The Effort Continues to Bring the Floor Tax Issue to the White House

Despite having my legs cut out in the effort I initiated with Congressman Brian Higgins and Senator Kirsten Gillibrand to secure a meeting with a White House advisor by "indirect pressure" from the Seneca Nation, I continue to pursue a meeting with the Senior Policy Advisor on Native American Affairs to the White House. A familiar Native face in Washington, Jodi Gillette has now replaced Kim Teehee, the first to hold such a post.

Things were going well with the legislators until they backed out of working to correct a problem they created by passing the Children's Health Insurance Reauthorization Act. CHIPRA is a law designed to provide health insurance to kids. It was passed back in 2009 and went into effect on April 1 of that year and is funded by a $6.16 increase to the Federal Excise Tax on cigarettes and other tobacco products.

Stuck on the tail end of the law is the Floor Tax. This provision was intended to keep manufacturers, wholesalers and retailers, under the jurisdiction of US commerce laws from stockpiling product in advance of the tax increase for sale after, thereby pulling a one-time tax avoidance maneuver.

Since there has never been a circumstance where the federal government (or the state for that matter) has ever attempted to collect a tax on property, legally purchased, in Native possession and on Native lands, "after-the-fact", we all assumed this provision could not possibly apply to us. Not to mention that most of the businesses involved in the tobacco trade on Native lands at the time were remote retailers or "mail orders" which, by design, didn't even stock an inventory. They simply order from a wholesaler what a customer ordered from them, essentially only ordering what was already sold.

But low and behold, almost three years later, a new tax collecting agency called the Alcohol and Tobacco Trade and Tax Bureau (TTB) went on a tear. Letters started to pour in around Christmas of 2011 and continued into 2012 assessing Native retailers and wholesalers millions of dollars  of "floor tax" for product the TTB BELIEVED was "held" when the clock struck midnight on April Fools Day of 2009. Ironically, many of these assessments were on mail order businesses that had already been killed by the Prevent All Cigarette Trafficking Act (PACT Act) by this time, leaving individuals no longer even in business with this alleged "liability".

The offices of both Higgins and Gillibrand confessed that no consideration was given to the applicability of this law on Native people or Native lands and conceded that the actions of TTB were an "unintended consequence" of the law. A mistake!

The question for the White House is the same put to these two legislators: Did you intend for this precedent to be set and a "new" tax imposed on our sovereign land? We think not and believe Mr. Obama could and should make this go away.

All I asked of Mr Higgins and Ms. Gillibrand was to help with a meeting; to facilitate. By all means write a letter but let's take it up the line to someone who can encourage a tax collection agency to halt their overzealousness and use the broad discretion, that they all have, for pursuing legislative intent instead of interpreting the law in the broadest context possible. But conflicting sentiment within the Seneca Nation of Indians (SNI), which pits the now outgoing president and his loathing of private sector businesses against the brightest spot in the region for economic success (in spite state and federal regs to derail them), caused unnamed underlings, with questionable authority to carry the message to stop all efforts that John Kane had begun.

Before Rob Porter ever became president of the SNI, as a policy advisor, he sent an email out to all SNI officials about an effort to stop the PACT Act. The effort was organized by Seneca businesspersons to protect the mail order tobacco businesses that this act was intended to kill. An attorney from a prestigious law firm put the plan together and asked me if I would be willing to help. In Porter's email he describe the attorney involved as a "white attorney", compared him to a snake oil salesman and mentioned that the plan was to involve "John Kane, a Mohawk and former Ross john employee".

I asked both Ross John and the attorney involved what they thought was worse to Rob, being a white attorney, a snake oil salesman, a Mohawk or a Ross John employee. Neither was too sure. Well, Rob, which is it?

As Rob fades into obscurity, be assured that white lawyers, Ross John and John Kane (a Mohawk) will remain relevant. And with every success we have in pushing back on the state and the federal government, I'll offer a round of Snake Oil.

In the meantime, it's on you, Ms. Gillette. Let's discuss this, not like men but like Ohnkwe Ohnwe, real human beings (real to our past and real to our future). Help your boss, the President, do the right thing. After all this is your job; advise on Native affairs.