Former Congressman John LaFalce's 2002 Letter To Gale Norton
The following is a letter written by former Congressman John LaFalce and addressed to former Secretary of the Interior Gale Norton. This letter was originally published in the now-defunct Buffalo Report. In 2002, Gale Norton refused to review the Seneca gaming application, resulting in a “non-decision decision.” Norton’s failure to act is now at the center of an ongoing investigation launched by current Secretary of the Interior Debra Haaland. Here Last Real Indians has presented LaFalce’s letter in its entirety without any omissions, alterations or commentary:
Rep. John Lafalce: Letter to Secretary of the Interior Gale Norton on Seneca acquisition of off-reservation land for gambling casinos
September 3, 2002
The Honorable Gale Norton Secretary of the Interior
U.S. Department of the Interior 1849 C Street, NW Washington, D.C. 20240
Dear Secretary Norton:
You will soon be considering the application of the Seneca Nation of Indians to acquire land in Niagara Falls, New York, in order to conduct casino gambling. The petitioners will seek your approval, not under the Indian Gaming Regulatory Act, but under the Seneca Nation Settlement Act of 1990. I anticipate further that you will also be called upon to approve a similar land acquisition in Buffalo, New York.
The purpose of both acquisitions will be to erect Class III casinos without having the casinos subject to the rigorous process of review required under the Indian Gaming Regulatory Act ("IGRA") for lands acquired for the erection of casinos.
I urge you to remand the instant application on the grounds that the land sought to be acquired and the purposes for which it is sought are not within the scope of the Seneca Nation Settlement Act, and that the sole purpose of the application is to evade review under the Indian Gaming Regulatory Act.
Section 20(b)(1)(A) of the IGRA, 25 U.S.C. 2719, permits gambling on land that is not contiguous to existing Indian lands acquired after October 17, 1988, only if the Secretary of the Interior determines that "a gaming establishment on newly acquired lands would be in the best interests of the tribe, would not be detrimental to the surrounding community," and the Governor of the State concurs in the determination. (Emphasis added.)
It is that full review of "best interests"of the tribe and "non-detriment" to the surrounding community that the Seneca Nation and the State of New York seek to evade by attempting to acquire the land under the Seneca Nation Settlement Act, and then invoke the exception contained in Section 20(b)(1)(B)(i) of the IGRA that allows gambling without requiring the approval under Section 20 above if the land is acquired as part of "a settlement of a land claim."
I urge you to remand the applications on the grounds that the land sought to be acquired is not within the scope of the Seneca Nation Settlement Act, that the sole purpose of the acquisition is to evade review under the Indian Gaming Regulatory Act, and that a proper application for acquisition of land for gambling in the heart of a city can only be made under the terms and conditions of the IGRA.
I. Seneca Nation Settlement Act of 1990
Section 8(c) of the Settlement Act, 25 U.S.C. 1774f(c) provides that "Land within its aboriginal area in the State or situated within or near proximity to former reservation land may be acquired by the Seneca Nation with funds appropriated pursuant to [the Act]." The Seneca Nation received $35 million from the federal government pursuant to the Act.
A. The Settlement Act Does Not Contemplate Its Use to Evade the IGRA
Nothing in the Settlement Act contemplated the acquisition of lands in metropolitan areas up to 70 miles from the Seneca Nation's Cattaraugus, Oil Spring and Allegheny reservations for purposes of erecting casinos. The purpose of the Act was to settle claims of the Seneca Nation arising from leases in Salamanca, Carrollton, Great Valley and Vandalia, all of which are located on the Allegheny Reservation.
Indeed, under Section 7 of the Settlement Act, 25 U.S.C. 1774e, the funds appropriated by the federal government under the Settlement Act could not be expended until the Seneca Nation executed leases and releases for claims for prior rents with all lessees in the affected villages.
Clearly, the intent of the Act was to settle claims arising from the leases and to provide the Seneca Nation with compensation for its relinquishment of those claims, not to create an opportunity to evade the IGRA.
B. The Lands Are Not Aboriginal Lands
The approximately 50 acres that the Senecas propose to acquire in Niagara Falls, and any land that they may seek to acquire in Buffalo for the purposes of erecting casinos, are not part of the aboriginal lands of the Seneca. This issue has been discussed in great detail in the June 21, 2002, opinion issued by United States District Court Judge Richard J. Arcara in Seneca Nation of Indians v. New York, (No. 93-CV-688A, W.D.N.Y.). In the case, the Senecas asserted claims against New York State, various state officials, Erie County and individual landowners in the United States District Court for the Western District of New York alleging that New York's acquisition of the Niagara Islands by purchase in 1815 violated the Nonintercourse Act. The United States intervened in the case as a plaintiff in 1998.
Judge Arcara discusses in great detail the history of the Indian tribes of Western New York and the lands that they occupied. The judge found:
At the time of first European contact, the villages of the Senecas were all east of the Genesee River, extending eastward from the Genesee Valley to Cayuga territory at the watershed between Seneca Lake and Cayuga Lake. The Senecas, like the rest of the Iroquois, did not lead a nomadic existence. They maintained substantial permanent settlements . . . . [Slip Op. at 14.]
The Genesee River is located more than 60 miles east of Niagara Falls and empties into Lake Ontario after flowing through Rochester.
The area where the City of Niagara Falls is now located, and the land south of it, was occupied by the Wenros, and the land south of the Wenros was occupied by the Eries. [Slip Op. at 13.] Between 1638 and 1680, the Senecas defeated both tribes as well as the Neutrals, another tribe that occupied land along the Niagara River. All three were dispersed and disappeared from history. However, the Senecas did not occupy the lands of the vanquished tribes. "[T]he territory between the Genesee River and the Niagara River remained an unoccupied wilderness." [Slip Op. at 15-16.]
Please note that Judge Arcara's discussion of the aboriginal status of the land is based upon a Joint Stipulation of Undisputed Facts entered into by the parties to the suit. The parties to that stipulation included the Seneca Nation, the State of New York and the United States, represented by the Department of Justice on behalf of the Department of the Interior. It would be inconsistent for you, as Secretary of the Interior, to find that the land in question is now aboriginal land of the Seneca Nation after having previously agreed that it is not.
Judge Arcara found that the Seneca Nation's claims were baseless, and any claims that they may have had on the islands of the Niagara River were extinguished in two treaties with Great Britain that they entered into in 1764. Under both treaties, the Senecas relinquished all claims to the land where the proposed casino would be built in Niagara Falls.
C. Proximity to Reservation Lands
The land sought to be acquired under the Settlement Act is not "within" or in "near proximity" to any of the three Seneca Nation Reservations or former reservations. The nearest reservation, the Cattaraugus Reservation, is about 20 miles from Buffalo and 40 miles from Niagara Falls.
The Canandaigua Treaty of 1794 between the Seneca Nation and the United States "reserved" land in Western New York to the Seneca Nation. The treaty reserved a large portion of territory in Western New York; however, the treaty excluded a four-mile wide tract of land labeled the Niagara strait, thus excluding the Niagara Falls land. This provision essentially excluded the land that the Seneca Nation had ceded to Great Britain under the 1764 Treaties.
Furthermore, it is most doubtful that the Canandaigua Treaty created a reservation to the Seneca Nation which included Buffalo. A court could likely determine that Buffalo was not within the former reservation land.
D. Legislative Intent
I was a cosponsor of the Seneca Nation Settlement Act and I participated in the House debate on the bill on October 10, 1990. The purpose of the legislation - the sole purpose - was to compensate the Seneca Nation for leases on the Allegheny Reservation, near the New York - Pennsylvania border - that had been unlawfully obtained from it during the 19th Century and that Congress had subsequently ratified to the detriment of the Seneca Nation. There was not a single word spoken during the House debate on either the acquisition of land using the settlement money or of conducting gambling on any land so acquired. The entire purpose of the Act was to compensate the Seneca Nation for their treatment regarding the leases in and around the Allegheny Reservation.
My remarks to the House are illustrative of those of the other Members who spoke: The funds in this bill will foster economic growth for the entire area--including the Seneca Nation lands and the city of Salamanca--and provide a positive solution to a longstanding dispute. It is a balanced bill that redresses the past and has the foresight to invest in the future.
This bill provides Federal sums to compensate the Seneca Nation for 3,000 leases that were obtained and perpetuated without the consent of the rightful owners--the Senecas. For nearly 99 years, the Senecas have been receiving minuscule payments averaging $1 to $3 per year per parcel of land. Clearly, the Senecas deserve appropriate compensation. (Cong. Rec., October 10, 1990, H9289)
The sponsor of the legislation, Congressman Amo Houghton, also addressed the House during debate on the bill. He, too, spoke of the purpose of the legislation:
The leases were imposed by Congress upon the Nation and upon the citizens. What happened was when these leases were imposed it kept the Nation in a near state of poverty, and also put a lock on any increasing increments in the rentals which could be received by the Nation.
So this bill in front of us today gives a one-time $35 million payment to be matched by $25 million from the State. So this is what I respectfully ask of the Congress. (Cong. Rec., October 10, 1990, H9288)
As the Buffalo News reported, "...the author of the law that the Senecas are relying on to speed up their application -- Rep. Amo Houghton, R-Corning -- said the law was never intended to make it easier to get approval for a casino. . . . `I don't think anybody thought this would speed up a casino,' Houghton said." [Buffalo News, July 19, 2001]
I cosponsored this bill because it righted the wrongs that resulted from the leases on the Allegheny Reservation. I would not have supported it, and it surely would not have passed the House and Senate by unanimous voice votes, had any Member thought that we were creating a loophole for Indian casino gambling in the center of Niagara Falls, New York and in the center of New York's second largest city, Buffalo.
II. The Indian Gaming Regulatory Act
Under the IGRA, gambling on lands acquired after October 17, 1988 is generally prohibited. The IGRA provides two exceptions that are relevant: lands which are taken into trust as part of a settlement of a land claim or by approval of the Secretary of the Interior under a two part determination exception and then approved by the Governor.
A. Land Acquisition under the Indian Gaming Regulatory Act
An Indian tribe may conduct gambling activities on trust lands acquired after October 17, 1988, if it meets the requirements of Section 20(b)(1)(a) of IGRA. Section 20(b)(1)(a) provides that gambling can occur on the land if the Secretary, after consultation with appropriate state and local officials and officials of nearby Indian tribes, determines that a gambling establishment on newly acquired land will (1) be in the best interest of the tribe and its members, and (2) not be detrimental to the surrounding community, but only if the Governor of the state in which the gambling activities are to occur concurs in the Secretary's two-part determination.
This full review is especially important when, as in the case of Niagara Falls and Buffalo, the proposed gambling facilities are to be located in downtown venues.
A review of an application under the IGRA provides for a complete evaluation of the costs and benefits to both the tribe and the surrounding community. For example, in determining whether the gaming establishment on newly acquired land will not be detrimental to the surrounding community, the review considers:
* evidence of environmental impacts and plans for mitigating adverse impacts;
* reasonably anticipated impact on the social structure, infrastructure, services, housing, community character, and land use patterns of the surrounding community;
* impact on the economic development, income, and employment of the surrounding community;
* costs of impacts to the surrounding community and sources of revenue to accommodate them;
* proposed programs for compulsive gamblers and the source of funding.
The benefits to the tribe are also examined. In reaching the conclusion that the newly acquired land will be in the best interest of the tribe and its members, the Department considers:
* projections of income statements, balance sheets, and other financial data;
* projected tribal employment, job training and career development, including the basis for projecting an increase in tribal employment considering the off-reservation location of the facility, and the impact on the tribe if tribal members leave to take jobs off-reservation;
* projected benefits to the tribe from tourism and basis for the projection;
* projected benefits to the tribe and its members from the proposed uses of the increased tribal income;
* projected benefits to the relationship between the tribe and the surrounding community;
* possible adverse impacts on the tribe and plans for dealing with those impacts.
B. Deep Divisions within the Seneca Nation on Gambling
The issue of whether a casino is in the best interests of the tribe is one that has been closely debated within the Seneca Nation. Acceptance of the compact with the State of New York was subject to a referendum within the tribe on May 14, 2002. The referendum vote in favor of the compact was 1,077 to 976, a margin of just 101 votes, with 52.5 percent voting in favor of the compact. There were approximately 4,500 eligible Seneca voters, and only about 45 percent voted in the referendum. Put another way, less than one-quarter of the eligible Seneca Nation voters turned out to vote in favor of the compact.
That was the third time the Seneca Nation has voted on gambling. In 1993 the Seneca Nation defeated a referendum by a margin of 2 to 1. In 1998, a referendum narrowly passed to allow the tribe to explore whether to establish casinos; the 2002 referendum on the compact was mandated by the previous referendum.
Given the mixed voting history on gambling, and the closeness of the latest vote, the Department should assure that the proposal for casinos on newly acquired land is subject to a full review under the IGRA.
C. Purchased Land is Not Within the Exception in the IGRA
I would also note that the Seneca Nation did not acquire any land under the Seneca Nation Settlement Act, only funds that, among other purposes, could be used to acquire land. Under the IGRA, the exception to full review for casino on lands acquired after October 17, 1988, applies only to "lands [that] are taken into trust as part of . . . a settlement of a land claim." 25 U.S.C. 2519(b)(1)(B)(i). No land was taken into trust under the Settlement Act; only permission to use appropriated funds to acquire land at a subsequent date was granted. Therefore, the exception to the IGRA does not apply, even if the land is purchased under the Settlement Act.
IV. Conclusion
None of the reviews mandated by IGRA will be conducted, and none of those issues will be considered, if the Department of the Interior approves the land acquisitions for the Seneca Nation's Niagara Falls and Buffalo casinos under the Seneca Nation Settlement Act as the petitioners request.
For all of the reasons above, I respectfully urge you to remand any applications by the Seneca Nation to acquire land in Niagara Falls and Buffalo under the Seneca Nation Settlement Act, and have them reapply under IGRA, so that appropriate consideration of both benefits and detriments can be weighed.
Sincerely,
/signed/
JOHN J. LaFALCE
Member of Congress