Robert Odawi Porter: 'Seneca Nation making huge mistake to pay New York state right now'

Former president of Seneca Nation says tribe should wait for Biden administration to decide on gaming compact before paying nearly $1 billion to New York.

Robert Odawi Porter with then-U.S. Rep. Deb Haaland in 2019. Haaland now serves as the Secretary of the U.S. Department of the Interior.

Editor’s long note: Robert Odawi Porter, former president of the Seneca Nation of New York, is speaking out against what he calls his tribal nation’s nearly $1-billion potential mistake in agreeing to settle a longstanding dispute with New York state involving a gaming compact exclusivity disagreement.

The U.S. Interior Department initially deemed the compact approved in 2002 during the George W. Bush administration. The agreement called for a whopping 25 percent of casino funds to be paid from the tribe to the state each year. It’s a compact much more onerous than compacts most other tribes in the state and throughout the country have been able to negotiate, both before and since.

What Interior hasn’t reviewed is the automatic 7-year extension within the compact, which began after its first 14 years in effect. Tribal legal experts have said that that lack of review makes state claims that the tribe owes money under the extension potentially illegal.

Kevin Washburn, Assistant Secretary for Indian Affairs during the latter part of the Obama administration, is one who has made that very argument. He has questioned the validity of the extension; still, the tribal nation didn’t bring up that fact during its arbitration with the state over this matter. If it had, some tribal legal experts believe that New York would have had less of a chance at collecting the money it says it is owed.

The tribe’s current lawyers, according to some observers, are making a major strategic mistake by believing that if the tribe settles this case and pays the massive amount of extension-related monies to New York, the tribe will then automatically be able to negotiate a new, less burdensome compact. There is no guarantee for that, and Odawi Porter believes there are around 1 billion reasons for the tribe not to make this payment right now, especially during a tribally-friendly Biden administration.

Interior, under current Assistant Secretary for Indian Affairs Bryan Newland, noted last April that the department has never reviewed the 7-year extension, and Newland invited the tribe and state to submit it to Interior for review. But the state wouldn’t agree to do so, and arbitration required under the Indian Gaming Regulatory Act (IGRA) has continued to prevent Interior’s review.

Newland last September told E. Sequoyah Simermeyer, chairman of the National Indian Gaming Commission regulatory body, that the lack of review was a problem that amounted to an enforcement matter for the body to deal with. The commission is said to be currently reviewing the issue.

Why the tribe is agreeing now to make the payment with the stars seemingly aligned in its favor within the Biden administration is a big question for Odawi Porter and for Indian gaming experts nationwide who are monitoring the legal and administrative issues involved as other tribes work on new compacts with their respective states.

“This is disastrous for Indian gaming policy — a state using an arbitration process to get an additional $1 billion in revenue sharing without a DOI-approved compact provision in place,” Odawi Porter wrote recently on social media.

“[I]t’s a new thing to quit like this,” he added on the tribe’s apparent willingness to throw in the towel. “Not good for our future.”

The compact’s extension doesn’t expire for two more years, and few believe that the Biden administration would close the tribe’s casinos at this juncture. So why Seneca would choose to pay now is a question on a lot of people’s minds, including some in the current Interior Department, we have it on good authority.

Odawi Porter recently posted the following details about the situation on LinkedIn. He granted Indigenous Wire permission to re-print his full posting.

by Robert Odawi Porter

The Seneca Nation is making a huge mistake. The Nation stopped making gaming compact exclusivity payments to New York State in 2016 because the compact was silent about any additional payments during the 7-year extension period. After years of fighting before arbitrators and in court, Nation officials have just announced their decision to pay nearly $1 billion to the State. With the Nation only keeping $40 million, it’s a surrender, not a settlement.  

There is no need to pay the State right now. Arbitrators ruled that the Nation should pay, but arbitrators have no authority to determine the legality of the payments. That is the role of the federal government.  

The federal government through the Department of Interior twice concluded that the compact extension was likely unlawful because it was never approved. And another federal agency, the National Indian Gaming Commission, is investigating whether the excessive payment rate of 25% violates federal law.

But rather than continue to fight with the support of the federal government, Nation officials have decided to quit for no good reason. A federal court decision against the Nation last month was wrong on the facts and should be appealed. Naively, Nation officials seem to believe that paying the State now will lead to a better compact later. History is clear that nothing will stop New York’s thirst for Seneca land and wealth.   

What can be done to stop this travesty? President Pagels and Treasurer Armstrong alone could stop payment and the Council must act to approve the deal. Let our officials know you support the decision to fight, not quit. This is the first time in my life that Nation officials have quit in the middle of a fight. They are not even meeting with the people to discuss their decision before acting. It’s a very sad day.  

Documents relating to the recent history of this issue can be found here: Seneca-NYS Arbitration Public Documents

Odawi Porter is currently a lawyer and tribal advocate with the Capitol Hill Policy Group.