New York and Oneida Nation Reach Cigarette Tax Agreement
May 23, 2013
Recently, Governor Cuomo and the Oneida Indian tribe announced a settlement that would end an ongoing dispute over cigarette taxes between New York and the tribe. Under the terms of the settlement, the Oneida will be required to tax all cigarette sales to non-Indians at a rate equal to or greater than New York state and local rates. Also, the Oneida will be required to adhere to minimum pricing standards and are required to use the tax revenue from cigarette sales on the same types of programs that the state and counties devote their tax revenues.
In return, the revenue resulting from the sales tax would stay with the Oneida rather than going to New York. The agreement also settles ongoing land disputes between the Oneida and New York and gives the Oneida exclusive casino rights in several New York counties. The agreement is pending approval from various state and tribal departments.
Under federal law, the Oneida have been able to sell cigarettes, both name-brand and Oneida manufactured, to Indians on their reservation free of state excise taxes. However, because the cigarettes were far cheaper than those sold on non-Indian owned land (nearly half the price or less), non-Indians also came to the reservation to buy them tax-free. In 2010 New York voted to collect the state cigarette tax on name-brand cigarettes sold to non-Indians on Indian land. The following year, in Oneida Nation of New York v. Cuomo, 645 F.3d 154 (2d Cir. 2011), a federal appeals court lifted a stay put in place by a district court, allowing New York to enforce the state sales tax.
In 2008, the Oneida had moved its own cigarette factory onto the reservation and sold Oneida manufactured cigarettes tax-free to both Indians and non-Indians at a substantially lower cost to the consumer. The Oneida believed that the 2nd Circuit ruling did not apply to non-name brand cigarettes manufactured and sold on the reservation, even if sold to non-Indians. As a result, the Oneida said they would not purchase name-brand cigarettes from wholesalers to sell on their reservation, and instead would focus on selling Oneida manufactured cigarettes to avoid the state excise taxes. However, Governor Cuomo has long asserted that New York does in fact have the right to tax Indian-made cigarettes sold to non-Indians.
Indeed, the recently announced settlement would apply the cigarette tax to both name-brand cigarettes and cigarettes manufactured on the reservation and sold to non-Indians.