Tuesday, September 07, 2010

American Cancer Society Intervenes in New York State Lawsuit, Urging Judge to Rule Against Native Americans

The American Cancer Society (ACS) has intervened in the lawsuit brought by the Seneca Nation against the state of New York, in which the Seneca Nation seeks an injunction blocking a law that increases the tax on cigarettes sold on Native American reservations in the state.

According to an article on the WBEN web site: "The American Cancer Society and several other health groups... have joined in making a motion to Judge Arcara in federal court, asking if we can submit an amicus brief," Russ Sciandra, a tobacco policy specialist for the A.C.S., tells WBEN. In layman's terms, that means that the health advocacy groups - others of which include the American Heart Association and the American Lung Association - are asking to submit additional information for U.S. District Court Judge Richard Arcara to ponder, as he considers whether to grant the Seneca Nation's request for a permanent injunction blocking the tax. ... The document, according to Sciandra, "will outline the public health implications of cigarette tax evasion that's facilitated by the failure to collect taxes on the cigarettes that are shipping to the reservation[s]." ...

"All the talk is about commerce, about land claims, about sovereignty. We just want to remind the court and all of the parties that what this is really about, is public health," Sciandra says.

The Rest of the Story

Actually, the American Cancer Society is wrong. This is not about public health; it is about the sovereignty of the Seneca Nation and the question of whether the state of New York has the legal right to impose taxes on products sold on Native American reservations.

The issue before the U.S. District Court is not whether cigarette taxes are a good or a bad thing for the public's health. The issue is simply whether the state can legally impose and collect a tax on cigarettes sold on Native American reservations and on the Seneca Reservation specifically.

The price elasticity of demand of cigarettes really has no bearing on the case and the American Cancer Society's intervention is irrelevant and uncalled for. Moreover, it demonstrates a lack of appreciation of the legal system and the legal rights of Native Americans. Does the American Cancer Society not understand that there is such a thing as the law and that public policies must follow that law?

And the question here is whether or not it is legal for New York to impose a tax on products sold at Native American reservations, not whether or not it is a good or bad idea to tax cigarettes.

Generally, the Supreme Court has held that states may not impose taxes on products sold to Natives on Native lands, but that they may tax products sold to non-Natives. It is this judicial interpretation of the law and of long-standing treaties between state governments and Indian tribes which is the central consideration, not whether the American Cancer Society thinks that taxing cigarettes is a good idea. I suspect that the state of New York will prevail based on previous court rulings, but the public health impact of taxing cigarettes has little to do with the decision.

The rest of the story is that the American Cancer Society is demonstrating a lack of respect for the law, as well as for the legal right of Native American nations to challenge the legality of laws that they believe are not valid.

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