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Sometimes these changes come in more modest forms, like last year when Congress repealed an obscure part of Title 25 of the U.S. Code at the request of a Native American tribe seeking clarity and certainty regarding the legality of operating a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

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