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Cayuga intrigue: Can two tribes assert sovereignty within the same land claim?

A few weeks ago, we advised observers of Indian gaming to watch an ongoing unprecedented attempt by an Oklahoma tribe to open a gaming facility in upstate New York. In describing the situation, which includes a pending land claim settlement currently under appeal, I mentioned local opposition to the Seneca-Cayuga Tribe's plans - opposition in the "anti-sovereignty" vein.

I failed, however, to note considerable opposition to the Seneca-Cayugas' plans both within Indian country and among a number of prominent experts in Indian law.

To briefly recap, the Seneca-Cayuga Tribe of Oklahoma is preparing a 229-acre parcel it purchased last year for construction of a Class II bingo hall. The land, located some 35 miles west of Syracuse in the Town of Aurelius, lies within the boundaries of the 64,000-acre Cayuga land claim, to which the Oklahoma tribe and the Cayuga Indian Nation of New York are parties.

The Cayugas are descendants of tribal members who never left New York. The Seneca-Cayugas are an amalgamated tribe, comprised of descendants of at least those two tribes and possibly others, that was organized in the mid-1800s in Oklahoma. Both tribes are federally recognized.

In 2001, a federal judge jointly awarded both tribes $247 million to settle their litigation against the state for its illegal acquisition of the Cayuga reservation in the late 18th century. While the amount of settlement is under appeal, the claim has ensured Indian sovereignty over any reacquired property within the claim area.

Can both tribes assert sovereignty within the claim area? The Cayugas of New York believe that they are the only tribe that can assert sovereignty within the claim area because they have maintained a presence in the region, despite being landless, for over 200 years. The Seneca-Cayugas believe that, because they are a winning party to the land claim, they are entitled to the same sovereign rights as their Cayuga cousins, despite the fact that they are recognized as an Oklahoma tribe.

"We stand on a very firm legal and moral ground," Seneca-Cayuga spokesman Jay White Crow told Indian Country Today. "People may not like it that we are part of the winning of this case - they may not like it that we're here, staking our claim in our homeland. But you have to stand on the law, and if you stand on the law our position is solid."

The Seneca-Cayugas presently seek to open a Class II gaming facility, which under the Indian Gaming Regulatory Act does not require any negotiations with New York State. IGRA does not, however, take into account the state in which a tribe is recognized. Governor George Pataki has steadfastly refused to deal with out-of-state tribes in crafting Class III compacts, a position that almost certainly lead the Oklahoma tribe to bypass him by going the Class II route. If the New York Cayugas had not maintained their presence in the area, this strategy may well have worked.

Some legal scholars believe that when the ancestors of today's Seneca-Cayugas left New York for reservations in Ohio and later in Oklahoma, they forfeited any rights to reservation land within the Empire State. The fact that some Cayugas, the ancestors of today's Cayuga Nation, stayed behind gives their descendants priority in terms of exercising sovereignty over lands in the claim area, at least to some observers. Thus the land-claim victory awards the Oklahomans monetary damages but no sovereign rights.

Last February, the 24 members of the United South and Eastern Tribes (USET) passed a unanimous resolution denouncing the Seneca-Cayugas' actions in New York as "illegal gaming" due to the tribe's Oklahoma recognition status.

"The introduction of Class II gaming activities by the Seneca-Cayuga Tribe of Oklahoma in the State of New York would be illegal and would violate the rights and jurisdiction of the Cayuga Nation of New York," said the USET resolution. The group said it opposed further Seneca-Cayuga efforts to "acquire land, assert jurisdiction and conduct any gaming activities" in New York.

In addition, USET called on the National Indian Gaming Commission to stop other out-of-state tribes from trying the same tactics and charged the Department of the Interior to develop policies precluding the exercise of tribal authority in any state other than that of the tribe's recognition.

"The question is the status of the land," said NIGC spokesman Richard Schiff. "Our office of general counsel is looking at the issue."

NIGC lawyers are seeking input from all interested parties, including local governments, the Seneca-Cayugas and the New York Cayugas, and are coordinating their efforts with BIA's legal staff.

"We haven't issued anything yet," Schiff said. "I would say quality is more important than speed here, but we recognize that this train is moving forward and we don't want to get left behind."

When asked if this pending ruling could set a precedent, Schiff hesitated. "Maybe, maybe not. Every tribe's history is very unique and every parcel of land and a particular tribe's relation to it is unique. So I think the very first thing is to make sure we've got all the facts."

Meanwhile, the New York Cayugas, who had long held that gambling contradicts traditional tribal beliefs, reversed their stance earlier this year. In April, the tribe inked a deal with Alpha Hospitality Corp, a casino operating company that has since changed its name to Empire Resorts Inc. In active pursuit of one of the two remaining Catskill casinos authorized by the New York Legislature in October 2001, the Cayugas last April applied to BIA to take a 30-acre parcel of land, the Monticello Raceway in Monticello, N.Y., into trust for the purposes of gaming. Because the Cayugas want a Class III casino, they must pursue it in the Catskills, barring an unlikely legislative action authorizing Class III gaming elsewhere.

The village of Monticello in late April determined that the Cayuga casino will not create a negative environmental impact, meaning the project can go forward from the local perspective. The big hurdle now is a Class III compact with the State of New York, for which tribal officials are currently believed to be in negotiations.

Most importantly for the New York Cayugas, who number less than 500 enrolled members, is the fact that they recently acquired their first land in over 200 years; the site now contains a gas station/convenience store and is located not far from the Seneca-Cayugas' proposed bingo hall.

Officials of the Cayuga Nation of New York did not return several calls requesting comment for this article.

According to White Crow, the Seneca-Cayugas are "still moving forward. We've got the pad leveled out and we've built a road out to it so we can haul materials out there. As soon as these other small details are done, we'll be off and running."

He could not provide a start or completion date, but White Crow did say that, while it was not his tribe's intention to compete in any way with the New York-recognized tribes, the Seneca-Cayugas are in it for the long haul.

"We don't see ourselves in competition with any of the tribes up here at all," White Crow told Indian Country Today. "The tribes have not been very friendly or forthcoming to us, but that's not going to deter us. Just because someone across the street doesn't like you it doesn't mean you're going to pack your bags and move. So we're here to stay."

When asked if his tribe would consider opening other types of businesses, White Crow replied, "If we have the opportunity to do so we certainly intend to. We're business-minded people and we want to do more and more business all the time. If there's an opportunity available to us, then we try to take advantage of it."