This case involves a Coeur d’Alene Tribe member who violated the federal Contraband Cigarette Trafficking Act.
taxation
Oklahoma v. Native Wholesale Supply: Smokeshop Case Remanded to State Court
The Western District of Oklahoma granted the State of Oklahoma’s motion to remand an Indian taxation case back to state court after the tribally owned business removed the case to federal court. Ah, the well-pleaded complaint rule, not one of my favorites.
native-wholesale-supply-notice-of-removal
NYTs Editorial on NYC Suit Against Long Island Smokeshops
From the NYTs:
Mayor Michael Bloomberg, long a foe of smoking, has taken his opposition to a new territory — the American Indian shops on Long Island that sell cigarettes to non-Indians. By filing a series of federal lawsuits, the mayor is trying to force Gov. David Paterson to collect sales taxes on those cigarettes.
It’s not a welcome subject in New York politics. Former Gov. George Pataki tried collecting cigarette and gas taxes from Indian shops 11 years ago, but he backed away soon after protesters, burning automobile tires, closed Interstate 81 for more than 90 minutes.
States and cities cannot impose taxes on American Indians who buy cigarettes for personal use on sovereign Indian land. But non-Indians are not entitled to a similar break. Mr. Bloomberg has filed suit accusing some cigarette shops on Indian land of selling cigarettes in bulk to bootleggers who then resell them off tribal land. That is illegal in New York State; Mr. Bloomberg is trying to compel Mr. Paterson to enforce the law.
No Divided Argument in Carcieri v. Kempthorne
The Supreme Court released its other orders from last Monday’s long conference.
The motion of petitioners Donald L. Carcieri, Governor of Rhode Island, and the State of Rhode Island for divided argument is denied. The motion of petitioner Town of Charlestown for divided argument is denied. The motion of Narragansett Indian Tribe for leave to participate in oral argument as amicus curiae and for divided argument is denied.
So I assume the State will let Ted Olson on behalf of the governor argue the case against Ed Kneedler on the government’s side.
Here are the cert denials:
Baylake Bank v. TCGC & Village of Hobart — Covenant Against Tribal Ownership of Land
In a very interesting, even disturbing, development, the Village of Hobart, which has taken lands of the Oneida Indian Nation of Wisconsin through the power of eminent domain (Oneida v. Hobart), has now begun to use restrictive convenants running with the land to thwart the Nation. Here is the district court opinion upholding the restriction (from the same judge who found that the Village had the power of eminent domain against the tribe).
In this case, the Village sold a golf course to TCGC, which later went bankrupt. During bankruptcy, the village asserted its rights under a restrictive covenant that ran with the land. The covenant, added to the property when the Village sold it, prevents any owner (especially a sovereign nation like Oneida) from taking the land off the property rolls. It is clear from the opinion that the Village of Hobart did this expressly to deny the Oneida Indian Nation the right to seek a fee-to-trust acquisition by the Secretary under 25 U.S.C. 465.
We suggest that Shelley v. Kraemer and/or the 14th Amendment precludes such covenants, but it is a close question.
City of New York v. Golden Feather et al. Complaint
Here is the complaint filed this week in the City of New York’s attempt to extract taxes from Poospatuck Indian Country.
nyc-v-golden-feather-complaint
Thanks to T.
NYTs: New York Complains about Tribal Smokeshops
From the NYTs:
He emerged from the No. 2 subway at 125th Street wearing a bright orange shirt and aviator sunglasses, with a small backpack concealing his stock in trade — tax-free Newport cigarettes.
Like a Yankee Stadium hawker, but in voice closer to a stage whisper, he kept repeating his pitch: “Newports. Loosies. Shorts. Longs.”
His name is Paco, but on the streets of Harlem he is known simply as a “$5 man,” the nickname for a highly visible network of peddlers who sell bootleg cigarettes. His illegal traffic in Newports — $5 a pack or a single “loosie” cigarette for 50 cents — can bring him $100 or more a day.
Paco will not reveal his last name or the source of his Newports, the menthol brand widely popular in urban communities. But legal authorities say the trail of the $5 men leads to American Indian reservations in New York State, a path they contend is smoothed by the tacit cooperation of some cigarette makers and distributors.
NYTs: Poospatuck Smokeshops Sued by NYC
From the NYTs:
Plunging headfirst into a delicate issue that has long bedeviled New York State and Long Island’s Indian tribes, Mayor Michael R. Bloomberg criticized Gov. David A. Paterson on Monday for not enforcing cigarette tax laws, which the mayor estimated had deprived the city of up to $195 million a year in revenue.
Residents of Indian reservations — like the 50-acre Poospatuck reservation in Mastic — are entitled to buy cigarettes tax free for their own use.
But in a federal lawsuit filed on Monday, the Bloomberg administration accused eight stores on the reservation in Suffolk County of breaking state and federal law by selling cigarettes in bulk to bootleggers. The bootleggers, the lawsuit said, then shipped the cigarettes into the city.
Tribal Law Cannot Preempt Federal Criminal Laws in Smokeshop Case
The Ninth Circuit held in an unpublished opinion, United States v. Mahoney-Meyer (here), that compliance with tribal law cannot excuse a violation of federal cigarette trafficking laws.
First Circuit Affirms Jury Verdict Against Narragansett Members over Smokeshop Injuries
The First Circuit affirmed the jury verdict, and the trial judge’s instructions to it, against the seven members of the Narragansett who were injured by Rhode Island police officers during the notorious smokeshop raid several years ago.
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