New York Appellate Division Concludes State Cannot Tax Unstamped Smokes Confiscated During an Illegal Search by Police

Here is the opinion in In the Matter of White v. State of New York Tax Appeals Tribunal (N.Y. A.D.):


N.Y. Appellate Division Recognizes Unkechaug Nation Land Assignment

Here is the opinion in Unkechaug Indian Nation v. Treadwell.

An excerpt:

When acting within its territorial boundaries and with respect to internal matters, an Indian Nation retains the sovereignty it enjoyed prior to the adoption of the United States Constitution except to the extent that its sovereignty has been abrogated or curtailed by Congress (see Montana v United States, 450 US 544, 564; United States v Kagama, 118 US 375, 381-382; Cayuga Nation v Campbell, 34 NY3d 282, 291, 293). As such, “tribes possess the common-law immunity traditionally enjoyed by sovereign powers” (Oneida Indian Nation v Phillips, 981 F3d 157, 170 [2d Cir]). As the Supreme Court correctly determined in the May 1, 2019 order, in seeking a declaration with respect to Curtis’s right to occupy the disputed portion of the subject property, the Nation waived its sovereign immunity as to that issue (see Rupp v Omaha Indian Tribe, 45 F3d 1241, 1244 [8th Cir] ; Cayuga Indian Nation of New York v Seneca County, New York, 260 F Supp 3d 290, 299 [WD NY]). However, “a waiver of sovereign immunity cannot, on its own, extend a court’s subject matter jurisdiction” (Oneida Indian Nation v Phillips, 981 F3d at 171), and “[w]aivers of [sovereignty] are to be strictly construed in favor of the Tribe” (Wells Fargo Bank, N.A. v Chukchansi Economic Dev. Auth., 118 AD3d 550, 551 [internal quotation marks omitted]; see Sue/Perior Concrete & Paving, Inc. v Seneca Gaming Corp., 99 AD3d 1203, 1204).

Because of the retained sovereignty of Indian Nations, the subject matter jurisdiction of state courts “must be predicated on explicit authorization from Congress to address matters of tribal self-government” (Cayuga Nation v Campbell, 34 NY3d at 292). Moreover, the courts of this State have rejected the “paternalistic view” that Indian Nations within its borders are “disadvantaged” by their “inability to rely on New York courts” to determine internal disputes, since “the use of dispute resolution mechanisms other than courts is itself an exercise of the right to self-govern in a manner consistent with tribal traditions and oral law” (id. at 296; see Cayuga Nation v Tanner, 824 F3d 321, 327 [2d Cir]). Thus, “‘when it comes to Indian affairs, state courts are courts of limited jurisdiction'” (Cayuga Nation v Campbell, 34 NY3d at 296, quoting Bowen v Doyle, 880 FSupp 99, 114 [WD NY], affd 230 F3d 525 [2d Cir]).

New York Appellate Division Vacates Money Judgment against Unkechaug Indian Nation

Here is the opinion in Aron Security Inc. v. Unkechaug Indian Nation (N.Y.A.D.):

Aron Security v. Unkechauge

An excerpt:

The plaintiff security company entered into a services contract with the defendant, the Unkechaug Indian Nation. Upon the defendant’s alleged failure to pay sums due under the contract, the plaintiff commenced this action, inter alia, to recover damages for breach of contract. After obtaining a judgment in its favor and against the defendant, entered May 22, 2014, the plaintiff served an information subpoena on nonparty Michelle Jackson, a signatory to the contract on the defendant’s behalf, in an effort to collect on the judgment. Jackson did not respond and the plaintiff moved, inter alia, to hold Jackson in contempt. The defendant then moved to dismiss the action for lack of subject matter jurisdiction, asserting that as an Indian tribe, it possessed sovereign immunity from suit. The Supreme Court denied the defendant’s motion and denied the plaintiff’s motion with leave to renew.

N.Y. Appellate Division Affirms Legality of Gaming Compacts

Here is the opinion in Schulz v. State of New York Executive:


An excerpt:

The Gaming Act, among other things, provided a statutory framework for regulating casino gambling within the state and effectuated three agreements entered into between the state and the Oneida Indian Nation, the Seneca Nation of Indians and the St. Regis Mohawk Tribe (hereinafter collectively referred to as the Indian Nations). Those agreements generally provided that the state would grant the Indian Nations exclusive gaming rights within their respective geographic areas in exchange for a percentage of the gaming revenues and/or support for the then proposed casino gambling referendum, which was passed by the voters at the November 2013 general election.

New York Appellate Division Refuses to Disturb Injunction in Chukchansi Leadership Dispute

Here is the opinion in Wells Fargo Bank NA v. Chukchansi Economic Development
Authority (N.Y. A.D.):

Wells Fargo v Chukchansi

An excerpt:

Appellants contend that defendants-respondents Nancy Ayala, Karen Wynn, Charles Sargosa, and Tracy Brechbuehl (the Ayala faction or the individual Ayala defendants) do not enjoy sovereign immunity because their actions were illegal and not performed in an official capacity. However, to decide whether the Ayala faction’s actions were illegal, a court would have to determine whether the Ayala faction was the legitimate Tribal Council; this it may not do (see Sac & Fox, 340 F3d at 767).


Wells Fargo Brief

Chukchansi Brief (Marsten)

Chukchansi Brief (Rosette)

Lower court materials here, here, and here.

New York Appellate Court Rules in Favor of Indian Cigarette Shipper on Procedural Issue

Here is the opinion in People v. Laughing.

An excerpt:

At the time the instant charge was lodged against defendant, and at present, the taxability by New York of Native American manufactured cigarettes under the circumstances at play here lacked clarity. It is undisputed that the Department had a forbearance enforcement policy with respect to Native American manufactured cigarettes that are transported between reservations. Furthermore, defendant asserts that, when faced with decisions regarding the applicability and enforcement of the Tax Law to various situations involving the possession or transportation of Native American manufactured cigarettes, the Division almost uniformly deferred to the expertise of the Department and the primacy of its dealings with the Indian nations. While there can be no question that “it is the prerogative of a District Attorney to prosecute people who commit crimes,” it is equally true that “one of the reforms effected through the years in the procedure to dismiss accusatory instruments in the interest of justice was to remove the power to do so from the offices of District Attorney and Attorney–General and lodge it, instead, in the courts alone” (People v. Rickert, 58 N.Y.2d 122, 131 [1983] ). To be sure, the policy of the Department and the issues surrounding the Division’s actual enforcement of the Tax Law with respect to Native American manufactured cigarettes may very well be found insufficient to justify dismissal of the indictment in the interest of justice. Yet, we simply cannot say that the testimony sought on those issues “is utterly irrelevant” to the question of whether defendant’s prosecution here would be unjust[.]

NY Appellate Division Affirms NY State Police Authority to Confiscate HCI Smokes

Here is the opinion in HCI Distribution Inc. v. New York State Police Troop B Commander (N.Y. A.D.), reversing the lower court:

HCI v NY State Police

Lower court materials here.