State Court Of Appeals Got It Wrong: The Cayuga Indian Nation Is Not Above The Law

Legislative column from Assembly Minority Leader Brian M. Kolb (R,I,C-Canandaigua)
May 14, 2010

Regular readers of this weekly legislative column are well aware of my firm belief that all of our laws must be applied and enforced equally. In the United States of America, no individual or group is above the law – nor is anyone below it. The fair, impartial application of the law without fear or favor is one of the most bedrock concepts of our entire legal system. This is reflected in the age-old expression “justice is blind.”


While justice may be blind, it can also be imperfect. A clear example of this was the State Court of Appeals ruling this past Tuesday, May 11, that the Cayuga Indian Nation could continue operating above the law and refuse to collect the taxes on cigarettes sold on Native American lands to non-Native American Indians. In the case of Cayuga Indian Nation of New York v. Cayuga County Sheriff David S. Gould, our State Court of Appeals, New York’s “court of last resort,” ruled 4-3 in favor of the Cayuga Indian Nation. I, and many other New York taxpayers, strongly disagreed with their decision.

A growing coalition of citizens and businesses who believe in the rule of law have been calling for the collection of these taxes for well over a decade, only to have our pleas fall on deaf ears. The total state revenue that could be generated through the lawful collection of taxes on cigarette sales made on Native American lands to non-Native American Indians could total upwards of $600 million for cash strapped New York State.


When you stop to consider that New York is facing a cash crunch and a $9.05 billion budget deficit, you quickly realize that if the state actually enforced the collection of these taxes, it would go a long way toward reducing its fiscal shortfall. Instead of closing parks, stiffing construction contractors, laying off teachers, furloughing public employees, cutting essential services or hiking taxes on middle class families and businesses, wouldn’t it make more sense for state government to enforce the law and collect the taxes? Clearly it would, which is why a few months ago I publicly called on Governor Paterson to ensure regulations were in place to allow the collection of these taxes to move forward. The Governor said the necessary regulations would be enacted by July and I am going to hold him to that promise!


Without question, the Court of Appeals ruling was a setback not only for the effort to collect these lost state revenues, but for countless small businesses who were hoping the Court would do the right thing and affirm a fair and level playing field for businesses, whether they operate on Native American lands or not. Year after year, mom-and-pop convenience stores across Central and Western New York have been at a tremendous financial disadvantage as they have been competing on a playing field that is most certainly unfair and unequal. Many of those stores have since gone out of business because the disadvantage of their having to collect the sales taxes, while others did not, was simply too much to overcome.

The Court’s decision undercuts efforts to ensure basic fairness for ALL businesses, not just a select few. Regrettably, the decision also sends a message that the Cayuga Indian Nation “gets a pass” and can seemingly operate above New York’s laws. Is that what we teach our children? That they can merely choose to follow some of the laws, some of the time? Of course not.


To be fair, the entire Court did not get it wrong. Three Judges ruled in favor of upholding the law and ending the double standard that the Cayuga Indian Nation has been operating under for quite some time. The dissenting opinion was written by Court of Appeals Judge Eugene F. Pigott, Jr. I agreed wholeheartedly with Judge Pigott’s dissent that affirmed New York’s power to collect the taxes on cigarettes sold on Native American lands to non-Native American Indians. The Court should have heeded Judge Pigott’s well-reasoned logic that was rooted in the law and its equal application. Copies of the Court’s decision, which includes Judge Pigott’s dissent, are available by contacting my district office. You also can read the decision on-line at the Court of Appeals’ website:


While taxpayers and businesses that support the rule of law may have lost this round, our effort is far from over – and we are far from defeated. The best thing we can do is redouble our efforts and increase the public pressure on Governor Paterson to move forward in putting state regulations in place by July to collect taxes on cigarettes sold on Native American lands to non-native American Indians. Doing so would be an important step toward generating $600 million in state revenue that is currently being lost. New York State desperately needs this money and our Assembly Minority Conference and I have identified it as one of the many real solutions we have offered to close our state’s multi-billion dollar budget deficit.

Folks, this fight is not over. Justice may be blind, but justice will ultimately prevail.

As always, constituents wishing to discuss this topic, or any other state-related matter should contact my district office at (315) 781-2030, or e-mail me at You can also follow me on Facebook and Twitter for the latest news and informational updates regarding state government and our Assembly Minority Conference.