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Leslie Logan
Seneca

The Seneca Nation has been engaged in a five-year long gaming dispute with New York state that got real ugly the last weekend of March.

On an especially cold and wintry late March Saturday, when a good number of Senecas were happily headed to KeyBank Center to celebrate Native American Heritage Day at a Buffalo Bandits lacrosse game, the Seneca Nation’s financial world came to an abrupt, head-spinning, heart-seizing, screeching halt.

New York State Gov. Kathy Hochul, a native Western New Yorker, put the screws to the Senecas by ordering the nation’s financial institution—KeyBank, namesake of the event center that ironically was hosting a major halftime event celebrating the local Native community —to freeze the nation’s accounts, dealing a crippling blow to the economy of the 8,500-member Seneca Nation.

News of the financial freeze dripped out little by little Saturday, setting off five-alarm wild-fire rumors of impending doom throughout the community. Confirmation of the news was given in an evening statement, issued by President Matthew Pagels, leaving the Seneca Nation dangling precariously on the precipice of economic disaster.

Gov. Hochul pulled the trigger, issuing the subpoena order that plunged the nation into a state of economic paralysis, affecting the nation’s enterprises, gaming operations, and jeopardizing the livelihoods of Seneca families and a workforce of 4,500.

Senecas employed by the nation, and possessing uncashed checks, were told to hold onto them. People openly wondered if they should report to work Monday. They wondered if they would be paid the following Friday. People were worried and had plenty of questions.

Council and executives, for their part, met all day that Sunday to address the crisis. A notification of a special session of council was issued for Monday morning.

On Monday, some 250 Senecas packed the Allegany Council chambers, everyone anxious for answers. People were standing, lined against the walls and extra chairs were brought in. Council had prepared a resolution to make the payments in order to lift the restrictions on accounts, seeing no other way out of what President Pagels would later describe as akin to a hostage-taking situation.

Three heated hours of tense debate and statements from the community urged the leadership to seek a court order to invalidate the action and further litigation procedures. Others offered possible alternative solutions, made pleas to protect the nation’s sovereignty, and urged the council to continue to fight the State’s aggression.

Former President Moe John gave an eloquent and inspiring speech. John cautioned, admonished, and encouraged the nation’s leadership. “Don’t make the mistake of your life that your grandchildren will remember you by,” John said. “Get off your knees to the state. You can be the most famous council that ever was; one that fought the state and won.”

Sitting Councilor Ross John pointed out that the vote was going to come down to “how vulnerable we feel.” John suggested the decision be made to go to court immediately to “knock off” the freeze order. He acknowledged it might take some time and it might be a little painful. “But we’ve known pain before,” John said. “They’re holding us hostage. Tell people they won’t get paid. Tell the governor the hell is gonna get worse!”

After three hours of anguishing outcry from the community, the resolution to release the payments was tabled. The session was adjourned so that council could consider the options and explore their viability. The ticking of the clock and expenditure of time felt palpable in the air; there was no time to waste: the Seneca Gaming Corporation had a $6.4 million principal and interest debt payment due in three days.

A couple hours later council reconvened with a resolution. Councilor after councilor explained their vote in favor of releasing the payments; all indicated it was a difficult decision. No one was happy about the untenable circumstances the state had placed the Nation in, but they explained they had no choice. “Come Thursday, we’re not going to be able to make payroll,” said Councilor Billy Cannella. The resolution passed by unanimous vote.

Submitting to New York State’s hostile act left a bitter taste in everyone’s mouth, whether in favor or against making the disputed payments.

It was a dark day in Seneca history — payment to the state was forced due to an extraordinary act by the governor that left the nation on economic life support. “This is economic terrorism,” said Councilor Ross John. “The whole thing smacks of extortion.”

Where it all started

The gaming dispute started in 2017, when the nation stopped making revenue share payments to the state. The nation-state compact, signed in 2002, covered a 14-year term, with a seven-year renewal period. The compact was silent about continuation of revenue share payments in the extension period. The dispute went to arbitration and the three-man panel decided in favor of the state, 2-1, in 2019.

The dissenting opinion by Kevin Washburn, former assistant secretary of Indian affairs and tribal gaming law expert, wrote that the decision effectively amended the compact. The nation has maintained that an amended compact requires review and approval by the Secretary of the Interior, as per the Indian Gaming Regulatory Act — a process that has never been conducted. In addition, the legality of the revenue share payments in that extended renewal period have been questioned and, the nation maintains, also requires federal review.

Several court cases and millions in attorney fees later, the nation was ailing on the wrong side of justice, having all rulings go in favor of the state. The last decision came in December 2021 when the federal district judge again ruled against the nation, leaving only one last chance to appeal to the Supreme Court. The nation’s team of attorneys advised the Seneca Council and executives that the odds of winning were slim, and with that, the window of final appeal slammed shut.

On January 12, at about 8:30 p.m., President Pagels appeared in a video-recorded post on Facebook, announcing that a settlement agreement had been made with New York State. The President, surrounded by 14 face-masked councilors, somberly explained that the Compact dispute was resolved and more than $540 million in disputed gaming monies would be paid to the state.

The announcement prompted three months of turmoil — fiery debate and intense discussion — on the Seneca territories, with the community divided over the decision to make the payments. The settlement agreement was derailed and the payments were halted at the February regular session of council. Community opposition led to a resolution that halted the payments, subject to federal National Indian Gaming Commission review of the legality of the revenue share payments.

From January to March there were numerous back-and-forth, push-and-pull meetings between the administration and the community; the officials wanting to pay and the community wanting to continue to fight the case. Each side took to their corner and remained committed to their positions — even after Gov. Hochul put the squeeze to the nation’s financial airways.

For council’s part, they explained that after losing court case after court case, the nation needed to pay in order to start negotiating a new compact; additionally they noted, time was short with the compact term expiring in December 2023.

For the Seneca grassroots community groups, it was about the principle of the matter. At one of the community meetings, Maxine Jimerson, an Allegany resident and business owner, said, “It’s not about the money; it’s about getting justice.”

Over the past 250 years, whether it was colonists, federal armies, state interests, or land companies, one after another they stole our land and attempted to wipe out our culture, language, and lifeways in an insatiable quest for everything we had. In 2022, the governor of New York state effectively choked the Seneca Nation economy and swindled the nation once again, this time, the Seneca maintained, by grabbing more than their fair share of gaming revenues.

Odie Brant Porter, a resident of Allegany, and a former comptroller of the nation, said, “The state did it with the help of the financial institution that the nation did business with for more than 30 years.”

Others said they did it with the help of the federal agencies — the Department of Interior, and the regulatory arm, the National Indian Gaming Commission — which stood silently by, watching the five-year, slow-motion train wreck reach its unjust conclusion. And the state did it with an aggressive force tantamount to a modern-day Sullivan’s raid, when in 1779, a U.S. general inflicted a federally directed scorched-earth policy to wipe out the Seneca from Central New York.

The day after the Nation released the payments, President Pagels, who entered into that initial settlement agreement on Jan. 12, without the prior, informed consent of the Seneca people, shot back against the state’s action in a video statement: “New York’s hostile and shameless greed was laid bare for the world to see. We will not let New York state strangle the Senecas and the people of Western New York.”

Double dealing

While Gov. Hochul was placing a heavy hand of pressure on the nation by hijacking virtually all of the nation’s bank accounts, she was busy quietly buttoning up a deal to commit a significant portion of the disputed gaming funds to building a brand new $1.4 billion stadium for the Buffalo Bills. The Bills football team is owned by billionaires Terry and Kim Pegula, but the new stadium will be state owned and the state committed $600 million to the deal.

In her public statements to the media, Gov. Hochul openly admitted to exerting strong-arm tactics with the Seneca that sounded like a Scorsese film crime-syndicate extortion stating, “I wasn’t going to have one word of a conversation about that (compact) until the money was in the bank.”

The Buffalo News reported Hochul’s intended approach acknowledging the state “started playing hardball” with the Senecas. The headline read: “Seneca President says Hochul extracted ‘ransom money’ for new Bills stadium.” The News wrote, “Hochul indicated that the state’s get-tough approach wasn’t limited to the legal move that froze the nation’s bank accounts.”

The governor later amended her statement taking a less combative tone, acknowledging that $418 million of the Seneca payment would be dedicated to the stadium and create 10,000 jobs — none of which the Seneca would get credit for.

There have been few reports about the fact that Kathy Hochul’s husband, William Hochul, serves as general counsel and senior vice president of Delaware North Corporation. Delaware North is the operator of Buffalo Raceway and Hamburg Gaming, a racino that operates in Seneca's “exclusivity zone.” Hamburg Gaming had for years marketed itself as a casino. The nation-state gaming compact provided for an exclusive gaming zone in Western New York, free of Class III competition in exchange for 25 percent of the net slot drop of gaming revenues. The nation withheld $600 million in that dispute, which was settled in 2013.

Like a double whammy of conflict of interest, William Hochul’s Delaware North is also the concessionaire for the Bills stadium — so there is extra gain for the Hochul’s and their business interests.

President Pagels issued a recorded statement following the governor’s announcement committing monies to the Bills stadium saying, “I’m sure that was welcome news to the governor’s husband, whose company not only operates video lottery terminals within the Seneca Nation’s supposed gaming exclusivity zone with the state’s blessing, but the company will also make millions of dollars in concession business in the state-owned stadium.”

To add insult to injury, on the day after the nation made the payments, the Department of the Interior released newly proposed regulations that directly speak to the issues the nation has been raising for years. The primary basis of community opposition to making the payments centered on several unresolved issues surrounding the 7-year extension renewal period of the compact, that Seneca grassroots groups maintain require full and final federal review.

On March 11, the National Indian Gaming Commission issued a letter to the nation that raised more questions than it answered, yet informed that it was “closing this investigation” — roiling those Senecas who had argued for a determination with broader depth. The agency conceded that their review still ignored the seven-year extension, questioned the value of the tribe’s remaining exclusivity, and required further analysis. So the much anticipated National Indian Gaming Commission notice was an answer that provided no real conclusive answer.

Martin Seneca, a former Seneca attorney for the nation, said simply, “They punted.”

The Mothers of the Nation, a constitutionally provided-for entity, launched a petition in January, gathering more than 200 signatures of Seneca mothers opposed to the Settlement Agreement and making the disputed gaming payments. The preamble to the petition demanded the Nation exhaust all federal remedies before turning over the more than half a billion dollars. The draft gaming regulations could have had a dramatically different effect on the nation’s decision to release the payments — had they been issued sooner. Instead, like a perverse day-late-dollar-short divine intervention, the much requested regulatory review and deliverance of draft regulations were just another nail in the side of the Senecas, crucified by the state and local media in the press.

The bigger battle

From the outside looking in, it may appear as though the conflict between the nation and New York state was just an intense tug-of-war over a sizable pot of money. It may have looked like a bitter internecine battle over the people’s will to fight the state and the official’s resolve to end a costly dispute that they believed had run its course. It was bigger than that.

For the grassroots community group, including the Mothers of the Nation, it was about fighting for Seneca economic justice, protections, and equality.

“Since 2017, we’ve been trying to get a fair shake,” said Maxine Jimerson, a member of the Mothers of the Nation. “We want a fair shake, not a state shakedown.”

The disputed casino payments that the state sent to the billionaire Pegulas for a stadium represents just one slice of a very large pie of the Nation's resources — that historically included millions of acres of land — that the Senecas say New York state has absconded with.

The Seneca have been in an unbalanced, always down, no-win battle with New York state. The scales of justice have not gone in the nation's favor for nearly 250 years. Factors influencing the tipping of the scales include the state and federal government's incessant drive to keep indigenous people thwarted and contained to their small fragments of reservation land, always chipping away at their resources and limiting and diminishing economic abilities and gains.

Indian gaming was geared to give tribes an economic engine igniting tribal development when — only 25 years ago — most Native economies resembled destitute third-world countries, frozen in time like an insect in amber.

While gaming has brought significant social change to many Native communities, the laws governing gaming have also limited tribes’ abilities to exercise greater sovereignty in the arena.

The Senecas contend that the Indian Gaming Regulatory Act, designed to regulate tribal gaming, favors states, strips tribes of control over operations, and limits tribe’s abilities to contest questionable findings. The 1987 California v. Cabazon Band of Mission Indians Supreme Court ruling lifted the restrictions enabling gaming on tribal territories.

“Cabazon said we have the right to game. (Indian Gaming Regulatory Act) was a noose around our necks that we bought into,” Ross John said. “(Indian Gaming Regulatory Act) is an overreach. We need to change that.”

The Senecas requested that the extended period of the compact come under review by the Department of Interior, as per Washburn, who viewed it as an amendment in his dissenting arbitration opinion. According to gaming law, all nation-state compacts and amendments require secretarial approval. However, gaming regulations require that both parties, nation and state, must agree to a review and the state was unwilling. Now, with the recently proposed regulations, a more fair and equitable review process may be adopted, but it may be too late for the Senecas.

The Interior has long been aware of the Seneca issues, but has remained silent. The Seneca have repeatedly called upon the Interior to fulfill its trust responsibilities by taking action, to little avail, adding to Seneca frustrations. The Senecas argue that the federal agencies have been derelict in their duties and obligations, instead corralling tribes to restricted fields without effective and timely remedies that hurt tribes. The Interior’s long-delayed proposed amendment to the two-party review requirement comes at a steep billion dollar cost to the Seneca.

Something for nothing

Now that the Senecas have built three successful gaming operations in Western New York, without state investment, the state wants a disproportionate share of revenues.

The Seneca Nation grew operations, including gaming, generating 4,500 jobs in Western New York, all without state tax subsidies or investments. Tesla, with a solar wind panel company, received what has been referred to as the “Buffalo Billion” in state subsidies and promised to create 2,000 high tech jobs in New York, with 1,460 of them in Buffalo. In October 2021, the local media reported that $207 million of the state’s investment in manufacturing equipment was sold and sent to a scrapyard, thereby throwing millions of dollars to waste. The state also tried to lure Samsung to Genesee County with state tax subsidies worth $1.9 billion to create 1,900 jobs, but the company went to Texas.

New York state has demonstrated its willingness to give a billion in tax breaks and incentives to big companies in return for 2,000 jobs, holding press conferences to tout development and job creation. Yet with the recent release of casino monies, the state will have taken roughly $2 billion from the Senecas, with the Senecas generating twice the amount of jobs.

The Senecas get torched in the local papers for crying foul on the lopsided economic dealings it sees as a pattern. The editorial board of the Buffalo News, the largest newspaper in the Buffalo-Niagara region, has excoriated the Seneca Nation. Recent attacks have stated the Senecas “acted in bad faith,” called the Seneca “greedy” among other unpleasant things, and wrote that the Seneca have been “looking for loopholes to avoid paying their obligations for years.” A Sunday, April 3 editorial board opinion defended the Hochul’s suggesting ongoing bias.

John Kane, Mohawk, a talk radio commentator with a local radio show “Let’s Talk Native” said, “It’s not just the recent editorials. The Buffalo News has been on a multi-year smear campaign against the Senecas for over a decade.”

Complicating local perceptions, the Seneca argument surrounding “exclusivity” is not fully understood by most neighboring Western New Yorkers — it’s a complex issue. The original 2002 compact provided 25 percent of the net slot drop in gaming revenue share to the state in exchange for a wide swath of exclusivity of the gaming market, but the regulations require the value of the concession must be “substantial and quantifiable.”

Councilor Ross John argues that the compact never delivered, but took more from the Nation, in part, with the help of Indian Gaming Regulatory Act language. “The compact was abusive from the word ‘go,’” John said.

In the March 11 letter to the nation, National Indian Gaming Commission Chief Compliance Officer Tom Cunningham wrote: “It is clear that the State has benefited substantially more than anticipated under the Compact while the Nation has received less. Whether the remaining exclusivity is still worth the bargained percentage of slots revenue would require further analysis.”

“The (National Indian Gaming Commission) punted and turned their backs on us, the Department of Interior too,” said Councilor John. “It’s not just the state.”

Despite a history of unfavorable rulings and treatment — with sometimes tragic outcomes, the Senecas are determined to fight for better dealings with the state and federal governments for a fair shake.

For the Seneca people, the past three months have been like a roller-coaster, maniacal Speed-movie-like bus ride with no brakes and a gun to the head.

As a Seneca, and a founding member of the 2022 iteration of the Mothers of the Seneca Nation, I can say that after this experience, we’re still recovering from the shocking state-inflicted economic stranglehold and what felt like bitter defeat. As a nation brought to its knees, we have to pick ourselves up off the floor and start acting Seneca again, in line with our historic reputation as guardians of the Western Door, protectors of a united Indigenous community.

A dedicated and growing team of grassroots Seneca, armed with few resources — outside of passionate voices, strong convictions, tenacity, and grit — are continuing the fight, scrapping for footing in the New York landscape, seeking recognition of our significant cultural and economic footprint.

Throughout history, Seneca women have stepped up in times of crises to defend the Nation, whether it was land incursions, land grabs, poor health care, federal attempts at termination, state taxation, or economic injustice. The Mothers of the Seneca Nation, and men, have come together in a joint grassroots effort, to protect the nation’s assets and safeguard the future, economically, socially, environmentally, and culturally, for the best benefit of our communities today and for seven generations down the line.

The jury is still out on how the Seneca will be viewed in the ultimate verdict of history.

We’re not done fighting for economic justice. Tell the governor, there’s more hell to come.

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Leslie Logan (Seneca) Cattaraugus territory, is a freelance writer and public relations consultant. She has contributed numerous writings to Indian Country Today, Native Americas, American Indian, Indigenous Voices and other publications.

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