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Seneca Upset Over N.Y. Casino Agreement

The Seneca Nation of Indians has told the U.S. government that New York State’s agreement to give a Wisconsin tribe a casino in the Catskills in exchange for dropping its land claims is likely illegal and could result in a “renewed flood of reservation shopping.”

SNI President Robert Odawi Porter wrote a seven-page letter to Interior Department Secretary Ken Salazar on Dec. 21, detailing the nation’s views regarding the policy implications and legal landmines attached to the tribal-state casino compact between then–New York Gov. David Paterson and the Stockbridge-Munsee Community, Band of Mohican Indians of Wisconsin. “Any approval by the department would be extremely bad public policy and likely unlawful. We urge you to reject all external pressures to quickly review and approve what is a controversial project with broad, negative policy implications, the approval of which will bring about significant and costly litigation,” Porter wrote.

The Stockbridge-Munsee Community owns and operates the successful North Star Mohican Resort Casino in Bowler, Wis., where its 22,000-plus-acre reservation is located. That’s more than 1,000 miles and several states away from the Catskills location where the band hopes to open a casino. Forged in secrecy and announced last November during the last weeks of Paterson’s term, the agreement would allow the Wisconsin tribe to build a $700 million casino on 330 acres of land in Sullivan County in exchange for dropping its decades-old land claim to 23,000 acres in Madison County.

The Oneida Indian Nation, which offered its hospitality to the Stockbridge-Munsees and other Indians, such as the Brothertown Indian Nation in the 18th century, has vowed to fight the proposed land-claim-for-casino swap. “It is so clearly illegal, in so many ways, that if it is approved there will be considerable litigation, including by the Oneida nation,” said Mark Emery, the Oneida nation’s director of media relations.

According to a press release from Paterson when the compact was signed, the agreement transfers 1.84 acres of land in Madison County to the Stockbridge-Munsee. “Part of this agreement provides that the tribe will replace the 23,000 acres it claims in Madison County for 330 acres in Sullivan County that the tribe will convey to the federal government, thus allowing the Sullivan County land to be taken into trust on behalf of the tribe. This agreement represents the willingness shared by all parties and the diligent effort and patience of the Stockbridge-Munsee Tribe to reach a resolution based on mutual respect and good faith,” Paterson said in the release.

Stockbridge-Munsee President Kimberly Vele said at the time that while less than two acres isn’t much land, “it may as well be 2,000 acres” to her people. She said the forced removal of her people from their aboriginal lands in New York in the 1820s and 1830s caused trauma much like that of a child taken away from its mother. “It may be that the face of justice is not as we imagined, but today’s settlement begins a new chapter in our struggle to restore our rightful place in the annals of history…The land given back as part of this historic settlement will be our way of permanently commemorating our presence in New York from time immemorial and will mark, for all rising generations, the fact that the Muh-he-con-new, once called this place home, and as long as our name is uttered, we live,” Vele said.

But some critics say the Stockbridge-Munsee band is not New York–based because it moved west as a result of losing its ancestral land in a war with the Mohawk Indians, and not as a result of removal by the state or federal governments.

Paterson was widely criticized when the deal was made public and the controversy has continued into Gov. Andrew Cuomo’s new administration. On Jan. 11, a group of racino operators at harness tracks in Saratoga Springs, Monticello, Yonkers and Farmington, as well as the future operators of a video slots facility at the Aqueduct thoroughbred track called on the state’s top officials to “stop the clock” on the band’s casino proposal in the town of Thompson, the Mid-Hudson News said.

Vele responded that the racinos are trying to eliminate what they perceive to be competition, and expects the state to honor the contract.

Cuomo said the following day that he’ll review the deal.

The deal still needs approval from the Interior Department secretary, who has 45 days to rule on the casino application, which was submitted on Dec. 29. Normally, the Interior secretary approves a trust application and a tribal-state gaming compact and the National Indian Gaming Commission approves a tribal gaming ordinance, but since this application is so unusual, it’s not clear what process will be followed. In his letter to Salazar, Porter points out that the approval of the band’s land-into-trust application would require “exceptions to federal Indian policy that would wreak havoc in other parts of the country,” in part because of the government’s expressed mounting opposition to off-reservation Indian casinos.

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“Federal policies concerning the treatment of Indian nations and Indian people have been less than exemplary throughout history,” Porter wrote, citing the forced removal of many Indian nations to make room for the expansion of settler colonists pushing westward. “No doubt many, if not all, Indian nations and tribes that were affected by federal removal efforts would gladly take the opportunity to ‘settle’ their ‘land claims’ by obtaining easterly lands closer to larger population bases to pursue gaming expansion. The Seneca Nation does not want to see a renewed flood of reservation shopping by tribes located many states away from their current homeland. This outcome would be encouraged if you were to approve the proposed settlement.”

“Off-reservation” gaming, a hot-button Indian land issue that flared into prominence as “reservation shopping” during George W. Bush’s administration, came back into discussion last fall when the BIA’s Office of Indian Gaming Management held consultations around the country on a proposed rule concerning implementation of Section 20 of the Indian Gaming Regulatory Act (IGRA)—the part of the law that deals with putting land into trust for gaming when the land has been acquired after IGRA was passed on Oct. 17, 1988.

Section 20 carries a general prohibition against Indian gaming on trust lands acquired after Oct. 17, 1988, and then lists a number of exceptions to the prohibition, including land within or contiguous to a tribe’s existing reservation; land for tribes without reservations; land within the tribe’s last recognized reservation; land-claim settlements; initial reservations for newly acknowledged tribes; and restored lands for re-recognized tribes. “Land-claim settlements” is likely the exception that the Stockbridge-Munsee band is seeking from the Interior Department.

(Another exception—the most controversial one—is called the "Two-Part Determination" and allows gaming on land acquired after October 17, 1988 if the secretary determines it is in the “best interest” of the tribe and not detrimental to the surrounding community and if the governor of the state concurs with that opinion.)

During the George W. Bush era, Indian gaming opponents derisively characterized applications for trust land far from a tribe’s reservation as “reservation shopping” and lobbied hard against them. But many tribes and tribal organizations also oppose off-reservation gaming or support tight control of it, limiting such casinos to tribes with an aboriginal connection to the land and only under circumstances that do not impact the rights of nearby tribes.

In January 2008, then–Interior Secretary Dirk Kempthorne issued a “guidance memorandum” that introduced a new word—commutability—into the Indian gaming lexicon and effectively ended off-reservation gaming. The memo cited “commutability” as a new standard for denying off-reservation land into trust for gaming—even though the word does not appear anywhere in the federal regulations. Although the memo was not explicit, it seemed to set 100 miles as the maximum distance between a tribe and its off-reservation casino.

The St. Regis Mohawk Tribe in the northern part of New York State was hit hardin the immediate aftermath of the Kempthorne memo. St. Regis’s land-into-trust application for a gaming site in the Catskills area where the Stockbridge-Munsees now want to establish their casino had been approved, but was then disapproved on the grounds of “commutability”—the St. Regis reservation is about 350 miles from the Catskills site.

Porter, who formerly served as the Seneca Nation’s attorney general and is a law professor specializing in federal Indian law and policy, also detailed a number of reasons why the Stockbridge-Munsee-New York proposal is likely illegal, among them the fact that the federal Indian Gaming Regulatory Act requires that any Indian nation exercise government jurisdiction over its lands. “The ability of the band to exercise jurisdiction over these lands is hampered by the sheer distance between Bowler, Wis., and Monticello, N.Y.,” Porter wrote to the secretary.

Porter also voiced concerns that the Stockbridge-Munsee’s off-reservation casino proposal might cause members of Congress to consider opening the IGRA and the Indian Reorganization Act (IRA) to amendment to reduce or eliminate the Interior secretary’s “discretionary authority ”to put land into trust for gaming or general purposes such as housing, education and health facilities. He noted that U.S. Sen. Dianne Feinstein (D-Calif.) had already used the Interior Department to provide drafting services for a controversial bill to limit the ability of Indian tribes to conduct gaming on lands the secretary might acquire in trust. The bill died in the lame-duck session of Congress just before the New Year, but tribal leaders fear it will be revived in the new session. “Opening up IGRA and the IRA to amendments harmful to tribal interests is of great concern to the Seneca Nation and should be of great concern to the department,” Porter told Salazar.

Interior’s deputy secretary, David Hayes, who many tribal leaders, lawyers and lobbyists in the Indian gaming circle in Washington believed was at the center of the controversy over Interior’s “drafting services” for Feinstein, is said to be handling the Stockbridge-Munsee land-into-trust application. Interior spokeswoman Kendra Barkoff said she could not comment on Hayes’s involvement because the issue, “is part of ongoing litigation.” The Seneca president also argued that the Stockbridge-Munsee deal runs counter to broad-based, beneficial federal policies that over time have been designed to counter the history of abuse in the federal government-Indian nation relationship, particularly the tribal consultation policy implemented by President Obama during the first White House Tribal Nations Conference in November 2009. “As a matter of departmental regulation and policy, the Interior Department also takes into consideration the views of state and local governments in processing (land-into-trust) applications. In deciding whether to enter into a settlement agreement that calls for an acquisition of land more than 1,000 miles away, the Interior Department, with its trust responsibility to all Indian tribes, must solicit and consider the input of all tribes with lands closer to the subject acquisition lands than the Stockbridge-Munsee reservation.” Porter wrote.

Sen. Charles Schumer (D-N.Y.) has voiced support for the band’s casino, but approval is far from assured, according to Kathryn Rand, co-director of the Institute for the Study of Tribal Gaming Law and Policy, a component of the Northern Plains Indian Law Center at the University of North Dakota School of Law. “This is an envelope-pusher,” Rand wrote on her blog. “It will test the viability of the Bush administration’s ‘commutable distance’ standard for off-reservation gaming (which has not been repudiated by the Interior Department), and it will test the Obama administration’s support of the expansion of tribal gaming. The distance between Wisconsin and New York is going to be relevant; it’s just a question of how much weight the federal government will give to that important factor.”