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CAYUGA INDIAN NATION v. GOULD

CA 08-02582.

66 A.D.3d 100 (2009)

884 N.Y.S.2d 510

CAYUGA INDIAN NATION OF NEW YORK, Appellant, v. DAVID S. GOULD, Cayuga County Sheriff, et al., Respondents, et al., Defendants.

Appellate Division of the Supreme Court of New York, Fourth Department.

Decided July 10, 2009.

Attorney(s) appearing for the Case

Jenner & Block LLP, Washington, D.C. (Ian Heath Gershengorn of the Washington, D.C. and Massachusetts bars, admitted pro hac vice, of counsel), and French-Alcott, PLLC, Syracuse, for appellant.

Harris Beach PLLC, Pittsford (Philip G. Spellane and Karl L. Sleight of counsel), for respondents.

Robert Odawi Porter, Salamanca, and Kanji & Katzen, PLLC, Ann Arbor, Michigan, for Seneca Nation of Indians, amicus curiae.

Michael A. Cardozo, Corporation Counsel, New York City (Leonard Koerner of counsel), for City of New York, amicus curiae.

John C. Cruden, Acting Assistant Attorney General, Washington, D.C. (Kathryn E. Kovacs of the Washington, D.C. and Maryland bars, admitted pro hac vice, of counsel), for the United States of America, amicus curiae.

Daniel M. Donovan, District Attorney, White Plains (John J. Carmody of counsel), for District Attorneys Association of New York State, amicus curiae.

CENTRA, GREEN and GORSKI, JJ., concur with HURLBUTT, J.P.; PERADOTTO, J., dissents and votes to affirm in a separate opinion.

OPINION OF THE COURT

HURLBUTT, J.P.

This appeal presents two primary substantive issues for our consideration. First, we must determine whether Tax Law § 471-e (as amended by L 2005, ch 61, part K, §§ 2, 7; ch 63, part A, § 4) provides the exclusive means by which to tax cigarette sales on an Indian reservation to non-Indians or to Indians who are not members of that nation or tribe where the reservation is located (hereafter, non-member...

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