Originally Posted By: dwarren
Judge Arcara denied the Seneca and Cayuga Indian Nation's motion for a preliminary injunction and granted an extension of the restraining order pending appeal.

From: [url]http://www.buffalonews.com/city/police-courts/courts/article220128.ece[/url]

U.S. District Judge Richard J. Arcara on Thursday extended indefinitely his ban on state taxation of cigarette sales by the Seneca Nation and other Indian tribes.

But it was not a complete victory for the Senecas and their supporters.

In one of two rulings, Arcara extended a temporary restraining order that prevents the state from collecting taxes on cigarette sales by Indian-owned businesses to non-Indians.

The temporary order, which the judge initially issued during the summer, had been scheduled to end today.

Arcara said Indian tribes throughout the state would "suffer irreparable injury" if he did not extend the temporary order. He said thousands of smoke shop workers would be likely to lose jobs if the state taxation begins now.

The judge also voiced concerns about public safety if he does not extend the order. He said he is concerned about the threat of violence by Indian protesters if the taxation begins.

While his extension of the temporary restraining order is good news for Indian tribes, Arcara also filed a second order in which he turned down some of the arguments that Indian tribes have presented to fight off taxation.

He said lawyers for the Seneca Nation and the Cayuga Indians have "failed to demonstrate a likelihood of success" on their claims that the state taxation plan is unconstitutional.

Previous decisions in federal courts "make clear that the [Indian tribes'] right to tribal self-government is not impeded by New York's decision to impose a tax-collection duty on sales by Indian retailers to non-members," Arcara wrote, "even if that decision carries with it the inevitable consequence that the [tribes'] coffers will suffer as a result of lost cigarette sales."

While Seneca Nation leaders and protesters publicly insist that the state's taxation efforts violate Indian treaties, that argument has not been advanced by the tribe's lawyers in the litigation before him, Arcara said.

In its legal arguments, the Seneca Nation "expressly acknowledges that, as a general principle, New York State has the authority to require reservation retailers to collect excise taxes on sales to non-Indians," Arcara wrote.

"This point is significant. New York estimates that of the 10 million cartons [of cigarettes] sold last year by [Seneca] retailers, less than 70,000 were purchased by Seneca Nation members for their own personal consumption. Under [previous federal court rulings], the vast majority of sales made by reservation retailers are taxable," the judge wrote.

Arcara said he has already been informed by Seneca and Cayuga lawyers that they would appeal his ruling.

In his view, he wrote, the best course of action is to extend his temporary restraining order while a higher court hears legal arguments on the controversial case.

time to stop using the lame 'broken treaties' scam....