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    Judge: New York Native Americans Subject to PACT Rules

    Tribal tobacco retailers cannot use the post office to ship cigarettes while they await judgment in a related case.

    BUFFALO, N.Y. -- Seneca Indians in the mail-order cigarette trade can no longer use the post office to ship cigarettes to consumers while they try to appeal in court a new law banning the action, a federal judge ruled last week, according to a report by The Associated Press.

    Judge Richard Arcara upheld a mail-order ban as part of the Prevent All Cigarette Trafficking Act, passed earlier this year, but also temporarily exempted more than 140 Seneca-owned businesses from a provision requiring them to comply with all taxing laws in the places they sell cigarettes, the report stated.

    In his ruling, Arcara disagreed that the law violated the Constitution's equal protection rights. Congress knew leveling the playing field for nonnative retailers would hurt American Indian businesses, he wrote, "but took that action in spite of that fact, and not because of it."

    He also shot down challenges to the PACT Act. "It was Congress's judgment that use of the mails ... facilitates illegal cigarette trafficking and enhances the accessibility of cigarettes for minors," Arcara said in his ruling.

    But the judge said the law's unprecedented requirement that sellers follow the taxing schemes of the cities and states into which they ship could have far-reaching effects and needed a closer look. "If Congress possesses the authority to subject out-of-state retailers to every state and local taxing jurisdiction into which their products are delivered, then it has the authority to do so for all commercial products, not just cigarettes," Arcara said.

    The order will remain in place while a lawsuit claiming the PACT Act is unconstitutional is heard.

    Plaintiff Aaron Pierce, whose decade-old Seneca Smokeshop on the Cattaraugus reservation does business in 46 states, planned to find an alternate delivery method, his lawyer told the AP.

    "We're pleased to be remaining in business and we intend to do so," attorney Michael Feeley said.

    The mixed ruling disappointed Seneca Nation President Barry Snyder.

    "The nation urges Seneca business people to continue their court battle -- all the way to the U.S. Supreme Court, if necessary -- to allow mailing of legal tobacco products," Snyder told the AP.

    Seneca-owned businesses are estimated to control 80 percent of the country's mail-order cigarette market, and cigarettes sold do not contain state sales taxes, the AP reported.

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