AMERICAN ARBITRATION ASSOCIATION

____________________________________

IN THE MATTER OF

STATE OF NEW YORK,

CLAIMANT

V.

SENECA NATION OF INDIANS,

RESPONDENT CASE NO. 01-17-0005-3636

RESPONDENTS ANSWER

Michele Mitchell Riyaz A. Kanji

Deputy General Counsel David A. Giampetroni
SENECA NATION OF INDIANS KANJI & KATZEN, PLLC
90 Ohi:yo Way 303 Detroit Street
Allegany Territory Suite 400
Seneca Nation Ann Arbor, Michigan 48104
Salamanca, New York 14779 (734) 769-5400
(716) 945-1790

John G. Horn Carol E. Heckman

HARTER SECREST & EMERY LLP LIPPES MATHIAS WEXLER FRIEDMAN LLP
50 Fountain Plaza, Suite 1000 50 Fountain Plaza, Suite 1700
Buffalo, New York 14202-2293 Buffalo, New York 14202-2216
(716) 853-1616 (716) 853-5100

Counsel for Respondent

 Introduction

1. Respondent Seneca Nation (Nation) possesses the right to operate and regulate gaming
activities on its Territories as an incident of its sovereign authority over those lands. In
1988, Congress enacted the Indian Gaming Regulatory Act, 25 U.S.C. 2701, et seq.
(IGRA), to provide a framework for the conduct of such gaming. Pursuant to IGRA,
the Nation and the State entered into a Gaming Compact (the Compact), which serves
as a comprehensive agreement regarding the Nations operation of class III (casino-style)
gaming at its three facilities located on the Nations Niagara Falls, Allegany and Buffalo
Creek Territories.

2. The issue before this Tribunal is a straightforward and simple dispute over the meaning
of a single provision in that Compact. Under applicable law, the terms of the Compact
are interpreted according to ordinary rules of contract interpretation. The State asserts
that New York contract law supplies those rules of interpretation in this case, see States
Demand for Arbitration (States Demand) 34 (the substantive laws of New York
should apply), and the Nation agrees.

3. The Compact must also be interpreted consistent with the purposes of IGRA. Rincon
Band of Luiseno Mission Indians of Rincon Reservation v. Schwarzenegger, 602 F.3d
1019, 1029 (9th Cir. 2010). Congresss first stated purpose in enacting IGRA was to
provide a statutory basis for the operation of gaming by Indian tribes as a means of
promoting tribal economic development, self-sufficiency, and strong tribal
governments[.] 25 U.S.C. 2702(1). IGRA was not enacted to further the economic
interests of states through Indian gaming. See Rincon, 602 F.3d at 1035 (rejecting as
incorrect argument that pursuit of state general economic interests is consistent with
IGRAs purposes and stating that IGRAs stated purposes include . . . ensuring that
gaming is protected as a means of generating tribal revenue (emphasis in original)).
Accordingly, states are flatly prohibited from seeking to impose any tax on an Indian
nations gaming activity. 25 U.S.C. 2710(d)(4).

The Compact

4. The Compact provides for a term of 21 years, consisting of a 14-year initial period with a
7-year renewal to take effect automatically absent written, good-faith objection by either
Party. Compact 4. The Parties executed the Compact in August 2002, and it became
effective on December 9, 2002. Because neither Party objected, the Compact
automatically renewed on December 9, 2016. The Compact is presently in effect and its
full 21-year term concludes on December 9, 2023.

2
5. The provision of the Compact in dispute is Paragraph 12. Paragraph 12 sets forth the
terms of the Parties agreement whereby the Nation would have exclusivity (i.e.,
limited protection from commercial competition) with respect to the operation of slot
machines and video lottery gaming devices (VLTs) in a defined geographic area of
western New York for the 21-year duration of the Compact; and whereby, in exchange,
the Nation would pay to the State a sizeable share of the revenues from its operation of
those gaming devices, at escalating rates of payment, over three fixed periods,
commencing on the date of the opening of the Nations first gaming facility under the
Compact.1

6. Paragraph 12 provides in pertinent part:

12. EXCLUSIVITY AND STATE CONTRIBUTION

(a) Exclusivity

(1) [T]he Nation shall have total exclusivity with respect to the
installation and operation of, and no person or entity other than the
Nation shall be permitted to install or operate, Gaming Devices,
including slot machines, within the [defined] geographic area . . .
[in western New York].

* * *

(b) State Contribution

(1) In consideration of the exclusivity granted by the State pursuant to

Paragraph 12(a), the Nation agrees to contribute to the State a
portion of the proceeds from the operation and conduct of each
category of Gaming Device for which exclusivity exists, based on
the net drop of such machines (money dropped into machines, after
payout but before expense) and totaled on a cumulative quarterly
basis to be adjusted annually at the end of the relevant fiscal year,
in accordance with the sliding scale set forth below (State
Contribution):

Years 1-4

18%, with Year 1 commencing on the date on which the first

Gaming Facility established pursuant to this Compact begins

1
The Nation opened this first gaming facility on its Niagara Falls Territory on December 31,
2002, and has since opened two additional facilities on its Allegany and Buffalo Creek
Territories.

3
 operation, and with Payments during this initial period . . . to be
made on an annual basis.

Years 5-7

22%, with payments during this period to be made on a semi-

annual basis.

Years 8-14

25%, with payments during this period to be made on a quarterly

basis.

Compact 12.

7. As is clear from the plain text of this provision, the Nation has the right of exclusivity
under the Compact, and that right is without restriction as to its duration i.e., it
continues so long as the Compact is in effect. The Parties agree on this point. See States
Demand 18 (the Nation continues to enjoy exclusivity under the Compact in the
Exclusivity Area).

8. The Parties further agree that the automatic renewal of the Compact did not expand or
diminish the scope or extent of any rights or obligations of the Parties set forth in the text
of the Compact. Thus, the precise terms of the Compact prior to renewal carried over
unchanged after renewal. See States Demand 2 (Contract renewal means renewal of
all of the rights and duties theretofore granted by the contract.); 20 (Renewal of the
Compact in December 2016 meant renewal of all of the parties rights and duties.).

9. The sole item in dispute is the schedule of the Nations revenue-sharing payment
obligations. The State alleges that the Compact requires the Nation to make those
payments for the 21-year duration of the Compact. The Nation asserts that it must make
payments according to the time frame set forth by the plain text of the Compact, and no
further.

10. As reproduced above, that text requires the Nation to make payments based on revenues
earned beginning on the date of the opening of the Nations first gaming facility (which
occurred on December 31, 2002) and continuing, at escalating rates of payment, through
three finite time periods, the last of which would conclude 14 years after that date. See
Compact 12(b)(1) (requiring payments of 18% for Years 1-4, 22% for Years 5-7,
and 25% for Years 8-14).

11. The text of the Compact contains absolutely no requirement for payments beyond those
three payment periods. Nor does it set a rate at which any such additional payments

4
 would be made. In its Demand for Arbitration, the State makes no attempt to identify any
provisions to this effect in the Compact, and none exist.2

The States Claims

12. Instead of identifying in its Demand any text in the Compact that requires the Nation to
make payments beyond the three express periods, the State emphasizes that the Compact
explicitly links the Nations payment obligation and the States duties of exclusivity
and that the payments are made as consideration for the exclusivity. States Demand
22. On these points the Parties are again in agreement. But these points of concurrence
say nothing about the schedule of the Nations payment obligations. That schedule is to
be found in the text, which states that [i]n consideration of the exclusivity granted by the
State pursuant to Paragraph 12(a), the Nation agreed to make revenue-sharing payments
in accordance with the sliding scale set forth below. Compact 12(b)(1) (emphasis
added).

13. Nowhere in that sliding scale set forth in Paragraph 12(b) is there any mention of
payments beyond the three fixed periods, ending 4, 7, and 14 years after the opening of
the Nations first facility. The Parties express and detailed specification of three finite
payment periods constitutes definitive evidence of their intent that the Nation would have
no payment obligation beyond those periods. The terms Years 1-4, Years 5-7, and
Years 8-14 are not, as a matter of plain meaning, remotely susceptible to being
interpreted as encompassing Year 15 or any other time periods thereafter.

2
While the State has, as discussed below, aggressively tried this case in the press and been
voluble in its criticism of the Nation, it has been tellingly silent about where support for its own
position is to be found in the Compact. As reported by the Buffalo News in March of this year:
The Cuomo administration insisted . . . there is no gray area, and that [the Compact] require[s]
the Senecas to make payments during a 21-year period that began in 2002. But the
administration declined to respond to requests to cite the specific clauses it based its claim
upon[.] Tom Precious, Did the Seneca Nation just outmaneuver Albany, The Buffalo News,
March 24, 2017. Available online at: http://buffalonews.com/2017/03/24/seneca-nation-just-
maneuver-albany/. Last visited September 18, 2017. In August, the State again . . . declined a
Buffalo News request to point to wording in the compact or any other document to back up its
claim that the Senecas should continue making payments. Tom Precious, Is there a way to stop
war of words between Cuomo and Seneca president?, The Buffalo News, August 25, 2017.
Available online at: http://buffalonews.com/2017/08/25/outside-arbitrators-horizon-new-york-
seneca-dispute/. Last visited September 18, 2017.

5
14. The State asserts that [t]he Nation reads into the Compact an implied term that the State
Contribution drops to zero if the Compact is renewed. States Demand 21. The
Nation does no such thing. The Compact is clear and complete, and according to its
unambiguous terms the Nation has no payment obligation beyond the third (Years 8-
14) payment period.

15. Lacking a textual argument that the Nation is required to make exclusivity payments
beyond the three payment periods expressly set forth in Paragraph 12, the State makes a
variety of non-textual arguments. Each of them lacks merit.

16. The State asserts that [t]he parties assumption that higher payments would continue to
be paid during the latter years of the Compact applies following renewal when casino
revenues will presumptively continue at the high level before renewal. States Demand
23 (emphasis added). However, the litigation assertions of one contracting party as to
what both parties purportedly assumed when the agreement was consummated are not a
basis for determining contractual intent. That intent is evidenced by the text mutually
agreed to by the contracting parties.

17. The State further claims that adhering to the plain language of the Compact is
illogical and makes no commercial sense. See, e.g., States Demand 4,
21. Whatever the State means by these subjective terms, they provide no warrant for
departing from the clear contractual terms negotiated and agreed to by the State, an
assuredly sophisticated party.

18. Moreover, it cannot fairly be said that Paragraph 12 as written is remotely illogical. It is
simply a contract provision with respective party performance obligations set forth under
differing timetables, with the Nations payment obligations scheduled over three fixed
periods and the States exclusivity obligations continuing for the duration of the
Compact. Sophisticated parties routinely negotiate contract schedules that vary over time
with respect to each partys performance obligations.

19. And far from making no commercial sense for the State, the Compact as written
represents a significant windfall for it. The Nations payments to date have totaled over
$1.4 billion to the State[.] States Demand 16 (emphasis added).3 Averaged over the
21-year duration of the Compact, the Nations payments amount to more than 66 million
dollars per year, making the Nations revenue-sharing payments among the very highest
in the country in both absolute and percentage terms. Moreover, because the Nations

3
The State oddly asserts that this money was used to finance public services in local
communities where the Nations casinos are located[.] Id. In fact, under State law, local
communities received only a fraction of the money. The State retained the vast majority of it.

6
 payments have been made on revenues calculated before expense, Compact 12(b)(1),
the State has in many years received nearly 50% of the Nations net revenue. The State
has received these returns while the Nation has borne all of the risks, responsibilities and
burdens of operating its gaming facilities and generating the revenues in which the State
has so profitably shared.

20. The commercial sense of this arrangement from the States perspective is further
underscored by the fact that the Nations exclusivity rights are highly limited in nature.
The State is obligated to provide total exclusivity with respect to both slot machines
and VLTs. See id. at 12(a)(1). But under the Compact, if the State violates the
Nations exclusivity rights with respect to one of those types of games, the Nation must
continue to share revenues generated by the category of Gaming Device for which
exclusivity [still] exists. Id. at 12(b)(1). Thus, the State has been able to permit (and
profit handsomely from) three state-licensed VLT facilities operating in the heart of the
Nations geographic exclusivity zone while continuing to demand revenue-sharing
payments from the Nation on revenues derived from its slot machines. As modern VLTs
are virtually indistinguishable from slot machines from a patrons perspective, this has
been tremendously beneficial for the State.

21. Moreover, the Compact limits the Nations exclusivity rights to a specific geographic
zone. Thus, the State has collected well over one billion dollars from the Nation while
remaining able to authorize full scale casino gaming, including slot machines, elsewhere
throughout the State. The State has now done so, including one facility (del Lago)
situated at the very edge of the Nations exclusivity zone. Independent analysts have
concluded that Lagos location and product offerings uniquely position it to cannibalize
gaming customers from its competitors.4 The State itself, in approving the location for
the del Lago facility, likewise acknowledged its potential cannibalization of revenue
from existing . . . Native American facilities but disregarded that concern because after
considering potential cannibalization of existing facilities, the [New York Gaming
Facility Location] Board observes that Lagos proposal is projected to generate
significantly greater tax revenues to the State than the other proposed locations.5

4
Joseph Spector, Moodys: Lago casino will cannibalize market, PressConnects, USA Today,
February 5, 2016 (quotation marks omitted). Available online at:
http://www.pressconnects.com/story/news/local/new-york/2016/02/05/moodys-lago-casino-
cannabilize-market/79895978/. Last visited September 18, 2017.
5
Report and Findings of the New York Gaming Facility Location Board, February 27, 2015, at
9, 32. Available online at:
https://www.gaming.ny.gov/pdf/02.27.15.GFLBFinalAppendicesWebSmall.pdf.
Last visited September 18, 2017.

7
22. Thus, under the Compact as written the State will, by its own account, have received an
average of more than $66 million per year over the full 21-year term of the Compact
while providing severely compromised exclusivity, and at the same time reaping
substantial revenues from VLTs operating in the heart of the Nations exclusivity zone
and commercial casinos at the very edge of that zone and elsewhere throughout the State.
Given these facts, the assertion that the Compact as written makes no commercial sense
for the State, States Demand 21, is meritless.

23. The State also asserts that the Nation must continue making payments absent any textual
obligation to do so because the receipt of the State Contribution constitutes the sole
benefit that it receives under the Compact, and was the condition for the States
agreement to the Compact. States Demand 24. First, an IGRA compact is not
intended to financially benefit the compacting state. See Rincon, 602 F.3d at 1035
(rejecting suggestion that pursuit of state general economic interests is consistent with
IGRAs purposes). And in any event, this argument has no force because the State has
received the entirety of the benefit that it bargained for, which has been extremely
lucrative for the State. That the State received that benefit on the schedule expressly
specified by the Parties in the text of the Compact does not change that fact.

24. Finally, the State suggests that the benefits it assertedly provides to the Nation render the
Nations position unreasonable:

Under the Nations reading of the Compact, the Compact continues for
seven years during which the State provides a broad range of benefits to
the Nation (e.g., the privilege to establish Gaming Facilities in Western
New York (Paragraph 11(a)), the States assistance in acquiring the sites
for the Gaming Facilities (Paragraph 11(b)(2)), the privilege to operate
gaming devices on the Gaming Facilities (Paragraph 12(a)(1))[.]

States Demand 24. This argument well distills just how little has been required of the
State in return for the vast sums of money it has received. First, the Nations right to
establish Gaming Facilities and operate gaming devices within Seneca Nation
Territories is not a privilege which the State provides to the Nation. Id. It is an
incident of the Nations sovereignty exercised through the framework of a federal statute.
And any benefit from the States assistance in acquiring the sites for the Nations
facilities is not one that continues for seven years after renewal. The Nations facilities
have been established at their respective sites for more than a decade.

8
 Pre-Arbitration Proceedings

25. As further evidence of the tenuous nature of its position, the State resorts to demonstrably
inaccurate assertions about the events leading up to this Arbitration that are apparently
designed to cast the Nation in a negative light before this Tribunal. Hence, the State
asserts that On July 14, 2017, the State gave written notice to the Nation of the existence
of a claim and requested negotiations under Paragraph 14(b) of the Compact. The Nation
has refused to meet on reasonable terms. States Demand 36 (emphasis added). To
the contrary, throughout the course of this dispute the Nation has repeatedly expressed
Nation President Todd Gates willingness to meet with the Governor in good faith to
allow the Governor a fair opportunity to explain where support for the States position is
to be found:

March 31, 2017 Letter of President Gates to Governor Cuomo (this letter and all
others cited are included in Attachment 1):

It was a pleasure to speak with you by telephone last week. . . . During our
conversation, you expressed an interest and a willingness to meet and
discuss matters related to the Compact. I discussed this matter with the
members of our Nation Council, as I said I would, and there is a
willingness on the part of the Seneca Nation to meet with you. . . . [A]s
President, I look forward to the opportunity for additional direct dialogue
with you.

April 18, 2017 Letter of Victor Redeye (Presidents Chief of Staff) to Alphonso
David (Counsel to the Governor):
President Gates confirms the Nations willingness to meet with the
Governor. . . . I will be happy to work with you to schedule an appropriate
time and date for the two leaders to meet. President Gates prefers to meet
in Western New York, as he discussed with the Governor.

June 30, 2017 Letter of President Gates to Governor Cuomo:

. . . I believe it is important for us to have an open line of communication.

Several months ago, I accepted your request to meet to discuss issues
related to the Compact. Unfortunately, we have not yet received any
potential meeting dates from your staff. I hope we can soon set a date and
time to meet, if you still desire.

June 30, 2017 Letter of Christina Jimerson (Assistant to the President) to Jamie Rubin
(Office of Secretary to the Governor):

At the request of the Governor, President Gates agreed to meet with him in
Western New York on Seneca territory at a mutually agreeable time to

9
 discuss the Governors concerns regarding the [Compact] matter. The
Nation has been waiting for the Governors office to provide us some
dates during which he is able to travel to Western New York for such a
meeting. Thus far, no dates have been proposed by the Governor.

. . . As you will recall, my last correspondence to you via email at the end
of May was that the President remains open and available for a meeting
and I would wait to hear back from you, pending your discussion with the
Governor. As of today, I continue to wait for a response from you.

. . . The Nation has been completely forthright and willing to speak to

Governor Cuomo to discuss any concerns he may have regarding the
Compact. President Gates remains willing to meet with Governor Cuomo,
and we continue to wait for the provision of some dates during which the
Governor can travel to Seneca territory for such a meeting.

I look forward to receiving some clarity as to how the Governor would

like to proceed in this matter.

26. Despite the Nations evident willingness to meet in good faith, the Governor tellingly
chose the alternate route of publicly impugning the Nations integrity, at one point
accusing the Nation of having a history of signing agreements and then later having non-
compliance issues and I hope they dont repeat that.6 In light of the Nations history
with the State of New York, the irony of that slur is profound and cuts to the core of the
Nations identity as a People, as the Governor undoubtedly understood that it would. The
Nation nevertheless continued in its good faith willingness to meet with the State:

July 24, 2017 Letter of Michele Mitchell (Nation Counsel) to Alphonso David:

As Nation representatives have continuously said, the Seneca Nation

leadership remains open and willing to meet with Governor Cuomo
regarding any issues related to the Compact. . . . In contrast with
communications to the President of the Nation that direct dialogue would
take place, the Governor has instead, on several occasions now, taken
opportunities to attack the integrity of the Seneca Nation and its people in
the Western New York press. Despite this, the Seneca Nation President
remains willing to sit down with the Governor in an attempt to resolve our
differences prior to resorting to costly, lengthy and adversarial arbitration
proceedings.

6
Quoted in Niagara Gazette, July 6, 2017. Available online at: http://www.niagara-
gazette.com/news/local_news/cuomo-tribal-compact-binding/article_9eba6a35-c768-5a6e-8e16-
c134821c5498.html. Last visited September 18, 2017.

10
27. Given this clear chain of communications, the States assertion that [t]he Nation has
refused to meet [with the State] on reasonable terms is baffling, to put it as charitably as
possible. Indeed, when the Governor finally agreed, in late July, on a time and place to
meet with President Gates, the Governor cancelled that scheduled meeting.7 In August,
the Governor again agreed to meet with President Gates, but the Governor again canceled
that meeting, and did so just a day before they were to meet.8

28. Rather than meet with President Gates to explain the basis for the States position, the
Governor has instead chosen to issue naked threats, via the press, suggesting that he will
destroy the viability of the Nations gaming operations should the Nation not bend to the
States will in this dispute. As the Buffalo News reported:

A Cuomo official . . . told the Buffalo News the state will explore locating
a casino in Niagara Falls if the Senecas dont resume revenue sharing
payments[.]

I have no doubt that we would get companies from around the world to
bid on casino rights in the Buffalo/Niagara area. I have no doubt, Cuomo
said.9

29. The Compact, of course, provides for a more respectful and reasoned approach to the
resolution of the Parties differences, and the Nation looks to this Tribunal to implement
that approach faithfully.

30. In sum, the State has failed to point to any language in the Compact that supports its
position. The States silence is no surprise. The Compact is unambiguous. It provides
the Nation exclusivity for the full term of the Compact and in exchange required the
Nation to make payments at escalating rates over three fixed periods concluding with the
Years 8-14 period. The State, which has enjoyed a windfall under the Compact that it
now seeks to compound, has identified no language in the Compact requiring payments
beyond that final period. Nor can it. The Nation asks that this Tribunal vindicate its

7
Cuomo Cancels Casino Meeting With Senecas, Spectrum News, August 1, 2017. Available
online at: http://www.nystateofpolitics.com/2017/08/cuomo-cancels-casino-meeting-with-
senecas/. Last visited September 18, 2017.
8
Tom Precious, Is there a way to stop war of words between Cuomo and Seneca president?, The
Buffalo News, August 25, 2017. Available online at:
http://buffalonews.com/2017/08/25/outside-arbitrators-horizon-new-york-seneca-dispute/. Last
visited September 18, 2017.
9
Tom Precious, Cuomo threatens new casino in Niagara Falls; Senecas call it foolish, The
Buffalo News, August 22, 2017. Available online at:
http://buffalonews.com/2017/08/22/cuomo-seneca-nation-breach-casino-compact/. Last visited
September 18, 2017.

11
 clear rights under the Compact so that it may continue to exercise those rights without
fear of further threats or unwarranted demands from the State.

Selection of Arbitration Panel and Location of Proceedings

31. The Nation urges the Parties to make and announce their selections for arbitrators within
the next 30 days so as to ensure a prompt resolution of this matter.

32. The State has requested, without explanation, that the City of New York be selected as
the seat of arbitration. The Nation objects and notes that the locus of the dispute is
western New York, and that many considerations would favor western New York as the
site for any hearing. The Nation is further of the view that the convenience of the Panel
should be an important factor in determining the appropriate location for the proceedings,
and thus believes that location determinations should be made after the Panel is
constituted.

Dated: September 21, 2017 Respectfully submitted,

/s/ Riyaz A. Kanji

Michele Mitchell Riyaz A. Kanji
Deputy General Counsel David A. Giampetroni
SENECA NATION OF INDIANS KANJI & KATZEN, PLLC
90 Ohi:yo Way 303 Detroit Street
Allegany Territory Suite 400
Seneca Nation Ann Arbor, Michigan 48104
Salamanca, New York 14779 (734) 769-5400
(716) 945-1790

John G. Horn Carol E. Heckman

HARTER SECREST & EMERY LLP LIPPES MATHIAS WEXLER FRIEDMAN LLP
50 Fountain Plaza, Suite 1000 50 Fountain Plaza, Suite 1700
Buffalo, New York 14202-2293 Buffalo, New York 14202-2216
(716) 853-1616 (716) 853-5100

Counsel for Respondents

12
 ATTACHMENT 1

to

ANSWER

of

Respondent Seneca Nation

Case No. 01-17-0005-3636

 Seneca Nation of Indians
President - Todd Gates Treasurer - Maurice A. John, Sr.
Clerk - Lenith K. Waterman
12837 ROUTE 438 90 OHI:YO' WAY
CATTARAUGUS TERRITORY ALLEGANY TERRITORY
SENECA NATION SENECA NATION
IRVING, NY 14081 SALAMANCA, NY 14779

Tel. (716) 532-4900 Tel. (716) 945-1790

FAX (716) 532-6272 FAX (716) 945-0150

PRESIDENT'S OFFICE

March 31, 2017

Governor Andrew Cuomo

Office of the Governor
State Capitol
Albany, NY 12224
via email to Stephanie.Benton@exec.ny.gov
and U.S. mail

Dear Governor Cuomo,

It was a pleasure to speak with you by telephone last week..

As we discussed, in keeping with the terms of the Nation-State Gaming Compact, the Nation
sent its final revenue-sharing payment to the State (on revenues earned during the final
quarter of 2016). This payment completes the 14-year payment schedule detailed in
Paragraph 12 of the Compact.
During our conversation, you expressed an interest and a willingness to meet and discuss
matters related to the Compact. I discussed this matter with the members of our Nation
Council, as I said I would, and there is a willingness on the part of the Seneca Nation to meet
with you. In the meantime, we have also commenced important conversations with the local
jurisdictions that are our friends and neighbors in order to ensure that we continue our
productive relationship in fostering economic development and job creation in Western New
York. The Seneca Nation looks forward to continuing those conversations. Likewise, as
President, I look forward to the opportunity for additional direct dialogue with you.
Nya:weh,

7. ,,{pc_ -
Todd Gates, President
SENECA NATION OF INDIANS
 Seneca Nation of Indians
President - Todd Gates Treasurer - Maurice A. John, Sr.
Clerk - Lenith K. Waterman
12837 ROUTE 438 90 OHI:YO' WAY
CATTARAUGUS TERRITORY ALLEGANY TERRITORY
SENECA NATION SENECA NATION
IRVING, NY 14081 SALAMANCA, NY 14779

Tel. (716) 532-4900 Tel. (716) 945-1790

FAX (716) 532-6272 FAX (716) 945-0150

PRESIDENT'S OFFICE

April 18, 2017

Alfonso David
Office of Counsel to the Governor
State Capitol
Albany, NY 12224
via email to: Alphonso.David@exec.ny.gov
and U.S. mail

Dear Mr. David,

This is in response to your letter dated April 4, 2017, which was received on April 7, 2017.
Perhaps you are unaware but President Gates and Governor Cuomo had a phone conversation in
late March during which President Gates indicated that the Nation would be making its last
contribution to the State on March 31 and Governor Cuomo indicated an interest in meeting to
discuss matters related to the compact. After consulting with the Nation Council, President
Gates sent Governor Cuomo the attached letter on March 31 indicating a willingness to meet.

Your letter to President Gates does not appear responsive to his letter to Governor Cuomo and
we assume perhaps you had not yet seen it. As indicated in the attached letter, President Gates
confirms the Nation's wiliingness to meet with the Governor. The Nation's leaders prefer that
Governor Cuomo and President Gates communicate directly on any matters related to the
gaming compact. If the Governor, however, has asked you as his counsel to coordinate the
meeting between him and President Gates, please contact me and I will be happy to work with
you to schedule an appropriate time and date for the two leaders to meet. President Gates prefers
to meet in Western New York, as he discussed with the Governor.
Ilook forward to hearing from you and you may reach me at 716-532-4900, ext. 5001 or via
email at Victor.Redeye@sni.org.

Regards,
f/,i?;?.4
Victor A. Redeye, Chief of Staff
SENECA NATION OF INDIANS

cc: The Honorable Todd Gates

The Honorable Andrew Cuomo
 Seneca Nation of Indians
President - Todd Gates Treasurer - Maurice A. John, Sr.
Clerk - Lenith K. Waterman
12837 ROUTE 438 90 OHI:YO' WAY
CATTARAUGUS TERRITORY ALLEGANY TERRITORY
SENECA NATION SENECA NATION
IRVING, NY 14081 SALAMANCA, NY 14779

Tel. (716) 532-4900 Tel. (716) 945-1790

FAX (716) 532-6272 FAX (716) 945-0150

PRESIDENT'S OFFICE
June 30, 2017

Governor Andrew Cuomo

Office of the Governor
State Capitol
Albany, NY 12224
Via email to: Stephanie.Benton@exec.ny.gov
And US mail

Dear Governor Cuomo,

The Seneca Nation is proud to be one of the largest employers in Western New York providing
jobs for more than 4,000 local residents and generating millions of dollars in economic activity
annually throughout the region. In addition, we have invested more than a billion dollars in
capital and infrastructure improvements throughout the region over the past 14 years, and in that
time have also sent nearly $1.5 billion of our gaming revenues to Albany. Although under the
terms of our gaming Compact the Nation's obligation to provide a portion of its gaming revenue
to the State concluded in March of this year (for revenues earned through December 31, 2016),
we will continue to work with the local governments to identify additional opportunities for
economic development and job creation in Western New York.

However, as you may or may not be aware, recent local press reports have suggested that
because the Nation's revenue share obligation with the State has concluded, the State may
discontinue its payments to the local governments, which payments are provided for in Section
1
l(d) of the Compact. We do not understand the basis of this suggestion. Under the plain terms
of Section 1 l(d), which was negotiated by your predecessor, Governor George Pataki, the State's
obligation to compensate the local governments is not in any way conditioned on the
continuation of revenue share payments by the Nation. It is instead an independent, ongoing
obligation of the State, as follows:
 (d) The Partie? agree that host municipalities should be compemnted ro be abh: to adju'>r to
the economic de\dopmeut expected to n:snlt from the Gaming Facilittes authorized
1mder this Compact. Consistent with thi<.. goal. the State shall reach financial agreement,;
with the host municipal governments. and any payment e, made pursuam to such
agreements <:>h?ll be made by the State.

In light of this clear language, we trust you can understand why the Nation takes great exception
to suggestions in the press that the completion of our revenue sharing payments to the State as
clearly provided for in the Compact is somehow imperiling local communities. To the -
-
contrary, while our obligation to share gaming revenues with the State has ended we remain, as
we have said all along, committed to being good neighbors in the region and are working with
local officials and charitable leaders to see how we can be most helpful to local communities.
For example, we recently signed an agreement with the hamlet of Lawtons in the Town of North
Collins to help its citizens get access to clean water and we will soon announce other important
partnerships. We know that you also remain committed to the people of Western New York and
share our desire to ensure the long-term viability of our properties, the thousands of local jobs
and other economic activity that they support, and, of vital importance, the well-being of the
local communities in which they are located.

Finally, I believe it is important for us to have an open line of communication. Several months
ago, I accepted your request to meet to discuss issues related to the Compact. Unfortunately, we
have not yet received any potential meeting dates from your staff. I hope we can soon set a date
and time to meet, if you still desire.

Nya:weh

7k
Todd Gates, President
SENECA NATION OF INDIANS
 Seneca Nation of Indians
President - Todd Gates Treasurer - Maurice A. John, Sr.
Clerk - Lenith K. Waterman
12837 ROUTE 438 90 OHI:YO' WAY
CATTARAUGUS TERRITORY ALLEGANY TERRITORY
SENECA NATION SENECA NATION
IRVING, NY 14081 SALAMANCA, NY 14779

Tel. (716) 532-4900 Tel. (716) 945-1790

FAX (716) 532-6272 FAX (716) 945-0150

June 30, 2017

Mr. Jamie Rubin

Office of the Secretary to the Governor
State Capitol
Albany, NY 12224
Via email: Jamie.Rubin@exec.ny.gov
and US mail

Dear Jamie,

I
am writing in response to Alphonso David's letter to Victor Redeye dated June 27, 2017, which
I have enclosed for your reference. In the last communication between you and me towards the
end of May, we confirmed that we are each the point of contact for our respective
governments. So, I was perplexed to learn of Mr. David's outreach to Mr. Redeye. If you are
not the point of contact for Governor Andrew Cuomo, please clarify who is. As you and I
discussed, I am the designated person to communicate with regarding the coordination of a
meeting between Governor Cuomo and the Seneca Nation leadership pertaining to the gaming
Compact. For the sake of clarity and efficiency, the Nation strongly prefers one point of contact
for each government in matters of this importance.

At the request of the Governor, President Gates agreed to meet with him in Western New York
on Seneca territory at a mutually agreeable time to discuss the Governor's concerns regarding
that matter. The Nation has been waiting for the Governor's office to provide us some dates
during which he is able to travel to Western New York for such a meeting. Thus far, no dates
have been proposed by the Governor.

Instead, as Mr. David's letter indicates, since March you and two other staff members for
Governor Cuomo have separately contacted two Seneca Nation staff members and a Nation
attorney. Your office seems to be going in circles and I recommend you provide Mr. David an
update. While Mr. David did request a meeting some time ago as he indicated in his letter, you
and I have been in contact several times since that request. Mr. David's suggestion that a
meeting request from your office has somehow been ignored or delayed couldn't be further from
the truth. As you will recall, my last correspondence to you via email at the end of May was that
the President remains open and available for a meeting and I would wait to hear back from you,
pending your discussion with the Governor. As of today, I continue to wait for a response from
you. Strangely, the other inquiries from other staff members were focused on trying to figure out
the motives of the Nation and any topics the Nation wished to discuss with Governor
Cuomo. We do not fully understand the reasoning behind these overtures. When I raised this
issue of various outreach and conflicting information with you before, I believe you
characterized it as many people in your office trying to be helpful. I think you will agree it
certainly does not help to move things forward, as you and I were trying to do.

First, Governor Cuomo himself had already requested that he and President Gates meet and
President Gates agreed. Second, the Nation does not have any agenda items it specifically
wishes to discuss at such a meeting. Again, it was the Governor who requested a meeting with
President Gates. As I told you on the phone, it is our experience when one requests a meeting,
they also propose an agenda. President Gates remains willing to meet with Governor Cuomo to
have a productive discussion about any items the Governor would like to discuss related to the
gaming Compact. Thus, we defer to the Governor as to what the agenda items should be for a
meeting and we continue to wait for dates from the Governor's office as to when a meeting can
take place.

When it comes to matters related specifically to the revenue share provisions of the Compact, the
Seneca Nation strongly believes that any discussion should involve the leaders of our respective
governments not be left solely to members of their staffs.
-
The Nation has been completely forthright and willing to speak to Governor Cuomo to discuss
any concerns he may have regarding the Compact. President Gates remains willing to meet with
Governor Cuomo, and we continue to wait for the provision of some dates during which the
Governor can travel to Seneca territory for such a meeting.

I look forward to receiving some clarity as to how the Governor would like to proceed in this
matter.

?
Christina
Jim?]l.V\'\(14'\'0

Assistant to the President

SENECA NATION OF INDIANS

Cc: Mr. Alphonso B. David

Mr. Victor A. Redeye

Enclosure: A. David Letter, June 27, 2017

 THE SENECA NATION OF INDIANS
12837 Route 438 PRESIDENT 90 Ohi:yo' Way
Todd Gates
Cattaraugus Territory Allegany Territory
Seneca Nation TREASURER Seneca Nation
Irving, NY 14081 Maurice A. John, Sr. Salamanca, NY 14779
Phone (716) 532-4900 CLERK Phone (716) 945-1790
Fax (716) 532-6272 Lenith K. Waterman Fax (716) 945-0150

July 24, 2017

Alphonso B. David
State of New York
Executive Chamber
Albany, NY 12224

Dear Mr. David,

The Seneca Nation has received your correspondence of July 14, 2017 invoking paragraph 14(b) of the
Nation-State Gaming Compact. As Nation representatives have continuously said, the Seneca Nation
leadership remains open and willing to meet with Governor Cuomo regarding any issues related to the
Compact. President Gates initially contacted Governor Cuomo in March to inform him that the plain
language of the Compact indicated that the Nation's revenue share obligations ended that month. Since
that time, President Gates has been willing to meet with Governor Cuomo to learn of the State's views
on the matter. In contrast with communications to the President of the Nation that direct dialogue
would take place, the Governor has instead, on several occasions now, taken opportunities to attack the
integrity of the Seneca Nation and its people in the Western New York press. Despite this, the Seneca
Nation President remains willing to sit down with the Governor in an attempt to resolve our differences
prior to resorting to costly, lengthy and adversarial arbitration proceedings.
As the State, however, has officially invoked the Party Dispute Resolution provisions of the Compact, the
Seneca Nation requests that all further official correspondence from your office regarding the Dispute
Resolution process also be directed to my attention. can be reached by telephone at 716-945-1790,
I

email at Michele.mitchell@sni.org, or by mail at Legal Department, 90 Ohi:yo' Way, Allegany Territory,

Seneca Nation, Salamanca, NY 14779.

Thank you for your attention to this matter.

Sincerely,

Michele Mitchell,
Associate Counsel
Seneca Nation