As Indianz reported, the TRO has been extended to September 14, on which day there will be an evidentiary hearing (Pre-Hearing Order).
In addition to Cayuga, which intervened in the Seneca suit, and St. Regis Mohawk, Oneida (Oneida Nation complaint in NDNY) and Unkechauge (COMPLAINT – Unkechauge Indian Nation 08 27 10) have filed their own separate complaints alleging substantially the same claims as Seneca.
Mark J. Cowan has published “Anatomy of a State/Tribal Tax Dispute: Legal Formalism, Shifting Incidence, Potatoes, and the Idaho Motor Fuel Tax” in the ATA Journal of Legal Tax Research (pdf).
Here is the abstract:
The law regarding state taxation in Indian country is one of the last bastions of legal formalism in tax law jurisprudence. The ability of a state to tax in Indian country turns on the legal incidence of the tax: in general, a tax on the tribe or tribal members is not allowed; a tax on nonmembers doing business with the tribes or tribal members is allowed. In a world where legal formalism governs and there is no overarching mechanism for reconciling the competing interests of state and tribal governments, state/tribal tax disputes can quickly become contentious. A recent battle between the state of Idaho and the tribes within its borders over fuel tax revenue exemplifies the truculence of state/tribal tax disputes, but also shows that amicable resolution is possible when the courts take small steps away from legal formalism. This article provides an overview of the tax landscape in Indian country and then analyzes the dispute over the Idaho motor fuel tax and what it reveals about resolving state/tribal tax disputes.
Filed around the same time as the Seneca case, but in the Northern District of New York:
From Indianz:
Gov. David Paterson (D) said New York City Mayor Michael Bloomberg (R) made “inappropriate” remarks about the state’s tribes.
Paterson said it was “dangerous” for Bloomberg to suggest a confrontation with tribes over the collection of a tobacco tax. “The state police tell us over and over again that there could be violence and death as a result of some of the measures we’re taking,” Paterson said on WOR-AM.
“So I really feel in this case the mayor’s remarks are inappropriate,” Paterson said.
Paterson still plans on enforcing state taxes on the sale of tobacco to non-Indians. The plan goes into effect on September 1.
“I’m going to maintain this policy because we are not interfering with their treaties. We are leveling the playing field for our commercial establishments right here in New York State who are being gouged because what the Indians are doing by selling cigarettes tax free on their property,” Paterson said.
Bloomberg had told Paterson to “get yourself a cowboy hat and a shotgun” in order to deal with tribes.
The complaint is here.
Additional materials here:
Memorandum of Law in Support of Motion for PI and TRO
Declaration of Robert Odawi Porter
Declaration of Jonathan Taylor w Exhibits
Declaration of James Driscoll-Maceachron
Driscoll-Maceachron Decl. Ex. A
Driscoll-Maceachron Decl. Ex. B
Driscoll-Maceachron Decl. Ex. C
Driscoll-Maceachron Decl. Ex. D
Updated 8/24: Order Granting Motion to Expedite
Referenced in this press release here.
Here:
Lower court materials here.
Questions presented:
I. Whether the New York State Court of Appeals in its 4-3 decision in Cayuga Indian Nation of New York v. Gould, 14 N.Y.3d 614 (2010), properly interpreted federal law on a matter it believed the United States Supreme Court had not yet addressed in holding that two parcels of land purchased by a successor to the historic Cayuga Indian Nation in 2003 and 2005 were exempt from New York’s cigarette sales and excise taxes after two hundred years of non-Indian ownership and governance.
II. Whether in that decision the New York Court of Appeals properly held both that (i) the Cayuga Indian Nation possessed a federal reservation pursuant to the 1794 Treaty of Canandaigua despite the fact that the Cayuga Indian Nation had ceded all of its land to New York State in 1789; and (ii) the United States did not subsequently disestablish any purported federal reservation.
When it rains, it pours, and it’s a veritable hurricane in New York right now.
Here is an update in Red Earth LLC v. United States (W.D. N.Y.) (news article here, via Pechanga):
USA Opposition to Motion for PI
The TRO materials are here.
Here: Seminole Tribe brief.
Opening brief here.
Turtle Talk 
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