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Let the Games Begin: NIGC gives Cayugas approval

Although obstacles still remain, the Cayuga Nation of New York has taken a major step toward its future economic development with the securing of a Class II gaming license.

By approving the nation's Class II gaming ordinance, the National Indian Gaming Commission has paved the way for the upstate tribe to open a bingo hall, perhaps in a former NAPA auto parts store it acquired last year in the town of Union Springs. The Class II license permits the tribe to offer gaming on Indian country lands over which it has jurisdiction.

Class II gaming includes bingo and similar games of chance at which players compete against each other rather than competing against the house. It does not include "casino-style" games like blackjack, craps, roulette or slot machines.

For all intents and purposes, the gaming ordinance is simply a tribal law that delineates how the nation regulates its gaming operations. Typically, such ordinances provide that net gaming revenues be spent on tribal government operations or programs, the health and welfare of tribal members, economic development or charitable donations. The tribe must provide NIGC an annual outside audit of its gaming revenues and is required to construct and operate its facilities in a manner that produces no environmental or public health consequences.

But the deal is not done. The question of jurisdiction must next be solved. The Cayugas assert that because the former store lies within its 64,000-acre land claim territory, the tribe's acquisition of the property causes it to revert to Indian country, giving the tribe sovereign authority over it. In 2001, a federal judge ruled in favor of the Cayugas in a land claim lawsuit and awarded them $247.9 million. That verdict and award remain under appeal.

The town of Union Springs, however, disagrees on the jurisdictional issue, insisting that the Cayugas submit to local oversight.

"I will fight to the bitter end on this ? We've had no input on this, and, quite frankly, I feel like I'm being discriminated against," Mayor Ed Trufant told the Syracuse Post-Standard on Dec. 11. "Why should an individual be able to move into a community and not have to abide by the same rules everyone else has to? To me, that's discrimination."

[Aside: If Mr. Trufant reads Indian Country Today, perhaps he would be kind enough to write in and give us his opinion on New York's Empire Zone program. This joke-of-a-program creates tax-free enclaves for businesses, who in return need only create one job. That's right - years of tax-free status for hiring one person. In recent local media reports, state officials admitted that they have no idea how much local and state tax revenue is lost due to Empire Zones or whether any actual "economic development" has resulted from them. Indian gaming, on the other hand, has a proven track record of job creation and economic spin-off. If you're opposed to Indian sovereignty, you should be opposed to the Empire Zone travesty as well.]

Under federal law (i.e. the Indian Gaming Regulatory Act) local and state governments get no input toward or control over Class II gaming conducted on tribal land. For their part, the Cayugas have not revealed specific plans for the former NAPA building - they say only that the Class II license represents an opportunity for economic development.

Nonetheless, the town has twice served stop-work orders on the Cayugas for their refusal to abide by local building and zoning regulations. Citing their sovereign status, the Cayugas have ignored the orders. U.S. District Judge David N. Hurd then issued a temporary restraining order preventing the tribe from continuing to remodel, and the village from enforcing its laws on the project.

The case was briefly removed to state Supreme Court but was returned to federal court on Dec. 9 via a notice of removal filed by Raymond J. Heslin, attorney for the Cayugas. Federal court is the proper place for a dispute between sovereigns.

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Judge Hurd hit the nail on the head when he stated that issue of whether the land involved is indeed Indian country is a substantive point of federal law that must be resolved before either party might gain relief in the matter.

"Is this Indian country or not?" Heslin asked rhetorically in the Dec. 11 issue of the Post-Standard. "That's the essential issue of this case. It's pivotal for everything."

And that issue, unfortunately, will not be decided until the land claim case is finalized and all appeals are exhausted. So, it looks as if the Cayugas and Union Springs might remain at loggerheads for a while yet.

Mediator hangs around

Could it be a sign of progress? It's impossible to say at this point, but the term of the mediator in the ongoing Oneida land claim case has been extended for a fourth time. Federal district court Judge Lawrence Kahn recently prolonged the term of mediator John W. Tabner, whose most recent term expired Nov. 28, to March 31, 2004. Kahn first appointed Tabner, an Albany lawyer, on May 3, 2002.

Little is known as to what, if any, progress has been made in resolving the ongoing land claim as Kahn placed a gag order on the participants.

Originally filed in 1974, the land claim lawsuit seeks compensation for 250,000 acres of land in the upstate counties of Madison and Oneida. The tribes assert New York state illegally acquired the land in the late 1700s and early 1800s without receiving federal approval. Three separate groups of Oneidas in New York, Wisconsin and Ontario are parties to the litigation.

In February 2002, a proposed settlement was reached between Albany and the New York Oneidas. That deal, which had no input from the Wisconsin and Canadian Oneidas, was scuttled in October when the federal government said it would not contribute funds.

A previous 13-month attempt at mediation collapsed in March 2000 when former mediator Ronald Riccio, dean of the law school at Seton Hall University in New Jersey, declared his attempts "fruitless" and expressed doubt that a settlement agreeable to all parties would ever be reached.

The Oneida Nation of Wisconsin, which has recently acquired land parcels in both the claim area and in the Catskills, welcomed Tabner's extension. The tribe has long expressed an interest in reestablishing an economic presence in its ancestral home and actively seeks a Catskill casino.

"We are determined to move this issue to resolution and move forward with developing meaningful business in our ancestral homelands," said Cristina Danforth, chairwoman of the Wisconsin Oneidas, in a statement. "We will continue to increase our efforts and presence in New York."