Treaty of 1842 Rebuttal
by Daniel T. Warren

I am writing in response to the recent editorial by Arlene DeJoy entitled "Don't Violate the Treaty of 1842 ." I would like to clear up some of the misconceptions that appeared in that piece.

Let's be clear who is being taxed in this tax scheme, it is non-Indians not Indians. The Indian retailer is merely a conduit for the tax to be collected and remitted to the state. Indians making purchases on their land are still tax exempt. There is no treaty that provides non-Indian consumers with an exemption from taxation on Indian land. The loss of this tax revenue increases the burden of honest taxpayers in New York State. It is also harmful to our economy in that honest businessmen are put at a competitive disadvantage.

The U.S. Supreme Court stated in its 1980 decision, Washington State v. Confederated Tribes, "We do not believe that principles of federal Indian law, whether stated in terms of pre-emption, tribal self-government, or otherwise, authorize Indian tribes thus to market an exemption from state taxation to persons who would normally do their business elsewhere."

The Seneca retailers and their supporters cite The 1842 Treaty of Buffalo Creek as the source of the tax free status they claim precludes taxation of non-Indians on Indian land. This is simply not true. In fact Barry Snyder, a former president of the Seneca Nation and then owner of Seneca Hawk raised this treaty in his defense against the imposition of taxes and penalties due for his failure to collect these taxes from non-Indians. This position was rejected by the Appellate Division of the New York Supreme Court, Third Department in Snyder v. Wetzler, 193 A.D.2d 329. In that decision the court held that the provisions of that treaty regarding taxation was only with regard to property taxes. This decision was affirmed by the New York Court of Appeals on December 1, 1994, in Snyder v. Wetzler, 84 N.Y.2d 941.

What the Senecas do not tell you is that the Seneca Nation by its attorney Joseph Crangle filed a friend of the Court brief and argued their case in support of Mr. Snyder and Mr. Snyder still lost.

The Court of Appeals in Snyder v. Wetzler and a unanimous Supreme Court held in Department of Taxation & Fin. of N.Y. v Attea, that the State may place minimal burdens on Indian retailers and tribes to collect taxes from non-Indians on Indian Land. Some reports have placed this lost revenue in the billions. Governor Pataki acknowledged the need for legislative approval of his policy of non-enforcement in his press release of May 22, 1997, where he stated "if the Legislature acts as I am requesting, you will have the right to sell tax-free gasoline and cigarettes free from interference from New York State." The governor even introduced a bill to effect this change. This bill was never enacted into law.

Although this action may have dire effects on the retailers that are marketing this form of tax evasion, it does not entitle them to any consideration. Do we retreat from enforcing existing laws on drug dealers because such enforcement will affect their earnings?

Whether one agrees with this or not we must obey the law unless and until the law is changed. As a society we simply cannot pick and chose which laws to obey and which to ignore. If we do not like a law there is a process for changing it that must be followed. This is the rule of law and once we start disregarding the rule of law we start to head down the slope towards chaos and tyranny.

Daniel T. Warren is Chairman of Niagara Frontier Chapter of Upstate Citizens for Equality. Address:
836 Indian Church Road
West Seneca, NY 14224
716-570-6070
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