Department Of Interior Drafts New Regulations In Seneca Dispute
This article is the beginning of a deep dive analysis of information that is absolutely pertinent to an ongoing breaking story in New York State. On Tuesday, the Department of the Interior issued draft regulations which could potentially impact the dispute between New York State (NYS) and the Seneca Nation of Indians (SNI). These draft regulations came just one day after the Seneca Nation of Indians passed a unanimous vote, paying New York State $564 million. To some, it’s just bad timing; but to sources close to the situation - this is no coincidence. Before we take a trip down this very strange rabbit hole, let’s review the aforementioned DOI draft regulations which Last Real Indians has obtained. It’s a lot to unpack, so you might want to grab yourself a cup of coffee:
§ 293.4 Are compacts and amendments subject to review and approval?
(a) Yes. All compacts, amendments, agreements, or other documents – including, but not limited to, any dispute resolutions, settlement agreements, or arbitration decisions – which establish, change, or interpret the terms and conditions for the operation and regulation of a Tribe’s class III gaming activities regardless of whether they are substantive or technical, must be submitted for review and approval by the Secretary.
(b) If a Tribe or a State (including its political subdivisions) are concerned that their agreement may be considered a “compact” or “amendment,” either party may request in writing a determination from the Department if their agreement is a compact or amendment and therefore must be approved and a notice published in the Federal Register prior to the agreement becoming effective. If the Secretary determines that an agreement is or is not a compact or amendment, the Department will issue a letter stating this determination.
§ 293.24 What factors will the Secretary analyze to determine if revenue sharing is lawful?
(a) A compact or amendment may include provisions that address revenue sharing in exchange for a State’s meaningful concessions resulting in a substantial economic benefit for the Tribe.
(b) The Department reviews revenue sharing provisions with great scrutiny. We begin with the presumption that a Tribe’s payment to a State or local government for anything beyond regulatory fees (section 293.19) are a prohibited “tax, fee, charge, or other assessment.” In order for the Department to approve revenue sharing the parties must show:
(1) the State has offered meaningful concessions the State was otherwise not required to negotiate; and
(2) the value of the concessions provides substantial economic benefits to the Tribe in a manner justifying the revenue sharing required by the compact.
(c) The inclusion of revenue sharing provisions to the State that is not justified by meaningful concessions of substantial economic benefit to the Tribe is considered evidence of bad faith.
The above may appear somewhat cryptic to the average reader who is just now joining the discussion. It’s important to note that these regulations are drafts and are still subject to approval. The wording of these new draft regulations is very specific to the SNI/NYS dispute. In order to fully comprehend their meaning, we must first provide some very important context:
The Onöndawá’ga (People of the Great Hill) were given the Roman name Seneca by European colonizers. In 1842, the third Buffalo Creek Treaty was signed between New York State and the Onöndawá’ga. This infamous treaty removed the latter from their homelands. Facing increasing pressure, in 1848, the traditional clan system was overthrown in a coup that resulted in the Seneca Nation of Indians incorporating under New York State law. The band of defectors that overthrew the clan system were misled by NYS to believe that incorporation would make them equal with the state. Thus, SNI is a corporate subsidiary of New York State. There are three main Seneca reservations: Cattaraugus, Allegany, and Tonawanda (with Oil Springs being mostly unpopulated). The Tonawanda band of Seneca are not beholden to SNI rule. Along with incorporation came the SNI Constitution. Section V of the Constitution states: The power of making treaties shall be vested in the Council, subject to the approval of at least three-fourths of the legal voters and of the consent of three-fourths of the mothers of the Nation.”
Of the above mentioned three-fourths voter approval, former Congressman John LaFalce had this to say: “Senecas at that time overwhelmingly opposed gambling as contrary to their mores and culture. A Seneca referendum in the early 90’s was overwhelmingly, about 2 to 1, against gambling. That did change by the late 1990’s, and the concept of gambling was very narrowly approved by the Senecas. (It should also be noted that under Indian Law it is NOT ILLEGAL TO BUY VOTES in an Indian referendum, and no U.S. or New York Law can change that.) It is therefore ludicrous to even suggest that casino gambling was ‘part of’ any settlement. How could it be? For at that time, an overwhelming majority of the Senecas opposed gambling.”
To LaFalce’s point, there is no Seneca law or electoral regulation prohibiting vote buying in an election or referenda ballot question. Outside governments cannot intervene to effect change in the affairs of sovereign governments.
Although the Seneca People were given the right to vote on the matter, as per their Constitution, the Mothers of the Seneca Nation were ignored. Many see this as a violation of the Seneca Constitution, potentially rendering the gaming compact illegal in violation of SNI law. Some would argue the use of the word “treaty” as opposed to an “agreement.” New York State cannot legally enter into a treaty with a sovereign nation. Treaties can only be entered into between two sovereign entities, but an agreement such as the gaming compact exists within a gray area. Hence, the DOI is now attempting to regulate these types of agreements to avoid further abuse of the law.
Former Congressman John LaFalce knows a thing or two about the Seneca situation: He sponsored the 1990 Seneca Settlement Act which was illegally used to obtain the original gaming compact. LaFalce continues, saying “To be sure, a certain number, in my judgment, did see an opportunity for gambling, because while the 1988 Indian Gaming Regulatory Act does prohibit casino gambling off reservation, it does permit certain narrow exceptions, i.e., if land is placed into trust as part of the settlement of a land claim. So, this group did bring a lawsuit in 1993 claiming title to all the land on Grand Island and a significant portion of the land in the City of Niagara Falls, hoping for a settlement permitting gambling. This was their ‘first bite’ at the apple of their eye—casino gambling.”
The land claim that LaFalce is referring to began in 1993 and ended in June of 2002. Just two months later, August of 2002, the original gaming compact was signed between New York State and the Seneca Nation of Indians. There is absolutely no way that this 793 page contract was drafted between June and August of 2002. In fact, the front page of the original compact is dated April 12, 2002. The only way this is possible is if NYS and SNI were working together to reach an agreement and put an end to the land claim case. Was the original gaming compact a settlement, as LaFalce said? Is this precognition? In August of 1999, the Buffalo News published the following headline:
Three years before the land claim ended and the gaming compact was signed, the link was already known.
The connection between the nine year long land claim case and the original gaming compact certainly warrants further discussion, and will be a major focus of articles in the near future. For now, let’s return back to another instance of remarkable timing: Secretary of the Interior Debra Haaland’s draft regulations; how they relate to LaFalce’s statements and why it’s so unbelievable (but true) that they were issued just one day after SNI paid the state.
LaFalce should go down in history for the letters that he penned and published publicly in 2008 (in the now defunct Buffalo Report). Suspiciously, these letters were removed from the internet in 2017. Luckily, we have been following this story now for the better part of a decade and we have the LaFalce letters in our archives.
Says LaFalce, “If the Secretary of the Interior, Gale Norton, could be persuaded to do ‘NOTHING’ on the Seneca’s application, the law said that it would be deemed approved. How could she do nothing, I thought; and how could she, in 2002, in all good conscience, say that casino gambling in my district was ‘part of’ the 1990 Settlement Act dealing basically with Salamanca, that passed both houses by a Voice Vote, did not have the words “land claim” in its title or in any portion of the bill, and had never even remotely contemplated ‘casino gambling’.”
LaFalce continues, “The 2002 ‘non-decision decision’, being such, can be reviewed de novo in court. A non-decision decision is entitled to no deference. To say that the 1990 law permits casino gambling in Buffalo would be a pernicious distortion of the law. It would validate the ‘non-decision decision’ of the Secretary of the Interior that deviated ‘from statutory, regulatory and policy requirements to reach a predetermined end.’ There are a multitude of other issues, to be sure. But the overriding issue must be preserving the integrity of the law, rather than its perversion. That is even more important than the issue of casino gambling. If, arguendo, casino gambling is to exist in Buffalo, let it be permitted after appropriate regulatory review by the Secretary of the Interior as called for by the Indian Gaming Regulatory Act; or, let it be decided by a new law, after appropriate debate and a transparent and knowing recorded vote in Congress, not by making a mockery of the law by distorting it to reach a predetermined end.”
When SNI submitted their application for gaming in 2002, it should have been reviewed by then Secretary of the Interior Gale Norton as per the IGRA. The absolute only way that the application would have passed through the DOI at that time was if Norton looked the other way and did nothing. Astonishingly, that’s exactly what she did. Instead of performing her duties, she remained silent, resulting in the “non-decision decision.”
Evidently, current Secretary of the Interior Debra Haaland must have caught wind of this malfeasance. In a letter to SNI, dated April 15, 2021, the DOI mentions that “In 2002, Gayle Norton, never analyzed post-2017 payments, because there weren't supposed to be any. Thus, the arbitration ruling could be illegal because it amended the compact in a way that could undermine Haaland's legal authority, but more analysis was needed.” Several months later, Haaland launched a full investigation into the legality of the gaming compact. Not only did Norton not analyze post-2017 payments, she didn’t even review the Seneca application for gaming.
This investigation is still active, and the Mothers of the Seneca Nation have been persistent in urging the SNI government to wait for final federal determination on unresolved and unanswered questions. Instead, SNI lawmakers moved very quickly to “resolve” the issue and put it behind them; throwing blame at the state’s strong arm tactics of freezing their bank accounts.
Commenting on the state’s move to force the Seneca payment was former Seneca President, attorney Robert Odawi Porter, who told the Buffalo News: “To me, it's a fraud. Then just like any fraud, we know who did it, and if it's an illegal payment, we're going to get it back."
Sources close to the Seneca Nation have speculated the following theory: New York State Governor Kathy Hochul freezing SNI bank accounts was all smoke and mirrors. SNI lawmakers have been repeatedly pressured by Seneca People to hold out and wait for Haaland’s federal investigation to conclude. Instead, the KeyBank controversy provided a catalyst which required a quick vote by SNI government, who paid the state just one day prior to the issuance of new DOI draft regulations. Had SNI held off for just one more day, these new regulations would have provided hope and put wind in their sails, allowing them to hold out longer for conclusion of Haaland’s investigation. Under the microscope by the Seneca People, SNI lawmakers would have had to postpone the vote or face the wrath of public scrutiny.
Is it possible that Governor Kathy Hochul’s “months of secretive backroom meetings” regarding the Buffalo Bills Stadium included the SNI payment plan? We know for a fact that NYS and SNI appeared publicly as rivals during the infamous land claim case, but behind closed doors both parties were drafting the gaming compact while the case was still ongoing. These matters require further investigation, and that’s exactly what Last Real Indians intends to do. Stay tuned.