freedom, independence and autonomy from outside authority. It is not nor cannot be granted; it is simply recognized or not recognized. Any attempt to control the activities on Native land by outside elements represent a willful infringement on a sovereign people or an ignorant failure to recognize our sovereignty. Calvin first tries to suggest that Native sovereignty is not absolute and then tries to suggest that the state's attempt to tax sales on our land does not infringe on our sovereignty. I can only assume he meant to say that the state's right to tax sales occurring on our land is a "legal" infringement of our less-than-absolute sovereignty. Of course this is so untrue that even he could not bring himself to actually say it.

New York State may have the right to tax its own people when they bring certain products purchased from Native retailers back into the state for use and consumption in the state. They clearly claim to have that right regarding cigarettes and, as such, have a form, NYS Form CG-15, to be completed by anyone using cigarettes brought into the state without the state's excise tax paid (or state stamp affixed) provided over two cartons are brought in at a time. To rephrase that: New York may have the right to tax the use of cigarettes in the state that are purchased on our land but NOT the SALES or PURCHASE that occurs on our land. One more time; the use of the product brought into the state may be taxable; not the transaction that occurs on Native lands (or out-of-state for that matter). It is interesting that Calvin doesn't just claim that the state can tax New Yorkers but anyone who is "a non-Indian customer". This would indicate a race component into the argument that goes beyond a jurisdictional issue.

I hope that the fluff that this mouthpiece for an association that represents New York convenience store owners, most of whom don't even live in the state, does not cloud the point I was trying to make on Ms. Arbetter's show and that is that New York State is intent on shutting down the tobacco sales of Native wholesalers and retailers and to do so it plans to outlaw Native brands and to actively stop the legal distribution of those brands. Let's see you really question this claim, Mr. Calvin.

American Genocide

By Jed Morey in Indian Issues on http://jedmorey.com/

Writing a column is sometimes an arduous process. When a thought is in the embryonic stage, yet deadlines require it to prematurely take shape on the page, it can be utterly frustrating. There are times, however, when the column gods smile upon you and organize your experiences in such a profound and unambiguous way that the act of writing is a denouement of sorts that reaffirms one’s faith in the process.

On Monday of this week I was reviewing materials related to New York’s cigarette taxation policy on Indian territories—a frequent topic of this column—in preparation for an interview with a friend upstate named John Kane, who discusses Indian issues on his weekly radio show in Buffalo. While I was organizing my notes, John sent me a message asking if I had seen a recent news report about welfare and Indians in America by John Stossel. I had not.

Full disclosure: I had no idea who John Stossel was prior to viewing this report. It didn’t take long, however, to arrive at the conclusion that this reprobate masquerading as a reporter is a modern-day sophist who obviously sold his soul to the devil a long, long time ago in return for fame, fortune and the worst ’70s porn moustache this side of Geraldo Rivera.

Last week, this veteran television “journalist” broadcast a segment titled “Freeloaders” on Roger Ailes’ ongoing anti-intellectual jihad known as Fox News. It’s a subject Stossel has “investigated” before. Only this time he directs his vitriol at American Indians, a group he refers to en masse in his introduction as “wards of our state.” Stossel then proceeds to churn out quite possibly the most one-sided, racist commentary on TV news since Dodgers’ executive Al Campanis told Ted Koppel in 1987 that black people don’t have “some of the necessities” to manage in baseball and lacked “the buoyancy” to be good swimmers.

Stossel’s report is packaged as an investigative news feature and passed off as real journalism despite the complete absence of veracity. Stossel prevaricates so often in attempting to prove that every Indian in America is poor, stupid and lazy that this piece almost feels like satire. Only it’s not. He blames outrageous government subsidies for poverty on Indian territories, not the fact that over four centuries, the Indians who weren’t extinguished and disposed of were herded into the remote, resource-poor areas of our nation and stripped of their land, rights, dignity, habitat, game and whatever else our government could steal.

But for Stossel, enough is enough. It’s high time Indians pick themselves up, dust themselves off and start making money without the assistance of the federal government or revenue from casino gaming. Declaring “Capitalist Indians achieve,” Stossel sets out to prove that the American dream is available for Indians too, if they would just stop being so poor, stupid and lazy. In fact, not only can they still be Indian, they can be rich. Like the Amish.

No, that wasn’t a joke. He actually asks a pro-native advocate during an interview, “How come the Amish got wealthy?” While his guest is attempting to recover from the idiocy of this question, he steps in with his own conclusion: “Maybe they weren’t relying on government rules and Indian trusts and lawyering that teaches Indians to be helpless.”

Every conclusion that Stossel arrives at is based upon absolute lies. He holds the Lumbee tribe in North Carolina out as the ultimate success story, insinuating that they are all thriving because they choose to ignore government subsidies and don’t let the United States control their land like every other tribe in America. He uses this example as the benchmark against which every Indian nation should be compared and ignores the fact that the Lumbee Indians exist in perhaps the strangest Indian purgatory with a status exactly unlike every other tribe in America.

First of all, there is no Lumbee reservation. Moreover, Lumbee is just a colloquial name given to an amalgam of Indian tribes who are federally “recognized” as having authentic Indian roots though hailing from a large and disparate geographic area. This condition is vastly different from being “federally recognized.” The distinction is of no moment to Stossel, who goes on to falsely claim that the U.S. government actually controls Indian reservations. Footage of poverty-stricken reservations out west provides the backdrop for venomous lies such as this: “Because the government owns most Indian property, individuals rarely build nice homes or businesses.”

I have neither the time nor the inclination to detail the copious ways in which Stossel lies through his cheesy moustache in this shameless “report.” I’ve wasted too much effort on this lowlife bastard already. Instead, I leave you with the perspective I gained from witnessing the perfect counterpoint to his dripping filth.

Tuesday night my wife and I attended an event at the Holocaust Memorial and Tolerance Center of Nassau County to hear Eli Rosenbaum speak. Rosenbaum, who hails from Westbury, is the director of human rights and special prosecutions for the U.S. Department of Justice and has the distinction of being the longest-serving prosecutor and investigator of Nazi criminals and other genocide perpetrators in history. His presentation was brilliant and captivating. But it was the courageous testimony of Eugenie Mukeshimana, a survivor of the Rwandan genocide who spoke before him, that broke the hearts of every person in attendance.

What struck me most as I sat down to pen this column, and what the column gods undoubtedly intended me to experience in this period, was not as obvious as you might think. The obvious parable is the dichotomy between Stossel’s blatant racism and transparent hatred and the purity of Rosenbaum’s work and the tragedy of Mukeshimana’s story. But it’s John Kane’s perspective that broke through to me, and perhaps saddened me the most.

No matter what I write here or how many dots are ever connected in people’s minds about life in Indian Country, there will never come a time when the majority of Americans recognize the genocide hidden in plain sight: the American holocaust. This is how Indians like John Kane refer to it, and casually so, because for them it is living history, an ever-present reality. But it isn’t spoken of or acknowledged in white circles. There is no one for Eli Rosenbaum to prosecute. There is no Indian Mukeshimana who can testify to the atrocities.

As Americans we view ourselves as liberators, and in many cases throughout history, we have been indeed. We go so far as to blame ourselves for not intervening in places such as Rwanda but our national guilt ends there. And while I was simultaneously bursting with pride last night listening to Eli Rosenbaum—a Long Islander, one of us—and breaking with sorrow for Eugenie Mukeshimana, I must admit to what is perhaps the grossest of human emotions: envy.

I was envious that there are good souls in the world who value human life enough to listen, understand and learn. Envious that there are people like Rosenbaum who selflessly dedicate their lives to justice, no matter how belated it may be. Envious because neither exists for the invisible indigenous people of our nation considered by Stossel (and I’m sure many others) as “wards of our state.”

CLICK HERE TO VIEW STOSSEL’S RACIST REPORT

A Good Trip to Albany

I think my appearance on The Capitol Pressroom went pretty well. Check it out for yourself and offer your comments both here on Native Pride and on the podcast. http://thecapitolpressroom.org/the-capitol-pressroom-for-march-30-2011/.

I also took the opportunity to meet with the staffs of Senators Kennedy (D) and Maziarz (R) while they did battle in the Senate Chamber over the state budget. The basic request I made of both Senators and my charming host was to assist me in flushing out the true intent of the Taxation and Finance Department. Their claim that they simply intend to precollect state excise tax on cigarettes coming to Native retailers for resale is false and disengenuous. Beyond the problems that this "simple" proposition represents is a much bigger one that scarcely anyone is talking about and that is what the state plans to do about Native brands. Check out this show and my weekly show on WECK to get the low-down on this issue and the collision course the state is on with us. Also take a look at the previous post below for more information on what I brought to Albany.

My thanks to Rick Jemison for joining me on the trip and doing a great job representing the Seneca Free Trade Association.

John Kane Will Be On "The Capitol Pressroom"

I will be a guest on "The Capitol Pressroom with Susan Arbetter" on Wednesday, March 30th. The show airs live on WCNY and can also be heard live on http://thecapitolpressroom.org/. The show is also broadcast on WBFO in Western New York on 88.7FM weekdays at 1 pm. For insight on the show topic, see the email I sent to the show's host below.

First I am sending a link to an article on my blog that captures most of my issues with "Attea". http://letstalknativepride.blogspot.com/2009/04/attea-is-not-land-mark-case-against.html. If you have trouble with the link just go to my blog and search "Attea" to bring it up. The only thing not mentioned in this article was the emphasis the court had in Moe and Colville on the fact that the Native retailers were just selling a non-native product back to the non-native public with no value added to that product but simply the state tax bypassed. 80% of our sales are Native brands manufactured in one territory of the Haudenosaunee or another and distributed to all. These brands are available exclusively through Native retailers. While I may concede that the states, including NY, may have the authority to tax the purchases of their residents on products used or consumed in their states, I reject the claim that they have authority over Native sales made on Native lands. The reality is that the states may only have the right to impose a "Use Tax" on their resident when that use occurs within the state's jurisdiction. The states have no authority to regulate the commercial activity on our territories. I say this not as a treaty right but simply as a right that was never conceded, although the right to our "free use and enjoyment" of or territories is acknowledged in treaty after treaty. On this note let me list a few issues that are never addressed by those that promote the states' authority: As I said, while I may concede the state may have authority to impose "Use Tax" on its residents, it certainly doesn't in all instances. In fact according to NYS Form CG-15 (http://www.tax.ny.gov/pdf/2010/altab/cg15i_710.pdf), everyone in the state is exempt from the cigarette use tax provided the cigarettes brought into the state for use do not exceed 400 cigarettes (2 cartons). With this in mind, the state is saying that all of its residents can leave the state's jurisdiction, purchase cigarettes without a NYS tax stamp and consume that product in the state. They just insist that those sales to their residents cannot be made from "Indians". The state does not consider their overreaching on the sales made on Native lands to non-native consumers that will not use the product in NYS. Many non-native consumers are from out of state. Prior to the passage of the PACT Act and losing 70% of our sale volume represented by remote sales, the vast majority of our sales were to out of state consumers (which, by the way, brought significant revenue into Western New York). Even still, with many of our communities close to the state borders, a notable percentage of our sales are to out-of-state residents. There is also no accounting for the consumption of cigarettes by non-native consumers on our lands. Since our territories are are among the last places on Earth that smoking is allowed in public places and between gaming facilities and other public events, it is fair to assume some of the cigarettes purchased by non-natives are not "used" in the state. There is simply no explanation how the state makes the leap from overturning "Attea" to claiming they have the right to stop Native retailers from selling cigarettes to non-native consumers without a NYS Tax stamp, especially when you consider that every other state and country can make those sales. Of course what I consider the white elephant in the room are Native brands. About a half dozen Native brands now represent over 80% of the sales of native retailers. The state's dirty little secret is that this is not about collecting taxes from Native sales but rather to end them. Several Native communities stamp their inventories and as such add a fee that results in a collective benefit to the community. Overnight, cigarettes will go from being discounted because of the Native regulatory advantage to being more expensive that off reservation prices. The state hopes that some of these lost sales will result in more sales of stamped product from off reservation sales. What is not talked about is to insure that all sales of untaxed product ends the state will essentially outlaw Native brands. Over the last few years the state and the ATF have collaborated in creating a circumstance that even Native brands are distributed by New York State wholesalers. Native brands were excluded from the Master Settlement Act (MSA) and as such cannot be stamped without the state forgoing the revenue they collect from MSA payments from Big Tobacco. Philip Morris has already challenged the making of MSA payments to NY because of the state's lack of enforcement of the MSA against Native brands sold on Native lands. Ironically, NYS had to defend our non-participation in the program citing that the MSA did not apply to us. This was obviously done to protect the state's revenue stream from the program that was borrowed against under the Pataki administration (a revenue that has already shrunk significantly since the PACT Act). So the end result is that once NYS wholesalers are required to sell only stamped products to Native retailers, Native brands will no longer be amongst them. Since NYS maintains that only state licensed wholesalers can ship unstamped cigarettes but not to Native wholesalers or retailers, Native wholesalers distributing Native brands to Native retailers will be subject to seizures and prosecution. The state would like everyone to believe that this is just about pre-collecting a tax that they are entitled to but much of the story is not spoken of. By attacking Native brands the state has moved well beyond interfering with commerce with "Indians" and clearly moves into interfering with the commerce of "Indians". the assumption that a Native wholesaler supplying a Native brand to a Native retailer will ultimately result in a sale to a non-native consumer does not give the state the right to impose itself on Native to Native trade. In fact the commerce clause of the US Constitution reserves the power to regulate commerce with "Indians" to Congress and makes no assumption about the delegation of authority to regulate the commerce of "Indian". It is interesting that Peter King is back in the news with his twisted views on terrorism. A few years back his office prepared a report entitled "Tobacco and Terror: How Cigarette Smuggling is Funding Our Enemies Abroad" ( http://chs-republicans.house.gov/list/press/homeland_rep/morenews/cigarettesmuggling.pdf ). In it he tries to make the public believe there is a direct link between Native sale of cigarettes and the funding of terrorists abroad. Patrick Fleenor with the Tax Foundation: http://www.taxfoundation.org/, suggested to me that the direct to consumer sales by Native retailers has done more to undo the illicit tobacco trade than all law enforcement combined. He argues that our sales cut out the middle men, particularly with the remote sales that have now been forced off shore. Our legal trade that used to bring millions of dollars of revenue into Western New York has already began to slip into the shadows by closing down Native remote sellers (mail-orders) via the PACT Act. Now those remote sales are conducted by who knows who from Russia, a few European countries and several in Africa. The state's attempt to end our face-to-face sales will push more business to organized crime and perhaps even to Mr. King's dreaded terrorists. With over 70% of our sales lost to the passage of the NYS supported PACT Act, one would assume that the state would have produced volumes of financial statements showing the sharp increase in tax revenue but to the contrary the state must be losing significant MSA revenue due to all the lost sales of premium brands sold to out-of-state consumers. NYS received a MSA payment for every carton of premium brand cigarettes sold by Native retailers. With Philip Morris and others joining in on the attack of Native businesses those sale are relegated to less than 10% of sales by Native retailers. Believe it or not I am holding back to try to keep this brief. There is much more about this issue from the protections of Native economies laid out in the U. N. Declaration on the Rights of Indigenous Peoples to state and federal legislation continuing the assimilation programs of the past. I am not a smoker and I am neither in the business nor do I like the reliance on such an economy but if we can't defend our right to market our regulatory advantages in a legal product the way every other city, town, county, state and country does, no matter how un-PC that practice may be then what successful economic engine would be safe in our territories? Trust me, our fuel sales are next and gaming is always a battle.

John Kane - Karhiio

Host of "Let's Talk Native...with John Kane" on WECK 1230AM in Buffalo, NY www.letstalknativepride.blogspot.com

"Let's Talk Native..." is an Opportunity for The Native Voice to be Heard

The show has been airing since August and since day 1 LTN has had an open mike for callers and guests to discuss Native issues. I tout the show as the only Native radio talk show in Western New York and a place for a full conversation on the issues that effect Native people, our lands and the people and regions around us. It takes a station like WECK 1230AM that is committed to local content to provide a forum for the expression of Native views. The show is paid programming and depends on support from the public to cover the airtime costs but for "Let's Talk Native..." airtime is only half the story. The shows are available not only on the AM dial but they stream live on the WECK web site: www.weck1230.com and can be heard after the broadcast on a surprising number of sites. The Coeur D'Alene home page actually features the latest show each week. A search of our show on Google gives 5 or 6 pages of links to various shows and sites. The point is that our words are getting out there. I encourage people to take me up on the invitation to participate in getting our message out there. Hopefully, more shows and opportunities to get honest exposure to the media will develop but for now this is it. As a show that airs in Buffalo, NY, I know most of the immediate listeners are non-native and likely an older demographic and that is a good thing. I say time and time again that our issues stand stronger in the court of public opinion than in a courthouse or a legislative chamber. We need venues like this, not to rant and rave about injustices but to educate and explain issues that can't be captured by a few quotes in the news. I know that with a format that includes an open mike that I will get the occasional haters and certainly those with opposing views but I look forward to those calls as well. Dispelling the myths and providing thoughtful and intelligent responses to those that question our integrity or intentions is the best way to demonstrate the legitimacy of our positions. My hope is that the conversations that are started on air will continue without my participation. On air, please be confident that I will treat callers and guests respectfully. I encourage listeners to offer comments and suggestions here or on air. Grade what you hear and if you don't like it offer your own wisdom. Look for the show on Tuesday from 11 till noon on WECK or online anytime.

Native Spark

By Matt Hill

Inside every Native person is a spark of who we once were. In some people it shines, some it glows, in most it flickers or is almost out. This spark was strong in our society of not too long ago. We carried it throughout our territory through a network of consensus decision making and mutual respect for the earth and each other. When we shared that spark through a decision based on what was right for now, and for the faces of the grandchildren we would never see. It grew in strength as more people recognized it as being the right thing to do. Our fire was strong.

Through our exposure to the elements of corruption, brought by the colonist after a devastating mass loss of people from disease, we were very vulnerable. Temptation of material things clouded the minds of some of our people. Our decision making was "not of a good mind". The core principal of our society was breached. The respect was fading.

The loss of that spark was further snuffed out by the influences of the boarding schools. There the children were punished, abused and on occasion killed, just for being Native. Out of love for their children, some of our Grandparents thought that if they didn't expose the children to who we once were, it would spare them from the pains. We were falling to assimilation. It was getting colder.

This assimilation has become so deep rooted that some don't even recognize the most basic elements of respect. This past week has shown me a lot. There is a major disconnect from what those elements are. We as a people need to recognize that our society is broken. It is a time to heal the wounds that have cut away at our world. It is hard even for a small room full of people to agree what kind of pizza to order! How are we supposed to win a fight against attacks on our peoples sovereignty if we only look out for our own personal interests and not the good of all? Learn who we are. Look out for each other. Talk to your elders. Read a book. Google it. Whatever it takes. Get your spark back. I did and I'm getting fired up!

Once again, Indian tobacco taxes assumed

Posted on February 2, 2011 at 5:43 pm by Rick Karlin, Capitol bureau in General, Indian Taxation
This has come up before, but Cuomo’s budget plan assumes that the state will get $130 million from, finally, taxing cigarette sales on Indian reservations to non-Indians.
From the budget’s revenue projections: 2011-12 Projections All Funds receipts are projected to be $1,786 million, an increase of $165 million, or 10.2 percent above 2010-11. This increase reflects the full year impact of the legislation enacted in 2010-11, including $130 million in cigarette tax revenue from the implementation of laws requiring the collection of tax on cigarettes sold on Indian reservations to non-Native Americans.
News of the planned taxes was greeted warmly by an organization that has been pushing for that, the Enforce the Law, Collect the Tax Coalition “The Enforce the Law Collect the Tax Coalition applauds Governor Cuomo for projecting real and significant increases in cigarette tax revenue in his 2011-2012 Executive budget. By projecting excise tax collections from the implementation of laws requiring the collection of tax on cigarettes sold on Indian reservations to non-Native Americans, the Governor’s Executive budget proposal is yet another clear indication of the administration’s commitment to rectifying this long standing inequity. We remain confident that the courts will soon conclude that the state is correct on these issues and will clear the way to collect these much needed revenues.”
A reality check may be in order here, since the Indian tobacco tax has been on the books, unenforced, for years and it was supposed to happen last year as the current budget was being finalized as well.

21 Comments
1. MomOfThree
February 2, 2011, 7:18 PM
I thought that every Indian nation had its own separate laws and therefore are not subject to outside laws. So how can Cuomo even bring this up?

2. joe_from_france
February 2, 2011, 7:49 PM
Including revenues from cigarette sales on Indian reservations to non-Indians shouldn’t that be considered another Budget “sham” Mr. Megna?

3. Smith
February 2, 2011, 8:06 PM
Perhaps the Governor is going to finally get our money’s worth from the $100,000 per year Troopers by using them to enforce the tax collection.

4. ezpickinz
February 2, 2011, 8:35 PM
These native Americans are not going to pay NYS one single cent of tax money. They would rather owe NYS than screw us out of that tax money. I think that NYS should stop maintaining the State highways that pass through the reservations and lead to their casinos. Not too long ago, the Seneca Nation wanted to charge a buck a car for each vehicle passing through their reservation along the NYS Thruway. OK; but payback is a bitch, ain’t it?

5. thelawisclear
February 2, 2011, 9:13 PM
MomofThree, courts have said a number of times that the state would not be taxing native americans. The state would be taxing native american sales to non-native americans. Their laws/treaties have nothing to do with it. This absolutely is an issue of enforcement and each of the last three governors have basically not even tried, even though they all count the revenue.
Talk about a scam.

6. Parma Ham
February 2, 2011, 10:26 PM
Smith, good point about the troopers, how about starting them at $45k and letting them up to $60k after 10 years. i bet you’d get no shortage of quality applicants

7. Lwoodbluz
February 3, 2011, 3:37 AM
What the state really needs to do is set up checkpoints right outside the reservations to collect duties(taxes) from people leaving the Nation. Just a simple “Do you have anything to declare?” and a search if necessary should bring in the revenue.
And don’t worry about the Native Americans closing off the Thruway like they did in 1997. They want thier casino money, they won’t close thier lifeline to all that revenue.

8. ResidentX
February 3, 2011, 5:54 AM
its really not a big problem… if the taxes arent collected we can just layoff more state workers. I mean, thats what they are there for… right?

9. Walt
February 3, 2011, 7:20 AM
The state will lose on this as well as all the other bullying tactics they are attempting!

10. UnCivilServant
February 3, 2011, 7:41 AM
What I don’t get is why we continue this farce. The residents of these “nations” have Us Citizenship and the right to vote in US elections, and thus should be subject to all taxes imposed on the rest of us. We should stop pretending that they aren’t part of this country. The annexation was complete almost a century ago, sweep away the last vestages of deceit and bring our fellow citizens into the fold.

11. WHAT A JOKE
February 3, 2011, 8:02 AM
The tribes want New York services? The Tribes should then pay New York taxes. What’s complicated here? The Tribes can’t have it both ways.

12. Albany Resident
February 3, 2011, 8:50 AM
How about we cut the $130,000,000.00 out of the budget. If the blood-suckers at the capital don’t have it, maybe, just maybe, Cuomo won’t let them spend it. But thats probably as much a pipe dream as collecting the tax is in the first place. However I do like Lwoodbluz take on it. We have checkpoints at the entrances/exits to our other “Nation” neighbors, they want soveriegnty then treat them like it!

13. K2
February 3, 2011, 9:28 AM
@ mom of three, if they are a sovereign nation why do they receive state and federal funds.
They can accept our tax dollars but can’t collect taxes on non-natives? It is one or the other not both.

14. From Western New York
February 3, 2011, 10:41 AM
The new tax revenues will NOT be achieved. First off, there is the whole issue of elasticity. People will buy fewer cigarettes. Second there is whole substitution issue. People will seek other, cheap sources. Finally, part of the tax revenue will need to be diverted to pay for unemployment, welfare, WIC, etc. as New York Jobs are killed by the Governor.

15. Robin Hackett
February 3, 2011, 11:02 AM
@From Western New York…you’re right. I already buy my ciggarettes in the states I travel through. I haven’t bought a pack in NY since Patterson’s last luxury tax increase.

16. jimbo
February 3, 2011, 12:55 PM
If the Tribes have to tax non-residents, their cigarette sales will drop like a rock anyway, so the revenue the budget is projecting in new taxes is just an excuse to spend more money they won’t have.
The border patrol checkpoints on the tribal territory boundaries is an interesting idea. I wonder how many state workers they would have to hire to man those stations? They could easily suck up all that extra revenue and create new state worker jobs at the same time. The additional funds would never make it out of the administrative funds necessary to implement it, the unions would look good and a few western state lawmakers would look good come next election……

17. WNYTaxpayer
February 3, 2011, 1:10 PM
All DTF has to do is to subpoena the Merchant Account Processors for the Indian retailors and compare the list of who made purchases with visa, mastercrad, etc. that did not report it on their state income taxes and issue notice of deficiencies to them.

18. can't uc
February 3, 2011, 3:16 PM
If the plan is imposed on the natives to collect taxes on sales to non-natives , it will only create a huge black market making more natives very wealthy.

19. pragmatic
February 3, 2011, 7:26 PM
It is time for Andy to stand up and shut down the indian casinos. Spitzer had the chance but lacked the courage. Lets see if Andy has the guts to stand up to this special interest group

20. John Kane
February 4, 2011, 10:10 AM
We should be clear that the state knows this new law will not generate revenue from Native sales. The intent of the law is to shut off supply to Native retailers of unstamped product. If Native retailers lose their regulatory advantage, Native sales will end. The question is will those sales be made elsewhere and where? The numbers that are being used in this budget are a sham. They are based on past sales and assume that as Native sales are lost that a significant portion of them will become taxed sales. Over the past year Native sales in Western New York have fallen by 80% due to shutting down the US Post Office from delivering remote sales of tobacco. Even without Native sales, the state loses far more than $130 million in revenue leakage to out-of-state sales; this would obviously increase with the loss of Native sales, which by the way still contribute to the NYS economy. Of couse a fair amount of people will just not be able to afford to smoke and while that maybe a good thing from a health standpoint, it certainly does nothing for the state’s budget. The other thing, only lightly touched on by other comments is the price of enforcement. The last time the state did battle with the Indians it cost $23 million per month and that was before troopers were making $100,000 per year. The final point overlooked is the resiliency of Native retailers. They will still find product to sell, with or without New York State wholesalers.

21. John Kane
February 4, 2011, 10:19 AM
Another point that the media refuses to point out is that the state allows everyone in the state to purchase and consume in the state cigarettes without NYS tax applied up to two cartons per consumer. NYS Form CG-15 for Cigarette Use Tax clearly lays out the exemption (http://www.tax.state.ny.us/pdf/2010/altab/cg15i_710.pdf). Apparently, the state’s position is that these untaxed sales can be made anywhere outside New York's jurisdiction except on Native lands.