Gambling with Andrew Cuomo

Few New Yorkers will shed tears for our indigenous brethren who will once again find themselves on the losing end of a political battle. After all, breaking treaties with Indians is a time-honored tradition in the United States. We’re awesome at that.

New York State Gov. Cuomo of the Andrew persuasion continues to ride high in the opinion polls, and for good reason. His approach thus far has been pitch perfect, even tackling controversial issues such as gay marriage with remarkable finesse. Cautiously and quietly the governor has moved a fairly progressive agenda forward in the first year of his administration. Now, on the eve of his sophomore year in office, he is martialing his political capital to begin making fiscal moves that will test his popularity and his political resolve.

Cuomo has targeted two key areas that should sustain his reputation as a strong fiscal manager and reform-minded executive: his regional economic development initiatives and his income tax modifications to provide a marginal break for the middle class while imposing a slight increase to the state’s highest earners. How he proceeds on the issue of hydraulic fracturing (fracking) upstate in the Marcellus Shale region could have a lasting effect on his record.
If fracking is allowed to proceed in the state, Cuomo risks alienating liberal democrats and environmentalists but the money generated from drilling operations may prove too tempting for the new governor to pass up. But as dicey as this issue is for Cuomo, there is another revenue-generating idea on his agenda with potential negative consequences upstate that will barely impact his approval ratings.

Up for consideration in his plan is the creation of private Class III gaming facilities throughout the state. Establishing more full-fledged casinos in New York may invite criticism from New Jersey and Connecticut as well as anti-gambling advocates, but it will undoubtedly pass the legislature’s scrutiny within the 2013 time frame delineated by the Cuomo administration. It entails passing muster in two consecutive sessions followed by a public referendum; but once approved, the state would then be allowed to issue licenses to private operators. In a statement Cuomo said, “Through this plan, we can promote job creation and recapture revenue that is currently being lost to other states.”
Fair enough, but why so many hurdles just to allow private casinos? We already have Off Track Betting, the lottery and Indian casin…. Ooooohhhh! Right. Those pesky agreements with the Indian tribes. The reason this move requires so many political machinations is that Class III gaming licenses were intended to be in the exclusive purview of recognized Indian tribes in the state. Contracts, by the way, which have been extremely lucrative for the state as well. The constitutional amendment and subsequent referendum are political-speak for “how government breaks treaties with Indians.”

The reason New York tribes have enjoyed any success in the gaming industry is because they have possessed the ability to construct and operate casinos on reservation territories without competition from private, off-reservation interests. It’s this exclusivity that has enabled tribes to succeed in spite of their remote locales. Introducing casinos into more urban areas will be a boon for the state and a disaster for the tribes. Ironically, this decision could also have the unintended consequence of further decimating employment in isolated upstate regions, many of which rely on direct and ancillary income and jobs created as a result of tribal gaming facilities.

Nevertheless, few New Yorkers will shed tears for our indigenous brethren who will once again find themselves on the losing end of a political battle. After all, breaking treaties with Indians is a time-honored tradition in the United States. We’re awesome at that. This latest move will have come as no surprise to tribal leaders who no doubt anticipated the inevitable demise of their rights before the ink was dry on the agreements. What I find so poignant about this turn of events is the timing and the characters involved as the target date of 2013 will be exactly 20 years after Andrew’s father, then-Gov. Mario Cuomo, granted New York’s tribes the sole authority to operate Class III facilities.

This multi-generational twist–the old “the father giveth and the son taketh away”–is a great angle but not without precedent. In fact, our most recent national holiday provides the perfect historical illustration of intergenerational power struggles.

The pilgrims in Plymouth who survived the harsh winters of the early 1600s in their new home did so through the kindness and assistance of the Wampanoag tribe headed by the great sachem Massasoit. The friendship that blossomed between Massasoit and one of the original settlers, Edward Winslow, endured for the remainder of both men’s lives and is the stuff of legend. In fact, it’s through Winslow’s journal that we have one of only two accounts of what would come to be known as Thanksgiving. In his entry he states: “Amongst other recreations, we exercised our arms, many of the Indians coming amongst us, and among the rest their greatest king Massasoit, with some ninety men, whom for three days we entertained and feasted.”

Fifty years later, both Winslow and Massasoit were gone. The great Sachem’s son, Metacom–also referred to as King Philip by the settlers–was threatened and cajoled by the increasingly hostile colonists. In 1675 war broke out between the Wampanoag, led by Philip, and the settlers. A year later the colonists feasted and celebrated once again, this time by toasting their victory over the Indians in what is now known as King Philip’s War.
According to historian Jill Lepore, “the final day of Thanksgiving, of the war, is the day Philip’s head is marched into Plymouth. This decapitated head on a pole in the center of town is cause for a great celebration.” Philip’s severed head remained atop a stake outside of Plymouth colony for 20 years while his 9-year-old son was imprisoned and then sold into slavery. The governor of Plymouth, who is widely credited as having killed Philip’s brother and drawing Metacom himself into war, was none other than Edward Winslow’s son, Josiah.

The son of Massasoit’s most trusted friend and ally murdered both of his sons. Rather Shakespearian, wouldn’t you say? Such is life in Indian Country. So while Andrew Cuomo’s actions are certainly more tempered and less violent, he earns low marks for originality. At least Josiah Winslow had the decency to wait until his father had passed away before he unraveled the good intentions set forth by his elders.

No Country For Red Men

In 2011 we have new legislators, a new Cuomo, and the same old fight. Alas, the brief recurring respite Indian Country has between Election Day and Inauguration Day every few years is over, and the fight begins again.

Cuomo, Part Deux, presents the Executive Budget for NYS

Governor Cuomo contributed another brief chapter in dealing with what for centuries has been known as the “Indian Problem.” Frustrated by the rise in the Indian tobacco trade on tribal territories within New York and the state’s inability to collect taxes on this increasingly profitable enterprise, Cuomo took action and attempted to force tax collection on reservation tobacco sales—and ran into a brick wall of defiance.

No, you didn’t miss something in the first 100 days of Andrew Cuomo’s tenure. This was the 1990s under Gov. Cuomo of the Mario persuasion. But the former governor’s son has already taken his first step toward renewing this practice, by including $130 million presumptive tax dollars from taxes on Indian cigarettes in this year’s budget. Never mind the fact he is relying on reports from a department that acknowledges that 70 percent of what would be considered “bootleg” cigarettes—cigarettes purchased outside of, but consumed within, New York State—come from states bordering New York and Canada. The capriciousness of the $130 million estimate is even more suspect considering that “expert” testimony at various hearings over the years have placed the number anywhere between $65 million and $1.6 billion.

No matter how the state arrives at its figures, by inserting any number into the budget Andrew Cuomo has picked up where his father, and several others, left off.

In the waning days of Mario Cuomo’s administration, Supreme Court Justice John Paul Stevens delivered the court’s 1994 decision in a case called Milhem Attea & Bros., granting individual states the right to collect taxes on cigarettes sold to non-natives on reservation territory throughout the United States. With the so-called collection authority in place from the highest court in our land, the issue of enforcement was left to the individual states to pursue. This is where it got ugly.

After an unsuccessful attempt to force Indian tobacco retailers to open their books and provide sales figures and tax revenue to New York, the state established a coupon system whereby taxes would be applied at the wholesale level and collected in advance. Trying to coordinate this effort between manufacturers, wholesalers and individual tribal retailers and the violent reaction it stirred in Indian Country—the Seneca Nation in particular—led the governor to institute a policy of forbearance. Forbearance is another way of saying “even though I think I’m right, it’s the next guy’s problem.” The issue was essentially too complex and heated to pursue, so Cuomo punted and passed the buck to the following administration.


Gov. George Pataki took up the fight during his first term in office, and was met with amplified defiance from Seneca that set the new administration back on its heels. Pataki too went “four and out” and punted.

Insert “Gov. Eliot Spitzer” and “Gov. David Paterson” into the paragraph above as they both attempted to traverse this well-worn path with no success. Every governor since Mario Cuomo, once learning the nuance of policy as it relates to tribal land and sovereign rights, winds up hiding behind the policy of forbearance. Last year state Sens. Craig Johnson (gone), Carl Kruger (indicted), Pedro Espada (indicted), and Assembs. Richard Brodsky (gone) and Michael Benjamin (gone) shook their fists at hearings and press conferences urging Paterson to step up to the plate and take on New York’s tribes.

But that was so 2010. In 2011 we have new legislators, a new Cuomo, and the same old fight. Alas, the brief recurring respite Indian Country has between Election Day and Inauguration Day every few years is over, and the fight begins again. My father is fond of the phrase “every 100 years, all new people.” The more you think about that phrase the more freeing, or paralyzing, it is. For Indians it’s more like “every 10 years, all new politicians.”

I bring this up now because Andrew Cuomo is by all accounts an extremely bright guy with a long memory; a bright guy who undoubtedly understands the intricate and delicate relationship with tribal nations in New York better than any governor that came before him, his father included. He has the benefit of an institutional knowledge his father had to acquire on the job and the added bonus of witnessing each successive governor fail with respect to imposing taxes on cigarettes sold on reservation land.

Given these circumstances, quietly inserting $130 million in tax dollars is more than a warning shot. It marks the beginning of yet another skirmish in a long, tiresome and 400-year war against the indigenous people of this nation.