Power of taxation is fundamental Indian freedom
Taxation is the fundamental sovereignty issue. Of the freedoms still retained by American Indian peoples within the United States, the right of tribal governments to represent and serve their own communities and to levy taxation within their own territories to raise their own operating revenues is most elemental.
New York State Tax Commissioner Andrew S. Eristoff has made a wise decision in moving to postpone indefinitely the attempt by New York to collect taxes on sales of tobacco and oil products sold on reservation lands. The Commissioner, speaking before a bipartisan group of legislators, cited his concern for violence on the reservations as his main reason and argued that "trying to work something out that avoids confrontation makes more sense."
Predictably, the association of convenience store owners and others opposed to any meaningful existence of the tribes, have called this "a capitulation." We believe the decision by the Commissioner makes legal, historical, social and ethical sense.
Notwithstanding New York state court decisions and legislative actions, tribal governments and courts and their populations share a deep-seated and generational assertion, based on treaties and de-facto practice over centuries, that commerce within their territories is to be internally regulated, if at all. To repeat: only the Indian nations have the power to legislate and levy their own tax regulations over any and all trade and commerce within their sovereign borders. Any attempt by a state to tax Indian business without the consent of tribal governments is simply not workable. In New York state, it cuts too deeply into the most traditional of Haudenosaunee themes: the home and community teaching of generations of elders that to accept taxation by the jurisdiction of New York state is to give up one's personal and collective freedoms and to extinguish any meaning of sovereign self-government altogether. This assertion carried over decades has made possible a gradual but important economic recovery for all tribes within New York that sustains 2,000 - 3,000 crucial jobs for American Indians on homelands hit hard by unemployment.
For these combined reasons, the rank and file of Indian peoples within New York state are willing to challenge at all costs the attempt to impose external taxation on their beloved, ancient, and inherently sovereign lands. This is a lesson hard learned by each successive generation of New York state politicians, including current Governor George Pataki, who early saw the wisdom of respectful negotiations with the tribal communities in his home state, as difficult as they may be. But it is a lesson that has been repeatedly lost on many others throughout America's history.
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Meanwhile, State Senate Republican leader Joseph Bruno leads the chorus of complaints that the state is "losing" hundreds of millions in tax revenues from the Indian merchants' refusal to collect state taxes on goods or services sold to non-Indians within Indian territory. Commissioner Eristoff cuts that figure to more like $40 million a year, since a major proportion of the sales go to out of state markets. In either case, the assumption is obfuscated by this line of reasoning. The state in fact has nothing to lose in this equation, since the so-called taxes it is intent on collecting do not belong to the state in the first place. These are Indian monies, for the tribal governments to collect or not collect, as per their particular agreements with their own tribal businesses. It is Indian government tax money to lose.
If, as some would argue, the state is simply trying to tax its own, non-Indian residents who buy goods on Indian land, why does it not line up to tax its residents who buy goods in Vermont or New Jersey, or Delaware for that matter?
Anti-tribal politicians would have the state unilaterally destroy this fundamental freedom of American Indian peoples - of those who occupied these lands long before Europeans arrived and who managed their own governments, lands and resources long before the state even came into existence. The state has written a fiction and fabricated a bogus perception that Indians simply do not and should never accept. The Haudenosaunee nations, and a growing number of other New York residents, propose that this is an illegitimate process and that this is perhaps the most fundamental fight for American Indian freedom that exists today.
We commend here the poignant television campaign by the Seneca Nation to educate New Yorkers on the history and reality of treaties guaranteeing the right of freedom from taxation. One commercial has an American Indian veteran explaining how he and other Native veterans fought for the freedom of peoples and the sovereignty of nations all over the world, only to have New York state ignore its own lawful treaty obligations. By and large, when the general public has access to well-reasoned and accurately-documented positions on tribal histories and legal realities, the Indian case shines through.
We also commend the effort by the Oneida Nation to gather Haudenosaunee leaders and the effort of the St. Regis Mohawk Council to unite their own community for more effective positioning in negotiating with the state. We urge all tribal leaders to hold on fiercely to this most essential freedom. Those who do not risk selling out their fundamental identity and heritage. At this time in history, we believe that to capitulate to the state on such an absolute matter of tribal freedom is to act out of fear, not on principle. Standing united and intelligent on this issue, which is true and brilliantly clear, the Native nations can continue to assert their right to a meaningful future.
New York State, too, we suspect, is starting to move in the right direction. More and more political leaders perceive the benefit of welcoming Indian nations as growing financial partners that will return the respect as excellent regional rotors of economic stimulus and recovery. Negotiation among sovereigns seeking to solve trade imbalances is wholly legitimate and forges the only realistic path toward respectful resolution of differences. The course to successful partnership rather than wasteful antagonism and paralyzing political confrontation is only a decision away.
