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Let the games begin; The Cayuga question (Part 2); How do you settle a land claim?

MOU apparently a false start - Case likely headed back to court

Sometimes, when covering an ongoing series of events for a weekly
publication, the journalist finds that things can move too quickly for the
pen to keep up. A few weeks ago, this column started with this sentence:
"Almost in spite of itself, the Cayuga Indian land claim case appears to be
lurching along toward some sort of resolution." The day after those words
were written, however, everything seemed to change.

State negotiators announced on Aug. 3 that settlement talks with the Cayuga
Nation of New York had ceased, citing the tribe's failure to accept
revisions to a memorandum of understanding (MOU) signed on June 10. That
non-binding agreement, signed by New York Gov. George Pataki and nation
representative Timothy Twoguns laid out what seemed to be a fair framework
with which to settle the quarter-century-old land claim. (For the MOU's
original terms, see "Let the Games Begin" Vol. 24, Iss. 2.)

In July however, Pataki's negotiators returned the MOU to the Cayugas with
some revisions the nation found unacceptable. In the Aug. 8 edition of the
Syracuse Post-Standard, Twoguns explained Cayuga objections. He said that
the state wanted the nation to drop its appeal for $1.7 billion in the land
claim case (the 2001 award of $247.9 million is currently under appeal by
both Albany and the nation). But the state would reserve the right to
continue its appeal to reduce the award and the Cayugas would have to
accept a lower award if so rendered.

Calling this proposal "totally unfair," Twoguns told the Post-Standard,
"That's not why you settle cases. You settle cases to avoid going to
court." The original terms called for both sides to abandon their appeals.

On Aug. 5, the Post-Standard reported that the chairman of the Cayuga
County Legislature revealed two other terms of the state's revised MOU. One
was that in exchange for a Class III Catskill casino in Sullivan County,
the Cayugas would have to shutter their recently opened Class II operations
in Union Springs and Seneca Falls. The original terms would have allowed
the nation to operate the Class II facilities for up to two years before
seeking local approval.

The other called for the Cayugas to set up a $9 million annual fund for
economic development and infrastructure improvements in Cayuga and Seneca
counties, within which the 64,000-acre land claim territory lies. On top of
that, the nation would have to pay an annual impact fee of $6 million to
both counties to offset property tax losses from tribally re-acquired land.
The original terms called for payments-in-lieu-of taxes totaling $3 million
to each county and the negotiation of impact fees for municipal services.

State officials told various Upstate media that negotiations were over and
the land claim case would be decided by the judiciary. Some reports said
that the governor wanted to see casinos "up and running" in the Catskills.
A few media headlines indicated that the state walked away from the
bargaining table while others said it was the Cayugas who left.

The Seneca-Cayuga Tribe of Oklahoma, which joined the land claim case as a
plaintiff in 1982, had been in negotiations with local officials in Cayuga
County about a possible casino in the Town of Sennett, which lies outside
the land claim area. The breakdown in talks between Albany and the Cayuga
Nation would appear to put any such Seneca-Cayuga discussions on hold.

Could the unacceptable MOU revisions be a purposeful negotiating ploy on
the part of the state? Who knows? But given the on-again-off-again nature
of the land claim litigation and efforts at settlement, such tactics are
not impossible to believe.

After the MOU's announcement, members of the Upstate Citizens for Equality
(UCE) revved up a renewed campaign of prolonged squawking. UCE demands that
the courts decide the issue and vowing to drag the case all the way to the
Supreme Court (it now sits at the 2nd Circuit Court of Appeals in
Manhattan). Whether they realize or not, the group would like to see New
York's Indians treated in similar fashion to the 1978 and 1980 settlement
acts in Rhode Island and Maine, respectively, the terms of which (along
with subsequent state acts) left the Narragansett, Passamaquoddy and
Penobscot tribal governments clinging to shadowy vestiges of their inherent
sovereignty.

Perhaps Albany thinks that the 2nd Circuit will decide in its favor. Maybe
UCE squawked loudly enough to scare state negotiators. Perhaps the whole
"let the courts decide" thing is a bluff to get the Cayuga Nation to accept
a less-advantageous deal. Maybe Pataki thinks the Cayugas want a Catskill
casino badly enough that they'll grasp at straws.

The Cayugas had been landless for some 200 years until their acquisition of
a few small commercial properties last year, and the claim litigation is
almost 25 years old; it is not unreasonable to think that the nation could
wait a little longer for a resolution. But, although the land claim
judgment and subsequent monetary award have been decided in the nation's
favor, there is no guarantee as to what course the 2nd Circuit might take -
making a fair settlement, like the discarded MOU, quite attractive.

Whichever way that court decides, a guaranteed appeal to the Supreme Court
is in the cards for the losing side. Will America's highest tribunal decide
to hear the Cayuga case? That could be the next "Cayuga question."