Robert Odawi Porter (Seneca)

Monday, November 9th, 2020

4:30-6:00pm EST

RSVP for the event here

The Treaty of November 11, 1794, entered into between the Six Nations of the Haudenosaunee (Iroquois) and the United States of America at Canandaigua, is perhaps the most significant U.S treaty with Indigenous nations.  In addition to defining important territorial boundaries, the Treaty established peaceful relations with the Haudenosaunee and secured a potent military alliance for the recently liberated United States.  The Treaty also recognized Haudenosaunee sovereignty and the “free use and enjoyment” of aboriginal lands as a matter of American law. 

On the 226th anniversary of the Canandaigua Treaty, it is important to examine whether and how the Treaty retains significance for its signatory governments and their citizens.  While the Treaty remains in effect, recent developments in the U.S. Courts and Congress question whether America’s commitment to Indian treaty rights remains meaningful.  Robert Odawi Porter, a former President of the Seneca Nation and experienced advocate for Indigenous nations will discuss the modern-day significance of the Canandaigua Treaty.

Robert Odawi Porter is a former President of the Seneca Nation of Indians who has devoted his 30-year career to advancing the rights of sovereign American Indian nations in the United States.  President Porter was raised in the Nation’s Allegany Territory and earned his education from Syracuse University and Harvard Law School.  He served two terms as the Attorney General of the Seneca Nation and in 2010 was elected for a term as the Seneca Nation’s 67th President.  For 15 years, President Porter was also a tenured law professor at the University of Kansas, the University of Iowa, and Syracuse University, and has written numerous academic articles and books relating to the law and policy governing Indigenous nations and peoples.

A proven advocate, he has helped resolve major conflicts against the U.S. Federal and state governments to protect tribal sovereignty and treaty rights, including efforts to stop New York State from taxing Seneca commerce, protection of Seneca gaming and land rights, and lobbying for the Tribal General Welfare Exclusion Act of 2014, which ended the practice of IRS auditing of Indians for benefits received from their tribal governments.  Currently, he provides legal and lobbying services to Indigenous tribal governments, Native-owned businesses, and companies doing business in Indian Country through his law firm, Odawi Law PLLC, and his Federal government relations firm, the Capitol Hill Policy Group LLC.

Cornell University website: https://aiisp.cornell.edu/news-and-events/featured-events/

In our work with American Indian tribal nations and Alaska Natives, we have identified and advocated for the elimination of legal and regulatory barriers to land use, entrepreneurship, infrastructure construction, outside investment and capital formation, and other building blocks of strong tribal economies.

The last comprehensive effort by the federal government to identify these kinds of barriers came in 1983 when President Ronald Reagan established, by executive order, the Presidential Commission on Indian Reservation Economies. The commission held more than 15 meetings across the United States, with hundreds of tribal leaders and others testifying to the commission. Those leaders included such luminaries as Philip Martin, Eddie Tullis, Billy Mills, Ronnie Lupe, Earl Old Person, Apesanahkwat, Alan Parker, LaDonna Harris and many others.

A year later, the commission issued its report outlining the policy and legal changes it saw as necessary to improve business and investment conditions on Native American lands. Some of those recommendations have come to pass to expand economic opportunity.

Since 1983, tribal leaders and congressional allies have continued the effort to reform federal Native American law to break down the barriers to economic growth in Indian Country. A notable win was the Helping Families Save Their Homes Act in 2012 that authorized tribes to develop and manage their own surface leasing activity.

The fact that, until the HEARTH Act, simple surface leases of Native American land required the approval of the secretary of the interior, points out to us the broader need to consistently reexamine the legal and policy underpinnings of the federal legal regime that in most instances was based upon a colonization-based need for federal government control of tribal governments and economies.

Sometimes these changes come in more modest forms, like last year when Congress repealed an obscure part of Title 25 of the U.S. Code at the request of a Native American tribe seeking clarity and certainty regarding the legality of operating a large-scale distillery on its tribal lands.

The new statute repeals the 1834 Act to Regulate Trade and Intercourse with Indian Tribes and to Preserve Peace on the Frontier signed into law by President Andrew Jackson that prohibited the establishment and operation of alcohol distilleries in Indian Country. Subsequent enactments did little to clarify the law governing tribal economic activity, prompting Congress to act.

There are many other similar provisions in the five-volume Code, many simply anachronistic and paternalistic. For example, the code still carries a provision authorizing the secretary of the interior to withhold annuities from any tribe holding members of another tribe hostage.

Rather than pursuing this piecemeal approach, there is a better way to go about reforming the code to support tribal economic self-governance. In 2000, a Republican Congress and a Democratic president joined in establishing the Regulatory Reform and Business Development on Indian Lands Authority.[1]

The 21-member authority, comprised of both tribal leaders and private citizens, was to be appointed by the secretary of commerce to “conduct a review of laws (including regulations) relating to investment, business, and economic development that affect investment and business decisions concerning activities conducted on Indian lands.”

Given the still relevant need to reform the business and investment climate on Native American reservations, it is surprising that in the last two decades no administration — neither Democratic nor Republican — has seen fit to implement this law.

The Trump administration has made regulatory reform a major component of its agenda, with the president and the major cabinet members embarking on bold — and at times controversial — changes to the regulatory and administrative regimes governing large swaths of public and private activity, such as the use of federal lands for energy development.

In the same way, the U.S. Department of Commerce — loaded with business and investment expertise — should work with tribal leaders to launch the authority, identify outdated and antiquated laws and help build the kind of tribal economies that are robust and provide good jobs and household incomes for tribal members and for communities that surround many tribal communities.

Much has changed for Indian Country and tribal economies since 1983, most notably the explosive growth of a $32 billion gaming industry. But too much of Indian Country and Alaska Native territory remains undeveloped and economically undiversified.

The hard work of this important effort is already done — Congress has already acted. The time is now for the Trump administration to take this issue up and help mold a favorable business climate in Indian Country.

Robert Porter is a former president of the Seneca Nation of Indians and a managing principal of Capitol Hill Policy Group.

Paul Moorehead is a principal at Powers Pyles Sutter and Verville PC.

[1] Pub.L. 106-447, now at 25 U.S.C. §§ 4301 et seq.

See Law 360 Article: https://www.law360.com/articles/1216610/print?section=nativeamerican

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.

See Buffalo News Article: https://buffalonews.com/2019/11/19/another-voice-seneca-nation-fighting-against-economic-persecution/

PLEASE NOTE THE DATE OF THE EVENT HAS CHANGED AND WILL NOW TAKE PLACE JANUARY 9TH AND 10TH OF 2020
This Seminar is intended for tribal government officials interested in learning more about fundamental concepts of American Indian law and policy to assist them in performing their governing and leadership responsibilities. Through a series of 50-minutes lectures, attendees will learn about –

· Origins of tribal sovereignty and rights of self-determination

· Federal Indian law fundamentals such as-

• Civil jurisdiction, including tribal authority regulation over non-Indian activities

• Criminal jurisdiction, including VAMA implementation and civil rights protection

• Land use regulation, including HEARTH Act leasing and rights-of-way

· Treaties, intergovernmental aggreements, and compacts

· Tribal business development, including business organization, and tribal corporations

· Indian gaming, including sports betting expansion

· Protecting tribal benefits from taxaition under the Tribal General Welfare Exclusion Act

· Strategies for addressing state and local government interference in tribal development, including addressing dual taxation

· Federal lobbying and strategy to promote tribal interests and economic development

· Special Topic- the 2020 Presidential Election and Impeachment Proceedings

Seminar presenters have a wide variety of experiences in tribal law, governance and business, as well as federal government advocacy, and will rely upon both traditional legal materials, current events, and analysis drawn from actual experience illustrate relevant concepts. The seminar host and lead presenter for the Workshop is Robert Odawi Porter, a former President of the Seneca Nation of Indians and a leading advocate for Indian nations and tribal sovereignty.

Who Should Attend
This Seminar is specially designed for elected and appointed officials of federally-recognized sovereign Indian nations and tribes, particularly those who are newly elected or appointed to office.

Registration
The cost to attend the Seminar is $850 per person, which includes two days of breakfasts, lunches, snacks, and materials. For registrations of three persons or more from a particular tribe, or current clients, the cost is $650 per person. Attendees can register for the Seminar at Eventbrite.com under “Indian Law and Policy for Tribal Officials” or by clicking https://www.eventbrite.com/e/indian-law-and-policy-for-tribal-officials-tickets-68814521085

Hotel Reservations
Discounted rates of $146 for standard rooms and $216 for suites have been secured for Seminar attendees. Rooms may be reserved by calling Wild Horse Pass at 520-796-4900 or 800-946-4452 and referencing the Indian Law for Tribal Officials. The discount rate and room availability is guaranteed until December 13th, 2019 only. If you book after that date you may still be accepted into group rate if the hotel has availability.In addition to the room rate, guests are responsible for all taxes and incidentals on the room.

More Information
For more information about the Workshop, please contact Susan Paxon at susan@capitolhillpolicygroup.com.
For more information about Odawi Law PLLC, please see the Firm website at www.odawilawpllc.com and for more information about the Capitol Hill Policy Group LLC, see www.capitolhillpolicygroup.com.

Agenda (as of October 23, 2019)
All sessions will be held in the Ocotillo Room unless otherwise noted. There will be a 10-minute break between each session.

Thursday, January 9
7:30 a.m.
Registration (Outside Ocotillo Room)

8:00 a.m.
Breakfast (Ocotillo Room Patio)

8:30 a.m.
Session 1: Tribal Sovereignty and its Origins
Robert Odawi Porter

9:00 a.m.
Session 2: Indian Law Fundamentals, Including Treaties and other Intergovernmental Agreements
Robert Odawi Porter

10:00 a.m.
Session 3: Civil Jurisdiction in Indian Country, including Tribal Power over Non-Indian activities
Carol Heckman

11:00 a.m. Session 4: State Jurisdiction in Indian Country, including Taxation
Robert Odawi Porter

12:00 p.m.
Lunch (Ocotillo Room Patio)

1:00 p.m.
Session 5: Criminal Jurisdiction in Indian Country, including Violence Against Women Act Jurisdiction and Civil Rights Protection
Carol Heckman

2:30 p.m.
Session 6: Indian Gaming Regulation and Sports Betting Expansion
Robert Odawi Porter

3:30 p.m.
Session 7: Fee-to-Trust Process and Land Leasing (HEARTH Act)
Xavier Barraza

4:30 p.m.
Session 8: Strategies for Protecting Against State and Local Interference with Tribal Economic Development
Robert Odawi Porter

Friday, January 10

8:00 a.m.
Breakfast (Ocotillo Room Patio)

8:30 a.m.
Session 9: Tribal Constitutional Reform and its Significance
Robert Odawi Porter

9:30 a.m.
Session 10: Tribal Business Development and Organization
Robert Odawi Porter

10:30 a.m.
Session 11: Protecting Tribal Benefits from Taxation under the Tribal General Welfare Exclusion Act, including an Update on the Treasury Tribal Advisory Committee
Robert Odawi Porter
Xavier Barraza

11:30 a.m.
Session 12: Fundamentals of Federal Government Relations, Lobbying and Political Engagement
Todd Bertoson
Robert Odawi Porter
Xavier Barraza

12:30 p.m.
Lunch (Ocotillo Room Patio)

1:30 p.m.
Session 13: Current Federal Policy Issues Affecting Tribal Economies and Natural Resources

2:00 p.m.
Session 14: Assessing the Impact of Presidential Impeachment and the 2020 Presidential Elections on Indian Country

3:00 p.m.
Concluding Remarks

About the Faculty

Robert Odawi Porter, Esq. (Seneca) is the Seminar host and moderator. He is a nationally-recognized advocate for the protection and expansion of American Indian tribal government sovereignty and treaty rights. His unique background includes service as a former elected president of the Seneca Nation of Indians, tribal attorney general, and founding chairman of Seneca Holdings LLC. He has served as a tenured professor of Indian law at three national universities, which provides him with an unparalleled experience platform to assist his tribal clients in seizing opportunities and resolving complex issues at the intersection of law, politics, business, and social policy.

Rob has achieved many successes for his tribal clients, including leading the successful effort in Congress to end taxation of tribal general welfare benefits, expanding tribal gaming rights, and protecting tribal sovereignty and treaty rights from interference by outside governments and interests. He has been named by Best Lawyers in America to its list for Native American law since 2018.

Rob is the President and Founder of Odawi Law PLLC (www.odawilawpllc.com) and the Co-Managing Principal of the Capitol Hill Policy Group LLC (www.capitolhillpolicygroup.com), which he formed in 2018 with his colleague Todd Bertoson to create a new opportunity for federal government advocacy on behalf of American Indian nations and Native-owned companies.

Todd Bertoson is the Co-Managing Principal of the Capitol Hill Policy Group LLC and a former Staff Director of the United States Senate Commerce Committee. His federal relations practice focuses on representing clients with interests in natural resources and fisheries, telecommunications, infrastructure development. His clients include several sovereign Indian nations and a regional Alaska Native Corporation. Todd has been involved in numerous successful efforts to protect client interests and secure federal assistance.

Carol Heckman is the American Indian Law Practice Team Co-Leader at Lippes Mathias Wexler Freidman LLP and has more than 40 years of experience as a trial and appellate attorney, judge, and arbitrator in a broad range of disputes, including commercial cases, constitutional claims, contracts, executive compensation, franchise agreements, acquisitions, construction, and state and federal statutory claims, including Indian law cases.

Judge Heckman served as a Magistrate Judge in the Western District of New York for eight years where she was selected to sit on the Federal Judicial Conference’s Education Committee for Magistrate Judges and as an Officer in the Federal Magistrate Judges Association. She has also served as a trial attorney with the U.S. Department of Justice in Washington, an Assistant U.S. Attorney in Buffalo, New York, and as a law clerk for Hon. John T. Curtin, former Chief Judge of the Western District of New York. She has significant training and experience as a mediator and has trained federal judges in mediation techniques. She is admitted to both the Panel of Mediators and the Panel of Arbitrators of the American Arbitration Association, as well as the Western District of New York Panel of Mediators. Successful mediations include the entire range of federal court cases, including high stakes business disputes, employment disputes of all kinds, environmental claims, product liability and other tort claims, securities claims, patent claims, and §1983 claims.

Xavier A. Barraza (Hopland Pomo) is an enrolled member of the Hopland Band of Pomo Indians and a graduate of Haskell Indian Nations University and the University of New Mexico School of Law. He brings more than 8 years of political, policy and legal experience to the Capitol Hill Policy Group. Xavier served on the staff of the Senate Committee on Indian Affairs under Chairman Byron Dorgan and the late Chairman Senator Daniel Akaka. His portfolio included housing, lands, tax, communications and infrastructure issues. Following his service in the Senate, Xavier earned his law degree and practiced in the areas of business organizations, tax and economic development, and federal election law.

Buy Tickets Now (https://www.eventbrite.com/e/indian-law-and-policy-for-tribal-officials-tickets-68814521085?utm-medium=discovery&utm-campaign=social&utm-content=attendeeshare&utm-source=strongmail&utm-term=listing)

The recent decision by the New York State Thruway Authority to lower the speed limit to 45 mph on that portion of Thruway running through Seneca Nation territory makes good sense to protect the motoring public. What doesn’t make sense is why the state doesn’t just solve the underlying problem that has caused the Thruway to fall into disrepair.

The reason the Seneca Nation refuses to allow major repairs on the Thruway to occur is simple: The state has no valid right of way for the Thruway in Seneca territory. The state is trespassing and, to add insult to injury, is operating an illegal business that generates millions of dollars a year, of which our Nation receives nothing. It has nothing to do with the gaming compact dispute.

Why is this true? Since 1790, federal law has required that every land transaction involving Indians – every sale, lease or right of way – be approved by the federal government. Throughout its entire history, the state’s officials have arrogantly ignored this requirement, which is why there are still millions of acres within the state still subject to an unextinguished Indian title.

In 1954, the state asked the Seneca Nation Council to grant a permanent right of way for the Thruway for a lump sum of $75,000. This action occurred under duress against the backdrop of two major threats – the infamous state road builder Robert Moses and the fact that the federal government during that time was in the business of terminating Indian tribes.

Regardless of how one views the 1954 transaction, the Thruway right of way agreement violated federal law and was invalid on its face as it was never approved by the Congress or the president.

Recently, a series of Seneca presidents have escalated efforts to protect the Nation’s lands and press for justice, including Moe John and Barry Snyder. During my term, I petitioned President Obama for assistance against this state threat and pressed our claim for more than $600 million in lost revenues and damages. We met with high-ranking Obama administration officials, with the help of Rep. Tom Reed, R-Corning, but they didn’t act to help us.

So what should the Seneca Nation do about this ongoing injustice? When Senecas don’t get help from our friends, we take matters into our own hands. That is why since 2006 the state’s highways through our lands do not get repaired unless fair terms are reached in advance.

I’m not active in Seneca government any longer, but I do know that Senecas won’t stand for being denied justice when our sovereignty, our lands and our treaty rights are threatened. New York should simply follow the law and pay its bills.

See Buffalo News Article (https://buffalonews.com/2019/08/12/another-voice-senecas-rebuff-thruway-fixes-due-to-state-wrongdoing/)

Read More About NYS Thruway (https://www.dropbox.com/sh/c8itly86f8jkqje/AACjhUovAsr_TpzrU8mC1jvPa?dl=0)

]]> https://odawilawpllc.com/2019/07/10/example-press-release/ Wed, 10 Jul 2019 14:00:35 +0000 https://odawilawpllc.com/2019/07/10/example-press-release/ Dartmouth College Lecture on “Indigenous Peoples, Economic Recovery, and the Reform of U.S. Federal Indian Law”, October 2015