New York Supreme Court Orders the NYS Police and St. Lawrence County DA to "return, immediately, any and all property seized" from HCI Distribution

 On Monday, June 18, 2012, New York State Supreme Court Justice, David Demarist ordered the return of  26,160 cartons of unstamped/untaxed cigarettes and cigars as well as 72 bags of loose tobacco seized by State Police from Ho-Chunk, Inc. of Nebraska. back in January. 

Demarist's decision read:

"In light of the lack of any legal authority for the seizure herein, it is the Decision of this Court, and it is hereby,

ORDERED, that the Respodents return, immediately, any and all property seized."

The decision is good and it is good to see an unlawful seizure overturned but there are a few things not addressed in the decision.

First, there is no action taken against the St. Lawrence County District Attorney for unlawfully tying up almost $2 million in product for 6 months.

Nor does the decision address the cost of the seizure as it relates to the added cost of transportation, legal costs or the possible expiration of the freshness of the product.

The Judge clearly rules that the State has no authority to seize unstamped product being transported from a Native territory within the State to a location outside the State. But HCI should not have conceded in their argument that:

 "It is well established, and not contested by the Petitioner, that the State has the ability to tax on-reservation sales of cigarettes to non-members of an Indian tribe".

 Attea, Moe, Colville and Potawatomi all draw a distinction on the state's authority to tax products that "Indians" add value to as opposed to just reselling non-native manufactured products.

"The specific kind of state tax obligation that New York's regulations are designed to enforce--which falls on non Indian purchasers of goods that are merely retailed on a reservation--stands on a markedly different footing from a tax imposed directly on Indian traders, on enrolled tribal members or tribal organizations, or on "value generated on the reservation by activities involving the Tribes," Colville, 447 U. S., at 156-157. Moe, Colville and Potawatomi." (From the Stevens opinion on Attea).

This is basically drawing a distinction from simply retailing a non-native product to non-native purchasers to avoid tax collection and selling a Native made product without tax. Even their courts consistently acknowledges the latter is not taxable.

Native manufactured brands are not "merely retailed on a reservation". They are developed, branded, manufactured, marketed, distributed and available, for the most part, exclusively on Native lands. They are often connected in name or design to our people as well. This distinction also separates taxing an Indian trader directly from the body of law that the states rely on to interfere with Native commerce. 

At some point someone has to be bold and brave enough to assert our rights specifically and defend Native to Native trade. That didn't quite happen here. While I acknowledge the risks in providing the courts an opportunity create a precedent in ruling against the rights to trade Native to Native and Territory to Territory, I can't ignore the glaring concession made on the state's right to tax sales on Native lands.

The decision can be found at: http://64.38.12.138/News/2012/06/20/hci061812.pdf