Appellate Judge Issues Stay; Prevents NYS Tax Plan

September 1, 2010 Updated Sep 1, 2010 at 5:43 PM EDT

By Laura Gray

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September 1, 2010 Updated Sep 1, 2010 at 5:43 PM EDT

Irving, NY (WKBW) -- An Appellate Court judge in Rochester reinstated a temporary restraining order today that had been lifted Monday by State Supreme Court judge Donna Siweck. Tuesday, a U.S. District Judge Richard Arcara granted a temporary restraining order to the Senecas and Cayugas.
Wednesday, the Senecas were rallying along the thruway on the Cattaraugus Reservation in Irving to celebrate the federal temporary restraining order. Many people were also expressing their anger.
Following the federal decision, Governor David Paterson was still planning to collect taxes from tribes not protected by the restraining order. Today, Native Americans were also protesting along the Tuscarora Reservation in response.
This morning, an Appellate Judge in Rochester reinstating an injunction that was lifted in a Buffalo State Supreme Court Monday. That "stay" protects all Native tribes.

The Governor's press secretary sending this statement.

We are disappointed today that the Appellate Division has stayed the implementation of our statute and regulations with respect to licensed stamping agents. Despite this ruling, we believe the State's legal arguments are sound and we believe that ultimately the State will prevail in this matter. We look forward to further procedures to lift this injunction, and we are pleased that the full panel of the 4th Department will be hearing this in the very near future.

Jessica Bassett
Deputy Press Secretary
Governor David A. Paterson

Here is the Seneca Response:

APPELLATE COURT ISSUES 'STAY' IN TOBACCO TAX CHALLENGE PREVENTING New York STATE FROM COLLECTING TAX FROM All INDIAN NATIONS LOCATED IN NEW YORK

Rochester Court Ruling Comes One Day After a Federal Judge Imposed a 14-day Ban on State Tax Collection Action on Sales by the Seneca and Cayuga Nations

September 1, 2010 - Cattaraugus Territory, NY - New York Appellate Court Justice Samuel Green today issued a stay regarding the August 30 State Supreme Court ruling in the "Day Wholesale v. State of New York" tobacco tax case. The Green ruling temporarily enjoins the State from collecting tobacco taxes from all Native American tobacco sellers within state boundaries.

The ruling by the Rochester-based Fourth Department Appellate judge reinstates the injunction State Supreme Court Justice Donna M. Siwek lifted on August 30, until an Appellate Court panel hears arguments next week.

"We are extremely relieved that now all Indian nations within New York are protected from the State's collection efforts, while efforts continue in both State and Federal Courts to continue our challenge of the State's misguided taxing scheme," said Seneca Nation of Indians President Barry E. Snyder Sr.

The Seneca Nation were granted intervener status in the 2006 "Day Wholesale" case late last month and had argued before Siwek August 30 that the court should consider procedural flaws in the State's implementation of the tax scheme that was scheduled to go into effort today.

On Tuesday, Federal Judge Richard J. Arcara issued a temporary restraining order in a lawsuit brought by the Seneca Nation, and joined by the Cayuga Nation. The order, which is in effect though Sept. 13, protects only those plaintiffs.

Lawyers for the Senecas, Cayugas and State of New York are due back in federal court Thursday afternoon at 1 p.m. for pre-hearing motions ahead of full arguments on the Seneca case.