The Court of Appeals will hear arguments in three cases on this rainy Wednesday, April 25, 2018, the second day of the April-May Session. On the docket today are two criminal appeals about the right to counsel and a civil case about taxing cigarettes sold on an Indian reservation, involving the following issues: (1) whether Tax Law § 471, which imposes a tax “on all cigarettes sold on an Indian reservation to non-members of the Indian nation or tribe and to non-Indians,” violates Indian Law § 6, which prohibits state taxation on an Indian reservation, and the federal Due Process Clause; (2) whether a criminal defendant’s right to counsel was violated when he was questioned by police officers on a homicide that was “factually interwoven” with a robbery charge for which he had an attorney; and (3) whether a criminal defendant’s right to counsel was violated when a police detective, while questioning the defendant on a homicide investigation, mentioned a pending drug charge for which the defendant had counsel.
No. 59 White v Schneiderman
Eric White, a member of the Seneca Nation, owns a convenience store on the reservation and sells cigarettes. He brought this action against the New York Attorney General and the Department of Taxation and Finance to challenge the validity of Tax Law § 471, which requires him to charge state sales tax on cigarettes sold to non-members of the Tribe. That, he says, violates Indian Law § 6, which states, “No taxes shall be assessed, for any purpose whatever, upon any Indian reservation in this state, so long as the land of such reservation shall remain the property of the nation, tribe or band occupying the same.” He also contends that the Tribe entered a treaty with the United States that exempts activities on the reservation from state taxation, and that imposing the tax violates the federal Commerce Clause and Due Process Clause.
Supreme Court, however, dismissed his declaratory judgment action, holding that Indian Law § 6 and the treaty only prohibit the taxation of real property, not goods like cigarettes. The Appellate Division modified slightly, but agreed that only taxation of real property is prohibited. White, the Court held, can be required to charge sales tax to non-Indians, and this minimal burden doesn’t violate the Constitution.
The Court of Appeals is now asked to decide. Does the State have any right to require the collection of taxes on cigarettes on an Indian Reservation? What about for other goods sold to non-Indians? We shall see.
The Appellate Division, Fourth Department order can be found here.