An influential downstate senator says that the Seneca Nation waves its flag of sovereignty only when it is convenient and insists that New York State will not back down from taxing Indian cigarettes.

State Sen. Carl Kruger, D-Brooklyn, chairman of the Senate Finance Committee, contends that the lawsuits filed by Native American retailers have no basis in law and are needlessly adding to New York's already troubling budget deficit.

Kruger, a long-standing champion of the state's efforts to collect taxes from Indian retailers for their sales of cigarettes to non-Indians, added his voice to the debate as part of a letter to U.S. District Judge Richard J. Arcara, one of the judges overseeing the tax case.

"No matter how they twist the facts, the facts are the facts," Kruger said of the Senecas and other upstate tribes during an interview with The Buffalo News.

A Seneca Nation leader responded by suggesting that Kruger's comments are part of a larger effort to make Indians the "scapegoats for decades of mismanagement in Albany."

"I guess we are waving the flag if that means exerting and protecting our sovereignty," said Tribal Council Chairman Richard Nephew.

Kruger's letter came to light during a federal court session in which Arcara indicated he would extend his temporary restraining order against the collection of the taxes until after a hearing next week.

Arcara's decision came on the same day the Oneida Nation filed a separate federal lawsuit opposing the taxing of Indian cigarettes. Like the Senecas, the Oneidas contend that the state's plan violates federal law and interferes with tribal sovereignty.

Kruger doesn't buy the claims of sovereignty and suggests that it's hypocritical for the Senecas and others to oppose the taxing of Native American cigarettes to non-Indians while at the same time accepting education, health care and other benefits from the state.

"You can't have it both ways," he told The News.

Arcara, during Tuesday's court session, referred to Kruger's letter and his contention that the Senecas' legal arguments have no basis in law.

"To be honest with you, I was a little surprised," the judge said of the letter. "He says the decision is easy ... that taxes are part of life."

As recently as last month, Kruger criticized the Senecas for describing the state seizure of a Seneca tobacco retailer's truck as an act of aggression.

"What is that, a threat of war instead of abiding by the law?" he said at the time.

Nephew challenged Kruger's suggestion that the Senecas are hypocritical on the tax issue.

"It's a misconception that Indians don't pay taxes," Nephew said. "We pay into unemployment, disability and other benefit programs."

Nephew said the important difference is that cigarettes are sold on Native American land and therefore must be tax-free.

pfairbanks@buffnews.com null