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Judge Arcara Keeps "PACT Act" on Hold
Chris Caya (2010-07-08)
BUFFALO (wned) - A federal judge in Buffalo has ruled that Seneca tax-free cigarette retailers can continue to fulfill mail-orders while they fight a new federal law banning the practice.
The ruling by U.S. District Court Judge Richard Arcara extends a temporary restraining order until July 30th.
Judge Arcara heard nearly 4 hours of arguments, for and against, the "Prevent All Cigarette Trafficking Act."
Attorney Lisa Copolla argued that Congress is comandeering state statutes with the newly signed law.
It requires Seneca retailers comply with nearly 6,000 state and local statutes across the country according to Seneca Free Trade Association Attorney Howard Radzley.
He called the PACT Act "an insurmountable burden." Any violation of a local statute could lead to 3 years in federal prison.
The government's counsel, Gerald Kell, said states are losing billions of dollars in tax revenue to Native American retailers.
And Kell said tax-free cigarettes sold over the Internet eliminate fair competition for small businesses.
The Seneca Smoke Shop's Copolla also argued that the PACT Act is discriminatory because of repeated references by Congress for the need to stop illicit trafficking by Native American retailers.
Copolla points out that selling cigarettes is legal.
© Copyright 2010, wned
Split ruling from NY judge on cigarette regulation
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Judge reserves decision as Sept 1 looms
Updated: Friday, 27 Aug 2010, 10:31 PM EDT
Published : Friday, 27 Aug 2010, 10:17 PM EDT
Posted by: Eli George
BUFFALO, N.Y. (WIVB) - Federal Judge Richard Arcara has reserved decision on a Seneca Nation bid to block the collection of New York taxes on reservation cigarettes sold to non-Indians. The tax tussle is likely to go from the courts to the streets unless the judge stands in the way before September 1st.
Inside a Federal Courtroom, State Attorney Robert Siegfried argued that the state wants to collect what it calls legitimate cigarette taxes from non-Indians and that doing so does not place an undue burden on the Senecas. And that by law, the government is only required to provide Indians with an adequate supply.
Senecas Senior Policy Adviser Robert Odawi Porter said, "The state's trying to make a very clever argument that somehow they can dump 168,000 cigarettes at our door step and somehow that's enough. But it's not true. The federal law requires that the state not interfere with the ability of reservation Indians obtains taxes on products."
The state plans to begin collecting sales tax on cigarettes sold to non-Indian customers on Wednesday.
"The state continues to spread this propaganda in their view of saying that what we're doing is illegal and it's not. our government regulates our businesses and regulates our economy," said Tribal Counselor J.C. Seneca.
The Senecas were hoping to walk out of Federal Court with a temporary restraining order against the plan. They call it an invasion of their sovereign rights and a danger to their economy.
Seneca said, "New York is not gonna collect one penny of tax from the Seneca Nation. We're gonna fight this, we're gonna find ways to succeed."
Federal Judge Richard Arcara is holding off on making a decision until the state resolves the legality issue on Monday. The federal case is over the Senecas sovereign status.
Porter explained, "We're going to fight hard in both forums and do what we can to push off what we perceive as illegality on two different fronts."
In court, the Senecas' Attorney argued that New York State has an obligation to collect taxes from its consumers and that it has not followed its own law. Both sides will be back in court next week.