Native American Cigarette Industry is Being Crushed

Through it all, NYC and NYS assert that Poospatuck is little more than a weigh station for cheap, untaxed and unstamped cigarettes that are being sold in massive quantities off the reservation. The state, during the waning days of the Cuomo administration, crafted legislation to establish a couponing system that would track these sales and require reservations to pay taxes on all cigarettes sold to non-native customers. Any cigarettes sold to enrolled members of the tribe would be exempt from the tax. The New York tribes were up in arms, having not been consulted on the matter, and argued that any law passed by a foreign government such as New York that is not recognized and adopted by the tribes themselves is unenforceable.

The Pataki administration attempted to enforce the regulations, known as 471-e, in 1992 and 1997. Both attempts were met with angry throngs of organized and armed Indians who blockaded the NYS Thruway, held up traffic and burned tires in protest, ending in a standoff with state troopers. Wishing to avoid further conflict, the Pataki administration instituted a policy of forbearance, which basically acknowledges that although New York deems the law to be valid, without tribal consent there is no clear and official method of enforcement, and the issue was dropped.

Desperate to close a rapidly expanding budget deficit yet anxious to avoid similar conflict, NYS Gov. David Paterson sent a letter last September to the U.S. Attorney’s Office, inquiring as to the level of support NYS could expect if it decided to pursue visiting a coupon program on Indian reservations.

It was the last line of the letter, which was leaked almost immediately, that provoked strong interest in several channels and brought the debate back to the front lines. In it, Paterson wrote: “I would be grateful if you would please review this matter and provide me with your assessment as to the likelihood of violence and civil unrest should the Tax Department begin the implementation of Tax Law 471-e. Furthermore, I would appreciate your operational commitment to help mitigate any disturbances that might occur in each of your Districts if implementation were to occur.”

Tribes throughout New York saw this as a shot across the bow and all eyes shifted to the Seneca Nation.

With the state running out of money, Mayor Bloomberg on the offensive in court and unrest among the tribes, the state legislature turned its focus to the tribes’ booming cigarette trade. In October 2009, the Senate Standing Committee on Investigations chaired by NYS Sen. Craig Johnson (D-Nassau) held a hearing to determine the extent of the loss in tax revenue to New York. In a spirited session before a packed room of Indians from nations across New York, the panel attempted to nail down an answer, which proved to be nearly impossible.

New York City Mayor Michael Bloomberg has been at the forefront of the war on the native tax trade in New York. (AP Photo/Bebeto Matthews)

According to the testimony of William J. Comiskey, the deputy commissioner in the Office of Tax Enforcement, the department estimates “that if all cigarette transactions conducted through Native American merchants with non-Indians were properly taxed, New York would collect additional state revenue of approximately $220 million. Because complete compliance is not likely, the actual number achievable would be less.”

Eric Proshansky, from the Corporation Counsel of the City of New York, zeroes in on the Poospatuck Reservation in his testimony claiming that the deliveries to Poospatuck “amounted to a $155 million tax loss in 2007 alone, for the State alone.” He then concluded that “if those cartons replaced sales in the City, as the evidenced proved that many of them did, that amounts to City tax loss of up to another $155 million in 2007 alone.”

Steve Rosenthal, former tobacco retailer and frequent testifier at tobacco hearings, estimated the annual loss of tax revenue to NYS to be approximately $1.6 billion.

For his part, Proshansky is largely critical of the Paterson administration, stating that the “failure of the State of New York to enforce the laws with respect to reservation sales is directly responsible for the loss of many billions of dollars that rightfully should have gone into the public treasury.” He went on to say that, “It hardly seems like good public policy to leave so much lawful tax money in the pockets of bootleggers.”

Richard Nephew of the Seneca Foreign Relations Committee dismisses the city’s claims altogether. “Long before the Indians started selling cigarettes there was a black market of cigarettes heading into New York City,” Nephew tells the Press. “They’re just utilizing us as scapegoats.”

Yet with all of the talk about numbers of cartons and billions of dollars lost to reservations, the city and state are reluctant to talk about how much is lost to bordering states and states as far away as North Carolina due to lower state tax penalties. For all of the attention that focuses on Indian reservations there is no discussion of requiring other states to curb the sale of tobacco to New York residents. Theoretically, if it abided by the same regulation, it is attempting to pass with respect to Indian reservations, then NYS should be sending state troopers into Pennsylvania demanding the records of all tobacco transactions to New Yorkers and payment thereof. This, of course, is never going to happen.

Up In Smoke?

The hearing began to head down a slippery slope when the panel brought JC Seneca, Tribal Councillor for Seneca Nation, up to testify. During the question and answer period, NYS Sen. Martin Golden (R-Brooklyn) said it was only fair that the New York tribes share the burden of the financial crisis, sending the crowd and the Seneca members into a frenzy. Sensing the growing anger of the attendees and referencing the conflicts during the Pataki years, Golden tried to strike a conciliatory note with JC Seneca, saying he didn’t seem like the type of person that would resort to violence. Seneca simply replied, “Then you don’t know me very well.”