Posted on 12/29/2003 9:11:20 AM PST by ItsOurTimeNow
PROVIDENCE -- In a highly-anticipated ruling this morning, U.S. District Court Judge William E. Smith found on the the side of the state in the Narragansett Indian tribal smokeshop dispute, saying that it has the authority to impose a tax on cigarettes sold at the shop on tribal lands.
Smith also ruled that the state did not violate federal law or the tribe's sovereign rights in executing a search warrant at the shop.
"This conclusion is driven by the finding that the legal of the State's cigarette's tax scheme falls on the purchaser or consumer of cigarettes, and not on the tribe," Smith wrote.
"Under the state's cigarette tax scheme, the Tribe (like other retail sellers of cigarettes) acts merely as an agent for the collection of the tax."
Smith said it was "appropriate for the State to impose this burden" on the tribe, which he said did not amount to taxation or violate the tribe's sovereign rights.
The 56-page decision was posted on the court's Web site and handed out at 10 o'clock this morning at the federal courthouse in downtown Providence. Only one representative from any of the involved parties was present at the court -- State Police Maj. Brendan Doherty, who said he would have no comment on the decision until after he had read it through.
The ruling comes five months after a State Police raid at the Indian business on Route 2 in Charlestown, conducted as TV news cameras rolled and the press watched, turned violent. It led to the arrests of eight tribal members, including Chief Sachem Matthew Thomas, injuries on both sides and sharp criticism, voiced locally and nationally.
The Narragansetts had opened the smoke shop two days earlier, on July 12, as an economic-development opportunity after tribal leadership had grown frustrated by Governor Carcieri's and the state legislature's refusal to support a referendum on an Indian casino.
The shop sold tax-free cigarettes at deep discounts to customers from Rhode Island, Massachusetts and Connecticut.
The tribe claimed that as a federally recognized nation, it did not have to abide by the state's tax laws. The state argued that in entering a 1978 agreement that gave the tribe its 1,800 acres in Charlestown, the Narragansetts agreed to abide by state and local laws on its land.
In Rhode Island, a tax is imposed on all cigarettes sold or held for sale by any person. A stamp on the individual packages demonstrates that the tax has been paid. Cigarette packages seized by the police did not have tax stamps.
Within days of the raid, ordered by Carcieri, the tribe sued the governor, the state, the state attorney general, state police, the town of Charlestown and others in a bid to reopen its shop.
The tribe's complaint claimed that on Feb. 10, 1983, the federal Department of the Interior issued a "final determination acknowledging (recognizing)" that the tribe was and still is an Indian tribe.
"The tribe is therefore a sovereign government subject to the usual plenary power of Congress over Indian tribes," the complaint said.
After a tribe receives federal recognition, the complaint argued, the state must have express approval from Congress to impose a tax on the tribe. The state does not have such approval, it said.
The state filed a counter-complaint in state Superior Court, arguing that the tribe's failure to comply with Rhode Island's tax scheme was unlawful under state law. The two parties later agreed to move that complaint to federal court as well.
However, while commending the effort at cooperation, Smith found in his ruling today that the federal court had no jurisdiction over matters raised by the sate. He dismissed its complaint and remanded it to state court.
The state has argued that the tribe traded away its immunity from Rhode Island law by entering into the 1978 agreement that gave it the land in Charlestown. Except for "fishing, hunting and gathering," the deal bound the land to the "full force and effect" of Rhode Island civil and criminal laws, according to the state.
Congress approved the agreement.
Smith referred to the 1978 land agreement and two U.S. Supreme Court rulings in deciding that the state was within its rights in executing the a search warrant and seizing cigarettes.
"Section 1708 of the Settlement Act makes clear that the tribal lands are subject to the 'criminal laws and jurisdiction of the State,' " Smith wrote. "If that phrase is to have any meaning, it must include the right of State law enforcement officials to enter tribal property pursuant to a validly issued warrant to seize contraband."
The act gave the state predominate jurisdiction over the land, while granting the Narragansetts authority over tribal government affairs, Claire Richards, counsel for the governor,argued at a previous court hearing. She said the federal government merely holds the land on the tribe's behalf.
A lawyer for the tribe, Douglas Luckerman, argued, "Jurisdiction on lands does not compute to jurisdiction over tribal government."
http://www.freerepublic.com/focus/f-backroom/946003/posts
What the TaxMan wants, the TaxMan gets...sad, really.
If ever a group of people personafied the "give me - I'm entitled" group, it's Indians. They don't realize that, while they are receiving compensation for what the white man did too many ago, they are also being held under the thumb of the white man.
The goal of many tribes is to become "self sufficient", which is great. Yet they still seek out federal funds for projects. They still seek out regular compensation "disbursements" from whitey.
The answer is one of the following:
1.) let them build casino's on their reservations without state or federal intervention. After all, one sovereign nation does not ask another sovereign entity to do or pursue something. The moment a tribe has to ask permission from the state or fedgov, they are no longer sovereign nations. For those that would decry the Indian casino's, don't worry - there is too much in-fighting in tribal government to hold something together. They'll run their casino's into the ground sooner or later. Believe me, I've seen it happen.
At the same time the tribes are building their casino's, COMPLETELY CUT federal funding for the tribes. Let them TRULY be self sufficient. Or,
2.) Do away with "reservations" and "dual citizenship" completely, and let the Indians in on all of the benefit of being an American citizen.
Until the tribes get out of the liberal "gimme" view, they will continue down a destructive path. If they don't eventually all implode, they will certainly never get anywhere in life, as individuals and as tribes. For proof, just take a drive through a reservation sometime, and note how mostly, life has not changed for the better since they were placed on the "rez".
For the record, my wife is Native, and we spent a number of years living on the "rez" and working for a couple of different tribal governments. That is, until we realized that there was more to life.
Exactly. Not that the Niconazis will ever admit that.
That may be correct, but it doesn't make the state's actions and the court's ruling in this case correct. In New York, the state sales tax is also assessed on the purchaser instead of the product -- which means that according to the letter of the law, a person who goes to New Jersey to purchase something and brings it back into New York must pay the New York sales tax on the product.
However, this does not mean that the state of New York has any authority to collect the tax in New Jersey. During New York City's last fiscal crisis they actually sent tax agents to the parking lots of New Jersey shopping malls to record license plates of customers from New York. The initiative came to a screeching halt when the New Jersey retailers ordered their security personnel to treat the New York tax authorities as criminals and have them arrested for trespassing, stalking, etc. -- because they had no legal authority to do this kind of thing outside the State of New York.
The problem is with taxERS (states) being more and more dependent on the tax resulting from the taxed substance (tobacco) itself, while simultaneously making the taxed substance (tobacco) harder and harder for the real taxees (consumers) to buy.
It is also a fact, regardless of propaganda, that strict bans making it harder for the taxee (consumer) to consume the taxed product (tobacco) have had a detrimental effect on other taxees, particularly in the service industry (restaurants and bars), to stay in business, let alone pay the business taxes that the taxER (state) is dependant upon.
Thus the taxER (state) is forced to find other sources of revenue in the form of nanny laws (like seatbelt laws), higher income tax to pay for those who don't pay tax (welfarers) and higher taxes on essential goods (food, clothing, gasoline) and - LOL - services (bars, restaurants, hotels) which are already suffereing from a lack of business due to a drop in taxee (consumer) generated revenue.
I never said the language of the findings wasn't legal. I did just illustrate how overregulation of that upon which the taxER (state) is dependent results hess tax collected from taxees (consumers and the businesses they frequent) is detrimental, rather than beneficial to the taxER (state) in the long run.
In English, the idea of collecting the tax isn't necessarily bad. The idea of raising the tax in order to recoup revenue shortfalls caused by making it so hard to buy the taxed product in the first place is bad, stupid, idiotic, moronic, and even lacks intelligence. Of course, it's "for the children"
Good analysis. For the reasons you cite, NYS can't make the Oneida's, for example, collect taxes for the greedy, blood sucking pigs in Albany, on goods sold on the reservation, which is a sovereign nation under both Fed and State law, any more than NYS can force other states to collect sales tax on its behalf. (BTW, when the state requires me as a business owner to collect taxes on its behalf, isn't the state depriving me of a property interest -- my time and labor -- without just compensation?)
Maybe. But there may be a way for you to recover some of that cost. If Labyrinthos Retail is a company that sells products on the retail level and collects sales taxes on the products it sells, you might want to consider creating a subsidiary called Labyrinthos Accounting, Inc. whose sole purpose is to collect and pay these sales taxes. Labyrinthos Retail then pays Labyrinthos Accounting for the time and effort, and deducts the cost of these accounting services on its state and Federal income taxes.
The key, of course, is to make sure that Labyrinthos Accounting, Inc. shows zero profit -- by padding the financial statements with enough bogus -- I mean, legitimate business-related expenses to offset the "accounting fees" it will collect from Labyrinthos Retail every year.
Agreed, wholeheartedly.
I really have to research, though, whether Indian tribes are truly separate nations within this nation, which I had gathered was the original thrust of the dispute. I don't think they are. They appear to be semi-autonomous. I only base my observations on how the Cherokee are treated here. It may have something to do with the way the "treaty" was set up.[shrug]. Like I said, I need to do some homework.
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