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The standards are clear: No tax on Indian lands

The News editorial "Collect tax from non-Indians" overlooks basic U.S. Constitution provisions that treaties are the "supreme law of the land" and Congress has sole authority "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

In 1948, Congress granted that New York's criminal laws were applicable to Indian reservations. In 1950, Congress passed Indian Law 233 granting New York civil jurisdiction to hear disputes involving Indians. Congress specified: "Nothing in this section shall be construed as subjecting the lands within any Indian reservation in the state of New York to taxation for state or local purposes. . . ."

A 1992 memorandum submitted by a then-state tax commissioner to a legislative committee relating to taxation of gasoline and cigarettes sold to non-Indians on Indian reservations stated: "Despite the fact that New York once sought a specific congressional delegation of general civil authority over Indians and Indian reservations, Congress has not given New York such authority. New York's general civil laws -- including its tax laws -- are not, therefore, automatically applicable to tribe members on reservations." It added:

"The purported grant of civil jurisdiction contained in 24 U.S.C. 233 is virtually identical to that of another federal statute which the U.S. Supreme Court ruled in Bryan v. Itasca County, was not a general grant of authority over Indians and reservations, but only opened up state courts to tribe members."

In 1999, New York's Convenience Stores v. Urbach held that "Indian tribes possess substantial attributes of sovereignty" and "Notably, Indian tribes have immunity from suit and cannot be sued to accomplish tax collection. This immunity extends to tribal retailers." The court's decision acknowledged the Indian retailers' unique sovereign tax immunity:

"Further, because of the unique nature of Indian reservations, the Department of Taxation and Finance cannot send auditors to examine the retailers' books and records . . ."

The state tax commissioner's affirmation filed in the 1999 convenience stores case also represented another acknowledgment by New York State of its lack of civil authority to extend tax laws on Six Nations sale activities:

"Upon information and belief, absent a specific congressional grant of authority, which has not been made, New York lacks general civil and regulatory jurisdiction over Indian tribes and reservations located in this state."

Legislative history leaves no doubt Congress and New York both recognized the state's total lack of power to apply its tax laws on Indian reservations. Federal Indian Law (233) reveals Congress' view that Congress did not grant to New York general civil jurisdiction over Six Nations sovereign territories. Congress made a conscious choice in 1950 to legislate that state tax law does not apply on Indian reservations.

Joseph F. Crangle is a Buffalo lawyer who represents Seneca business owners.

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