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Decision in Favor of Winnebago Tribe Was Overdue

A column by Charles Kader about the court case, HCI Distribution, Inc. v. New York State Police, et al.

On June 18, 2012, in a New York courtroom, in picturesque St. Lawrence County, a decision was reached in a legal matter that pitted belief against regulation, rural against urban, and small versus large

The decision rendered in this case, involving a native tobacco seizure case (HCIDistribution, Inc. v.New York State Police, et al) heard by New York State Supreme Court Justice David Demarest, resulted in the order to the New York state troopers to return all seized tobacco products back to the rightful owners. Namely, HCI Distributors, Inc, owned by the Winnebago Tribe of Nebraska.

In my opinion, as a proponent of self-determination among hereditary sovereign people, this decision was already overdue. For instance, the clock was ticking on the shelf life of the manufactured cigarettes, which had been prevented from going to market. When the moisture level within the tobacco products evaporates, the inventory value is also lost. A further delayed decision would have indeed have been a hollow “victory.”

Looming even larger than this, is the presumption of New York State, and its surrogate counties such as St. Lawrence County, to be able to dictate to tribally, as well as federally, licensed businesses how successful these businesses ultimately can be. Without the clearance to conduct business, and implicit surety to deliver ordered or pre-purchased goods, any potential customer base that these compliant businesses might possibly generate, is further eroded. Commerce is a hard enough nut to crack for any sized business, let alone those arisen from historically disadvantaged populations, which have already overcome many barriers in their existence.

I purposely utilize the adjective “compliant” in reference to these businesses. While the heart of this whole case was the assertion that the seized products were in fact non-compliant with New York State law that all manufactured cigarettes inside of New York State either had affixed New York State tax stamps, or were unstamped but in the possession of a New York tax stamping agent, the veracity of these businesses should remain intact.

I personally know all of the Akwesasne Kanienkehaka Territory-based (aka Mohawk), federally licensed manufacturer principals, and previously was introduced to HCI executive leadership during their visit to the North Country while I served as the Executive Director of the Mohawk Chamber of Commerce at Akwesasne. It cannot be stated enough that these employers, and their respective workforces, are among the pillars of our respective communities.

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The underlying question that I ask here is, if New York State cannot see fit to keep such modest levels of Native American industry intact, as well as the assembly lines running, then what outcome will New York be comfortable with, if this vestige of employment is eliminated from commercial viability?

For the life of me, I fail to grasp how a supposedly capital-based system, dependent on small business as a lifeblood of vitality, can endorse possible additional social welfare recipients from threatened workforces. Nothing could be crueler in a capital market than a business being prevented from competing, after all required permits and infrastructure were put in place.

All the symbolic feathers in the plume collide in this decision. Tribal, federal, state, and local branches of government all hold unique perspectives in this conundrum of beliefs.

Further research into the general New York State perspective shows that New York Governor Andrew Cuomo appointee Tax Commissioner Thomas H. Mattox continues to refuse to commit to writing, the specific native tobacco tax collection policies that New York State is discharging through selective enforcement, even when directly questioned by New York State Senators, such as George Maziarz (R – 62nd D) and Timothy Kennedy (D-58th D). The definition of sales made on native territories to other Native Americans is clearly being rigidly interpreted by Mattox, the former Wall Street banker tasked with this in 2010, after a stint as the Treasurer of the Harvard Club in New York City.

The indelicate matter that is not being addressed in this decision is that in some circles, all of New York State falls under the banner of “Indian country,” even today, so what really defines the actual status of “native territories” when to many, they are all are. Even the 2011 efforts by elected New York politicians, such as Senator Nozzolio (R,C, IP - 54th D) and Assemblyman Brian Kolb (R,C,IP - 129th D) to redefine the New York definition of what constitutes a reservation in New York State, show uneven agendas. I call this thinking subterfuge at best. The higher road here is that New York State is one big reservation.

Absorbed in a contemporary era of “legislation by poll analysis” by fast-rising politicians, New York State seems unprepared to alter the familiar practice of sweeping hereditary land rights retained by original people (onkwehonweh) under the local and state political rug. However, the proverbial bumps under the swept rug show this legal decision is not really an answer, but yet another cut off landscape.

Charles Kader (Turtle Clan) was born in Erie, Pennsylvania to a World War II veteran. He attended Clarion University of Pennsylvania, earning degrees in Communication and Library Science, as well as Mercyhurst College where he earned a graduate degree in the Administration of Justice. He has worked across Indian country, from the Blackfeet Community College in Browning, Montana (where he married his wife) to the Saint Regis Mohawk Tribe, and now resides in Kanienkeh.