In light of Supreme Court decisions rejecting land claims, are Native-Americans entitled to reparations in the form of gaming compacts?

Leon R. Koziol, J.D.

Former Human Rights Attorney

Founder of nonprofit Citizen Commission Against Corruption, Inc.

Each November is National American Indian Heritage Month. And while we have enjoyed a renewed enlightenment to the diverse cultures of Indian tribes, the dark side is often omitted. In the two-century history of human rights violations inflicted upon Native-American tribes, cultural celebrations have been decried as woefully inadequate to correct the injustices.

Indeed, at least twelve states no longer celebrate Columbus Day despite its status as a federal holiday with many jurisdictions replacing it with Indigenous People’s Day. Joe Biden became the first president to give this day recognition on October 8, 2021. However, the testy issue of reparations has remained taboo not unlike the forty acres and a mule promised to freed slaves.

Among the reasons is a steady growth of Indian casinos. For perspective, the Oneida Indian Nation’s Turning Stone Casino began as a modest operation resembling a bingo hall. As part of its pitch for a Class III gaming compact, Nation CEO Ray Halbritter promised neighbors that gambling would be controlled while alcohol and nefarious activity would be prohibited.

But much like the broken treaties, that promise was torched as the casino morphed into a billion-dollar enterprise. It now features a full range of alcohol services, expanded gaming tables, sports betting parlor, evident prostitution and drug abuses, gambling debts, bankruptcies, and a flood of addictions. And the lust for easy profits continues to prevail over its vast collateral harm.

Countering this harm are the thousands of jobs and high-end amenities created by Turning Stone. It features shows to rival any Las Vegas casino, three PGA level golf courses, an entertainment mecca known as Exit 33, diverse eating establishments, and a hotel tower rising 20 floors and 250 feet above the surrounding farm fields. It has become a world class conference center.

The pandemic proved to be little more than a dent on all this progress. On September 6, 2022, the Oneida Nation announced “the largest expansion” of its resort that “will nearly double the existing convention center” with a second skyscraper hotel. This week, it unveiled its most elaborate holiday display ever with 160 decorated trees, over 2 million LED lights and Gingerbread Village.

Not exactly the report one would expect from a discriminated people languishing in poverty. But that’s where a long festering division among Indian tribes resurrects the reparations debate. Traditional leaders like those of the adjacent Onondaga Indian Nation in Syracuse refuse to seek any gaming compacts due to their inevitable erasure of genuine tribal cultures.

Indeed, even Halbritter has sparred with the traditionalist faction of the Oneida tribe. Members have complained that he has assumed the mantra of a “petty tyrant” denying them federal trust funds in violation of their free speech rights. Many were residing on the original reservation, a 32-acre trailer park while their federally recognized CEO was pursuing a class action against neighboring landowners for their ejectment from a 250,000-acre tract. 

Both Oneida and Onondaga tribes are among the five founding members of the once powerful Iroquois (Haudenosaunee) Confederacy of upstate New York. The Mohawks operate a modest facility at the Canadian border while the Cayugas of the Finger Lakes region remain divorced of any Class III gaming. In contrast, the Senecas operate three casinos in Buffalo, Salamanca and Niagara Falls with the latter boasting a hotel tower higher than the one at Turning Stone.

This division is further complicated by the kind of reparations being sought. These include a complete restoration of “Indian Country” as it is called, to sovereign status, a patchwork of certified reservations, reacquired lands and tracts that were consistently occupied. On the less extreme end, there are fully assimilated descendants oblivious to all this and those victims who stand by the original treaties.

But the latter activists were once again betrayed by a Supreme Court that sparked a plague of conflicting decisions over a forty-year period. By way of background, prior to the 1993 gaming compact, the Oneidas filed a test case followed by a plenary one for 250,000 acres in 1970 and 1974 respectively. Among other filings was one seeking 6 million acres between the Pennsylvania and Canadian borders. In 1974 the Supreme Court found valid jurisdiction to decide both cases.

Then in 1985, by a 5-4 , ruling, it gave merit to the l974 plenary claim based on a 1794 treaty violation leaving open the question of a remedy. This led to the 1998 class action financed by casino profits after years of settlement discussions collapsed. In 2005, a newly constituted Court addressed the remedy question left open in 1985 (“Oneida II”) in City of Sherill v Oneida Indian Nation, 544 US 197 (2005). There it ruled collaterally that reacquisition of lands located within the 250,000-acre tract did not work a union of fee and aboriginal titles and was therefore taxable by state and local municipalities.

The case may have proved counter-intuitive because the Oneidas were freely donating substantial revenues at the time to local school districts and municipalities known as chain covenant grants. This was a traditional tribal practice to maintain government-to-government cooperation. And for those duped by the notion that tribal income was a welcome substitute for property taxation, their governments rarely ease tax liabilities especially in the “Vampire State.” New York remains hopelessly addicted to all revenue sources to feed an insatiable appetite of free spending.

The Oneidas quickly fired back with a petition to the Bureau of Indian Affairs to take their purchased lands into federal trust, thereby returning them to tax-free status Despite the growing feuds, the overriding issue of a remedy was effectively reserved for the Supreme Court’s still pending Oneida Nation litigation. That finally resulted in a federal appeals court decision in 2010 which rejected both possessory and compensatory demands. The high court then refused to hear the case and that served to undermine countless land claims across the country.

This decisional fiasco has not only re-opened old wounds for exasperated tribal leaders, but it also ushered in alternate avenues for reparations. For the Oneidas’ part, a 2013 global settlement was achieved to forever extinguish its longstanding claims, making its litigation journey a success. After all, only twenty years earlier, the entire tribe resided in a trailer park on its nearby 32-acre reservation. For other factions and tribes, the checkered litigation has encouraged a return to violence.

With the growing tide of mass shootings, civil disobedience of the kind that tribes launched during the 60s is particularly alluring for those seeking complete sovereignty. Even Ray Halbritter remarked in response to complaints of tax-free status that if he had a valid claim as the Supreme Court once ruled, his neighbors should be paying taxes to his Nation. Such inflammatory remarks only ignited further divisions while derailing settlement efforts.

Nowhere were these ominous developments mentioned in a pair of front-page articles last week in the New York Times. The first, authored by Pulitzer Prize winning reporter Emily Steel, focused on David Portnoy, the mega on-line sports betting figure who operates Barstool Sports. After months of research, she detailed how the gambling industry has yielded epic levels of addictions with impotent oversight.

Ms. Steel references the sexual harassment, misogyny, and racism allegations surrounding Portnoy’s sudden rise to billionaire status. She goes on to verify the corrupted industry by documenting highly deceptive practices like those of FanDuel which attracted countless victims through promises of refunds for any betting losses only to condition payment on their application to continued gambling. Such deceptive practices have found their way into Turning Stone operations.

Not surprisingly, Portnoy lambasted this reporter the next day while ignoring the Elephant in the Courtroom he helped create. Indeed, he had no comments regarding the next day article which stressed a lack of federal funding for gambling addictions, undue deference to the states which benefit from the tax revenues, and their combined expenditure of a mere $94 million in a $250 billion betting industry. That came to .03% of amounts spent on substance abuse.

Is this corrupted culture a promising environment for achieving Native American reparations?

About the Author

Leon Koziol is a human rights advocate who practiced law for more than two decades in federal and state courts. He appeared on the CBS program 60 Minutes for his defense of landowners targeted for eviction by Native-American tribes alleging violations of ancient treaties. In 2004, he secured a judgement in New York Supreme Court invalidating the 1993 Turning Stone gaming compact.

His recoveries feature substantial jury verdicts for victims of government abuse. Case citations include, Koziol v Hanna, 107 F.2d 170 (NDNY 2000); Patterson v City of Utica, 370 F.3d 322 (2nd Cir.2004); Oneida Indian Nation v County of Oneida, 132 F. Supp. 2d 71 (NDNY); Peterman v Pataki, 2004 NY Slip Op 51092(U) and Parent v State, 786 F. Supp. 2d 516 (NDNY 2011).

The latter was a consolidated case intended as a class action on behalf of victimized parents in divorce and family courts. It was part of the author’s bold challenge to judicial and sovereign immunity which led to severe retributions upon his law licenses and parent-child relationships. The horrific ordeal which led to a near death climax was captured in his book, Whistleblower in Paris, published in 2021.

Leon Koziol can be contacted directly at leonkoziol@gmail.com and (315) 796-4000.

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