The Seneca Nation was for binding arbitration before it was against it.
The nation changed its position after an arbitration panel ruled for New York State in its dispute with the nation over casino revenue payments. The panel ruled last week that the tribe owes the state $255 million in back payments.
So the Senecas need to pay up, right? They don’t see it that way. Seneca President Rickey Armstrong Sr. said the arbitration decision “effectively amended the agreed-upon terms” of a casino compact between the state and Senecas.
The nation announced Wednesday it is asking the U.S. Department of the Interior to review the arbitrators’ ruling.
The Seneca leadership’s complaint amounts to trying to move the goal posts after the game has been played. The original 2002 compact between the state and the tribe made clear that any disputes between the parties, if not resolved through direct talks, would be settled by binding arbitration. Arbitration, a means of resolving disputes without litigation or a courtroom, is by definition a process that both parties agree to. “Binding” means what it says.
The Seneca Nation in 2017 stopped paying the state 25 percent of the proceeds it makes off slot machines at three casinos, in Buffalo, Niagara Falls and Salamanca. The tribe says the original compact, which included the revenue sharing in return for the Senecas getting an exclusivity deal for casino gambling in a large swath of Western New York, only mandated the payments to the state for 14 years.
The compact was to expire at the end of 2016, but was automatically renewed for seven years. The state says all the original payment terms still apply.
Armstrong’s predecessor as Seneca president was Todd Gates, who wrote in Another Voice column for The News in September 2017 that the Senecas “would follow the compact’s prescribed arbitration process, just as we have followed every provision of the compact for the past 15 years. Arbitration will let the facts, not the governor’s fictional narrative nor The News’ skewed representation of the compact language, stand on their own.”
The three-person arbitration panel consisted of one panelist picked by the state, one by the Senecas and one agreed to by both sides. The two members backing the state’s position conceded that the terms of the compact left some room for interpretation, noting “silence” about percentage payments after the compact’s 14th year.
However, the two panel members said the renewal of the compact meant it was continued on the same terms and conditions, so the tribe could not escape its financial obligation.
“To conclude otherwise and interpret ‘renew’ to mean that the Nation gets exclusivity without sharing revenue would render several provisions of the compact meaningless, ignore the purpose of the parties’ agreement, challenge common sense and produce a commercially unreasonable result,” the arbitration award stated.
The common sense argument is persuasive, but even if it weren’t, both sides are bound by the arbitrators’ decision, which could hardly have been clearer.
The state shares a portion of its casino revenue with Buffalo, Niagara Falls and Salamanca, host to the three casinos. The casino cash has represented as much as 15 percent of Niagara Falls’ municipal budget. Two years-plus is a long time to go without funding the cities were counting on.
American history is littered with examples of treaties between Native American tribes and U.S. government entities being broken, and promises unfulfilled. Whatever reparations are owed to Indian tribes is worthy of debate, but that’s a separate issue from the Senecas’ casino gambling pact with New York. The tribe makes millions from its casinos; it needs to honor its obligation to share the wealth.