By John Kane | April 29, 2017
First, let’s put the simple facts out there: in all of the legalese, questions of fairness, who is regulating who, what is permitted and what is agreed upon; the one thing that is definitive and indisputable is that there is no mention of revenue sharing payments beyond 14 years in the Gaming Compact between the Seneca Nation and the State of New York. The other thing that is not in dispute is that 14 years of the revenue sharing provision of that Gaming Compact concluded in December of 2016. So when Seneca leaders learned that State and municipal budget proposals were including revenue sharing payments as part of their 2017 budgets, there was obvious concern.
The first question was, why? Was this just a simple mistake? A carry forward of a revenue flow that just seemed as normal and inevitable as taxes? The Senecas are no strangers to conflicts with New York but this clearly should not be another one and this was definitely not a tax. This is not about trying to interpret old documents, treaties, wampum belts or even sovereignty issues. The language is clear and the payments were for 14 years. That’s it! So really all that was needed was to let the State and those municipalities know that the last payment was going out at the end of March for that final payment that completed the Seneca obligation that ended last December.
But nothing is ever easy or simple for Native people when dealing with New York State or the federal government for that matter. Several mainstream journalists even called out the State for their blunder and questioned how such a mistake could be made. The Buffalo News on one end of the State and the New York Post on the other had articles written by individuals who took the time to read the terms of the compact and came to the obvious conclusion that the revenue sharing term was done. Susan Arbetter, host of the Capitol Pressroom, said “But to be fair; it wasn’t only the State caught by surprise” when the Seneca Nation informed them that no more revenue was coming. She cited the municipalities putting this money into their budgets as well. And, again, questioned how such a misunderstanding could occur.
Early on, I chalked it up to willful ignorance and even a refusal to actually read the terms. But as it turns out, it may not have been an oversight. As discussions have begun, it is pretty evident that folks from some of those municipalities read this thing the same way the Senecas did and raised the point. Unfortunately, they only raised it with the State rather than the Senecas. So not only were the municipalities concerned about the end of free money, but the State was also very aware of the 14 year term as well. But the State simply chose to reject those terms and assured those who raised the questions that the Senecas would keep paying. Even after Seneca leaders told the State that payments were ending, the State still put Seneca gaming revenue into their budget.
Now these municipalities are being caught into another conflict created by the State. As the Seneca Nation invites them to the table to work out new arrangements that could at very least address their concerns over costs associated with services they provide to the Seneca gaming venues, the State is telling them not to worry and that the money will flow. Of course, this puts the municipalities in the awkward spot of deciding whether to sit with the Senecas or line up behind the Governor.
And when I say the municipalities were being told the money would continue to flow, I am talking about direct quotes. In an Assembly budget hearing in the first week of April, the Republican Assemblyman from the 145th District, Angelo Morinelli asked the Chairman of the Ways and Means Committee, the Democrat from the 71st District, Herman Farrell, that since Seneca gaming revenue was put in the State budget, was there a contingency plan to pay the municipalities affected by a dispute out of unallocated funds. Farrell replied that there was not and assured the Assemblyman from Niagara Falls that the Senecas would pay for another 7 years. Mr. Morinelli responded by saying the Seneca leadership was clear that they would not continue, while Mr. Farrell claimed “his” Senecas were telling him otherwise. The interesting part was listening to these two white men speak with such confidence about what they “knew” about what the Senecas would or wouldn’t do. Morinelli spoke of compact procedures involving arbitration and conflict resolution and Farrell spoke of clear assurances that money would continue to flow even in the event of a conflict. It seems that whatever the source of this “knowledge” was, it didn’t include the ability of either of these two men to simply read the terms of the revenue sharing provision of the gaming compact.
But beyond the ignorance displayed by these elected officials, the question remains, why did the Governor put Seneca gaming revenue in the State budget even after the Seneca leadership told them that those payments were completed in December. As previously mentioned, the Senecas and other Native peoples are no strangers to conflict with New York. In fact, in spite of a billion and a half dollars flowing into State coffers over the last 14 years, the State continues to attack the Native tobacco industry. Seizures, arrests, lawsuits, threats and propaganda are established State policy as it relates to the Native tobacco trade, even with Native brands, transported by Native companies exclusively to Native territories. The State’s strong-arm tactics that never ceased even when gaming issues were settled, raise the question as to whether the State goes down this same path with gaming.
The addition of Seneca gaming revenue could have just been a mistake. It could have been just a hope that maybe the Senecas would just keep paying in spite of the language in the compact. Perhaps the State believed the Senecas didn’t mind the lopsidedness of the revenue sharing “deal” and were so used to the unfairness that they would just keep paying. OR perhaps the very claim of the federal law on Native gaming, the Indian Gaming Regulatory Act (IGRA), that it was passed to “protect” Native gaming from organized crime and abuse by the states; actually may have so emboldened the states (New York anyway) that the two threats have become hard to distinguish.
Assemblyman Morinelli took his concerns about the costs of municipalities providing services to Seneca gaming to Albany in spite of the invitation by the Seneca Nation to sort out those services and the offer to cover those costs. The answers he received were what you would expect when you ask questions of the wrong people. The Senecas have set the table. Elected officials have to realize that this opportunity to talk is neither a right nor a requirement. The Seneca Nation doesn’t “need” to meet with local officials nor do they “need” to pay the municipalities. If local officials prefer to sit at the Governor’s table, it is their prerogative but it is also a choice. The municipalities may forgo the invitation but other leaders from the communities, including trade organizations and unions can fill those seats to maintain the relations between the Senecas and their neighbors just fine. The question now remains whether the local elected officials from these municipalities will sit with their neighbors or play politics with their broken political system in Albany. They may learn that their choice was either/or, not all of the above.