Another Voice: Seneca Nation fighting against economic persecution By Robert Odawi Porter

The Seneca Nation is right to exhaust its legal remedies against the state and federal governments to avoid another sad chapter in the endless economic war against the Seneca people.

The legal issues of the current gaming dispute are straightforward. The 2002 compact had a 14-year term and required the nation to pay between 18% and 25% of its slot revenue to the state during this term. The nation honored this obligation and the state and local governments received $1.4 billion. The compact also provided for a seven-year automatic renewal period if no party objected and so the compact was extended to 2023. It makes no mention of payments by the nation to the state during the renewal period.

An arbitration panel ruled in favor of the state, conceding that the compact was silent on renewal-payment terms, but said that the nation should still make payments. Rather than let the compact speak for itself, the arbitrators interpreted the compact to imply payment during the renewal period. This was wrong for at least three reasons.

First, the arbitrators ignored the compact’s plain language. Read literally, the nation and state agreed that the nation would have 21 years of Class III gaming exclusivity in exchange for 14 years of payments. The $1.4 billion the state received translates into $67 million a year, with $17 million per year going to the local governments. This was received despite the state licensing three racetrack casinos in the exclusivity zone.

Second, by federal law, all Indian gaming compacts and amendments must be approved by the U.S. Department of the Interior. In 2002, the Interior secretary approved the compact for years one to 14 but did not approve any amendment for 2015-2023. Federal gaming law exists to protect tribal interests against state overreach. Indeed, the law prohibits any state “tax, charge, or fee” on Indian gaming, yet somehow the state and locals got $1.4 billion for free.

Lastly, federal law requires that ambiguities in a treaty or statute be resolved in favor of Indians. This rule, which goes back to the 19th century, is designed to protect Indians against non-Indians, who historically wrote agreements – like the compact – in their own English. The arbitrators ignored this legal requirement.

Which is why it’s especially disturbing that The News’ editorial board embraced such a superficial analysis of the conflict and assumed the Seneca position is just about “greed.” And that the governor says our nation has acted in “bad faith.”

The nation is right to fight by all legal means to protect its interests and our nation’s wealth, especially in light of the state’s incompetence. To not do so would be un-American.

Robert Odawi Porter is a former president of the Seneca Nation of Indians.

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