With his ever-insightful grasp of the obvious, former N.Y. Yankees catcher Yogi Berra once correctly observed that "it ain't over 'til it's over." Could Yogi have been foreshadowing the Great New York Casino Follies (with special guest stars Tax Collection and Land Claims) now playing in Albany and across the state? As the plot continues to twist, turn and tangle unto itself we the audience get the sense that this show's far from over.
On Friday the 13th, Federal Judge David Peebles ordered an Interior Department review of the decision to recognize the current "three-chief" government of the St. Regis Mohawk Tribe, which has three elected chiefs and has been in office since 2000. Judge Peebles charged the department to re-examine whether the federal government is recognizing the proper government at Akwesasne.
The next day, the Albany Times-Union reported that Peebles ruled that Interior's recognition of the three-chief government came about from a misconstrued order by a lower court rather than a "considered analysis" of the dispute over leadership of the tribe. The case stems from a lawsuit filed by the constitutional government, which held office between 1995 and 1999, against both Interior and the three-chief government over the recognition issue.
The current three-chief government negotiated the tribe's agreement with casino operator Park Place Entertainment Inc. to develop a gaming resort in the Catskills and has been in discussions with Albany to secure a compact and resolve taxation and land claim issues. A possible change in tribal government could disrupt the development deal and the negotiations.
Commercial gaming in NY?
Some New York politicians have decided that the answer to stalled compact talks with Indian tribes seeking casinos in the Empire State is to amend the state constitution to legalize commercial casino gambling. The senator who proposed the most recent plan said he wants to "empower the people to decide about casino gambling." It is also another obvious ploy by the state to gain leverage in the compact negotiations.
"If the people of the state approve this legislation, non-Native entrepreneurs would come in and we'd not have these problems of land claims and sales tax issues," said Sen. John J. Bonacic in the Feb. 13 edition of the Buffalo News. A long-time supporter of expanded commercial gaming, Bonancic is a Republican whose district includes the Catskill counties of Delaware and Sullivan along with parts of Orange and Ulster. His proposal calls for Las Vegas-style casinos in several locations, including at many of the state's racetracks.
The first of eight slots-only racinos statewide opened recently in Saratoga Springs, with others slated to begin operations in the coming months at other racetracks. Governor Pataki recently proposed another eight stand-alone slot parlors and has reportedly not ruled out support for commercial casinos.
In order to become law in New York, a Constitutional amendment must pass two successive legislative sessions and then a statewide referendum. If legislators give Bonacic's plan the okay both this year and next, the public vote could be held as early as November 2005.
Lawsuits challenging the legality of various casino compacts and the 2001 authorization of six Indian casinos are currently working their way through the state legal system. Ironically, this proposal seems to bolster the anti-gambling side's argument that gaming is indeed unconstitutional under the New York Constitution.
Friday the 13th also marked the launch of a petition drive to impeach Governor George Pataki. Behind the effort is none other than the Upstate Citizens for Equality (UCE), a group opposed to the idea of Indian sovereignty and irate at Pataki for failing to collect sales taxes on reservation fuel and tobacco transactions.
The governor "thinks he's king of New York" crowed a UCE official, while a Pataki spokesman called the whole thing "ridiculous." UCE has a vocal following in the Upstate counties of Cayuga, Seneca, Oneida and Madison, where land claims by the Cayuga and Oneida Indian nations remain unresolved.
A legislative mandate to collect state taxes on reservation sales to non-Indians was supposed to lever Pataki into forcing tribal businesses to pay. To his credit, the governor realizes that the only way to solve to issue is through negotiation rather than force. He has pushed back two deadlines, the first for 90 days and the second indefinitely, in hopes of forging a solution with the Indian governments.
UCE's latest petulant frenzy is a lame attempt to force Pataki to collect taxes that: A) he knows the state is not entitled to; and B) that Indian tribes across the state have steadfastly refused to remit since the state first came into existence in the 1780s.
The argument that New York state is somehow "losing" millions of dollars in tax revenue is flawed. Tobacco and fuel taxes have never been collected on New York's several Indian reservations - they are sovereign Indian territory on which Albany's taxes do not apply. The Legislature might as well try to tax commerce in Vermont or New Jersey. In short, you can't lose something you're not entitled to, nor that you've never had.
Consider this: The root of the problem here may not be Indian sovereignty. Rather it could well be New York state's high taxes, particularly its excise levies on both fuel and tobacco, which are among the nation's highest.
All this tax money supports and is managed by a state legislature that has repeatedly broken state law by failing to produce a budget on time for two decades. Will UCE, in line with its claimed commitment to equality, launch an impeachment drive aimed at New York's state senators and assemblymen? Until it does so, the group cannot seriously refute the "anti-Indian" label its stance warrants.
Indian retailers' competitive advantage is certainly exacerbated by difficult economic times. But if New York's cigarette and gas levies weren't so steep, such advantage might not ever even have come about. The Empire State continues to hemorrhage jobs and people - forcing Indian nations to collect state taxes will not stop that bleeding.
Albany would be wise to put some serious effort into fixing New York's broken economy rather than just grabbing at piles of money. Expanded gaming may pad the bottom line in the short term, but real tax reform and smart fiscal policy are more important priorities in the long run.