senate Bill S3866C

Relates to the definition of qualified reservation

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 08 / Mar / 2011
    • REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 10 / Mar / 2011
    • AMEND AND RECOMMIT TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 10 / Mar / 2011
    • PRINT NUMBER 3866A
  • 16 / Mar / 2011
    • AMEND AND RECOMMIT TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 16 / Mar / 2011
    • PRINT NUMBER 3866B
  • 04 / Jan / 2012
    • REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 11 / Apr / 2012
    • AMEND (T) AND RECOMMIT TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 11 / Apr / 2012
    • PRINT NUMBER 3866C

Summary

Relates to the definition of Indian reservation; ties such term to certain treaties.

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Bill Details

See Assembly Version of this Bill:
A5151B
Versions:
S3866
S3866A
S3866B
S3866C
Legislative Cycle:
2011-2012
Current Committee:
Senate Investigations And Government Operations
Law Section:
Tax Law
Laws Affected:
Amd §470, Tax L; amd §6, Indian L; amd §454, RPT L

Sponsor Memo

BILL NUMBER:S3866C

TITLE OF BILL:
An act
to amend the tax law, the Indian law and the real property tax law,
in relation to the definition of "qualified reservation"

PURPOSE:
To clarify that Indian nations are only exempt from
the payment of sales taxes on cigarettes purchased for their own use
on reservations where they exercise sovereignty over such lands and
that only such lands are exempt from the payment of real property
taxes.

SUMMARY OF SPECIFIC PROVISIONS:
This bill amends subdivision (16) of
Section 470 of the Tax Law to eliminate from the definition of a
"qualified reservation" lands held by an Indian nation or tribe that
are located within the reservation of that nation or tribe within the
state and instead provides that the term "qualified reservation" be
limited to lands within the state over which an Indian nation
lawfully exercises tribal sovereignty or lands over which the Indian
nation or tribe exercises governmental power and that are either:
held by the nation subject to restrictions by the United States
against alienation pursuant to the Seneca Nation (New York) Land
Claims Settlement Act (25 U.S.C. 1774 et seq.); or held in trust by
the United States for the benefit of such Indian nation. The bill
also amends Section 6 of the Indian Law and Section 454 of the Real
Property Tax Law by defining "Indian reservation" to be consistent
with the definition of "qualified reservation" in Section 470 of the
Tax Law.

JUSTIFICATION:
In 2010, the New York Court of Appeals issued its
decision in Cayuga Indian Nation of New York v.
Cayuga County wherein
it reaffirmed the Appellate Division 4th Department's 2009 ruling
that the Cayuga Nation did not have to collect the sales tax on
cigarettes sold to non-Indian consumers at two stores located on
their aboriginal land.
Specifically, the Court ruled that despite the fact that the Cayuga
Nation has no present reservation in the state, the properties
involved met the statutory test under the Tax Law of being a
qualified reservation (wherein the state is without power to impose a
tax on sales to Indians) because their reservation, established by a
treaty in 1789 and further acknowledged by the treaty of Canandaigua
in 1794, was never disestablished by Congress. Thus, the Court ruled
that the two Cayuga Nation stores were located on reservation land
even though the Nation exercised no sovereign control over them.
Ultimately, only Congress or the United States Supreme Court can
settle the issue concerning the ramifications of a Native American

nation acquiring real property in an unrecognized but also
un-disestablished reservation, Until that occurs, this bill would
require that real property owned by a nation could only be deemed a
qualified reservation under
support for the bill's provisions can also be found in the 2005
decision of the Supreme Court of the United States in City of
Sherrill v. Oneida Indian Nation of New York which held that
the Oneida do not exercise sovereignty in whole or in part over parcels
they recently purchased on the open market and that such parcels are
subject to real property taxes. The holding in Sherrill
applies not
only to the specific parcels within the City of Sherrill at issue but
also to lands recently purchased by the Oneida within their historic
reservation of 250,000 to 300,000 acres. The principle of
Sherrill
applies equally to lands recently purchased by other New York tribes.
Nevertheless, the Oneida have refused to pay real property taxes and
have argued that these parcels are exempt from such taxes under
Section 6 of the Indian Law and Section 454 of the Real Property Tax
Law because in the historic reservation has not been
"disestablished." In 2010, the Supreme Court of the United States
granted certiorari on two questions, including "whether the ancient
Oneida reservation in New York was disestablished or diminished."
After the Oneida passed a tribal declaration and ordinance waiving
"its sovereign immunity to enforcement of real property taxation
through foreclosure by state, county and local governments," the
Supreme Court vacated the judgment of the Second Circuit and remanded
the case to that court, where it is still pending. This bill would
provide that real property owned by an Indian nation or tribe could
be deemed an "Indian reservation" under the Indian Law and under the
Real Property Tax Law only if that tribe or nation lawfully exercises
tribal sovereignty over such real property, or that property is (1)
either held by the nation or tribe subject to restriction by the
United States again alienation pursuant to the Seneca Nation (New
York Land Claims Settlement Act (25 U.S.C. 1774 et seq.); or(2)
held in trust by the United States for the benefit of such
nation or tribe as set forth in the bill.

PRIOR LEGISLATIVE HISTORY:
2011: A.5151A Died in Assembly Ways & Means.

FISCAL IMPLICATIONS:
Could result in a minimal increase in sales tax
collection from any affected stores.

EFFECTIVE DATE:
Immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3866--C

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              March 8, 2011
                               ___________

Introduced  by Sen. NOZZOLIO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Investigations and Govern-
  ment  Operations  --  committee  discharged,  bill  amended,   ordered
  reprinted  as  amended  and recommitted to said committee -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee -- recommitted to the  Committee  on  Investigations
  and  Government Operations in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to  amend the tax law, the Indian law and the real property tax
  law, in relation to the definition of "qualified reservation"

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision 16 of section 470 of the tax law, as added by
section 1 of part K of chapter 61 of the laws of  2005,  is  amended  to
read as follows:
  16.  "Qualified  reservation."  (a) Lands [held by an Indian nation or
tribe that is located within the reservation of that nation or tribe  in
the  state]  WITHIN  THE  STATE  OVER  WHICH  AN  INDIAN NATION OR TRIBE
LAWFULLY EXERCISES TRIBAL SOVEREIGNTY;
  (b) Lands within the state over which an Indian nation or tribe  exer-
cises  governmental  power  and  that  are either (i) held by the Indian
nation or tribe subject to restrictions by  the  United  States  against
alienation  PURSUANT  TO THE SENECA NATION (NEW YORK) LAND CLAIM SETTLE-
MENT ACT (25 USC 1774 ET SEQ.), or (ii) held  in  trust  by  the  United
States  for  the  benefit of such Indian nation or tribe PURSUANT TO THE
INDIAN REORGANIZATION ACT (25 USC 461 ET SEQ.);
  (c) Lands held by the Shinnecock Tribe or the Poospatuck  (Unkechauge)
Nation within their respective reservations; or
  (d)  Any  land that falls within paragraph (a) or (b) of this subdivi-
sion, and which may be sold and replaced with other land  in  accordance

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05621-09-2

S. 3866--C                          2

with an Indian nation's or tribe's land claims settlement agreement with
the  state  of  New  York, shall nevertheless be deemed to be subject to
restriction by the United States against alienation.
  S 2. Section 6 of the Indian law is amended to read as follows:
  S  6. Exemption of reservation lands from taxation.  1. No taxes shall
be assessed, for any purpose whatever, upon any  Indian  reservation  in
this  state,  so  long  as the land of such reservation shall remain the
property of the nation, tribe or band occupying the same.
  2. FOR THE PURPOSES OF THIS SECTION, "INDIAN RESERVATION" MEANS:
  (A) LANDS WITHIN THE STATE  OVER  WHICH  AN  INDIAN  NATION  OR  TRIBE
LAWFULLY EXERCISES TRIBAL SOVEREIGNTY;
  (B) LANDS HELD BY AN INDIAN NATION OR TRIBE SUBJECT TO RESTRICTIONS BY
THE  UNITED STATES AGAINST ALIENATION PURSUANT TO THE SENECA NATION (NEW
YORK) LAND CLAIMS SETTLEMENT ACT (25 USC 1774 ET SEQ.);
  (C) LANDS HELD IN TRUST BY THE UNITED STATES FOR THE BENEFIT  OF  SUCH
INDIAN  NATION  OR  TRIBE  PURSUANT TO THE INDIAN REORGANIZATION ACT (25
U.S.C. 46, ET SEQ.); OR
  (D) LANDS HELD BY THE SHINNECOCK TRIBE OR THE POOSPATUCK  (UNKECHAUGE)
NATION WITHIN THEIR RESPECTIVE RESERVATIONS.
  S  3.  Section  454 of the real property tax law is amended to read as
follows:
  S 454.  Indians. 1. The real property in any Indian reservation  owned
by  the Indian nation, tribe or band occupying them shall be exempt from
taxation and exempt from special ad valorem levies and  special  assess-
ments  to  the  extent  provided  in section four hundred ninety of this
chapter.
  2. FOR THE PURPOSES OF THIS SECTION, "INDIAN RESERVATION" MEANS"
  (A) LANDS WITHIN THE STATE  OVER  WHICH  AN  INDIAN  NATION  OR  TRIBE
LAWFULLY EXERCISES TRIBAL SOVEREIGNTY;
  (B) LANDS HELD BY AN INDIAN NATION OR TRIBE SUBJECT TO RESTRICTIONS BY
THE  UNITED STATES AGAINST ALIENATION PURSUANT TO THE SENECA NATION (NEW
YORK) LAND CLAIMS SETTLEMENT ACT (25 USC 1774 ET SEQ.);
  (C) LANDS HELD IN TRUST BY THE UNITED STATES FOR THE BENEFIT  OF  SUCH
INDIAN  NATION  OR  TRIBE  PURSUANT TO THE INDIAN REORGANIZATION ACT (25
U.S.C. 46, ET SEQ.); OR
  (D) LANDS HELD BY THE SHINNECOCK TRIBE OR THE POOSPATUCK  (UNKECHAUGE)
NATION WITHIN THEIR RESPECTIVE RESERVATIONS.
  S 4. This act shall take effect immediately.

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