Recently, the Niagara Gazette editorial board, as well as New York’s lieutenant governor, have opined about “fairness” in the context of New York state’s disagreement with the Seneca Nation regarding the completion of our payment obligation to the state under our gaming Compact. Regrettably, in their commentary the editorial board and the lieutenant governor blatantly ignore the basic legal framework under which the Compact exists. So much for fairness.
The Compact, which went into effect in 2002, is rooted in federal law, namely the Indian Gaming Regulatory Act (IGRA). Because IGRA prohibits a state from taxing a tribe in exchange for a Compact, New York instead required a “Contribution to the State” whereby the Seneca Nation agreed to provide a portion of slot machine revenues to New York State for 14 years. In exchange, New York State, again in keeping with IGRA, was obligated to provide something of significant value in return to the Seneca Nation, namely exclusivity and protection from competition.
Almost immediately, New York systematically devalued the exclusivity it was obligated to provide to the Seneca Nation. The state introduced state-operated Video Lottery Terminals in “racinos” within the Nation’s exclusivity area. More recently, through the licensing of commercial casinos, the state has sought to both compete with and profit from the Nation’s gaming enterprise. Throughout the 14-year payment period specifically prescribed in the Compact, New York State happily collected more than $1 billion from the Seneca Nation.
In 2017, when the Nation completed our 14-year payment obligation as outlined in the Compact, the state chose arbitration over dialogue. Earlier this year, two members of a three-member arbitration panel determined that the Nation’s payment obligation to New York State continues after Year 14 of the Compact, despite the fact that the Compact has absolutely no language to this effect.
The ruling seemed to be made in a vacuum without regard for, or even an understanding of, the federal law and procedure that governs the Compact and how changes to the agreement we negotiated fairly with New York State are to be made.
By creating a new obligation for the Nation – one that did not previously exist anywhere -the arbitration panel effectively amended our Compact. Under IGRA, all Compact amendments must be reviewed and approved by the Secretary of the Interior. The Nation, rightfully, requested that the Department of the Interior review the Compact amendment. The Department, in turn, requested a joint submission from the Nation and New York State in order to conduct such a review. Without an agreement from the state to submit such a joint request, the Nation simply exercised our fair legal right to approach the federal court to either vacate the arbitration panel’s decision for its failure to follow IGRA procedures, or stay enforcement until the Secretary of the Interior reviews the Compact amendment manufactured by the arbitration panel. Our aim is to bring a fair and lawful resolution to this situation.
Governments are responsible to the people they serve. As a sovereign government, the Seneca Nation remains committed to defending the sanctity of our agreements to the letter. Ensuring that our Compact remains consistent with the federal law in which it is rooted is not only fair, it’s the right thing to do.
Rickey Armstrong is the president of the Seneca Nation of Indians.