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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.”

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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.”

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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.