In 1886, the United States Supreme Court, in the U.S. v. Kagama case, noted that states were often the “deadliest enemies” of tribal governments. In modern times, however, as noted by Professor Matthew Fletcher:
States and tribes are beginning to smooth over the rough edges of federal Indian law – jurisdictional confusion, historical animosity between states and Indian tribes, competition between sovereigns for tax revenue, economic development opportunities, and regulatory authority – through cooperative agreements. In effect, a new political relationship is springing up all over the nation between states, local units of government, and Indian tribes
It is therefore unfortunate that the State of New York, and the City of New York, have shirked opportunities to cooperatively resolve tobacco taxation issues with their neighboring tribal governments. Instead, according to Indian Country Today:
The bloodiest battles of the decades-long cigarette tax war took place in 2010 when the federal and state governments passed crippling legislation against the tobacco economies of Indian nations. . . . In February, with New York state facing a $200 million deficit and pressure mounting from anti-Indian state legislators, then Gov. David Paterson, who had claimed respect for Indian sovereignty and the government-to-government relationship, instructed the state’s tax department to issue draft regulations on a new law to force the collection of state sales taxes on tobacco products sold in Indian country.
Sadly, leaders like Governor David Paterson and Mayor Michael Bloomberg, whose advice to the Governor was to "get yourself a cowboy hat and a shotgun" and enforce the state's new tribal tobacco tax laws, have caused state-tribal relations in New York to regress to where they were 125 years ago.
Hopefully incoming Governor Andrew Cuomo will seek out and seize collaborative opportunities to smooth out the edges of federal Indian law with his neighbor tribes, rather than allow New York to persist as the reborn deadliest enemy of tribal sovereignty.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or firstname.lastname@example.org, or via galandabroadman.com.