fl lJ

CAYWIL NEW YORK, L.L.C. ./ ./

f--. I/ · I
GAMING & CASINO M/\Ni\G EME. T ' /

April 8,2002

VIA: FEDERAL EXPRESS

The Honorable Joseph Bruno

President Pro Tern and Majority Leader
New York State Senate
Legislative Office Building
Room 909
Albany. NY 12247

Dear Senator Bruno:

Thank you for your interest in the Seneca-Cayuga Tribe of Oklahornas proposal for New
York Stale.

If you have any questions. feel free to contact me.

Sincerely ,

~W~
Thomas C. Wilmot

TCW/mc
GOVERNMENT
Enclosure EXHIBIT

GJ -ll

1265 Scottsville Road" Rochester, New York 14624" 585.464.9400

NEW YORK STATE SENATE
JOSEPH L. BRU 0
43RD DISTRICT

/
PRESIDENT PRO TE M AND
M AIO RJ"rr LE.-\DER
04/10102
Date - - - -

To Ken Ridden

From JLB ~-- _

0 Your Co mments ':l For Your Information

o As Requested o Draft Reply
0 Read and Return :l For Your Signatur e
0 Read and File 0 Per Tel. Conversation

Remarks:

FYI
 SENECA-CAYUGA TRIBE
OF OKLAHOMA
R2301 E. Steve Owens Blvd .
Box 1283
Miami, Oklahoma 74355
(918) 542-6609
FAX: (918) 542~3684

April 4, 2002

The Honorable George E. Patak.i

Governor of the State of New York
The Executive Chamber
State Capitol
Albany, NY 12224

Dear Governor Pataki:

r received a letter dated March 20, 2002 from your Senior Assistant Counsel Patrick L. Kehoe. J
have written to you on two previous occasions (February 6, 2002 and March 4, 2002) with
regards to my Tribe 's willingness to negotiate a settlement of our land claims within New York
State. I have reviewed Patrick Kehoe's response to those offers with my counsel. It i.s mine and
counsel's belief that the Seneca-Cayuga Tribe's present land status in New York State is being
misinterpreted. r have enclosed a paper prepared by Frank Ducheneaux and Peter Taylor,
(Ducheneaux, Taylor & Associates, Inc., 303 Massachusetts Avenue, NB, Washington , DC
2002), addressing Mr . Kehoe's letter and pointing out the underlying misinterpretations,

I am very aware of the ITL1ny responsibilities that your office places upon you. I assume that the
September u" tragedy has greatly increased these demands; however, I respectfully request,
since it is my understanding That you are a learned attorney, that you review the enclosed. I have
also enclosed the Seneca-Cayuga Tribe's analysis of economic benefits to New York State as it
relates to the proposals I have previously made. I believe the benefits to the Seneca-Cayuga and
New York State are compelling for settlement talks to begin.

Sincerely,

~~
LeRoy Howard, Chief
Seneca-Cayuga Tribe of Oklahoma
 p APER RE~NDING TO KEHOE LETTER
OF MARCH 20, 1002 ·

In hiJ response to the Jette{ by Seneca-Cayuga Chief Leroy Howard to New York
Governor PuPi, Mr. Pstriclc L. Kohoe cites tho proviaicru of the Indian;Gaming R.eBulatmy Act
([ORA) p..ovidini fur the nejotiation of'a Clua ill Tno&l~StW Compact (25 U.S,C. 2710(dX3)
(A)J and ddinlngthe term "'IridiAn Tribe- (25 U. S. C. 2703(5)]. Mr. K~ also ott-.. the
provision oflGRA lbat defines "'Indian lanM" upon whJch it would be lePl to cooduct gamins
uodc:r [GRA. That ddiniti on is: . ,

"(AJ All lards within Jhe limits of any Indian reservcaton; tmd :

(B) tD'(Y 1andJ tIJIe lCJ which is e /they he Jd in t:rIIst by 1M Uni,£Ji SJau,J joT tJ.
benefit ofany Indian Tribe or Ind/vidMoJ or ~Id by any lndJan Tf;be or individual
subject to restriction by the United SlDtesagainsi alienation and over ""hie},an
Indian tr/~ exercises governmerual fJO"NT.· .. ·'-5 U .S.C, 2703(4). :

Mr. Kehoe tben opines that. since the SonClC«-C&yt1i& Tribe of Oklahoma ("Son.cca~
Cayuga·Tnoe") does not have any land.! Within the SWe ofN~ York. ~ St&te ofNow York iI
not obligated to engage In negotiations wit~ the Tribe for £'UI"P01elI of entering into e Cws ill
pmi.ng com.pact

It seems tbat the CrO\leT7lor's Office may not fuIly aware of the imptit:a.tions of tbe Federal
court decieions in the case of~Q IruiJan Nation ()j New York and tha Senr.ca Cayuga Tribe
ojOXJahoma and the United StDUs ofAmerica v_ Patad, et aI.• U.S. District Court for the
Northt:m District ofNew York, 80 CV 930!lld 80 CV 960, and Oneida Indian Nation ofNew
York \I. ']"M City ofSherrill, New York, 145 F Supp 2~ 226 (2001), .

l1IE SHE.RJtfLL DECISION

The Sherrill decUiotl grows our of rbe deciKioJU of the Fedeni Coo:ru, i:ndudi1tg two
Supreme Court decisions, ' iri the Oneida land claims. In the O1leldl. claim, as in tho Cayuga claim;
the Fl5den1 Court detamined that the Ondd! Tribal pla.im:i1fs retained treaty title to'Lands illegally
taken contrary to treaties betwoen the Oneida Nation and the StAte or
New York. While the
Court deUmnined tlu.t the plaintiff Tribes wore entitled to pcssession of the claimedlands, it abo
held tl\at eviction of rhe non-Indian landhokfeo would not bClllVailab1c U 8. remedy.

While the Oneida claim is stilt pending in the- COQrts. the Oneida Na..ti<m ofNe-NYorlc
purchased the fee title to a tract ofl~ within the corpcrsse limits of the City ofShaTill within
the cllim ares. In eff~) the Oneida N&Lion obtained fun ·title to such lands, superceding any other
claimedinterest, by purchasing the fee title, and merging the foe title with the Tribe', und~lying
right (0 use and occupy the land. '

Tho City of saemu ~ its real pooperry we apinn the Oncid~ Natiou for the value of
the parcel. The Nation refused Co PIlY. Under the 1a.ws of the SWe, the City put tho land up for
 .s&Ie for non-payment of taxes, and bought the Iaed. It then jQ\Jihl, in Swe Court, to evict the
Tribe from the land. Conte:mpormooudy, the NatiOn moved in Federal Court to enjoin the City
from lI.ueuing itJ UXe3l1pinst the Nstion. The State Court eviction action W8J tr"BJUfund to the
F edera1 Court. '

In r1!ling apinst the City. and in Cav~ of tho N &.t1on. the Court madil two signifiCGllt
dCt.etmmarlol1l. Fint, citing the Fed'" Court dec::iMom irl the Oneida l~ dum
litiption. the
Court held thu the Nilrion'i treaty title to uAoe and occupy the wbjrx;t ~ had Deyet' b«rn
extinguished. By purchaalng the fee title. the nibcl bad removed any ~d on iu right to usc the
~d. .

second. the Court, after an ~tr hiatorical review. d~ that the bound.arillll af .
the On.eid& reservation as it c:xistod bcforcr the illepl New York StAtetreatles, bad never been dis-
t:sta.blilhcd by tne Untied Stat~ Congrcu.. .M. couequ.enoe, t.h8 ~ cta:i:m lUU remained an
Indian rCJCl:fV'&rloa within which the sovcnunental pow!lfI ofthtt 0Mil:la Nation mll ana.ahed.
Therd'ore, the law, of the city (and state), inoludins thD tax Iawa:
did no~ apply to the Nation and
to ItJ IMd within the claim area. The Oneida p1ainti1f& include ~&rI!C Tribal 8I1titi~ in NO'W
York, W'15COnsin and Canada. The later Tribes historically moved from New York- but maintained
Treaty rights. . .

Mr. Kehoe's letter auerta U1&! the Scnoca.-Cayuga Tribe of0ld.a:boma hal no "Indian
land" within the Sw.e of New York. ~ this po!itiQ!1 evidences Ii failure of the Governor's
Office to grup the significance of the decision by the Honorablo Neil M~m in the ca.se of
Cayuga Indian Nation of N~ York d al. V. PataJd. et aJ.. I

The deoiJion of Judie MeCum. which wu made final on March 11, 2002, Mid the two
New York Swe treatiM with the Cayuga Nadon in 1'95 a.ndlS07 to ~ invalid a.s a violation of
the 1n£Uan Non-InW'co~ Act. He held that the twO plaintiffIndillQ tri~ ~ Ca}IUSe. Nation of
New YOTk and the Seaecs-Csyugs Tribe ofOId&homa, as lep1 su~r,..in-inlerMtto the
historic.] Cayuga Nation rctaJned their treaty titlo to the 64,OOD-aere-cltim are.. While ~e COWl
~ eviction (deemed to be an approprilte remedy in Qncida)'i'" not being appro"n~
at lhls mae of.the proceedings, it neces.sa.rily found that the Tnoei retained their Underlying rl~h{
afuM end occupancy of the entire tract. . :

The legal implicarions of the decision b thu the Smoca.-Cayuga.:Trlbe bas aj~ equal
aed undivided right with the Indian Nation of New York: to tho UHl an.d!oceupancy of~ entir~
64, ()()O..acNl l:1'&Ct ofland. All • consequence, rona lIty to Mr. Koh~J ~ the SeMca-
Cayuga Tribe DOES have "Indian lands" in the State of Now York

ThiS leaaI fact coupled with t~ rationale In the Sherrill decision mabllJhcJ sncther lCSal
conclusion, Tho S8neC8..c..yuga Tribe Is not only II. Joint. equal, undivided owner oftile ri~t to
use and oceu py the 64. coo-sere claim tra.et, it hu • j oint, equal and undivided, riPt to uib.al
jurisdiction over B. 64 OOQ..acre f'CJ.01'VI.tion. The two legal t:r'Ntic:s between the Cayuga N aticn &nd
I

the State
•
in 1789 And 1790 and the Federal TreatY of 1794 recognized the I
64~ ()()()...acre trW as a.
. "reeervation" for the Nation, An analysis of the legal history of the tract from tho &Ie of the
 illeg&1 SfJIW t:t6atiu to the present will disclose th.t there hu ncMIf" beon1Ut ACI. of Co f1yea I [0
diaesublish the boundaries of that reservation, The Seneca-C&yup Tribe shares a 64,OOO-acr~
~on in the State ofNe:w York: wiLb the Cayuga IOO.ian Na.tion of~ew York, Ai with the
OneIda Nation in the Sherril! case, it has only to acquire tM f#e title to .1J:rf part of the 64,0()()
a.crc:a to vest ~ ~o in itself and .t~h its fudcn11)l recognized powen ?f ~lf-goventrne1lt .
"Indian Iand.t•• within the m.un1ng of IGM moana allll11d within the limiu of any In.disn
n
~on . Article of the 1794 '"Xonodaiaua- tnlaIy becween the Unlted Sate. and the Six
Nniona atates that: . :

'The United SWa! ACknowJedaes the I.ndI ret«Ved te tl1e On&da

Onodaga and Cayuga Nations, in tbclr respeotiw treatiOt )with me
sta.te of New YO'rlc:. and called their reservsrioes, to he their
property: and the Unlt&d SUteA IhaJJ neva- claim th.e ~ nor
dinurlJ them or ei~ of the Six Nations, nor their Indian frionds
residing thereon and united with them, in tho ~ UM and
enjoyment thereof but the Kid t'CIS«'\'ations sh.all mnain thein.
unttl they choose to sell the Arne to the people of the United
States, who have the right to purc.bue." . .' " !

~ noted, the reservation remains and the Seneca Cayuga Tribe ~ a lega1succeuar-in-
Intt:rest to it. As it 1& & resarvation of the Tribe, slIland within8 the reservation is -IndllU1
land~ within ~ meaning of IGRA and ~\lailable for either C1&u II or clan m gamlng by the
T~ , .

RIGHTS OF l1U8E UNDER TB~ ~ClJJlN DECISION .

In addition to its reUined W\d 4 reservation rights u deI.ineaud 8.bove the Seneca-Cayuga
Tribe, M a plaintiffin the cJaims QlStJ and IS lcgaJlUCCetlOf-ia-intt:rest to the historical CAyup
Nation, 'i l entitled to B likely one-half (~) aharo of the damAp award Qf$2A7,9001OOO made
~ ~e Sta&.o of Now York Bcginnin, with Mlroh t 1,2002, when judie MeCum made the
awud final, poJ1-judgmern interelt on the award will aco..r.mul.at... At th~ golna me of'interest, it
is esti.au..ted that tht> State of New York will incur an additional monetary debt to the two PlAimiff
Tribes of about S1 ,ooo,OOO I month or $12,OOO,ooo.~. '

tHE SENECA-CA\'llGA SETll..EMENT PROPOSAL

The Tribe h.a3 made clear its ~J$ to iCltt1e its int«est in tM land claim. &I 88! out
above, without prejudice to the rightll of tho CaYtJp ~.uion of New York: or of any ol'the
do:f~ ~ncludl.ng the Sta.te of New York. ' .

It is e:xuomely imJ)01't&1'1t that the Governor's Office, tho rost of the goveenmeat officl&b of
New York, the New York ccngressional delegation, the countle:a and cltles in the claim 1lJ'~ and
the general public of New York underm.nrl one critica.llep1 fi.ct. The reasoo the Fecknl Couri
held that the treaty title of'the two plaintiffTribes had not been txtioguished was becsnse the
 Stare of New York, in entering into tho two trwiea ofland ceruion in 1795 '&nd 1807; violated a
Fedo-a11aw, the IndianNon-lrrtercourse Act.. (205 U.S. c.§ 177). That A~ u in(~ by the
Federal courts. holdll thAt no conveyance of the title of In Indian tribe to ;land I. valid unJeu done
~ to an Act ofCoogrosa.. The Court found that congressional ~on wu 1adcing in the
two State treui... ;
,
The Indlan Non-Intercourse Art Is penna.o.t:rlt law and a stiII in d;fuct- Iftbe underlying
ti tle of the S4'lnec:a-e&yup Tribe of Oklahome to the right to U5e and occupy the 64, OO()....~
res.orvuioo in Now York is to be extinguished, it must be done by an Act of'Congress!

Tbe FcdcnJ court, did Dot do it and cannot do it.

The Sblte of'New York Cannot do it.

Only Ccngress can ~pply the necaury consent to the extinguidrrmmt of the 1Tibe),
treary, title, IIf\d reservation ~ Furthc!lr, the Due Process C1WJe of the U.S. Constitution
requires thAt lf'there is any taking, tho Tribes be paid fi?11 value, The U.s-. Supreme Court has
determined tlW a treaty right is B. property rijht: ' . .

The Tribe bu made clear In jbl two lett.8J'a to Governor Pataki that it is williJ)g to Iitttls i~
in the land claim , This means, 8Ubjeci to approval ofits GenenJ Council, tJw itmlght be
lnt!!Cest
willing to cupport., aJo~ with tbe State of New Vane. ind the New Vori( con~oo.a.I delegation,
enactment of'Federal legislation to iettle its claim. .

THE TRIBE 'S SETTLE.MENT PROPOSAL

The Tribe has publicalJy indicaied its willingness to negotiete a actt1Clm:f\t of iu intllrest in
the Cayug.a land claim.. Judge MeCum hAs urged the partiM to settle. The United Statel" as
an
imervcner·pl~ urges l settlement. What j, lacking la the .Wll1lngtl~ of the State and other
Defendant. to uWe. A March 15th story, by Ajna Pala.utti in. Buffil.!o Cle\WPaper, noted that-

"In J979. on rwrennsnJ to settl« tho Caywga land claim for S8 nfiPi9'1 and 5, OlJO acres
of land was settled by'~ stale.

"In 19114, the Cayugas accepted an OJfST, recommended by a special ~l, oj S/5
million and 8, JOO acres oj land 10 settle, but the s1a16 did» 't agree,

"In 1999, the slate rejected Q S120 ;"illie»t 10 S J30 million settlement
proposal 01 a cOlJrf~n!lld rntrdkltor- and op~dfor trial"

In nea.rJy 25 years, the unwillingness of the St&%c to negotiate a sen1unc:nt of the claim has,
up to now, COlt the taxpeyers of the Stare over S24O,OOO,000. TM1 amount will grow by about
$l,OOO,OOO I month from the dare of Judge MeCum'a final award.

The Tribe, while 'wiUing to negotiate a senltmlent ofiu interest ~ the claim, does not wish
 , :

to do r.o by an excl1anic: ofltittcn or in the public media.. Whi1C any 'final I:emu negotiwd with
the State would bv JUbject to the approval of the ' ~ Council of thtJ ~enOC&-Cayuga Trib e,
the Iribe would be willin8 to consider aenlement through an Aa ofCo~ along th« tetmi Bet
OU1 below, .

First, after the T~'& conditions for settlement ~ md. It miaht agree tba1 it! aitire
interest in the claim be M:rlnsuished by Act o(CangTeJS All reqWrcd by tho Indian Non-I!ltw"COUr"U
Aa, The S~ and its taxpayers would .M (eUevcd of the pcymant of up' to ont-halfoft:he
$247,900,000 award in th.e M.cCwn cfc.e:i.aion. plua up to one-half of any ~ th.U will accrue
from March 2002. Th.al is already. SI25.900,000 plus benefit.. The StIUl and the countries, cme..,
and prl~Aie citU:ctll in the claim area would bc.re1itrved ofthe..prospect ~ft.hc S~~
Nuioo of Old ahoma reacquiring he titletc lind acre r~n and llJSa'tin.i in governrnernll1
jurisdiction, "

Second, in return for concessions, the Se.MCa-CIlyug& Tribe would be entitled to valuable
consideration. It might agree to grant concessions within Fedenl ~sWion partiaDy c:xtingulshing
its l.J.nd ri~ that have been confirmed ,by, the court in (llI(cb&!Jie for ideflti1ie&tlon ofTribaJ lands
with Chw ill prnina opporninities eluwhen: In the StAte ofNc:w' Yorlc: It would be interested in
... provision in an Act of COfl.8T!lIS taJdng I mWI tr'Id of land into trwt tOr the Tribe. available for
Chu& II and m gaming purpoJeS. Wthe NU8ra Falls area, with the Tooe maintaining a portion of
its historic lands in lhc Claim Arr:e.. Th~ Tribe, in Chief HoWU'd's n!ceni lctten to Governor
P..tili, noted its wiJlingDeU to be .bound by the
State law relating to pa~ fur 8XCluJivity and
certain employee righu. The Tribe might consider other benefits to the $we. and docs wish to
discuss with the State other aaming opportun.ltia.

Third. the State., Niagan Falls, IUId the communities IUIT'OWldlng a Clau ill site in
the
claim area would derive subirtlJ1lILl economic, tax. And ernploymen! benefits from such pnti.ng
ecoaomic activity. .
, ~

CONCLUSION

The last pBTail"Aph of Mr. Kehoe's letter in response to ChiefHciW81'd's letters states:

"Although tk Smeca-CAyaiga IT;~ Is afe~ra1ly recognised Indian tribe within

the Sune oj OJ:Jaht:»tta. pursuant to • express terms oflGRA it is nat a federally-
recognized tribe with 'lndlan lands' in tn! State of Nn4J YOI'A: For these ~ Nrw'
Y07K Stale Is not oh!igaNd by JGJU. to engage in 1JifKQrlaltoru with tM Seneca-Gayuga
Tribe for the purpose ofentering into a CJaJ;s III grzming COMJXI&L· '

As should be made cl~ from the foregoing analysis. oothing is 'further from the truth,
m
Tho Tribe very defln.itcly does have -indian land4 H NWN York. '

The Tribe, of course, will continue to pursue its interet in tho Cayuga. claim if 110
seU!.emetn is reached. If the wd.l-I"euoned decision Or Judge MeCum is nat overturned on appeal.
will'
it 'bY
Mnefit the payments of it s share of tho award &ialnst the: State of N tJW Yon JIlld its
taxpayers. with accruing intwt:st, Ob. could &mOlIJtl to over $1JO. 000.00 'in ODe year. Tbe Tribe
nay cotl3idtlr its riiht to a.c:quire foe title to land in the cl&.im &n!lIl for a variety of 8 0 ~
economic, cWtural and refiiioo' purposes. .

Ho~. me authorities of the St.lJe of New York will not.., ~ ~ (llig this
·iOld~· opporrunity to tett10 ~hcJ claim of the Tribe OD this win-win buiso
 SETTLEMENT OFFER
SENECA-CAYUGA TRIBE OF OKLAHOMA

The Seneca-Cayuga Tribe is a New York Tribe. The United States District COUf! for the
Northern District of New York has determined that New York is its homeland, and that
the lands upon which it resid es, with the Cayuga Tribe, were never legally transferred .

FederaJ Judge Neal P. MeCum in reaffirming his decision has urged aJl parties in this
litigation to reach settlement. The Seneca-Cayuga bas made a written offer of settlement
to Governor Pataki in the spirit of Judge MeCum's request. The 'Seneca-Cayuga Tribe
has made a written offer to Governor Paraki to settle their land claims addressed by the
Court in New York State . The Seneca-Cayuga Tribe and the Cayuga Tribe has expended
millions of dollars over the last 20 years successfully litigating their land claims. The
Tribes have been successful in this litigation while the state of New York bas consistently
lost motion after motion while spending millions of dollars of taxpayers' money.

The following are the key terms of the settlement offer :

1. The Seneca-Cayuga Tribe would relinquish all land claims In New

York State that have been at issue before the Federal COUll.

2. The state of New York would enter into appropriate Class III Gaming
compacts with the Seneca-Cayuga for gaming facilities in · Cayuga or
Seneca County and Niagara County . Each site would be limited to the
appropriate size for a gaming facility and related amenities, along with
facilities to serve Tribal membership. The parties shall confer [0

explore other economic development opportunities

3. The Seneca-Cayuga Tribe would agree to pay the state of New York
25% of the slot win estimated to be approximately $150 million a year.
 4. The Seneca-Cayuga Tribe would agree to the labor agreements as
proposed in the enabling legislation

5. The Seneca-Cayuga Tribe would make an annual contribution of $5

million from each gaming facility to be used specifically by the state
of New York for the purpose of making payment upon an agreed
settlement between the state of New York and the Cayuga Tribe.
These payments would be made for a term of 20 years.

6. The Seneca-Cayuga Tribe would make payments to local units of

government in lieu of taxes in amounts appropriate for services from
such governmental entities.

The Seneca-Cayuga Tribe has constructed this settlement offer in a manner that is
advantageous to both the Seneca-Cayuga Tribe and the citizens of New York. This
proposal would result in the settlement of the Cayuga land dispute at little or no
additional cost to the state of New York and its citizens. Over the 20~year life of the
Compact, it is projected that billions of dollars would be paid to the State out of slot
revenue sharing and thousands of well paying jobs would be created.
Seneca Cayuga Nation of Oklahoma
Proposal For Class III Compact

Economic Benefit to the State of New York

(Numbers in Millions]
"Total for
Revenues To State Year1 Year2 Year 3 Year 4 Year5 Years 1-20

Settlement of Land Claims 247.90 0 .00 0.00 0.00 0.00 24790

25% of Slot Revenue 110 .87 116.41 164.78 194 .02 200 .81 5.020 .25

$10 million/yr. for Claim Settlement, 10 00 10.00 10.00 10.00 10.00 200.00
Host Community, etc.
Total Revenues 10 Slate 368 .77 126.41 194 .78 204 .02 21081 5,468 .15

Less Expenses 10 State 0 ,00 0 .00 0 ,00 0.00 0 .00 0.00

Total Benefit to State· 368.77 126.41 194.78 204.02 210.81 5,468.15

"Analysis does nOl consider employment, conslruction and related benefit s to the stale. Nor does it Include payments from the Tribe 10 local
m unicipaltues for services ,
•• Assumes a 20 ye<J1 compact.

The total benefit to the state is projected to exceed that of the Seneca Nation of New York's propsal by $500 million
in the firsl1 0 yea rs.