Cigarettes seized between New York Indian reservations

By Carolyn Thompson
Buffalo, New York (AP) August 2010

A Seneca Nation businessman who is challenging new federal restrictions on mail-order cigarette sales called the seizure of a delivery truck containing thousands of cartons of his cigarettes “clear retaliation” for his lawsuit.

The cigarettes were seized by the state Monday, the day before lawyers for Aaron Pierce and 140 members of the Seneca Free Trade Association were due in U.S. District Court in Buffalo to continue their challenge of the Prevent All Cigarette Trafficking Act.

At least one state tax agent pulled over the truck owned by Pierce’s AJ’s Wholesale LLC of Irving as it was making deliveries between Seneca reservations in western New York.

A statement released by Pierce’s attorney, Lisa Coppola, called the warrantless stop and seizure illegal. She said investigators drove off with the truck and its cigarette cargo, “abandoning the truck driver and boxes of melting candy along the side of rural Route 353A.”

“This outrageous seizure is clear retaliation for my company’s litigation in federal court,” Pierce said in a written statement.

Taxation and Finance spokesman Brad Maione confirmed cigarettes were seized because they did not bear state tax stamps as required by law. The cigarettes were on state property between the Cattaraugus and Allegany reservations when the seizure took place, he said.

Maione declined to comment Tuesday on Pierce’s claim of retaliation or to release more information. He said an investigation was ongoing.

Seneca President Barry Snyder said the western New York tribe was weighing its options.

“The nation does not take lightly this overt act of state aggression against the nation and its people,” Snyder said.

Coppola accused state investigators of “thumbing their collective nose” at a May appeals court decision that found that New York state currently has no enforceable tax scheme for Native American cigarette sales.

Coppola was among lawyers who appeared in federal court Tuesday for a hearing on the PACT Act, which took effect June 29. The federal law prohibits cigarette sellers from delivering tobacco by mail and requires them to comply with taxing and other laws in the locations where they do business.

The Seneca businesses asked Judge Richard Arcara to stop the government from enforcing the PACT Act while they appeal a July 30 court ruling that upheld the law’s mail ban while exempting the plaintiff businesses from the taxation provisions.

That split ruling also is being appealed by the government, whose lawyers argued that sellers should have to comply with all laws in the areas where their products are delivered. Justice Department attorney Gerald Kell asked Arcara to stay the July 30 ruling during the appeal process.

Arcara said he would make a decision by the end of the week.

Seneca-owned businesses in western New York dominate the mail-order cigarette market. The issue of taxing cigarette sales has caused conflict between the state and its Indian nations for decades.