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Thursday May 15 6:18 PM EDT
United Press International

BUFFALO, N.Y., May 15 (UPI) _ A state Sumpreme Court judge says New York state went beyond its bounds when it seized shipments of gasoline and heating oil to enforce its embargo of the Seneca Nation reservations.

The six-week embargo was meant to stop cigarettes and petroleum being sold tax-free to non-natives, and sparked heated demonstrations that sometimes shut down state roads.

New York State Supreme Judge Rose Sconiers ruled Thursday the state commissioner of taxation and finance went beyond his authority to seize shipments of gasoline and heating oil destined for the two reservations of the Seneca Nation in western New York.

The attorney for the Indians, Joe Crangle, told reporters the victory is the most satisfying of his career.

The embargo started on April 1 after New York Governor George Pataki tried to persuade Indians to raise the prices of their tax-exempt goods. Businesses near the reservations were unhappy because they were losing business to the Indians.

The Senecas never agreed, and held several demonstrations against the embargo over the last six weeks in which led a number of Indians and State police were injured. The Indians also shut down a number of highways that crossed the reserves, including the state Thruway, by setting old tires on fire.

I now have a copy of the "final order and judgment" issued by the Hon. Rose H. Sconiers, State of New York Supreme Court, Erie County.

It is the summation of the decision handed down by the Hon. Judge Rose Sconiers, J.S.C., and finds for the Respondents.

The decision against New York State Taxation Dept. was rendered by the NYS Supreme Court in Erie County. While this is not the highest court in NYS [SISIS note: see later on this page for explanation], it is binding on the State and it will give the Seneca Nation and others time to prepare for the next 'go-round'. The State is expected to appeal the decision to the Appellate Court, but this will buy about 6 months of time.

The State must release any vehicles and product that it has seized in this matter.

The State must remove the police blockade of the Reservations and is enjoined from further police blockades of the Reservations.

The State is enjoined from further forcing any Indian nation to enter into "Indian Agreements". Declaring said agreements to be beyond the State Tax Dept. authority, ultra vires and unlawful, unlawful ursurpation of legislative power, illegal and unenforceable.

The State is restrained and enjoined from enforcement of the Tax Law and Regulations.............in reference to the sale of retail product and commerce with Indian merchants at the Seneca Nation.

The NYS Supreme Court, Erie County, retains jurisdiction of this matter.

Index No. 97/3152
Action No. 2

original memorandum decision
Index No. 97/3151
Action No. 1
Index No. 97/3152
Action No. 2

pg. 08: "This court must assume, therefore, that during this time State Officers have been wrestling with the collective conscience of this State in the realization, that while Judicial authority, by declaring valid those taxing statutes designed to capture taxes before the retail product reaches Reservation lands, has thereby provided a narrowing construction of the scope and reach of Indian Treaties, that, at the least, the spirit of those Treaties is nonetheless violated. Hence, in declaring its intent to enforce tax regulations upon shipments to Indian Reservation retailors, Petitioner, with one hand, has called upon its police and plenary power to enforce a virtual blockade upon roads leading to Reservation land, while extending the other hand in compromise. A compromise which, interestingly, now offers a waiver of enforcement of these tax statues to select Indian merchants, whose Tribal leaders have entered into 'Indian Agreements', so long as they agree not to sell gasoline, to raise prices on other products (pricipally cigarettes) to parity with neighboring non-Indian retailers, and to pass the tax saving differential on to the Reservation as a whole. (See: State Tax Dept. Notice, enumerated N-97-4 and titled 'Indian Agreements', issued April '97.)"

pg. 09: "It is thus clear, even to the casual observor, that the real interest underlying this recent extrodinary showing of the States police powers, is the desire, not to collect taxes, but rather to advance the commercial interest of 'retail parity' and thereby defeat the previous competative advantage of Reservation sales."

"This Court is, therefore, struck by how little has changed for the Indian over the last century and a half and believes that to the Indian Respondents herein, it owes a responsibility of more than a simple review of the applicable authority cited by Petitioner and must, at the very minimum, acknowledge the underlying inequities of which they complain."

pg.10: "...Does not this 'Indian Agreement' impose through economic coersion, a change in the cultural fabric of Reservation Indians by permitting tax free status to only certain designated Tribal members and mandating a socialistic sharing of certain benefits?...."

"...Here, however, rather than applying its taxing powers uniformly over its citizens, this Court believes, that the Petitioner, without Legislative authority to do so, has arbitrarly forfited its very taxing power to commercial interests and to select Indians, in favor of the imposition of something so nebulous as 'retail parity'....

pg.11: "Indeed, this venture by Petitioner, into the realm of price parity or price regulation is otherwise improper without Legislative enactments..."

"Petitioners actions, in pressing this 'Indian Agreement', are thus found to be beyond its deligated authority, ultra vires and unlawful."

"Accordingly, these "Indian Agreements" are found to be an unlawful usurption of legislative power, illegial and unenforceable."

pg.12: "..., it is directed to remove and is further restrained from implementing that leval of police enforcement necessary to carry out the blockading of the Cattaraugus Reservation lands and the interception of product distributors bound for Indian Retailers thereon."

NY state's Court of Appeals is the highest court in NY. Most other state courts' supreme courts are the highest. This case should definitely go to federal court...(U.S. District Court, then U.S. Court of Appeals, then U.S. Supreme Court) because the federal Commerce Clause under the Constitution says that Congress has the EXCLUSIVE power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" Article I Sec. 8.

The traditional interpretation of the Supreme Court is that under the Commerce Clause, ANY overlap of state power against Congress' exclusive federal power trumps the state regulation & makes it void. A glitch...the startling Supreme Court ruling that tribes (and everyone now) cannot sue states for violating federal law. The Court cited the exception of the 11th Amendment. Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (March 27, 1996).

Almost all scholars that I have read want to take exception with the Court on their construed & wacky meaning of the 11th Amendment. But, this is what Chief Justice Rehnquist said in the majority opinion,

"Even when the Constitution vests in Congress COMPLETE LAW MAKING AUTHORITY OVER A PARTICULAR AREA (everyone think: Art. I, Sec. 8 of the Constitution -- OK?), the Eleventh Amendment of the Constitution RESTRICTS THE JUDICIAL POWER UNDER ARTICLE III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction."

I'm sure the Seminole case is what gave Gov. Pataki the legal green light to violate the NY treaty with the Seneca. Under the Seminole holding, the Seneca Nation CANNOT sue in any federal court. They will have to directly challenge the validity of the Seminole case...& public opinion GOES a LONG way...

Can you see it? If the media refuses to air this & the public does not get up in arms about it... there will be no social pressure on the courts to change. This was the tactics behind the civil rights peaceful civil disobedience movement of the 1950's & 60's with Rev. Martin Luther King. If only Native Americans had a visible leader uniting us, like a King...

For Immediate Release
May 15, 1997

The Interim agreement signed by the Tonawanda, Onondaga, Cayuga, Tuscarora, and Oneida nations and NYS Taxation and Finance Department, which took effect April 1, 1997, has had much criticism from Nation citizens, even terming it 'fraudulent, null and void', because of lack of due process. Even the nations who did not sign the agreement were directly affected by it. There was enforcement of this law in Mohawk and Seneca territories, resulting in seizures of gasoline trucks.

The decision handed down today by the Supreme Court - County of Erie, states: "this court declines to grant petitioner's requests and will not confirm the temporary seizures." It also states that "these Indian agreements are found to be an unlawful usurption of legislative power, illegal and unenforceable." Also it states, "under the auspices of the Tax Law, namely: to continue a police blockade around those Reservations whose Tribal governments have yet succumbed and entered the propounded Indian Agreement, while otherwise waiving enforcement of the taxing scheme herein for those Tribal governments who have so entered into those unlawful Indian Agreements, amounts to an unequal, selective and unjust enforcement of laws." In other words, the police blockades and seizures are unlawful and even the interim agreement itself is unlawful.

Recent events surrounding the New York State/Indian taxation issue have taken on a new and interesting look. Early Monday Gov. Pataki's office issued a press release stating that the St. Regis Mohawks had reached an interim agreement with the state. By 8:35 p.m. that same day, however, the purported Mohawk signatories, Philip Tarbell and Edward Smoke, had sent a letter to Pataki stating that the press release was inaccurate and was misrepresenting a draft proposal never ratified through community consultation.

On Sunday a peaceful ceremony and protest attended by approximately 50 people on the Onondaga Nation was attacked by more than 100 state troopers dressed if full riot gear. Those who observed the attack, including members of the Syracuse press, expressed astonishment at the levels of force used by the troopers on a small group that included elderly women and children.

Why is the governor escalating his use of coercion and force against the Indians? The answer may rest in a recent State Supreme Court ruling.

On Wednesday, May 14, 1997, NYS Supreme Court Justice Rose H. Sconiers rendered a decision that effectively dissected and repudiated the movements of the state to structure secret Indian compacts under highly unusual and suspect motives. The State Supreme court ruling declined a request by the New York State Department of Taxation and Finance to confirm a temporary seizure of Indian gasoline, tanker and truck, and further found the state's "Indian Agreements" to be illegal.

Writes Judge Sconiers, in the memorandum decision: "It is ... clear, even to the casual observer, that the real interest underlying this recent extraordinary showing of the State police powers, is the desire, not to collect taxes, but rather to advance the commercial interest of "retail parity" and thereby defeat the previous competitive advantage of Reservation sales.

"This Court is struck by how little has changed for the Indian over the past century and a half and believes that to the Indian respondents herein, it owes a responsibility of more than a simple review of the applicable authority cited by Petitioner [NYS] and must, at the very minimum, acknowledge the underlying inequities of which they complain."

Sconiers further writes that the state's concept of "retail parity" was a nebulous imposition that bears no legislative definition or approval and that only the State Legislature can formally enact "Indian or Reservation Agreements."

This first cogent, intellectual analysis of the NYS and Indian tax conflict by Justice Sconiers goes a long way toward fleshing out the inconsistencies and inequities obscured by state and Indian negotiators in their zeal to first strike a deal and then sell it to the respective publics. But their emphasis on political expediency over the implementation of fully functional democratic processes has come at a great cost to hundreds of Indian workers across the state who were suddenly put out of work and back into the ranks of the unemployed.

When pondering the Indians discussion of the greater issues involved, Judge Sconiers gets to the roots of the conflict: "Is not the Petitioner [NYS] seeking to impose the will of non-Indian retailers over their Indian counterparts through the coercion of State tax laws to compel entry into price parity agreements which will surely mean the end to most Indian retail businesses?; Is not this 'Indian Agreement,' now pressed by Petitioner upon the Six Nations, only serving to divide one Tribe against another?; Does not this 'Indian Agreement' remove the only economic advantage to Reservation status that has ever been enjoyed by Indians?; Does not this 'Indian Agreement,' once the special interests of retail parity are realized, again promise freedom from the imposition and collection of taxes, the very thing the Indians have argued they were entitled to all along?"

Although answering these questions "perhaps so," Sconiers' ruling is far from ambiguous. The State Supreme court declined the state's request to confirm the seizures of the gas, tanker and truck and further found the state's "Indian Agreements" to be "an unlawful usurption of legislative power, illegal and unenforceable." The court went further, citing that "the police-enforced embargoes of Indian Nations amounts to "selective and unjust enforcement of laws," since these blockades were applied only to those Indian nations that did not sign the unlawful "Indian Agreements."

For the Indian leadership, peace lies in the expansion of their democratic systems so that the beliefs and interests of all their families, not just those of a select few hereditary leaders, are fairly represented in consensus agreements. Amazingly, Sconiers' decision also questioned the socialistic economic structures established by Pataki's "Indian Agreements," whereby Indian economic power is concentrated in select hereditary family lines.

For the state leadership, peace lies in the realization that the special interest lobbying and previous court rulings, upon which they had acted, have lacked objective analysis of the economic, social and governmental realities of the sovereign Indian nations. By structuring deals that did not involve transparent democratic processes the state has also increased the potentials for Indian on Indian violence.

This ruling, the first insightful appraisal of this complicated issue, has the governor and his tax department concerned. They will undoubtedly attempt to ignore the Sconiers decision -- hoping that other Indian nations do not realize its full implications -- until such time that another judge, with lesser insight, rules in their favor.

Tim Johnson is executive manager of the award-winning Native Americas Journal, published by the American Indian Program at Cornell Univesity, Akwe:kon Press extension services. NATIVE AMERICAS
Akwe:kon's Journal of Indigenous Issues

Brendan White
Editorial Assistant
Native Americas Magazine
Akwe:kon Press
Cornell University
300 Caldwell Hall
Ithaca, New York 14853

Tel: (607) 255-4308; 800-9-NATIVE
Fax: (607) 255-0185
E-mail: bfw2@cornell.edu or native_americas@cornell.edu
WWW: http://nativeamericas.aip.cornell.edu

MNN. 15-May-97. On May 24th 1997 Judge Hon. Rose H. Sconiers, of the New York State Supreme Court found the seizure by New York State of a tractor and tanker and its cargo of gasoline destined for the Cattaraugus Indian Territory to be unlawful, and that Indians did not violate Tax Law 1812 (a) (b) (c) (d) & (e). The State carried out these seizures to stop the flow of fuel into New York State without payment of State excise and prepaid sales taxes.

This means that the Indian retailers who have been selling tax-free gasoline and cigarette on territories located in New York State to Indians and non-Indians can continue to sell their goods without collecting taxes and do not have to remit taxes to the State.

The reason is that Indian nations are sovereign nations with their own distinct laws, political communities and territories. The Court reviewed the Indian nations' history, their relationships with competing European governments, their treaties with the emerging federal and state governments and their long battle with the federal and state judiciary.

Judge Sconiers had harsh words for those few 'Indian representatives' who made deals with new York State. These illegal agreements are "beyond its delegated authority, ultra vires and unawful". She added that this "Indian Agreement" imposes through economic coersion, a change in the cultural fabric of reservation Indians by permitting tax free status to only certain designated Tribal members and mandating a socialistic sharing of certain benefits?"

Said an Iroquois businessman, "There is no argument. Stop seizing the goods and return them. We knew that these agreements with the selected chiefs were completing illegal, not only under the Great Law of Peace, the Iroquois constitution, but even in the eyes of the non-Indians courts".

Stated a Native issues analyst, "The Great Law of Peace, the constitution of the Iroquois Confederacy, is the law of the Iroquois nations by which they maintain their relationship to the newcomers. The New York state Court is part of the New York State judicial system and the action was between New York State and the Seneca Nation. New York State as a party to the action and sitting in judgment violates the natural law principle of a right to an impartial third party hearing. Any disputes in the future should be on a nation to nation level with an impartial third party mutually acceptable to both parties".

The analyst continued, "The traitorous Council of Chiefs who signed these agreements with New York State to impose illegal taxation on the Iroquois people, have been continuously involved in a conspiracy to deprive the people of the Iroquois Confederacy of their rights under the Iroquois Constitution, and, in particular, have not represented the best interests of the sovereign rights of the Iroquois people".

Contact at Cattaraugus 716-532-4449