Opinion
Argued October 20, 1994
Decided December 1, 1994
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Harold J. Hughes, J.
Jones, Day, Reavis Pogue (Timothy B. Dyk and Gregory G. Katsas, of the District of Columbia Bar, admitted pro hac vice, of counsel), and Toohey Dowd, P.C., Lewiston (Timothy J. Toohey of counsel), for appellant.
G. Oliver Koppell, Attorney-General, Albany (Lew A. Millenbach, Jerry Boone and Peter H. Schiff of counsel), for respondents.
Block Colucci, P.C., Buffalo (Joseph F. Crangle of counsel), for Seneca Nation of Indians and others, amici curiae.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
In this action for declaratory and injunctive relief, the issue is whether the State Department of Taxation and Finance may require plaintiff, an enrolled member of the Seneca Nation, to collect and remit sales, use and excise taxes on sales of cigarettes and motor fuel to non-Indian consumers at plaintiff's retail business on the Cattaraugus Reservation. Because the issue is directly governed by controlling precedent, we affirm the order of the Appellate Division dismissing plaintiff's complaint.
The United States Supreme Court has clearly established that State tax statutes requiring Indian retailers to collect and remit taxes on sales to non-Indian purchasers, and to keep the records necessary to ensure compliance, violate neither the Commerce Clause nor the constitutional proscription against direct taxation of Indians absent explicit congressional consent (see, Oklahoma Tax Commn. v Potawatomi Tribe, 498 U.S. 505; Washington v Confederated Tribes, 447 U.S. 134; Moe v Salish Kootenai Tribes, 425 U.S. 463). To the extent plaintiff contends that the State tax statutes at issue violate either the Supremacy Clause or New York law, his arguments are unpreserved and cannot be considered on this appeal. Plaintiff's complaint asserted only violations of the Commerce Clause and "the Laws of the United States enacted pursuant thereto".
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order affirmed, with costs, in a memorandum.