November 25th Podcast Update

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1. 
   Publius

   November 25, 2009

   Just about everything J. C. Seneca (Nov. 25) said about the state’s ability to collect taxes on reservation tobacco sales was factually wrong. Whether the state SHOULD collect taxes on reservation sales, I leave for others, but for good or ill, the law is clear that the state legally CAN collect if it does it the right way. In 1994 the U.S. Supreme Court held in the Attea case that NY could collect taxes if it did it off-reservation and if members of the reservation weren’t taxed. It approved a system by which taxes are collected from wholesalers, and it’s then up to the wholesalers to pass this along to the on-reservation sellers (this means that the state is not directly taxing individual sales). So long as refund coupons are issued by the state to tribal members for refunds for taxes passed on to them, it’s OK. Understand that this is clear, there’s no argument; if the state follows the procedure set out in Attea, it’s not a violation of tribal rights, despite what Mr. Seneca said.

   Mr. Seneca also mentioned treaties in general, particularly the 1842 Treaty of Buffalo Creek, claiming that the Senecas have an immunity that other tribes don’t have. Given all the litigation that’s gone over the years, are you wondering why this hasn’t been decided by a court? Well, it has. Two state appellate court decisions, Snyder (as it happens, Barry Snyder, now President of the Seneca Nation but suing in his capacity of owner of a smoke shop) and Bramhall (dealing with untaxed motor fuel, but the principles are the same) have clearly held that Buffalo Creek does not say what the Senecas say.

   The issue hasn’t been decided (yet) in federal courts, at least not directly. In the Attea case the Seneca Nation, which wasn’t a party to the case, filed a friend-of-the-court brief supporting Attea, arguing the Treaty of Buffalo Creek. The US Dept. of Justice also filed a brief on the side of the Indians, but on the Buffalo Creek issue (and keep in mind, it was the United States, not New York, that was on the other side of that treaty) the US disagreed with the Senecas’ interpretation. In the end the court ruled for the state, and while it didn’t directly address the treaty issue (it didn’t have to, since the Seneca Nation wasn’t a party), obviously it implicitly rejected the argument. Since then, despite all the litigation that’s gone on, the Seneca Nation has never raised this argument in federal court. What does this tell you?

   Incidentally, Mr. Seneca was right in complaining about the Kinzua dam issue (when the US took part of the reservation for a reservoir), but he’s wrong in blaming New York. That was a federal action, period (in fact, the dam that flooded Seneca land is in Pennsylvania).

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