The U.S. Supreme Court's decision last March, in City of Sherrill v. Oneida
Indian Nation of New York, to quash tribal attempts at reclaiming Indian
sovereignty over former reservation land continues to play havoc with
tribal economics. Consider the plight of the Cayuga Indian Nation of New
On Oct. 10, the nation closed the second of its two Class II video gaming
parlors after local officials, citing Sherrill, threatened to forcibly shut
the operation down -- invoking memories of the Rhode Island State Police's
unnecessarily brutal raid on a Narragansett smoke shop in July 2003.
The closure of the gaming facility, in Union Springs, N.Y., came a week
after the nation closed the doors of a similar Class II facility in Seneca
Falls. Union Springs is located in Cayuga County, while Seneca Falls sits
in Seneca County. In late September, Seneca County's board of supervisors
passed an ordinance declaring gaming a "public nuisance."
Citing Sherrill, the 2nd Circuit Court of Appeals overturned land claim
victories to which the Cayugas were a party, while a federal district court
recently lifted an injunction barring Union Springs from taking action
against the nation.
According to a report in Syracuse's Post-Standard, attorneys representing
tribal leaders who favor gaming are considering federal litigation to
challenge the county law. The Cayugas have applied to the BIA to take their
lands in Seneca and Cayuga counties into federal trust, a course of action
recommended to the Oneida Nation by the Supreme Court in Sherrill. There
has been no indication of how long the process might take.
Both gaming operations were located within the boundaries of what was once
the 64,000-acre Cayuga reservation. The tribal government acquired a vacant
NAPA auto parts store in Union Springs in May 2003 and received a license
from the National Indian Gaming Commission to conduct Class II gaming there
in December 2003. The Seneca Falls operation opened its doors soon after.
Clint Halftown, the Cayuga Nation's federally recognized representative,
has called for an internal dialogue among nation leaders, according to the
Post-Standard. Conflict over involvement in gaming has split the tribal
government into factions with competing leaders. The traditionally minded
Cayuga government had for years disapproved of gaming; however, in October
2003, the tribe reversed its stance and opted to pursue one of the three
legislatively authorized Class III casinos in the Catskills while opening
their two Class II operations.
As part of a flurry of four similar deals with tribes located both within
and outside New York, Halftown and Gov. George Pataki signed a state-tribal
compact for one of the Catskill casinos in November 2004. Shortly
thereafter Halftown pulled out of the deal, protesting compacts signed with
non-New York tribes. After Sherrill, Pataki unilaterally voided all five
compacts in April, saying that Sherrill forced a re-evaluation of the
Thanks to Sherrill, the Cayuga Nation has lost an important source of
POINTS TO PONDER
The Cayugas opened two small gaming facilities and two convenience
store/gas station operations, creating jobs and generating wages spent
largely in the local communities. They do not collect state sales taxes
because their federally recognized government-to-government relationship
with the United States, enumerated in the Commerce Clause of the U.S.
Constitution and confirmed by treaty, dictates that they are not agents of
During the Class III compact negotiations, they agreed to share slot
machine revenue with the state and local governments. They also agreed to
the idea of tax parity, under which they would raise prices on retail
gasoline and tobacco, both of which are heavily taxed by Albany, to levels
similar to those charged by local non-Indian retailers. The Indian Gaming
Regulatory Act mandates no such concessions.
Yet the Cayugas are branded as a "public nuisance."
Meanwhile, a few miles east on Route 20, just outside of Auburn, local and
state officials have granted tax-free status to a hotel/restaurant
operation directly across the road from Fingerlakes Mall and its hugely
successful Bass Pro Shops outdoor retail store.
This tax-free status comes under New York's Empire Zones, an
often-criticized program that doles out sales tax exemptions, 10-year real
property tax abatements, up to 15 years of investment tax credits, and
research and development tax credits. Also available are low-interest loans
and grants, interest rate subsidies and utility discounts of 10 -- 25
percent. In return, "qualified" businesses often only need to create a
single job to retain their EZ status.
Why does a hospitality operation located across the street from a
successful tourist draw need tax breaks? Indeed, why can't the developer of
this not-yet-built hotel compete on equal terms with other local hoteliers
and restaurateurs who might operate in less-desirable locations?
Why don't members of the so-called Upstate Citizens for Equality, who are
vehement in their disdain for Indian business operations, complain about
the travesty of free EZ handouts that do nothing but erode local tax bases
and stifle competition based on a level playing field? Isn't this exactly
the type of inequality with which they should be concerned?
Why don't local governments in Seneca and Cayuga counties realize they can
combine the tourist draws of Bass Pro Shops, the Finger Lakes wineries and
nearby Indian gaming operations (which have a proven track record of
enhancing local economic development) for the mutual benefit of their
constituents and the Cayugas?
In its Oct. 16 edition, the Post-Standard quoted UCE officer David Vickers
on the land-into-trust issue. Vickers claimed that by asking BIA to take
their land into trust, the Oneidas are trying to "sucker punch" local
officials. This appears to be a deliberate distortion of the truth by
someone who either hasn't read the Sherrill decision or else has chosen to
misrepresent it for his own purposes.
Outside of New York state, the holding of Indian land in trust by the
federal government is the rule rather than the exception. The Oneida and
Cayuga nations are merely following a directive from the Supreme Court to
apply for trust status. BIA has said that it will not take any land into
trust over which taxes are outstanding.
Specifically, the court said, "Congress has provided a mechanism for the
acquisition of lands for tribal communities that takes account of the
interests of others with stakes in the area's governance and well being.
Title 25 U.S.C., Section 465 authorizes the Interior Secretary to acquire
land in trust for Indians and provides that the land 'shall be exempt from
state and local taxation.' ... Section 465 provides the proper avenue for
the OIN to reestablish sovereign authority over territory last held by the
Oneidas 200 years ago."
In summarizing the case, the Native American Rights Fund said,
"Essentially, this finding by the court reaffirms the validity and purposes
of the land to trust statute and regulations a subject of considerable
litigation in the lower courts."
Yet according to the Oct. 17 edition of the Finger Lakes Times, "a task
force of community leaders" will fight "an unregulated tax-free 'Indian
Country'" that federal trust status, if granted, will create. Not only is
this a sucker punch, it is also shoddy journalism.
Indian country is neither "unregulated" nor "tax-free" -- the regulatory
and taxation authority lies with tribal governments that predate any
governmental authorities and with which Washington has treaty-based
Most importantly, nowhere in the FLT article is the Supreme Court's land
trust recommendation mentioned, nor are any Indian leaders quoted. The only
people quoted are the same "community leaders" who seek to subjugate Indian
sovereignty and economic development. This biased article presents only one
side of the issue and leads the reader to believe that the Indian nations
involved are doing something illegal, which they are not.
New York's Indian tribes are not trying to sucker punch anybody -- they are
operating within established parameters of their government-to-government
relationship with Washington. Instead, the sucker punches come from the
irresponsible distortions of reality advanced by UCE -- which appears not
to seek "equality" but rather the advancement of its own one-sided agenda
-- and irresponsible journalism that fails to provide an objective
rendering of both sides of the issue.