Below
is a very informative and well written letter by Assemblywoman Claudia
Tenney which clearly outlines Andrew Cuomo's "sell out" agreement with
the Onieda's which threw the taxpayers under the bus and gave the tribe
hundreds of millions of dollars to save face for his father’s illegal
deal to open the Casino. The Court of Appeals declared the Casino
illegal years ago but Cuomo as Attorney General did not move to close
it to protect his father’s name and then he gave the farm away to the
Onieda's to take the issue out of play for next year’s election. The
Onieda's threw a huge party honoring Mario a month before the
settlement and invited all the establishment parasites.
Dear Colleague:
I urge you NOT to support the proposed deal with the Oneida Indian
Nation (Casino Oneidas) which is a portion of the gaming legislation
proposed by Governor Cuomo. I have been very involved in this issue as
a concerned citizen and also as an attorney for a genuine Oneida Indian
who opposes this deal.
This
bill is far more serious and has much greater ramifications than even
the SAFE Act. It is being hustled through without public comment in
much the same way. This deal actually presents bright line violations
of the state and federal Constitutions in addition to numerous
violations under state and federal law. The deal actually and
incredibly spells out, within the body of the agreement, provisions
that are likely violations of various public corruption statutes. I
have attached a letter written by attorney Cornelius Murray, that was
sent to the relevant authorities regarding the possible violation of
bribery statutes.
This deal will cause irreparable economic harm to the Central New York
region and will have devastating consequences to our state and local
governments as well as the business community. No legitimate
businessperson or responsible government official could support this
deal.
The Governor’s sales pitch on this deal is shameful. He has
manipulated the facts and the news media who have failed to accurately
report on this issue. For example:
1. This
deal is NOT the settlement of the 40-year land claim. The land claim
was dismissed by the Second Circuit two years ago. The Casino Oneidas
received nothing from it and the 20,000 landowners who were sued WON.
(On October 17, 2011, the U.S. Supreme Court rejected the Oneida’s appeal of the 2nd Circuit Court ruling, ending the Oneida’s land claim.)
2. The
Casino Oneidas are required to pay property, sales, use and excise
taxes on all operations and all sales tax to Non-Indians pursuant to
decisions by the State Court of Appeals and The U.S. Supreme Court.
They currently owe in excess of $800 million in back taxes to the State
and local governments. Nearly all of the Casino Oneida’s
land holdings DO NOT qualify as Indian land for tax purposes. The
proposed agreement eliminates payment of tax to the State and local
governments, including ALL back taxes forever.
3. The failure to collect the taxes is purely the fault of the Governor and past Governors and the Attorney General.
4. Noteworthy and material to this proposed ‘Settlement Agreement’ has
been the lawsuit initiated by the Casino Oneidas in 2005 to take
approximately 13,001 acres into a federal trust for their benefit,
thereby removing these acres from State jurisdiction for unlimited
commercial development (and tax free status). This Action by the
Oneidas ran into a major roadblock this past fall. Specifically, on
Sept. 24, 2012 federal Justice Lawrence Kahn effectively suspended the
fee-to-trust lawsuit with the issuance of a Memorandum-Decision and
Order that remanded the Department of Interior’s
Record of Decision of May 20, 2008, (which had planned to give the
Oneidas trust land), back to the DOI and the Bureau of Indian Affairs
for further proceedings. Additional evidence was requested by the
Court to justify legal propriety of this attempted major land grab.
The Oneidas were now being asked to prove that they were, in fact, a
federally recognized tribe as of the 1934 Indian Reorganization Act, as
called for by the U.S. Supreme Court Ruling of 2007 known as the Carcieri Decision. Governor Cuomo’s ‘Settlement Agreement’ with
the Casino Oneidas now appears to be a way to circumvent the suspended
Record of Decision method of putting the land into a trust to the
detriment of all New Yorkers. (The Indian Gaming Regulatory Act of 1988
says that an Indian Casino must be on federal trust land; and, the
state and federal courts have also determined that the Casino Oneidas
cannot operate Class III gaming on their current site unless and until
New York legalizes Class III gaming.)
5. The
Governor has an affirmative obligation, under Article 2, Section 10 of
the State law, to defend the sovereign borders and jurisdiction of New
York and SHALL employ and provide counsel to the defense of those
claims. The federal trust land application is an attempt to remove New
York’s sovereignty and jurisdiction over its land. This is exactly the scenario outlined in Justice Ginsberg’s Supreme Court opinion prohibiting this type of taking. Modern litigation on this issue affirms the Governor’s obligation to do so. Unhinging New York State will affect the civil rights of many New Yorker’s
who live within, and beyond, the Casino Oneidas checkerboard-style land
holdings; presently, the underlying sovereign in their deeds is that of
the State of New York.
6. During the negotiation of this ill-conceived deal, the Governor threatened to cease defending the state’s
sovereignty in the federal fee-to-trust case if the local governments
did not accept HIS deal. Further, Governor Cuomo threatened to
withhold monies owed to the counties due to his own failure to enforce
the collection of back taxes duly owed by the Oneidas. The threats are
well-documented and even printed in local newspapers. This tactic is
tantamount to extortion, and, use of taxpayer’s
money to coerce is a violation of state law. See attached letter from
Oneida County Legislator Frank Tallerino and article from Oneida Daily
Dispatch.
7. The
Governor completely forgives all back taxes owed of every kind which is
prohibited by the State Constitution. See attached below certain
relevant sections of the New York Constitution and New York State Tax
law.
8. Under Cuomo’s
deal, the Casino Oneidas only have to pay 25% on certain gaming
machines. Not all class three games operated by them are covered in
the Agreement. There are no enforcement provisions. No securities. No
guaranties of any kind. Once the Casino Oneidas are granted federal
trust land, (a legal impossibility that the Governor and an uninformed
legislature will shove down our throats anyway), they can put gaming
machines on any of the 25,000 acres (12,000 more than they were
proposed in federal trust land) and none of the new lands will be
subject to the 25% share. Vernon Downs, just 15 minutes away, pays the
equivalent of 67% of its share on gaming and complies with all state
laws.
9. No
taxes will be owed for any retail sales of any kind in the future
including sale of gasoline and cigarettes. The permanent revenue
stream generated by real estate taxes will also be eliminated forever.
And, nothing precludes the Casino Oneidas from eliminating, or diluting
the very limited gaming machines on which the Cuomo plan hopes to
profit as indicated above.
10. The
state will surrender its taxing authority in direct violation of
Article 16, Section 1, of the State Constitution. The Casino Oneidas
will collect their “own” taxes to create some sort of parity. They will keep the tax for their own “so-called” government
operations. There is no scheme, or plan, for parity on the base price
of any product or service that could be sold by the Oneidas. There are
less than 500 bonafide members of the tribe, representing less than
.002% of Oneida County’s
population. However, the rest of the taxpayers will continue to bear
the cost for Medicaid, public assistance, roads, programs for people
with disabilities, education and all other expenses which all are
entitled to as citizens.
11. All
Oneidas are citizens of the United States and the State of New York
pursuant to the Citizenship Act of Congress of 1924. The Oneidas are
not a separate country as they falsely claim. There is no provision
for collection of internet sales tax. One absurdity of the deal is the
granting of “most favored” nation
status by the State to the Casino Oneidas. If that were in fact the
case, the U.S. Constitution prohibits the state from entering into
treaty-like agreements with separate nations. Additionally, the state
Constitution further prohibits the state from exempting specific
entities from taxation. NY Const. Article III, Section 22.
12. The
Casino Oneidas will now be granted the ability to tax stamp cigarettes
and distribute them in commerce. This sets back years of successful
litigation by U.S. Attorneys throughout over the state. This so-called
deal by Cuomo is giveaway on every level and this measure alone will
cost New York billions of dollars in a few short years. The deal gives
unfair and illegal tax breaks to one entity at the expense of
law-abiding citizens and legitimate businesses who will suffer
irreparable harm. See NY Const. Article III, Section 22.
13. There
is no credible enforcement provision in the deal for sales of
cigarettes or any other item in the event the Casino Oneidas choose not
to comply. The state has had a valid compact with the Senecas, but for
a long time they have refused to pay an outstanding balance estimated
at over 600 million. We face the same problem in this deal, except
that this deal has even less teeth than the compact with the Seneca
tribe, and, this settlement agreement will allow the Casino Oneidas to
re-sell American made cigarettes and keep all taxes, including the
excise tax.
14. This
deal will result in an unlawful violation of the 1842 State Treaty with
the Orchard Hill Band of Oneidas, a separate and distinct tribe, which
preserves lots 2 and 3 for their perpetual use. This Treaty is still
valid today but the Cuomo Plan will destroy it to the detriment of the
genuine, longstanding Oneida tribe. This separate Band of Oneidas will
be forced from their land in violation of the treaty and several state
and federal provisions protecting the rights of Indian Tribes residing
on state land. See attached document from Federal Archives showing
that Halbritter and his ancestors are not members of the Six Nations
Confederacy and thus, have no attachment to the land for rights.
15. The
CEO of Oneida Indian Nation, Ray Halbritter (not eligible to be a
chief) reputedly owns an oil and gas drilling company with 180 natural
gas drilling leases ‘ready to go’ for
wells located within the lands proposed to be placed into a federal
trust. If the land is placed into trust, he will be able to engage in
any type of hydraulic fracturing on those wells regardless of the state
moratorium. The DEC will have no regulatory authority, and, no taxes
or fees will be paid to the state for the sale of any natural gas
extracted. There has been no SEQRA or NEPA review whatsoever.
16. The
Cuomo deal does not address easements and rights-of-way, including the
fact that the New York State Thruway (I-90) will cross through what
will be Indian Country, and it appears that major power line corridors
from Niagara Falls, which benefit New York City, and elsewhere, will be
compromised in terms of ownership.
17. Finally, that in addition to the U.S. Supreme Court in the Sherrill decision which provided that State citizens were to be protected under the doctrine of “Justifiable Expectations,” a
2009 U.S. Supreme Court decision ruled that once land is transferred
from federal jurisdiction to state jurisdiction, it cannot go back to
federal jurisdiction, (see Hawaii et. al v. Office of Hawaiian Affairs et. al,
No. 07-1372, Decided March 31, 2009). There has never been Federal
Indian Trust land in New York or in any of the original colonies. The
Indian owned casinos in Connecticut and Rhode Island are on state
sovereign land.
Halbritter
and the Casino Oneidas are desperate and this deal will erase all the
hard fought rights our communities have gained in the state and federal
courts for next to nothing. We have a royal flush and they have a pair
of twos with all cards showing on the table. Why are we folding?
Worse, we are literally giving away our community to a defiant and
corrupt dictator who runs an entity that flaunts our laws and refuses
to comply.
We
have been bullied by Governor Cuomo and Halbritter and one has to
wonder why the Governor or any responsible person could go along with
this horrible deal unless that person is completely uninformed or
utterly corrupt. This is a tragedy of epic proportions for the people
of Central New York.
I
have attached numerous documents that should compel you to vote against
this ill-conceived deal. The People of the State of New York deserve
adequate protection, not a railroad job.
If you have any questions, please do not hesitate to contact me.
Thank you.
Sincerely,
Claudia Tenney, Member of Assembly
CT/fd
Enclosures
