Escalating its tobacco tax wars with the state, the Seneca Nation on Wednesday said the Thruway is trespassing on Indian land. Seneca leaders would not say if the tribe will seek to shut down the road where it cuts through its Cattaraugus Reservation.
The Seneca tribal council had previously voted to rescind a 1954 easement that turned over four miles totaling about 300 acres to the Thruway.
The action comes as the Spitzer administration is determining how it intends to collect taxes on the sale of tobacco and gasoline products sold by more than 100 Seneca retailers. It also comes several years after the Senecas lost a major federal court case in which they sought to have the 1954 arrangement declared void.
The surprising twist to a long-simmering dispute was revealed in a letter Wednesday from Seneca President Maurice John Sr. to Gov. Eliot L. Spitzer. The Seneca leader said the tribal council had withdrawn the 1954 approval for the right-of-way easement near Brant and was calling for negotiations with the state to resolve the dispute.
"Until such time as the matter is resolved, the nation considers the continued use of the Thruway without nation permission as an ongoing act of trespass," John said in his letter to Spitzer.
The Seneca president and other tribal officials declined to comment further. Thruway officials could not be reached to comment Wednesday evening. A few hours after the Senecas released their statement, a State Police spokesman said he had heard of no trouble along the stretch of Thruway that goes through the Seneca Reservation.
Wednesday evening, the Spitzer administration said Seneca officials had given the state no indication they would seek to shut down the four-mile portion of the Thruway. Other than that, the administration was doing nothing to ratchet up tensions.
"The Senecas sued over the matter in 1999 and lost the case," said Darren Dopp, a Spitzer spokesman. He declined to comment further.
Ironically, it was Spitzer, the attorney general at the time, who defended the state in a suit brought nearly 10 years ago by the Senecas seeking to get the 1954 agreement declared invalid because the federal government never approved the deal -- which the Senecas insisted was required under a treaty with President George Washington dating back from the 1790s.
In 1954, the state paid individual Senecas and the nation about $175,000 for the 300 acres of land that the Thruway crosses.
The Senecas on Wednesday pointed to a 1999 decision by U.S. Magistrate Judge Carol Heckman, who agreed with the Seneca Nation that the secretary of the interior had not complied in 1954 with the right-of-way agreement. But the Senecas lost the broader legal case involving the right of way; in 2004, a three-judge federal appeals court unanimously affirmed a lower appeals court decision rejecting not only the Senecas' Thruway complaint but its land claims to Grand Island and more than 40 other islands in the Niagara River.
The Seneca Council on Saturday voted unanimously to rescind the Sept. 18, 1954, resolution granting the state access through its lands for the Thruway's construction. The ruling council said a process should begin for "developing options for obtaining payment from the state and ongoing illegal possession and use of nation lands upon which the Thruway is constructed."
While the Seneca Nation on Wednesday did not directly state that its Thruway claim is directly tied to the tobacco tax dispute, the timing of its actions comes as top Spitzer aides are devising ways to begin collecting the taxes.
Spitzer made it a campaign pledge to end more than a decade of disputes and begin collecting the excise and sales taxes on cigarette and gasoline products sold by Indian retailers to non-Indians. His new state budget counts on $200 million coming in this year from the new collections.
The governor has not yet said precisely how the state will collect the taxes, but Spitzer administration officials have floated the notion of being open to some kind of revenue-sharing deals with the tribes, in which the Indians would keep a portion of the taxes collected.
Seneca retailers, the kings of the nation's Indian tax-free tobacco trade, would have little incentive to impose the state taxes, even in a revenue-sharing deal, because such an arrangement would end the current price advantage its tobacco dealers maintain over non-Indian retailers who must charge taxes.
There also has been speculation that some Senecas may be interested in a resolution of the tax issue with the state in return for a deal giving them access to a new casino in the tourist area of the Catskills.
The Thruway has been a focal point of disputes between the state and Senecas for years.
In 1997, the last time the state tried to collect the taxes, violent confrontations occurred between Seneca protesters and state troopers in a series of clashes that at one point shut a 30-mile stretch of the Thruway for 24 hours. In 1992, during another tax dispute, burning tires also closed part of the Thruway.