senate Bill S4679

Amended

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

  • 18 / Apr / 2013
    • REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 08 / Jan / 2014
    • REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 14 / May / 2014
    • AMEND AND RECOMMIT TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 14 / May / 2014
    • PRINT NUMBER 4679A
  • 09 / Jun / 2014
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 09 / Jun / 2014
    • ORDERED TO THIRD READING CAL.1211
  • 10 / Jun / 2014
    • PASSED SENATE
  • 10 / Jun / 2014
    • DELIVERED TO ASSEMBLY
  • 10 / Jun / 2014
    • REFERRED TO WAYS AND MEANS

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:
A5393
Versions:
S4679
S4679A
Legislative Cycle:
2013-2014
Current Committee:
Law Section:
Tax Law
Laws Affected:
Amd §470, Tax L; amd §6, Indian L; amd §454, RPT L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S3866C, A5151B, S3866C
2013-2014: S4679A

Sponsor Memo

BILL NUMBER:S4679

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: S.3866

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
________________________________________________________________________

                                  4679

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 18, 2013
                               ___________

Introduced  by Sen. NOZZOLIO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Investigations and Govern-
  ment Operations

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
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01567-01-3

S. 4679                             2

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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