While the Seneca Tribal Council recently upheld casino kingpin Mickey Brown's claim of sovereign immunity from sanctions by tribal courts, many of its current and former members signed off on the right of sovereign immunity for the Nation itself.
Documents recently filed with the federal Securities and Exchange Commission show that the Senecas may now be sued in state or federal court in connection with a $300 million loan the Seneca Gaming Corp. is attempting to obtain.
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The filing was at the center of a recent decision by the Tribal Council to overturn a decision by the Seneca Nation Court of Appeals that found Brown to be in contempt for paying the State of New York its $38 million share of casino revenues in violation of a court order.
Brown's attorneys, Aiken, Gump, Strauss, Haur and Feld, argued that the Court of Appeals ruling would jeopardize the SEC filing. Unfortunately, no public record of their argument exists, as the Tribal Council barred rank-and-file Senecas from attending the closed-door Aug. 17 proceeding.
An Aiken and Gump letter to the council made no bones about the impact of the lower court decision.
"In effect, the Nation very likely will not be able to access the capital markets for municipal financing and the Seneca Gaming Corp. may not be able to go back to the markets for additional financing for the expansion projects," the letter stated.
The attorneys made no mention of the fact that the SEC filing contained specific waivers of the tribe's own claims to sovereign immunity. According to the filing, the waiver is irrevocable.
Specifically, the Nation gives up its right to sue in the Seneca Peacemaker Court and Appellate Court, and submits to the jurisdiction ofÊ the United States District Courts for New York, the New York State Supreme Court and any federal or state court having jurisdiction over them.
The documents -- signed by tribal officials Cyrus Schindler, Natalie Hemlock, Bruce Snow, Bergal Mitchell, Rickey Armstrong, Adrian Stevens and Annette Mohawk Smith -- further give Brown power of attorney for board members and casino executives. In effect, this gives Brown the ability to make unilateral decisions concerning the spending of hundreds of millions of dollars borrowed in the name of the Senecas, while at the same time absolving him of any responsibility under the tribe's 1848 Constitution.
For all that responsibility, Brown will be paid handsomely.
While Senecas on the Allegany and Cattaraugus reservations are living in poverty, Brown's base pay -- $650,000 over the last year -- will increase to $1.2 million starting in 2006. He is also entitled to bonuses, which, over the last year, doubled his base salary.
Senecas opposed to gambling and outraged over the waiver of sovereign immunity are working overtime, deluging the SEC with paperwork they say shows the entire gaming corporation is an illegal entity. In particular, they point to the Aug. 10 ruling by the Seneca Nation Court of Appeals that called the gaming corporation a "government within the government" and chastised Aiken and Gump as engaging in a "near conspiracy" and "conflict of interest."
For the time being, however, one thing is certain. It is Mickey Brown who is calling the shots for the Seneca Nation. The Tribal Council and courts -- along with the sovereign immunity Senecas have jealously guarded since the 1795 Treaty of Canandaigua -- have been reduced to irrelevance.
|Niagara Falls Reporter||www.niagarafallsreporter.com||Sept. 14 2004|