The Court declined to dismiss Alexander's claim under Labor Law §240 (1), finding that Alexander was engaged in repair of a building at the time of his fall, as provided for under the statute. It did dismiss Alexander's claim under §241 (6), finding that he was not engaged in construction, excavation or demolition work when he was hurt, as that statute stipulates.
Hart's attorney, John A. Piasecki of Malone, N.Y., said he argued that application of the Labor Law is an administrative action by the state and does not have force in the St. Regis Mohawk territory. Piasecki said he would like to someday argue the point before the U.S. Supreme Court.
"It is larger than mere tribal sovereignty," Piasecki said Tuesday in an interview. "We have argued that unless a law is specifically adopted on an Indian reservation or specifically imposed on an Indian reservation by a federal act of Congress … New York statutes simply don't apply within the boundary of the St. Regis Mohawk Indian Reservation."
Rebecca A. Crance of the Sugarman Law Firm in Syracuse, N.Y., said she tried to steer clear of sovereign immunity questions by not naming the tribe or the reservation in the suit.
Justices Thomas E. Mercure, Robert S. Rose, E. Michael Kavanagh and Elizabeth A Garry joined in Justice Kane's ruling.
CIGARETTE TAX ISSUES
In another unanimous Third Department ruling, a different panel upheld a Tax Appeals Tribunal decision that found Tennessee cigarette wholesaler Elias H. Attea Jr. liable for more than $1 million in additional state income taxes plus interest for the 1992 and 1993 tax years.
Attea argued that he properly apportioned about $430,000 of the $11.6 million he reported in income for the two years to income from the sale of cigarettes on Indian lands to other Indians on the St. Regis and Tuscarora Indian reservations.
But the appellate court ruled in Attea v. Tax Appeals Tribunal, 504571, that Attea could not produce any "sales journals, general ledgers, balance sheets, expense receipts, income statements or bank statements" to substantiate his claim that he traded exclusively with Indians who resold his cigarettes to other Indians living on native lands.
The taxpayer must meet the burden of establishing that income declared on such sales was properly confined to sales to other Indians, Justice Mercure wrote for the court.
"Although petitioner argues that all state transactional record-keeping requirements are inapplicable to Indian traders due to preemption by federal law in this area, it is now well established that 'Indian traders are not wholly immune from state regulation that is reasonably necessary to the assessment or collection of lawful state taxes,'" Justice Mercure wrote, quoting a landmark Indian tax case, Department of Taxation & Fin. V. Milhelm Attea & Bros., 512 U.S. 61 (1994).
Justices Rose, Kavanagh and Garry concurred.
In a Fourth Department tax case, Cayuga Indian Nation of New York v. Cayuga County Sheriff David S. Gould, CA 08-02582, the judges held that sheriff's deputies in Cayuga and Seneca counties moved illegally last fall when they seized some three million untaxed cigarettes from Cayugas' Lake Side Trading stores in each county.
The judges decided that a section of state Tax Law, 471-e, has been rendered inoperable because of the Department of Taxation and Finance's failure to issue coupons allowing for the taxing of cigarettes sold by Indian vendors to non-Indians. Since the statute is not in effect, the counties cannot prohibit the sales of untaxed cigarettes at the Lake Side Trading stores.
The court ruled 4-1, with the dissenter, Justice Erin M. Peradotto, writing that sections of state Tax Law other than §471-e provide for authorization to tax the sales by Indians to non-Indians.
Justices Robert G. Hurlbutt, John V. Centra, Samuel L. Green and Jerome C. Gorski were in the majority, with Justice Hurlbutt writing the majority ruling.
An attorney for the Cayugas, former federal prosecutor Daniel French, said Tuesday the tribe had given the governments in both Cayuga and Seneca counties an offer to dismiss the suit and pay the counties' $180,000 for legal fees. If not, French said the tribe would press the litigation, possibly exposing the two counties to millions of dollars in damages and legal fees.
Legislators from both counties planned to meet Tuesday night to discuss the Cayugas' offer.
Subscribe to New York Law Journal
