Now that the NYPD has literally been caught on video choking a man to death for defying the most oppressive taxation scheme in the United States and then exonerated itself of any wrong doing, it's time to make a few things clear.
The Tax Foundation in a national study has determined that New York State is the highest net importer of smuggled cigarettes, totaling 56.9 percent of the total cigarette market in the state. With State cigarette excise and sales tax over $5 per pack ($50 per carton) and another $1.50 per pack ($15 per carton) added on in New York City anyone can simply jump to a neighboring state and turn a nice profit by avoiding this massive tax burden. And apparently the majority of all cigarettes smoked in the state have indeed slipped past the taxman.
So, when several carloads of white police officers, still operating under the policy of the state's biggest tobacco Zar and former Mayor Michael Bloomberg, choke to death Eric Garner, a generally well regarded black man in his Staten Island community for occasionally selling a few "loose" cigarettes (because buying one cigarette at a time is about all anyone can do) this isn't a crack down on a gangland crime. Eric Garner was with the majority of tobacco consumers in the State who vote with their wallets everyday. Hell! Every bar and bodega in New York City has loose cigarettes behind the bar and the cops know it. So letting an established business beat the system is okay but apparently the line gets drawn in front of a black man in his neighborhood.
Consider that number again. 56.9 percent of all the cigarettes consumed in New York State are smuggled in from out of state. And this doesn't even include Native or reservation sales. Those aren't smuggled. They are just sold outside the State's reach on sovereign Native lands. And the State is trying it's damnedest to choke that out too.
Last month, on November 28, a newspaper in Hamilton, Ontario ran a story about how the State of New York was trying to kill the Seneca brand of cigarettes and planned to sue for $350 million in a claimed loss of State cigarette tax. In the article the New York State Attorney General's office was claiming that Grand River Enterprises, a Native company on the Six Nations territory in Ontario that manufactures the Seneca brand and Native Wholesale Supply, a Native company on the Cattaraugus Territory of the Seneca Nation that imports the product for distribution on Native territories, "have sold, shipped, and distributed, and continue to sell, ship, and distribute, large quantities of unstamped and unreported cigarettes into the State of New York" and they "are operating in open violation of state and federal laws."
This is a blatant lie on every level. Each Seneca cigarette is legally entered across the U.S./Canadian border and shipped in bond by common carrier to a foreign trade zone or bonded warehouse where it is cleared through U.S. Customs with all Federal Excise Taxes and duties paid and clearly established destinations designated, none of which are in New York State. All Seneca brand cigarettes go either to other states or Native territories. None are ever sold, shipped or distributed into New York State.
The suggestion that Seneca sales are an "open violation" of state law would require the State to be open. Back in 2011 when New York finally scammed its way through its own court system to shut off State licensed wholesalers from supplying tobacco products to Native retailers or carrying Native brands, the State intentionally dodged any questions about Native brands.
In a May 11, 2011 interview on The Capitol Pressroom radio show in Albany, host Susan Arbetter told the New York State Budget Director that "John Kane says the State plans to outlaw Native brands" and then asked, "Is this the case or not?" Director Robert Megna responded, "You know…I don't think so…I mean, I haven't heard that. We know that Native Americans produce or have begun producing their own brands of cigarettes, but I think what we have said, the State of New York has said for many years, is that we want to collect the money paid on cigarettes that were not produced by the Native Americans that are being sold by the Native Americans to New Yorkers tax free."
On May 16, 2011 State Senators George Maziarz and Timothy Kennedy sent a letter to New York State Department of Taxation and Finance Commissioner Thomas Mattox requesting the State's policy on Native brands in writing and stating, "It is our view that Native Brand cigarettes, which are produced and sold on lands owned by Native Nations, constitutes commerce that is essentially Native to Native, and therefore cannot be regulated or taxed by the State of New York." Mattox refused this request and to date has never provided clarity to the State's position. The unofficial response for the department was that it was a "gray area."
The Supreme Court of the United States in a case that many mischaracterize as a ruling allowing the State to tax Native sales of tobacco was very clear on this issue. Justice Stevens wrote in Attea that the idea of a tax obligation "which falls on the non Indian purchasers of goods that are merely retailed on a reservation – stands on a markedly different footing from a tax imposed directly on Indian traders, on enrolled tribal members or tribal organizations or on value generated on the reservation by activities involving the Tribes." No one doubts that the branding, development, manufacturing and marketing of a Native brand is a value generated activity.
It is clear that the only open violation of law is being perpetrated by the State. The fact of the matter is that the only ones bringing Seneca cigarettes into the State for consumption is neither Grand River Enterprises, Native Wholesale Supply or even Native retailers but rather the New York consumers themselves and under New York State law, New Yorkers can bring into the State up to two cartons of cigarettes at a time for use in the State without New York State tax or New York City tax. So the sale, purchase and even transport by the consumer is all legal.
Aggressive tax enforcement may have resulted in the choking death of Eric Garner but Andrew Cuomo had better work on a much stronger grip if he thinks he will succeed in choking out Native tobacco. The Native tobacco industry will not lie down for the Governor, his courts or his cops.
John Karhiio Kane, Mohawk, a national commentator on Native issues, hosts two weekly radio shows: "Let's Talk Native...with John Kane," ESPN Sports Radio WWKB-AM 1520, Buffalo, New York, and “First Voices Indigenous Radio,” WBAI-FM 99.5, New York City. John, who is a member of the Native American Journalists Association (NAJA), appears frequently on TV and radio and has been a columnist for “The Two Row Times.” He has a very active "Let's Talk Native...with John Kane" Facebook group page and was recently honored with a Community Leader Media Award from the National Federation for Just Communities of Western New York.