Oklahoma tribe’s sovereignty and gaming rights still undecided; revenue
sharing proposals in Minnesota

The Seneca-Cayuga Tribe of Oklahoma got some good news on Sept. I when U.S.
District Court Judge Neal P. McCurn, sitting in a Syracuse, N.Y. courtroom,
ruled that the tribe is indeed a “successor-in-interest” to the historic
Cayuga Indian Nation. This means that the Seneca-Cayugas retain a
legitimate interest in the outcome of the Cayuga land claim case, be it
litigated or settled out of court.

The Cayuga land claim area is a 64,000-acre chunk of former reservation
land illegally acquired by New York state in the early 1800s, for which the
Oklahoma tribe and the Cayuga Nation of New York in 2001 were awarded
$247.9 million in damages. That case remains under appeal to the 2nd
Circuit Court of Appeals.

In the case of the Seneca-Cayugas, Judge McCurn must still decide two
issues. One is whether or not the tribe’s 229-acre parcel in Aurelius,
N.Y., on which the tribe has proposed a Class II gaming hall, is in fact
“Indian country.” The second involves whether or not local municipal
governments have any role in regulating or overseeing construction and
operation of such a facility.

The pending Supreme Court review of City of Sherrill v. Oneida Nation, a
landmark case involving a city government’s attempts to tax land owned by
the Oneidas within their land claim territory, will have implications
throughout Indian country and will certainly influence McCurn’s decision.
Unlike the Cayuga land claim case, the Oneida land claim remains at an
unsettled impasse.

Complicating matters for the Seneca-Cayugas is the fact that the tribe is
recognized in Oklahoma but is attempting to assert sovereignty over land
within New York state; no tribe has successfully crossed state lines for
gaming purposes. Seneca-Cayuga efforts to open the Aurelius bingo hall have
been stymied by legal action from town and county officials. The Cayuga
Nation has however, opened a pair of small Class II casinos on land it
purchased in the claim area. As descendants of Cayuga Indians who never
left New York, the nation’s sovereignty over land claim territory faces a
lesser degree of challenge.

McCurn’s ruling comes on the heels of a surprising offer by the
Seneca-Cayugas to pay the land claim award for the state in return for a
Class III casino in the Catskills. In late August, the Seneca-Cayugas
offered to pay the entire judgement amount in the land claim case and would
cease their Class II efforts in Aurelius. If the 2nd Circuit Court raises
the $247.9-million award, the tribe says it is prepared to pay even more,
up to an undisclosed cap.

The Seneca-Cayugas are indeed moving aggressively toward acquiring rights
to one of three potentially lucrative Catskill casinos authorized by the
New York State Legislature in October 2001. On Aug. 20, the tribe announced
a casino development agreement with Empire Resorts, Inc. of Monticello,
N.Y. This is the same company with which the Cayuga Nation signed a similar
agreement in April 2003. The Cayugas have protested that their deal with
Empire is exclusive, while company officials insist that their deal with
the Seneca-Cayugas is legitimate.

A little over a month ago, it appeared that the New York Cayugas had the
inside track on a Catskill casino. But two factors – the collapse of their
June memorandum of understanding with Albany to settle the land claim in
exchange for a casino and continued pressure by the Oklahoma tribe – seem
to have derailed their aspirations, at least for now.

Keep an eye on Upstate New York. This one’s far from over.

REVENUE SHARING IN MINNESOTA

Meanwhile in Minnesota, the issue of casino revenue sharing has once again
come to the forefront. Unlike last February, however, when Republican
Governor Tim Pawlenty all but demanded that the state’s 11 gaming tribes
fork over some cash, this time the initiative comes from Indian country.

In an Aug. 26 letter to the governor, Melanie Benjamin, chief executive of
the Mille Lacs Band of Ojibwe, outlined a series of proposals as a starting
point for negotiations and potential cooperation.

“Many of the political leaders who have tried to address gaming issues with
the tribes have done so in a way that has hardened tribal leaders and
created an environment of mistrust,” Benjamin was quoted by the Associated
Press. “We’ll see where this discussion leads us. Anytime we can sit at the
table as sovereigns and come up with an agreement, it’s good for all
involved.”

The compacts between Minnesota and the tribes, signed in 1989 and 1990, do
not contain revenue sharing provisions, although the tribes do cover
regulatory expenses incurred by the state. Commercial gaming interests, who
would of course pay state taxes, have been pushing for inroads into the
Minnesota market, which caused Pawlenty to speak out earlier this year
about forcing the tribes to renegotiate their compacts.

In her letter, Benjamin put forth several ideas, including using casino
revenue to fund a new stadium for Minnesota’s pro sports teams, allowing
more casino games and simulcast horse racing, challenging federal laws
banning sports betting and establishing a charitable foundation to assist
local governments and other tribes. In return, the state would likely be
expected to limit or prohibit commercial gaming.

According to the AP, Benjamin said that the renegotiation of current
compacts or the reduction of monies currently used to fund tribal programs
are not on the bargaining table. She also said that she spoke only for the
Mille Lacs Band and not for the state’s other tribes.

“Because of the growing political pressure to expand gaming and the seeming
stalemate between the tribes and state, now is the time for a new course,”
Benjamin said.

An August poll conduced by the Minnesota Indian Gaming Association showed
that support for expanded gambling in the state may be on the decline. By
letting the threat of commercial gaming “percolate” as he termed it at the
time, Pawlenty apparently hoped to strong-arm the tribes into ceding casino
funds.

The Indian Gaming Regulatory Act makes no mention of revenue sharing, but
the concept has evolved into a quid pro quo- a slice of Indian casino
revenue to the state in return for something of value to the tribes. Now
that Benjamin has put some new ideas on the table, it remains to be seen
whether Pawlenty will bargain, government-to-government, in good faith.