No tribe has begun process to open Brownsville casino
BROWNSVILLE – In order for an American Indian casino to open in Brownsville, a tribe must have the land placed into trust, but so far no tribe has come forward to make that request. Both Brownsville property owner Ernest Liggett and his business associate, Phil Monture, president of Ohwista Ko:Wah, have said they are working with a tribe, but they have declined to identify the tribal partner or partners in the plans to turn downtown Brownsville into a casino resort destination.
Under federal law, American Indian casinos must be located on land taken into trust by the Department of Interior for a sovereign tribe. It’s a process that could be lengthy and complicated, according to several people.
State Sen. Richard Kasunic, D-Dunbar, said he has met with Liggett to discuss the casino plans, including the American Indian partnership, in the past year.
“I was under the impression it was solely the Senecas prior to this. I don’t know who is involved now,” Kasunic said. “Until we know who ‘they’ are specifically, there is a lot up in the air about this. Is it the Seneca, or is it two or three groups? The bottom line is they need a tribe taking that land into ownership.”
Gov. Ed Rendell’s office has said officials have maintained an ongoing dialogue with the Seneca Nation.
“Over the past several years the Seneca have written to the commonwealth, expressing their opinion that they have certain rights to operate as an indigenous peoples; however, they have never taken any steps to pursue those rights with the commonwealth,” said Chuck Ardo of the governor’s press office.
Ardo confirmed that a letter from the Seneca was given last October to then-Gov. Mark Schweiker, fitting the time period in which Liggett has said that nation-to-nation correspondence was sent to the governor’s office in compliance with the Indian Gaming Regulatory Act.
That letter is sealed in the state archives for 20 years, as are the rest of Schweiker’s papers, but a new letter has since been sent to Rendell, Ardo said.
Because the matter is considered an ongoing and active case, the letter itself is in the hands of the Office of General Counsel and is not being made public by the state.
The Indian Gaming Regulatory Act (IGRA) section 2719(d) (3) (A), cited by Liggett as “the exclusive procedure for Pennsylvania to obtain jurisdiction and negotiate revenue sharing over the plan,” states that any tribe having jurisdiction over Indian lands to be used for “Class III gaming” must request that the state negotiate to form a tribal-state compact governing the gaming activities.
“Upon receiving such a request, the state shall negotiate with the Indian tribe in good faith to enter into such a compact,” the law indicates.
A state has 90 days from receipt of a petition to begin negotiations, but Ardo said that time frame doesn’t apply in this case. According to Ardo, the Seneca must have recognized tribal land in Pennsylvania for the clock to begin ticking.
“There is a process they need to follow, and they’ve not yet started that process. First, they need to go through the federal process; then they need to go through the state process,” he said.
According to the eastern regional office of the Bureau of Indian Affairs, which handles the land claims, no tribe has filed a claim for land in Pennsylvania. If a tribe purchases land, it still must follow a process to take that land, known as fee land, into trust for gaming purposes.
According to the BIA, Pennsylvania has no recognized Indian lands. The Seneca did have land in Pennsylvania until about 40 years ago, when it was taken by eminent domain by the Army Corps of Engineers and flooded by the Kinzua Dam.
The land, known as the Cornplanter’s grant and about 200 miles from Brownsville, was given to Chief Cornplanter by the state in the 1790s. The BIA considers New York to be the tribe’s home state.
Fee land can be taken into trust for gaming purposes under certain exceptions under IGRA.
“The farther from their home base, the more scrutiny it will get,” said Harold Spears, a tribal relations specialist at the BIA’s Eastern Regional office. “To this date, no tribe has been granted acceptance of land outside their home state under fee to trust for gaming purposes.”
Liggett announced in October plans to sell his properties to Ohwista Ko:Wah, a Native American-owned Pennsylvania corporation.
According to Ohwista Ko:Wah’s Monture, the company’s name roughly translates to “Opportunity” in the Mohawk language. According to a Mohawk translator at the Tsi Ronterihwanonhnha Ne Kanienkeha Mohawk language school in Quebec, the literal translation of the phrase is “Money Big.”
Ohwista Ko:Wah, Liggett said, will serve as a financing vehicle and will work with tribal partners. Liggett said he will remain a minor partner in Ohwista Ko:Wah, to protect his interests.
“Mr. Liggett is a very minor partner. Basically, it’s me and another partner that I have,” Monture said.
He said the corporation was formed to help secure financing.
“Financiers and developers are sometimes hesitant to deal with sovereign nations,” Monture said. “It lets us focus on business. It’s a corporation that will carry forward with the project. Six Nations didn’t play that big a role, and I assume that’s why they chose to step out.”
Although he has declined to
identify them, Liggett has stated that the interested tribes were “indigenous to Pennsylvania with jurisdiction over lands within the commonwealth of Pennsylvania prior to the passage of IGRA 17 Oct. 1988.”
According to Gary Pechota of the Indian Gaming Regulatory Commission, land acquired for Indian gaming must be owned by a tribe, not by a corporation, and the land should be taken into trust by the federal government. The law generally applies to reservation land held in trust before Oct. 17, 1988, but there are exceptions to that rule.
According to Pechota, the exceptions include land taken into trust after Oct. 17, 1988, as part of a land claim, land that was part of the tribe’s holdings from an earlier time and land outside of Oklahoma that is within the tribe’s last recognized location, with the tribe still residing in the state. An exception also can be made if the secretary of the Interior, in consultation with the tribe, appropriate state and local officials, “determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the governor of the state in which the gaming activity is to be conducted concurs with the Secretary’s determination,” according to section 2719 of the IGRA.
“The idea of developing a casino on our ancestral lands in Pennsylvania is appealing to us, and we have undertaken some preliminary steps to explore this possibility. However, unless or until we engage in official compact negotiations with Governor Rendell, we will not be discussing this publicly,” said Rickey Armstrong Sr., president of the Seneca Nation of Indians.
“Most of the casinos don’t get built because of land issues,” Pechota said.
“We love these challenges,” Monture said. “We’re confident with what we’ve got lined up so far. We are very confident that things are going to fall into place.”
Monture said he expects the transfer of 114 properties from Liggett to Ohwista Ko:Wah to be completed by early 2004. He said it has not yet been determined how much of the property will be considered for trust land held by the sovereign Indian partner and how much will remain commercial development property.
“I don’t believe it will be very much. It could be just the casino site proper, or it could be a mix. That’s to be determined yet. I think it will be a boon to the community,” Monture said.
George Skibine, the deputy assistant secretary for policy and economic development and the director of the office of Indian gaming with the BIA, said it normally takes about a year for the BIA to decide if fee land will be taken into trust. Skibine said the process could be fast-tracked if the land is acquired under the Seneca Settlement Act. Under that act, the BIA has 30 days from the time of the application to decide if the land should be taken into restricted fee status. Skibine said the regional office also could decide to hold a regional hearing on the matter.
“There has to be consultation with the appropriate state and local governments,” he said.
Whichever process is used, Skibine said, a study must be done to determine the impact of taking the land off the tax rolls. Having land taken into trust or declared restricted fee land does not automatically open the door for Class III, casino-style gaming on that land, he said.
While a compact with the state is required before Class III gaming can take place on Indian land, Skibine said, under case law, states no longer are forced to negotiate a compact. He said the governor of a state can negotiate a compact before the acceptance of land into trust, although gaming cannot take place until the trust process is completed.
Skibine said the same rules do not apply to Class II gaming, such as the video bingo Liggett has said would be opened in Brownsville before the passage of legislation permitting slot machines in Pennsylvania.
“They don’t need a compact, but they must have trust land. It can’t be fee land. It can be restricted land, which the Seneca are doing in Niagara Falls,” Skibine said.
He said only federally recognized tribal governments, not individual tribal members, may operate gaming facilities.
“They can form a corporation to run the gaming operation, but they need to apply as individual tribes,” Skibine said.
He said that if an exception is granted for off-reservation gaming, an impact statement is prepared.
“We look at the economic analysis that is submitted on roads, employment, the environment, housing and other areas,” Skibine said. “We also look at the submissions of local governments. …We look at any government that has any jurisdiction over the land or adjacent communities. We want to make sure that if there are any significant impact, that the impact is mitigated.”
Skibine said the potential impact of taking land into trust must be anticipated in the analysis.
“Once it’s taken into trust, it’s done,” he said.