Things are coming to a head in New York. October was an active month for tribal-state relations; what happens in November will likely influence how the state government in Albany and New York's tribes get along for years to come.
A legislative mandate to begin collecting sales taxes from reservation sales of fuel and tobacco to non-Indians by Dec. 1 created a deadline forcing either amicable settlement reached before that date or potentially angry confrontations afterwards.
The last time New York tried to collect such taxes, in 1997, highway closures and threats of violence caused Gov. George Pataki to abandon the effort. Today however, the financial picture in Albany is much bleaker; projections have pegged this year's state budget deficit in the neighborhood of $10 billion.
Two years ago, in the wake of the Sept. 11 terrorist attacks, the state Legislature authorized six new Indian casinos in New York. Slot revenues from these casinos were supposed to help the state's bottom line but only one of them, in Niagara Falls, has so far opened its doors. Albany is getting antsy for Indian tax and casino dollars.
The state's retailing tribes are firm in their belief that acting as tax collection agents for the state compromises their sovereignty. The state legislature, armed with a 2002 U.S. Supreme Court decision allowing it to collect the taxes, is now equally adamant about collecting what it contends are millions of dollars in unpaid tax revenue.
Even polar opposites can sometimes produce viable compromise. The St. Regis Mohawks and the Cayuga Nation have traveled rather different paths in proposing to settle outstanding land claim and taxation issues with Albany while angling as well for a Catskill casino. Will either succeed?
St. Regis Mohawks
Last May, a previous St. Regis government negotiated a memorandum of understanding (MOU) with Gov. Pataki. Designed to settle myriad differences between the state and the tribe, the MOU would have resolved the tribe's land claim, awarded the Mohawks one of the three casinos authorized for the Catskill region, approved the compact under which the Akwesasne casino operates (and given a share of slot revenue to the state) and settled tax problems with price parity.
Although intended only as a framework for a future final agreement, Mohawks at the Akwesasne reservation, many of whom were entrepreneurs who did not want to raise their prices, within a month voted a new government into office.
Now Chief James W. Ransom, leader of that new government, wants to separate the issues, renegotiate them, and hold individual referenda on each. In recent media reports, Ransom has said that linking the land claim and casino was a "mistake."
It seems however, that trying to start over and renegotiate each component of the deal at this rather late date may be the real mistake. Albany is desperate for cash and the Legislature has refused to retroactively approve the compact for the tribe's Akwesasne casino (the New York Court of Appeals, the state's highest, ruled it invalid last June).
This is not to say that the Mohawks should not aggressively pursue their interests nor deny their members the opportunity to weigh in through referenda. But if the tribe cannot forge some sort of unity over these critical issues, it may find itself on the sidelines.
Although the BIA has already announced a land-into-trust deal for the Mohawks' proposed Catskill casino (pending the successful completion of an environmental impact study) the state has other tribes with which it can deal.
A comprehensive proposal recently released by the Cayugas contains interesting features that could bode well for its acceptance by the state. In a mid-October letter to Pataki, Cayuga spokesman Clint Halftown outlined an innovative deal that could work well for both sides. For starters, the Cayugas would implement a "tribal tax" at both of their recently opened retail stores, bringing prices closer to those of neighboring non-Indian retailers. The tribe would keep these tax funds for tribal programs.
In return, the state would drop its appeal to the $247.9 million judgement against it in the Cayuga land claim case. The tribe would sign a Class III compact with terms similar to that signed by the Seneca Nation last fall. Although the state would still be entitled to slot revenue, the Cayugas would retain a larger portion of that revenue until the land claim settlement was paid off, estimated to take six years.
Two reasons why this deal, which is reportedly under negotiation, looks good:
Albany doesn't have to solicit federal funds or raid its empty treasury to pay the land claim damages, and would still get an estimated $19.5 million in funds from the Cayuga casino during the first year. Once the claim is paid, the state's share of slot revenues jumps dramatically.
The Cayugas get a casino and with it the potential for economic self-determination. Within the past year, the tribe reacquired a pair of retail properties within its land claim area; the Cayugas had been landless for over 200 years.
In April, the Cayugas inked a deal with casino operator Empire Resorts Inc. and applied to BIA to take into trust a 30-acre plot at Monticello Raceway in Monticello into trust for the casino.
In late September, Pataki latched onto an initiative pushed by the state's Congressional and Senate delegations to craft federal legislation to prevent tribes from crossing state lines to open gaming facilities. This effort is aimed at the Seneca-Cayuga Tribe of Oklahoma, which seeks to open a Class II gaming facility (which requires no compact) not far from Syracuse. The Seneca-Cayugas are currently locked in a courtroom battle over whether municipal and state governments can "interfere" with their bingo hall plans by forcing compliance with local zoning, building and safety codes. In mid-October, Pataki muddied the waters and reversed a long-standing policy by announcing his willingness to enter compact negotiations with tribes not based in New York. It is not clear if this shift actually represents a change in attitude on Pataki's part or whether it's a prod meant to get New York's tribes to concede on particular issues.
If "out-of-state" tribes are to get a real chance at the bargaining table, the leading contender among them would have to be the Stockbridge-Munsee Band of Mohican Indians who, despite ancestral ties to areas now within New York's boundaries, are located in Wisconsin. The tribe has reacquired land, signed a development deal, and have applied to BIA for a land-into-trust transfer on property in the Catskill town of Thompson. That application remains pending.
Both the Oneida Nation of New York and the Seneca Nation have publicly expressed interest in a Catskill casino. These tribes already operate casinos in Verona and Niagara Falls, respectively. According to various media outlets, the Oneidas and Albany have been "near" a deal for several months.
Mohawks divided by politics
Internal politics among the Mohawk people are often contentious, perhaps in some measure due to geography and non-Indian political boundaries.
The tribe's Akwesasne reservation straddles the St. Lawrence River and the U.S.-Canadian border, thus causing Mohawks to have dealings with two federal governments. The U.S. state of New York and the Canadian provinces of Ontario and Quebec also attempt to exercise varying degrees of jurisdiction over Akwesasne territory, giving the Mohawks three more governmental bureaucracies to deal with.
Finally, the tribe is currently divided under three distinct tribal governments, each of whom claims a particular jurisdiction and constituency. One, the Mohawk Council of Akwesasne, operates on the Canadian side and is recognized by Ottawa. On the U.S. side is the St. Regis Mohawk Tribal Nation, which is split into two competing factions, the "Constitutional" government and the "People's" government; the latter is recognized by the U.S. government and has been negotiating with Albany. The Mohawk Nation Council, a traditional Haudenosaunee government, claims jurisdiction over all Mohawk lands on both sides of the international border but is not formally recognized by the U.S. or Canada.