Gj-11 - Seneca-cayuga Settlement Offer 0402

fl lJ CAYWIL NEW YORK, L.L.C. GAMING & CASINO M/\Ni\G EME. T

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April 8,2002

VIA: FEDERAL EXPRESS

The Honorable Joseph Bruno President Pro Tern and Majority Leader New York State Senate Legislative Office Building Room 909 Albany. NY 12247 Dear Senator Bruno:

Thank you for your interest in the Seneca-Cayuga Tribe of Oklahornas proposal for New York Stale.

If you have any questions. feel free to contact me. Sincerely ,

~W~ Thomas C. Wilmot TCW/mc

GOVERNMENT EXHIBIT

Enclosure

GJ -ll

1265 Scottsville Road" Rochester, New York 14624" 585.464.9400

NEW YORK STATE SENATE JOSEPH L. BRU 0 43RD DISTRICT PRESIDENT PRO TE M AND M AIO RJ"rr LE.-\DER

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04/10102 Date -

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Ken Ridden

To

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From

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':l For Your Information

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Your Co mments

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As Requested

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Read and Return

:l For Your Signatur e

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Read and File

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Remarks:

FYI

Draft Reply

Per Tel. Conversation

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SENECA-CAYUGA TRIBE OF OKLAHOMA R2301 E. Steve Owens Blvd . Box 1283 Miami, Oklahoma 74355 (918) 542-6609 FAX: (918) 542~3684

April 4, 2002

The Honorable George E. Patak.i Governor of the State of New York The Executive Chamber State Capitol

Albany, NY 12224 Dear Governor Pataki:

r received a letter dated March 20, 2002 from your Senior Assistant Counsel Patrick L. Kehoe. J have written to you on two previous occasions (February 6, 2002 and March 4, 2002) with regards to my Tribe 's willingness to negotiate a settlement of our land claims within New York State. I have reviewed Patrick Kehoe's response to those offers with my counsel. It i.s mine and counsel's belief that the Seneca-Cayuga Tribe's present land status in New York State is being misinterpreted. r have enclosed a paper prepared by Frank Ducheneaux and Peter Taylor, (Ducheneaux, Taylor & Associates, Inc., 303 Massachusetts Avenue, NB, Washington , DC 2002), addressing Mr . Kehoe's letter and pointing out the underlying misinterpretations, I am very aware of the ITL1ny responsibilities that your office places upon you. I assume that the September u" tragedy has greatly increased these demands; however, I respectfully request, since it is my understanding That you are a learned attorney, that you review the enclosed. I have also enclosed the Seneca-Cayuga Tribe's analysis of economic benefits to New York State as it relates to the proposals I have previously made. I believe the benefits to the Seneca-Cayuga and New York State are compelling for settlement talks to begin.

Sincerely,

~~ LeRoy Howard, Chief Seneca-Cayuga Tribe of Oklahoma

p APER

RE~NDING

TO KEHOE LETTER OF MARCH 20, 1002 ·

In hiJ response to the Jette{ by Seneca-Cayuga Chief Leroy Howard to New York Governor PuPi, Mr. Pstriclc L. Kohoe cites tho proviaicru of the Indian;Gaming R.eBulatmy Act ([ORA) p..ovidini fur the nejotiation of'a Clua ill Tno&l~StW Compact (25 U.S,C. 2710(dX3) (A)J and ddinlngthe term "'IridiAn Tribe- (25 U. S. C. 2703(5)]. Mr. K~ also ott-.. the provision oflGRA lbat defines "'Indian lanM" upon whJch it would be lePl to cooduct gamins

uodc:r [GRA. That ddiniti on is:

.

"(AJ All lards within Jhe limits of any Indian reservcaton; tmd

, :

(B) tD'(Y 1andJ tIJIe lCJ which is e /they he Jd in t:rIIst by 1M Uni,£Ji SJau,J joT tJ. benefit ofany Indian Tribe or Ind/vidMoJ or ~Id by any lndJan Tf;be or individual subject to restriction by the United SlDtesagainsi alienation and over ""hie},an Indian tr/~ exercises governmerual fJO"NT.· .. ·'-5 U .S.C, 2703(4). :

Mr. Kehoe tben opines that. since the SonClC«-C&yt1i& Tribe of Oklahoma ("Son.cca~ Cayuga·Tnoe") does not have any land.! Within the SWe ofN~ York. ~ St&te ofNow York iI not obligated to engage In negotiations wit~ the Tribe for £'UI"P01elI of entering into e Cws ill pmi.ng com.pact It seems tbat the CrO\leT7lor's Office may not

fuIly aware of the imptit:a.tions of tbe Federal

court decieions in the case of~Q IruiJan Nation ()j New York and tha Senr.ca Cayuga Tribe

ojOXJahoma and the United StDUs ofAmerica v_ Patad, et aI.• U.S. District Court for the Northt:m District ofNew York, 80 CV 930!lld 80 CV 960, and Oneida Indian Nation ofNew York \I. ']"M City ofSherrill, New York, 145 F Supp 2~ 226 (2001), .

l1IE SHE.RJtfLL DECISION The Sherrill decUiotl grows our of rbe deciKioJU of the Fedeni Coo:ru, i:ndudi1tg two Supreme Court decisions, ' iri the Oneida land claims. In the O1leldl. claim, as in tho Cayuga claim; the Fl5den1 Court detamined that the Ondd! Tribal pla.im:i1fs retained treaty title to'Lands illegally taken contrary to treaties betwoen the Oneida Nation and the StAte New York. While the Court deUmnined tlu.t the plaintiff Tribes wore entitled to pcssession of the claimedlands, it abo held tl\at eviction of rhe non-Indian landhokfeo would not bClllVailab1c U 8. remedy.

or

While the Oneida claim is stilt pending in the- COQrts. the Oneida Na..ti<m ofNe-NYorlc purchased the fee title to a tract ofl~ within the corpcrsse limits of the City ofShaTill within the cllim ares. In eff~) the Oneida N&Lion obtained fun ·title to such lands, superceding any other claimedinterest, by purchasing the fee title, and merging the foe title with the Tribe', und~lying right (0 use and occupy the land. '

saemu

Tho City of ~ its real pooperry we apinn the Oncid~ Natiou for the value of the parcel. The Nation refused Co PIlY. Under the 1a.ws of the SWe, the City put tho land up for

.s&Ie for non-payment of taxes, and bought the Iaed. It then jQ\Jihl, in Swe Court, to evict the Tribe from the land. Conte:mpormooudy, the NatiOn moved in Federal Court to enjoin the City from lI.ueuing itJ UXe3l1pinst the Nstion. The State Court eviction action W8J tr"BJUfund to the F edera1 Court. ' In r1!ling apinst the City. and in Cav~ of tho N &.t1on. the Court madil two signifiCGllt dCt.etmmarlol1l. Fint, citing the Fed'" Court dec::iMom irl the Oneida l~ litiption. the Court held thu the Nilrion'i treaty title to uAoe and occupy the wbjrx;t ~ had Deyet' b«rn extinguished. By purchaalng the fee title. the nibcl bad removed any ~d on iu right to usc the ~d. .

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second. the Court, after an ~tr hiatorical review. d~ that the bound.arillll af . the On.eid& reservation as it c:xistod bcforcr the illepl New York StAtetreatles, bad never been dist:sta.blilhcd by tne Untied Stat~ Congrcu.. .M. couequ.enoe, t.h8 ~ cta:i:m lUU remained an Indian rCJCl:fV'&rloa within which the sovcnunental pow!lfI ofthtt 0Mil:la Nation mll ana.ahed. Therd'ore, the law, of the city (and state), inoludins thD tax did no~ apply to the Nation and to ItJ IMd within the claim area. The Oneida p1ainti1f& include ~&rI!C Tribal 8I1titi~ in NO'W York, W'15COnsin and Canada. The later Tribes historically moved from New York- but maintained

Iawa:

Treaty rights.

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Mr. Kehoe's letter auerta U1&! the Scnoca.-Cayuga Tribe of0ld.a:boma hal no "Indian land" within the Sw.e of New York. ~ this po!itiQ!1 evidences Ii failure of the Governor's Office to grup the significance of the decision by the Honorablo Neil M~m in the ca.se of Cayuga Indian Nation of N~ York d al. V. PataJd. et aJ.. I The deoiJion of Judie MeCum. which wu made final on March 11, 2002, Mid the two New York Swe treatiM with the Cayuga Nadon in 1'95 a.ndlS07 to ~ invalid a.s a violation of the 1n£Uan Non-InW'co~ Act. He held that the twO plaintiffIndillQ tri~ ~ Ca}IUSe. Nation of New YOTk and the Seaecs-Csyugs Tribe ofOId&homa, as lep1 su~r,..in-inlerMtto the historic.] Cayuga Nation rctaJned their treaty titlo to the 64,OOD-aere-cltim are.. While ~e COWl ~ eviction (deemed to be an approprilte remedy in Qncida)'i'" not being appro"n~ at lhls mae of.the proceedings, it neces.sa.rily found that the Tnoei retained their Underlying rl~h{ afuM end occupancy of the entire tract. . : The legal implicarions of the decision b thu the Smoca.-Cayuga.:Trlbe bas aj~ equal aed undivided right with the Indian Nation of New York: to tho UHl an.d!oceupancy of~ entir~ 64, ()()O..acNl l:1'&Ct ofland. All • consequence, rona lIty to Mr. Koh~J ~ the SeMcaCayuga Tribe DOES have "Indian lands" in the State of Now York

ThiS leaaI fact coupled with t~ rationale In the

Sherrill decision mabllJhcJ sncther lCSal conclusion, Tho S8neC8..c..yuga Tribe Is not only II. Joint. equal, undivided owner oftile ri~t to use and oceu py the 64. coo-sere claim tra.et, it hu • j oint, equal and undivided, riPt to uib.al jurisdiction over B. 64 OOQ..acre f'CJ.01'VI.tion. The two legal t:r'Ntic:s between the Cayuga N aticn &nd the State in 1789 And 1790 and the Federal TreatY of 1794 recognized the 64~ ()()()...acre trW as a. • I . "reeervation" for the Nation, An analysis of the legal history of the tract from tho &Ie of the I

illeg&1 SfJIW t:t6atiu to the present will disclose th.t there hu ncMIf" beon1Ut ACI. of Co f1yea I [0 diaesublish the boundaries of that reservation, The Seneca-C&yup Tribe shares a 64,OOO-acr~ ~on in the State ofNe:w York: wiLb the Cayuga IOO.ian Na.tion of~ew York, Ai with the OneIda Nation in the Sherril! case, it has only to acquire tM f#e title to .1J:rf part of the 64,0()() a.crc:a to vest ~ ~o in itself and .t~h its fudcn11)l recognized powen

?f ~lf-goventrne1lt .

"Indian Iand.t•• within the m.un1ng of IGM moana allll11d within the limiu of any In.disn ~on . Article of the 1794 '"Xonodaiaua- tnlaIy becween the Unlted Sate. and the Six Nniona atates that: . :

n

'The United SWa! ACknowJedaes the I.ndI ret«Ved te tl1e On&da Onodaga and Cayuga Nations, in tbclr respeotiw treatiOt )with me sta.te of New YO'rlc:. and called their reservsrioes, to he their property: and the Unlt&d SUteA IhaJJ neva- claim th.e ~ nor dinurlJ them or ei~ of the Six Nations, nor their Indian frionds residing thereon and united with them, in tho ~ UM and enjoyment thereof but the Kid t'CIS«'\'ations sh.all mnain thein. unttl they choose to sell the Arne to the people of the United States, who have the right to purc.bue." . .' " ! ~ noted, the reservation remains and the Seneca Cayuga Tribe ~ a lega1succeuar-inIntt:rest to it. As it 1& & resarvation of the Tribe, slIland within8 the reservation is -IndllU1

land~ within ~ meaning of IGRA and ~\lailable for either C1&u II or clan

.

T~ ,

RIGHTS OF l1U8E UNDER

TB~ ~ClJJlN

m gamlng by the

DECISION .

In addition to its reUined W\d 4 reservation rights u deI.ineaud 8.bove the Seneca-Cayuga Tribe, M a plaintiffin the cJaims QlStJ and IS lcgaJlUCCetlOf-ia-intt:rest to the historical CAyup Nation, 'i l entitled to B likely one-half (~) aharo of the damAp award Qf$2A7,9001OOO made ~ ~e Sta&.o of Now York Bcginnin, with Mlroh t 1,2002, when judie MeCum made the awud final, poJ1-judgmern interelt on the award will aco..r.mul.at... At th~ golna me of'interest, it is esti.au..ted that tht> State of New York will incur an additional monetary debt to the two PlAimiff Tribes of about S1 ,ooo,OOO I month or $12,OOO,ooo.~. '

tHE SENECA-CA\'llGA SETll..EMENT PROPOSAL The Tribe h.a3 made clear its ~J$ to iCltt1e its int«est in tM land claim. &I 88! out above, without prejudice to the rightll of tho CaYtJp ~.uion of New York: or of any ol'the do:f~ ~ncludl.ng the Sta.te of New York. ' . It is e:xuomely imJ)01't&1'1t that the Governor's Office, tho rost of the goveenmeat officl&b of

New York, the New York ccngressional delegation, the countle:a and cltles in the claim 1lJ'~ and the general public of New York underm.nrl one critica.llep1 fi.ct. The reasoo the Fecknl Couri held that the treaty title of'the two plaintiffTribes had not been txtioguished was becsnse the

in entering into tho two trwiea ofland ceruion in 1795 '&nd 1807; violated a Fedo-a11aw, the IndianNon-lrrtercourse Act.. (205 U.S. c.§ 177). That A~ u in(~ by the Federal courts. holdll thAt no conveyance of the title of In Indian tribe to ;land I. valid unJeu done ~ to an Act ofCoogrosa.. The Court found that congressional ~on wu 1adcing in the two State treui... ; Stare of New York,

, The Indlan Non-Intercourse Art Is penna.o.t:rlt law and a stiII in d;fuct- Iftbe underlying ti tle of the S4'lnec:a-e&yup Tribe of Oklahome to the right to U5e and occupy the 64, OO()....~ res.orvuioo in Now York is to be extinguished, it must be done by an Act of'Congress!

Tbe FcdcnJ court, did Dot do

it and cannot do it.

The Sblte of'New York Cannot do it.

Only Ccngress can ~pply the necaury consent to the extinguidrrmmt of the 1Tibe), treary, title, IIf\d reservation ~ Furthc!lr, the Due Process C1WJe of the U.S. Constitution requires thAt lf'there is any taking, tho Tribes be paid fi?11 value, The U.s-. Supreme Court has determined tlW a treaty right is B. property rijht: ' . .

The Tribe bu made clear In jbl two lett.8J'a to Governor Pataki that it is williJ)g to Iitttls i~ in the land claim , This means, 8Ubjeci to approval ofits GenenJ Council, tJw itmlght be willing to cupport., aJo~ with tbe State of New Vane. ind the New Vori( con~oo.a.I delegation, enactment of'Federal legislation to iettle its claim. . lnt!!Cest

THE TRIBE 'S SETTLE.MENT PROPOSAL

The Tribe has publicalJy indicaied its willingness to negotiete a actt1Clm:f\t of iu intllrest in the Cayug.a land claim.. Judge MeCum hAs urged the partiM to settle. The United Statel" an imervcner·pl~ urges l settlement. What j, lacking la the .Wll1lngtl~ of the State and other Defendant. to uWe. A March 15th story, by Ajna Pala.utti in. Buffil.!o Cle\WPaper, noted that-

as

"In J979. on rwrennsnJ to settl« tho Caywga land claim for S8 nfiPi9'1 and 5, OlJO acres of land was settled by'~ stale.

"In 19114, the Cayugas accepted an OJfST, recommended by a special ~l, oj S/5 million and 8, JOO acres oj land 10 settle, but the s1a16 did» 't agree, "In 1999, the slate rejected Q S120 ;"illie»t 10 S J30 million settlement proposal 01 a cOlJrf~n!lld rntrdkltor- and op~dfor trial" In nea.rJy 25 years, the unwillingness of the St&%c to negotiate a sen1unc:nt of the claim has, up to now, COlt the taxpeyers of the Stare over S24O,OOO,000. TM1 amount will grow by about $l,OOO,OOO I month from the dare of Judge MeCum'a final award.

The Tribe, while 'wiUing to negotiate a senltmlent ofiu interest

~ the claim, does not wish

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to do r.o by an excl1anic: ofltittcn or in the public media.. Whi1C any 'final I:emu negotiwd with the State would bv JUbject to the approval of the ' ~ Council of thtJ ~enOC&-Cayuga Trib e, the Iribe would be willin8 to consider aenlement through an Aa ofCo~ along th« tetmi Bet OU1 below, . First, after the T~'& conditions for settlement ~ md. It miaht agree tba1 it! aitire interest in the claim be M:rlnsuished by Act o(CangTeJS All reqWrcd by tho Indian Non-I!ltw"COUr"U Aa, The S~ and its taxpayers would .M (eUevcd of the pcymant of up' to ont-halfoft:he $247,900,000 award in th.e M.cCwn cfc.e:i.aion. plua up to one-half of any ~ th.U will accrue from March 2002. Th.al is already. SI25.900,000 plus benefit.. The StIUl and the countries, and prl~Aie citU:ctll in the claim area would bc.re1itrved ofthe..prospect ~ft.hc S~~ Nuioo of Old ahoma reacquiring he titletc lind acre r~n and llJSa'tin.i in governrnernll1 jurisdiction, "

cme..,

Second, in return for concessions, the Se.MCa-CIlyug& Tribe would be entitled to valuable consideration. It might agree to grant concessions within Fedenl ~sWion partiaDy c:xtingulshing its l.J.nd ri~ that have been confirmed ,by, the court in (llI(cb&!Jie for ideflti1ie&tlon ofTribaJ lands with Chw ill prnina opporninities eluwhen: In the StAte ofNc:w' Yorlc: It would be interested in ... provision in an Act of COfl.8T!lIS taJdng I mWI tr'Id of land into trwt tOr the Tribe. available for Chu& II and gaming purpoJeS. Wthe NU8ra Falls area, with the maintaining a portion of its historic lands in lhc Claim Arr:e.. Th~ Tribe, in Chief HoWU'd's n!ceni lctten to Governor P..tili, noted its wiJlingDeU to be .bound by State law relating to pa~ fur 8XCluJivity and certain employee righu. The Tribe might consider other benefits to the $we. and docs wish to discuss with the State other aaming opportun.ltia.

m

Tooe

the

Third. the State., Niagan Falls, IUId the communities IUIT'OWldlng

a Clau ill site in

the claim area would derive subirtlJ1lILl economic, tax. And ernploymen! benefits from such pnti.ng ecoaomic activity.

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CONCLUSION The last pBTail"Aph of Mr. Kehoe's letter in response to ChiefHciW81'd's letters states:

"Although tk Smeca-CAyaiga IT;~ Is afe~ra1ly recognised Indian tribe within the Sune oj OJ:Jaht:»tta. pursuant to • express terms oflGRA it is nat a federallyrecognized tribe with 'lndlan lands' in tn! State of Nn4J YOI'A: For these ~ Nrw' Y07K Stale Is not oh!igaNd by JGJU. to engage in 1JifKQrlaltoru with tM Seneca-Gayuga Tribe for the purpose ofentering into a CJaJ;s III grzming COMJXI&L· ' As should be made cl~ from the foregoing analysis. oothing is 'further from the truth, Tho Tribe very defln.itcly does have -indian land4 H NWN York. '

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The Tribe, of course, will continue to pursue its interet in tho Cayuga. claim if 110 seU!.emetn is reached. If the wd.l-I"euoned decision Or Judge MeCum is nat overturned on appeal. it Mnefit the payments of it s share of tho award &ialnst the: State of N tJW Yon JIlld its

will'

'bY

taxpayers. with accruing intwt:st, Ob. could &mOlIJtl to over $1JO. 000.00 'in ODe year. Tbe Tribe nay cotl3idtlr its riiht to a.c:quire foe title to land in the cl&.im &n!lIl for a variety of 8 0 ~ economic, cWtural and refiiioo' purposes. .

Ho~. me authorities of the St.lJe of New York will not.., ·iOld~· opporrunity to tett10 ~hcJ claim of the Tribe OD this win-win

~ ~ (llig this

buiso

SETTLEMENT OFFER SENECA-CAYUGA TRIBE OF OKLAHOMA The Seneca-Cayuga Tribe is a New York Tribe. The United States District

COUf!

for the

Northern District of New York has determined that New York is its homeland, and that

the lands upon which it resid es, with the Cayuga Tribe, were never legally transferred .

FederaJ Judge Neal P. MeCum in reaffirming his decision has urged aJl parties in this litigation to reach settlement. The Seneca-Cayuga bas made a written offer of settlement to Governor Pataki in the spirit of Judge MeCum's request. The 'Seneca-Cayuga Tribe has made a written offer to Governor Paraki to settle their land claims addressed by the

Court in New York State . The Seneca-Cayuga Tribe and the Cayuga Tribe has expended millions of dollars over the last 20 years successfully litigating their land claims. The Tribes have been successful in this litigation while the state of New York bas consistently lost motion after motion while spending millions of dollars of taxpayers' money.

The following are the key terms of the settlement offer :

1. The Seneca-Cayuga Tribe would relinquish all land claims York State that have been at issue before the Federal

In

New

COUll.

2. The state of New York would enter into appropriate Class III Gaming compacts with the Seneca-Cayuga for gaming facilities in · Cayuga or Seneca County and Niagara County . Each site would be limited to the appropriate size for a gaming facility and related amenities, along with facilities to serve Tribal membership.

The parties shall confer

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explore other economic development opportunities

3. The Seneca-Cayuga Tribe would agree to pay the state of New York 25% of the slot win estimated to be approximately $150 million a year.

4. The Seneca-Cayuga Tribe would agree to the labor agreements as proposed in the enabling legislation

5. The Seneca-Cayuga Tribe would make an annual contribution of $5 million from each gaming facility to be used specifically by the state of New York for the purpose of making payment upon an agreed settlement between the state of New York and the Cayuga Tribe. These payments would be made for a term of 20 years.

6. The Seneca-Cayuga Tribe would make payments to local units of government in lieu of taxes in amounts appropriate for services from

such governmental entities. The Seneca-Cayuga Tribe has constructed this settlement offer in a manner that is advantageous to both the Seneca-Cayuga Tribe and the citizens of New York.

This

proposal would result in the settlement of the Cayuga land dispute at little or no additional cost to the state of New York and its citizens. Over the

20~year

life of the

Compact, it is projected that billions of dollars would be paid to the State out of slot revenue sharing and thousands of well paying jobs would be created.

Seneca Cayuga Nation of Oklahoma Proposal For Class III Compact Economic Benefit to the State of New York (Numbers in Millions]

Revenues To State

Year1

Year2

Year 3

Year 4

Year5

"Total for Years 1-20

Settlement of Land Claims

247.90

0 .00

0.00

0.00

0.00

24790

25% of Slot Revenue

110 .87

116.41

164.78

194 .02

200 .81

5.020 .25

10 00

10.00

10.00

10.00

10.00

200.00

368 .77

126.41

194 .78

204 .02

21081

5,468 .15

Less Expenses 10 State

0 ,00

0 .00

0 ,00

0.00

0 .00

0.00

Total Benefit to State·

368.77

126.41

194.78

204.02

210.81

5,468.15

$10 million/yr. for Claim Settlement, Host Community, etc. Total Revenues 10 Slate

"Analysis does nOl consider employment, conslruction and related benefit s to the stale. Nor does it Include payments from the Tribe 10 local m unicipaltues for services , •• Assumes a 20 ye<J1 compact.

The total benefit to the state is projected to exceed that of the Seneca Nation of New York's propsal by $500 million in the firsl1 0 yea rs.