Native American Cigarette Industry is Being Crushed

Not wanting to agitate the situation further during the hearing, the committee members turned their attention to the governor’s representative. But Peter Kiernan, counsel to Governor Paterson, refused to take the bait when pressed aggressively by the committee. Reluctant to engage either the legislature or the tribes present, Kiernan offered testimony that included language like: “A US dollar spent on an Indian reservation in New York is a dollar put into motion in the New York State economy. Every time that dollar is re-spent or invested is good for New York.”

But with Gov. Paterson barely holding onto his office, there is blood in the water. On March 2, NYS Sen. Carl Kruger (D-Brooklyn) called for full compliance and the revocation of the forbearance policy and went as far as to call Gov. Paterson “a willing and active partner in a longstanding travesty that has hurt legitimate businesses and robbed billions from our state.”

In a statement issued exclusively to the Press, Seneca’s Richard Nephew fired back, saying: “It should occur to some that we are heading into an important election year for New York State politicians. I believe this is largely politics being played out for the public. Paterson, Klein, Kruger, Golden and others may be blowing their own brand of smoke, engaging in political theatrics against the backdrop of New York’s economic crisis.”

Perhaps in an effort to show strength during a troubled time, Gov. Paterson reversed his stance in recent weeks, proposing a new set of regulations that would essentially choke the supply to reservations located in New York.

Included in the regulations are exact calculations for how many cigarettes would be allowed to be delivered to reservations from certain state-approved wholesalers. The law calculates Poospatuck, for example, would only be allowed to take delivery of 8,100 packs of cigarettes every quarter. The calculations are based upon the number of enrolled members each tribe reports and the theoretical consumption on Indians who live on the reservation. Sales of any other tobacco in the state that is not through these approved retailers would be strictly prohibited and the manufacturers would then bear the burden and risk losing the ability to do business in New York.

This proposal is currently in the public comment period and will most likely be met with several reservation-based challenges for the courts to untangle once again. But in a state with as many problems as New York right now, these efforts are child’s play compared to what is taking place on the federal level.

Gods and Generals

There is impending doom for the tribes in federal legislation that seeks to curtail the growing Indian cigarette trade, known as Prevent All Cigarette Trafficking Act of 2009 (PACT). It’s an act that has the support of almost every sitting politician in America today. The act itself would prevent retailers from mailing cigarettes purchased by catalog or on the Internet through the U.S. Postal Service (USPS). Private delivery services such as United Parcel Service and Federal Express already have voluntary bans in place to prevent bulk mail order purchases of tobacco, but the USPS operates under no such agreement. Cancer organizations and elected officials are supporting PACT for the obvious reason of protecting public health by cutting off part of the cigarette supply chain, but there is another unlikely supporter of this bill: Big Tobacco.

The growing cigarette trade on tribal lands was never much of a concern to the multi-billion dollar tobacco industry until Native American retailers began manufacturing and promoting native-owned brands. Brands such as King Mountain and Seneca (unrelated to the tribe) have gained a tremendous following and begun encroaching on Philip Morris’ territory by gaining market share. This phenomenon has turned the relationship between Big Tobacco and Indian smoke shops on its ear. As the tobacco industry and US government combine efforts to attack Indian cigarette sales, the dispute between Big Tobacco and Indian Country grows by the day. Wallace has already banned all Philip Morris products and claims to have felt only a minimal impact to his gross sales.

As this relationship erodes, Philip Morris has ratcheted up its lobbying effort to support the government ban on shipping cigarettes through the mail. It’s a stance that on the surface seems confusing, but the tobacco industry is no stranger to the upside of paradox.

One of the most notable examples was the effect of the cigarette advertising ban on television and radio imposed in 1970. Due to the ban on broadcast advertising, the major tobacco companies at the top of the industry were able to protect their positions because a new entrant to the market was unable to effectively advertise its brand to a broad audience. Indeed, the advertising ban has contributed to freezing these positions in a time capsule with companies such as R.J. Reynolds (Camel), Lorillard (Newport) and worldwide leader Philip Morris (Marlboro) maintaining levels of market share domestically.

A more recent example was in 1998 when it appeared as though Big Tobacco might be dealt a significant blow. Under pressure from several states with massive pending lawsuits against them, Big Tobacco entered into a landmark agreement known as the Master Settlement Agreement (MSA). Under the terms of the deal, the tobacco companies would fork over $200 billion over a 20-year period to 46 states that enjoined in an action against the major tobacco companies. The states who received this money were then supposed to put the funds to good use toward health care and anti-smoking initiatives. In return, the tobacco companies would be indemnified from future claims against them.

Instead of Big Tobacco’s wallet being negatively impacted by the MSA, the opposite occurred, with the tobacco manufacturers simply hiking the base price of cigarettes to a level that covered the payments to the states while receiving full indemnification against future claims.

Big Tobacco’s ability to display contrition and a willingness to address public health concerns while reaping huge rewards as a result of this behavior provides a useful context in which to understand its support of the PACT Act. The only businesses affected by the ban on cigarettes in the mail are the native retailers who have exploited the tax disparity issue and reinvested into native-owned brands. By targeting this methodology, Big Tobacco gives the appearance of cooperating with the government, showing a concern for public health and eliminating competition for market share.

Native American entrepreneurs in turn became victims of their own success.