Seneca Nation wants state to honor gaming compact

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As published on buffalonews.com, Another Voice: Seneca Nation wants state to honor gaming compact by Rickey L. Armstrong Sr., President, Seneca Nation of Indians

In a society of laws, rules and procedures matter and they apply to everyone, even the government. This includes the gaming compact signed by the Seneca Nation and New York State.

The compact, which went into effect in 2002, is rooted in federal law, namely the Indian Gaming Regulatory Act. Because IGRA prohibits a state from taxing a tribe in exchange for a compact, New York required a “revenue share agreement” whereby the Seneca Nation agreed to share a portion of slot machine revenues with New York State for 14 years. In exchange, New York State, again in keeping with IGRA, was obligated to provide something of equal value to the Seneca Nation, namely exclusivity and protection from competition.

The state wasted little time in diminishing the value of that exclusivity.

State-operated video lottery terminals were introduced within the nation’s exclusivity area in 2004 and remain to this day. State-regulated (and taxed) commercial casinos followed, including the siting of a casino minutes from the nation’s exclusivity zone – an operation that, as part of its application to the state, expressly aimed to cannibalize the Seneca Nation’s gaming revenues.

All the while, the nation fully honored our compact payment obligation for 14 years. New York State received more than $1 billion from the Seneca Nation while simultaneously profiting from the diminished value of the exclusivity we paid for and which the state was supposed to protect. What does this say about the state’s willingness to honor its agreements? Apparently not much.

This year, an arbitration panel determined that the nation’s payment obligation to New York State continues after Year 14 of the Compact, despite the fact that the compact has absolutely no language to this effect. “Amendment” means what it means, and the panel’s decision amends the compact.  

Under IGRA, all compact amendments must be reviewed and approved by the secretary of the interior. The nation, rightfully, requested that the Department of the Interior review the compact amendment. Conversely, New York State seems more than happy to, again, ignore process and obligation at the expense of the Seneca Nation.

Now, New York is considering the legalization of sports wagering. Our compacts would permit the Seneca Nation and other native nations in New York to offer this amenity to our gaming patrons, if passed. Some want the state to ignore that fact and somehow attempt to not include the Seneca casinos in the sports wagering equation. Thankfully, State Sen. Joseph Addabbo took the time to consult and include the native nations on an issue that could impact our gaming operations.

In asking for a federal review of the compact amendment, as required by law, and in considering the addition of sports wagering to our casino offerings, the Seneca Nation is simply trying to hold New York State to the deal that they made. We honored our obligation. The state should do the same.

Public Notice: Tribal Transportation Improvement Program (TTIP)

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The Seneca Nation Department of Transportation (SNDOT) is seeking comments on the Seneca Nation’s Tribal Transportation Improvement Program (TTIP).

The TTIP is an annually updated list of proposed multi-year transportation projects developed by the Seneca Nation. Projects are determined from the Tribal priority list and/or the Long Range Transportation Plan (LRTP), for use of Federal Lands Highway Tribal Transportation Funds. The current list of projects are Transportation Planning, Road Maintenance, Pennsy Trail (to be completed fall of 2019), Route 438 Safety Improvements, Ohi:yo’ Gateway (to be completed summer of 2019), Seneca One Stop Services Center (formally the I-90 Oasis Project), Lenox Road (Completed and to be removed from the TTIP), Red House Bridge / Old Route 17, Casino Access Road, Response (s) to Declared Emergencies as needed.

The SNDOT is encouraged to consult, as appropriate, with regional and local transportation agencies and Seneca Nation agencies responsible for land use management, natural resource management, environmental protection, conservation, and historic preservation in the development of transportation plans and programs. 

The TTIP is the complementary capital-programing component of the LRTP. It consists of federally funded roadways, public transit systems, multi-modal trails, transportation safety, and major transportation projects and enhancements being considered within, and providing access to, the Seneca territories over the next five (5) years. 

The SNDOT is updating the Nation’s TTIP to include:

  • Intersection safety improvements along the Broad Street (Route 417) corridor with great concern to the Broad Street and Iroquois Drive Intersection. The department is seeking grant funds through the Federal Lands Highway Tribal Transportation Program Safety Funds (TTPSF). 
  • Jimersontown Walkability
  • Safety Plan
  • Marshals Safety Data Collection
  • Allegany DPW Access Road

Please submit any comments by May 17, 2019. Comments may be submitted to SNDOT Project Manager, Sharon Ray, by mail or email at the following:

Department of Transportation, 90 Ohi:yo’ Way, Salamanca, NY 14779

sharon.ray@sni.org

Seneca Nation Requests Federal Review of Compact Amendment

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ALLEGANY TERRITORY, SALAMANCA, N.Y. – Citing the federal Indian Gaming Regulatory Act, the Seneca Nation is calling on the United States Department of the Interior to review a Compact amendment created by an arbitration panel, in accordance with federal procedure.

“The arbitration panel’s members, instead of interpreting the clear language of the Nation-State Compact, took it upon themselves to effectively and materially amend the agreed upon terms of the Compact, and they did so without regard for federal law and required procedures that govern both the Compact and the amendment process,” said Seneca Nation President Rickey Armstrong, Sr. “Their ruling creates an obligation on behalf of the Seneca Nation that does not exist in the Compact as it is written, or as was reviewed and deemed approved by the Secretary of Interior in 2002. To allow this amendment to take effect without review by the Department of Interior would undermine the process by which the federal government carries out its trust responsibility to the Seneca Nation, and other sovereign Nations across the country.” 

“The arbitration panel gave New York State, without the benefit of a negotiated agreement, or a review by the Department of Interior, more than a billion dollars in additional payments that they did not bargain for,” President Armstrong added. “We are obligated by federal law to submit such an amendment for review by the Department of Interior.”    

Pursuant to the federal Indian Gaming Regulatory Act, which governs Nation-State Compacts, all amendments to Compacts must be reviewed and approved by the Secretary of Interior before they may be lawfully enforced, so that the Secretary of Interior may make a determination whether the amendment is consistent with the IGRA and with the trust obligations of the United States. 

The arbitration panel, despite finding that the Compact contains no provision requiring payments during years 15-21, created additional obligations that were never reviewed or approved by the Department of Interior, thereby  amending the Nation-State Compact and triggering the legal requirement to request Secretarial review.

“The Seneca Nation and the Seneca people deserve to have our agreements with other governments honored and protected, despite repeated and ongoing attempts to ignore, violate, and, in this case, blatantly change the agreements we have made. By exercising our right to request that the Department review the amendment, the Nation leadership is fulfilling our obligation to the Seneca people to always defend our sovereignty and the sanctity of our agreements.”

Since the Seneca Nation began its gaming operations in 2002, the Nation has sent more than $1 Billion in revenue share contributions to Albany. The Seneca Nation has also invested more than $1 Billion to develop its casino properties in Niagara Falls, Salamanca and Buffalo. Today, the Nation’s casino operations employ approximately 4,000 workers, making Seneca Gaming Corporation one of the largest private employers in Western New York.

Seneca Nation Statement on Final Compact Arbitration Ruling

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ALLEGANY TERRITORY, SALAMANCA, N.Y. – The Seneca Nation has issued the following statement in response to a final ruling issued by a three-person arbitration panel stating that the Nation’s slot revenue sharing payment obligation continues beyond Year 14 of its gaming Compact:

“As with the opinion issued earlier this year, two of the three arbitration panel members have determined that an obligation exists for the Nation to continue revenue share payments to the State beyond Year 14 of the Compact. The two panel members arrived at this conclusion despite the fact that no language exists in the Compact to make such a determination,” said Seneca Nation President Rickey Armstrong, Sr.   

“In making this final ruling, the panel has effectively and materially amended the agreed upon terms of the Compact. It has done so in complete disregard of federal law that governs the Compact and without following the necessary federal procedures for making Compact amendments.”

“Simply put, the Compact is rooted in federal law and amending the Compact requires that proper procedures be followed. A majority of the panel members ignored both of these critical issues.”

“Once we have reviewed and discussed this ruling and our legal rights, we will determine a path forward.”

Since the Seneca Nation began its gaming operations in 2002, the Nation has sent more than $1 Billion in revenue share contributions to Albany. The Seneca Nation has also invested more than $1 Billion to develop its casino properties in Niagara Falls, Salamanca and Buffalo. Today, the Nation’s casino operations employ more than 4,000 workers, making Seneca Gaming Corporation one of the largest private employers in Western New York.

Seneca Nation Selects Arbitration Panel Representative

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CATTARAUGUS TERRITORY, IRVING, N.Y. – The Seneca Nation has selected a respected Indian Law scholar and former federal official as its designated representative for arbitration proceedings regarding the Nation’s gaming Compact with New York State.

The Nation officially named Kevin Washburn as its designated representative on the three-person arbitration panel. Washburn currently serves as a professor of law at the University of New Mexico Law School, where he previously served as Dean from July 2009-October 2012. He left the University to serve as Assistant Secretary for Indian Affairs at the United States Department of Interior, a position he held through December 2015. Throughout his career, Washburn has also served as General Counsel to the National Indian Gaming Commission, and as an Assistant U.S. Attorney.

“Mr. Washburn is a leading authority in the area of Indian Law and policy, and we are confident in his service as a member of the arbitration panel,” said Seneca Nation President Todd Gates. “He brings a deep understanding of the federal framework that governs all Native gaming compacts, compact obligations, and how state governments should interact with Native nations.”

Considered a preeminent scholar in federal Indian Law and Indian Gaming law, Washburn has provided testimony to numerous U.S. Senate and House committees on issues pertinent to Indian Country. In addition, he has taught at the University of Arizona James E. Rogers College of Law, Harvard Law School, and the University of Minnesota Law School, and has published numerous works related to Indian Law and Indian Gaming.

The Nation’s selection of Washburn follows the completion in March of the Nation’s 14-year revenue share obligation under its gaming Compact. After refusing to meet with President Gates for six months following the Nation’s final obligated payment, New York State instead filed an arbitration demand in September.

According to the language of the Compact, the Nation agreed to pay a percentage of the slot machine revenue generated at its three casinos for a period of 14 years. The payment schedule and payment percentages prescribed in the Compact reads:

Years 1-4
18%, with “Year 1” commencing on the date on which
the first Gaming Facility established pursuant to this
Compact begins operation, and with Payments during
this initial period . . . to be made on an annual basis.
Years 5-7
22%, with payments during this period to be made on a
semi-annual basis.
Years 8-14
25%, with payments during this period to be made on a
quarterly basis.”

In the 14 years since opening Seneca Niagara Casino in 2002, the Seneca Nation sent more than $1.4 billion in payments to Albany, culminating with a final payment of more than $30 million in March.

A three-member arbitration panel will now be empaneled to hear and decide the dispute. As the Nation’s designated arbitration panel member, Washburn will work with New York State’s selected representative to select a third, mutually-agreeable panel member. The panel will then set a schedule for proceedings.

“It’s now been seven months since we fulfilled our Compact payment obligation. Arbitration was the path Governor Cuomo chose over dialogue,” President Gates said. “We are taking the next step. I hope that the State will work to keep the arbitration process moving so that the facts and foundation of the Compact can be presented to the arbitration panel, rather than clouded by political threats, rhetoric, insults and even jokes in the press. Getting the panel members in place is a step toward resolution. The Seneca Nation is ready.”

Seneca Nation Files Response to Arbitration Demand

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CATTARAUGUS TERRITORY, IRVING, N.Y. – The Seneca Nation has filed its
official response to the Arbitration Demand filed by New York State earlier this
month.

In the response filed today, the Nation asserts its compliance with the
provisions of the gaming Compact it signed with New York State in 2002, notably the
provisions related to the Nation’s 14-year revenue share obligation, which the Nation
fulfilled earlier this year.

According to the language of the Compact, the Nation agreed to pay a
percentage of the slot machine revenue generated at its three casinos for a period of
14 years. The payment schedule and payment percentages prescribed in the
Compact reads:

Years 1-4
18%, with “Year 1” commencing on the date on which
the first Gaming Facility established pursuant to this
Compact begins operation, and with Payments during
this initial period . . . to be made on an annual basis.
Years 5-7
22%, with payments during this period to be made on a
semi-annual basis.
Years 8-14
25%, with payments during this period to be made on a
quarterly basis.”

Since opening Seneca Niagara Casino in 2002, the Seneca Nation sent more
than $1.4 billion in payments to Albany. In accordance with the Compact, the Nation
made its final payment to New York State in March.

“The Seneca Nation has faithfully honored the agreement we negotiated and
signed in good faith in 2002,” said Seneca Nation President Todd Gates. “New York
State has a documented history of Compact violations, despite collecting more than
$1.4 billion from us over the past 14 years. Now, the state is trying to create a
reality that does not exist. You can’t change the rules 15 years into a 21-year
agreement. Enough with the political posturing and insults. Honor the agreement,
just as the Seneca Nation has done.”

According to the Nation’s filing, “The text of the Compact contains absolutely
no requirement for payments beyond those three payment periods. Nor does it set a
rate at which any such additional payments would be made. In its Demand for
Arbitration, the State makes no attempt to identify any provisions to this effect in
the Compact, and none exist.”

The arbitration filings come almost six months after the Nation made its final
required payment in late March. At that time, President Gates spoke directly with
Governor Andrew Cuomo, who asked President Gates if he would be willing to meet.
Governor Cuomo subsequently canceled two meetings with President Gates, one in
July and one in August.

“For the state to say that the Nation was not willing to meet is a blatant lie
and the height of hypocrisy,” President Gates added. “It was the state, and the
Governor specifically, who was unwilling to meet with me and engage in productive
dialogue. The Governor spent almost half a year avoiding meeting with me.”

A three-member arbitration panel will now be empaneled to hear arguments
on the matter. The Seneca Nation and New York State will each make a selection to
the arbitration panel, who will then select a third, mutually-agreeable panel member.

“While the Seneca Nation was open to dialogue, we are now moving forward
with the arbitration process initiated by the state,” President Gates said. “Arbitration
will allow the facts, not the Governor’s fictional narrative, to stand on their own.”

Seneca Nation Council Statement on Revenue Sharing and Meeting with Governor Cuomo

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August 7, 2017 - The Council of the Seneca Nation is completely united on the Nation's position on revenue sharing with the New York State: It's over!

Unlike the current personnel in the governor's administration and much of the local municipal governments, the Seneca Council is still made up of members who negotiated the Seneca/State Gaming Compact. We know what was agreed to and just what the terms were.

Every member of Seneca Nation Council knows the Revenue Sharing/Exclusivity Provision was a lopsided deal, giving far more to the State than it received in concessions from the State. In retrospect, it is difficult to determine what if anything the Exclusivity Provision actually prohibited the State from doing that State law didn't already prohibit. Yet the Seneca Nation shared over a billion dollars of its gaming revenue with the State even as it was in direct competition for gaming dollars with State run and State licensed gaming.

The Seneca Nation took a stand on this inequity between 2009 and 2013; and while a settlement of that dispute, with the State conceding over $200 million dollars, was reached, it certainly came far from solving the inequity between the value of the 'exclusivity' and the revenue sent to the State. But that settlement came with only two and a half years until the Gaming Compact would renew and the clear provisions for revenue sharing would end. So the Seneca Nation continued to make payments.

The Seneca Nation Council has no doubt or indifference on the terms of the Revenue Sharing Provision of the Gaming Compact. The words so skillfully negotiated by State representatives could not be more clear. The revenue sharing was for 14 years. There is no ambiguity and no hint or suggestion of payments beyond 14 years. The underlying federal statute, the Indian Gaming Regulatory Act (IGRA), makes clear that states are entitled to NO gaming revenue and are PROHIBITED from taxing Native gaming. While revenue sharing is permitted, there are standards regulating states to ensure those provisions are not a forced or imposed tax. The fact is that the now expired revenue sharing provision failed to meet that standard and for the Governor to now stand in public stating that the "Senecas must pay and continue to pay" is outrageous.

The Seneca Nation Council needs to make clear that there is no intent by the Seneca Nation to resume the expired revenue sharing agreement or negotiate a new one. Whether the Governor Cuomo and President Gates meet or not, this Council is quite satisfied to put the inequities of the past behind them.

The Seneca Nation Council and Executives have been clear in offering to negotiate with any local municipalities to compensate for any expenses incurred by the Seneca Gaming operations and to discuss other ways the Seneca Nation can continue to be good neighbors to the region through financial support of programs and services. But this offer is NOT for a new revenue sharing agreement with the State. It should be noted that no local officials have taken up the offer.

The Seneca Nation Council is compelled to respond to the continued calls for the Governor to "resolve this dispute" from local and State representatives. As far as this Council is concerned, there is no dispute. The facts are clear. Neither the Governor nor anyone calling for a 'resolution' have cited a single line from IGRA, the Gaming Compact or the Settlement Agreement from 2013 (MOU) that disputes the 14 year term for revenue sharing payments. We are left to interpret these calls for the Governor to meet and resolve their claimed dispute as calls to 'make them pay' rather than any real call to address any factual reading of the compact. These very public calls and the refusal, locally, to acknowledge the terms of the Compact seem to ignore the invitations graciously offered to local representatives and undermine any real prospect respectful dialogue.

The Governor's comments to this point have been offensive and disingenuous, and have lacked any basis for his claim that the "Senecas are wrong." The language of all the relevant documents are clear. There is no special interpretation that Mr. Cuomo can pull out of these documents that will magically make Seneca gaming revenue flow as it has in the past. The local representatives calling on the Governor to 'fix the Seneca problem' seem to be pushing a conflict between the State and the Seneca Nation in the hopes that the Seneca Nation will submit to the State rather than local officials taking up the offer to address expenses associated with municipal services provided to the Seneca enterprises and to explore areas of mutual concern and benefit directly with the Seneca Nation.

The Seneca Nation Council encourages anyone, including local officials and the media to simply review the documents and to see the indisputable facts. Any attempts to politicize this issue is unfortunate and just wrong. For those who plan to vilify Senecas for political gain or place Senecas in the crossfire of partisan bickering, let us remind you that the initial terms of the Compact in 2002 were negotiated with a Republican governor, and renewed in 2016 by the current Democratic governor. And the management of the shared revenue has crossed party lines locally and at the state level.

The Seneca Nation Council is committed to serving the Seneca people and defending their resources. The Council also remains committed to the region and hopes that better judgement can be exercised by the region's public servants even as challenges with interests beyond our region continue to be addressed.

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