Here is the order:
Prior materials here, here, and here.
Poospatuck Indian Nation
Corrected Opinion in City of New York v. Golden Feather
Federal Court Finds Unkechauge Reservation Smoke Shops Liable for Violations of Federal Law in City of New York v. Golden Feather Smoke Shop
Here are the materials:
Remaining Defendants’ Cross-Motion
An excerpt:
For the reasons below, the Court grants the City summary judgment as to defendants’ liability under the CCTA and the CMSA. With respect to relief, the Court (1) grants the requested permanent injunction against defendants’ “purchase, receipt, possession, sale, distribution, offer and advertisement of unstamped cigarettes-even to tribe members for personal use”; (2) awards damages as against the Peace Pipe and TDM defendants; (3) awards civil penalties as against the Red Dot defendants, the amount of which will be determined at a later hearing; and (4) awards the City attorney’s fees, the amount of which will be determined in the first instance by Magistrate Judge Vera Scanlon by report and recommendation.
And the bad news (liability):
For the reasons stated, the Court concludes the following: As to defendant Phillips, the City is directed to clarify whether it is still seeking monetary relief against him, and if so, to submit further damages briefing that identifies the amounts the City is seeking against Phillips only. As to the Peace Pipe, TDM, and Red Dot defendants, the Court finds that the City is entitled to summary judgment on (1) defendants’ liability under the CCTA and the CMSA, and (2) its requested permanent injunction against defendants’ “purchase, receipt, possession, sale, distribution, offer and advertisement of unstamped cigarettes-even to tribe members for personal use.” In addition, the Court awards to the City (1) damages in the amount of $10,041,075 as against the Peace Pipe defendants and $450,000 as against the TDM defendants; (2) civil penalties as against the Red Dot defendants, the amount of which will be determined at a later hearing; and (3) attorney’s fees, the amount of which will be determined in the first instance by Magistrate Judge Scanlon by report and recommendation.
Second Circuit Certifies Questions of Indian Taxation to N.Y. Court of Appeals
Here is the opinion in City of New York v. Golden Feather Smokeshop: City of New York v Golden Feather
Here are the questions certified:
(1) Does N.Y. Tax Law § 471-e, either by itself or in combination with the provisions of § 471, impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation’s nation or tribe?
(2) If the answer to Question 1 is “no,” does N.Y. Tax Law § 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation’s nation or tribe?
City of New York v. Golden Feather — Update
As Indianz reported, the Eastern District of New York delayed ruling on the City’s motion for a preliminary injunction and rejected a sovereign immunity from the smokeshops. Here is the order — march-16-dct-order
Here is our earlier post that includes the complaint.
NYTs on NYC v. Poospatuck Smokeshops
From the NYTs:
Bootleg cigarette traffic from Long Island’s tiny Poospatuck reservation to New York City is brisk, so much so that some cigarette dealers on the reservation don’t even bother to set up storefronts, according to a motion filed in federal court on Tuesday.
Instead, the dealers take telephone orders for bulk shipments of untaxed cigarettes. Millions of them are delivered to the city by van and distributed through an underground network that dramatically undercuts tax collection, the city alleged.
The Bloomberg administration asked a federal judge in Brooklyn to bar the reservation’s eight largest dealers from selling untaxed cigarettes to the public. Those dealers, named as defendants in a federal lawsuit filed by the city last month, control 95 percent of the sales on the reservation, the city said.
Officials estimate that untaxed cigarette sales by the eight dealers have cut city revenues by nearly $195 million a year, an amount the city can ill afford during a financial crisis. In addition, bootleg cigarette traffic undermines a Bloomberg administration anti-smoking campaign.
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.
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.
Spota v. Jackson (NY Ct. App.) — “Intruders” under NY Indian Law
In Spota v. Jackson, the New York Court of Appeals (Kaye, C.J.) held that state courts have no business deciding who is an “intruder” as contemplated by the New York Indian Law. This case involves the tribal power to exclude, arising ot of a dispute on an individual allotment of a member of the Unkechaug Indian Nation (or Poospatuck).
Turtle Talk 