Article 1, Section 8, Clause 3 of the US Constitution states that the US Congress has the power to regulate commerce with foreign nations, among the several states, and with the Indian tribes. It has long been clear that this clause of the US Constitution is an acknowledgement of tribal sovereignty on par with that of foreign nations and parallel to state sovereignty. Although states are not supposed to have the power to regulate commerce in Indian Country, products produced on tribal lands and distributed across state boundaries have long been challenged by the states for the right to tax.
One of the most contentious issues has been the implementation of the Prevent All Cigarette Trafficking Act (PACT Act) and its effect on tribal businesses selling tobacco products. States like New York have utilized this legislation to collect taxes on tribal tobacco products sold over the Internet or by other mail-order sales. Portions of the PACT legislation can be interpreted to affect tribal sovereignty directly and seem to allow the enforcement of state laws on tribes selling tobacco products. This could have vast detrimental effects on tribes relying on tobacco sales to fund programs such as education, elder care, health care, and tribal governance operations.
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