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CLASS ACTION LAWSUIT CONSIDERED IN POWER AUTHORITY RELICENSING: Tuscarora dissidents cite lack of environmental study

By Mike Hudson

Documents made available to the Niagara Falls Reporter this week show clearly that an environmental impact study mandated by the Federal Energy Regulatory Commission for the New York Power Authority's relicensing agreement with the Tuscarora Nation never occurred, calling into question the legality of the entire accord.

Concerned members of the tribe have contacted noted Niagara Falls attorney John Bartolomei to explore various legal options that might be open to them, including the possibility of a class action lawsuit.

The $100 million agreement between the Power Authority and the Tuscarora has been the subject of heated debate on the reservation. Critics charge that tribal Clerk Leo Henry and Neil Patterson Sr. -- who negotiated the deal and signed the final documents -- have done little to improve the lives of tribal members despite the newfound wealth.

Much of the $12,484,752 the tribe has already received under the agreement is tied up in mutual funds and money market accounts, and a shroud of secrecy cloaks Henry and Patterson's plans for what to do with it.

An Aug. 2, 2005 memorandum of agreement between the nation and the Power Authority is quite specific about the environmental work.

"The Power Authority intends to notify the Federal Energy Regulatory Commission of its intent to apply for a new license for the Niagara Power Project and will conduct pre-filing consultation with the (Tuscaroras), resource agencies and other stakeholders, including the development of environmental data required for relicensing," the memorandum states.

Curiously, Neil Patterson Sr. signed the document using the title "Chief" before his name, despite the fact that he is not a chief and was in fact denied elevation to that rank at a ceremony on the Tonawanda Seneca Reservation this past April. Henry also signed the memorandum.

Interestingly, the first $5 million payment made by the Power Authority to the Tuscaroras came in December 2005, just four months after the signing. This has led some on the reservation to question whether the payment was connected to the sudden dropping of the environmental requirements.

The final environmental impact statement, issued in December 2006, states, "The Tuscarora Nation has not raised environmental justice concerns, and we assume, by signing their agreement with the Power Authority, their concerns about the project have been addressed."

A third document, filed on behalf of the Public Power Coalition and the Eastern Niagara Power Project Alliance, also speaks to environmental concerns, specifically those relating to a complaint filed by a Tuscarora rights group.

"In addition, the order does not address a pending complaint filed by the Tuscarora Nation Landholders Coalition describing the impact of the project on water pollution and the surrounding environment. The Commission must address this complaint before it can issue a new license," it says.

Clearly, an environmental impact study was a requirement under the agreement between the Tuscarora Nation and the Power Authority. And just as clearly, no such study was undertaken. Furthermore, a formal complaint filed by the landholders was ignored in the rush to get the agreement signed.

What, if any, impact this will have on the agreement as a whole will be discussed when tribal members meet with Bartolomei this week. They are hopeful a court case could compel Patterson, Henry and Winkelstein to be deposed under oath concerning the settlement and other matters.

The controversy over the $100 million settlement has fueled dissension on the reservation, where many live below the poverty level and often are denied access to basic services like electrical power and medical treatment at the Tuscarora Clinic. The settlement agreement also gives one megawatt of power to the nation annually, enough to provide free electricity to every home on the reservation.

It is uncertain what this power allotment is being used for, and many believe it is being sold back to Niagara Mohawk or some other power company for cash.

The U.S. Justice Department has opened an investigation into the case, and state Sen. George Maziarz has asked state Attorney General Eric Schneiderman to look into the situation as well.

"These checks, payable to the Tuscarora Nation of Indians, have been being delivered to Leo Henry's house," Maziarz said. "There is no accounting to anyone what happens to the money after the checks are cashed."

Maziarz also questions why state officials would allow the deal to go down as it did.

"I have a hard time justifying in my mind the fact that this small group of people is getting $100 million without any accountability whatsoever, not even to their own people," he said. "It's crazy."

A June 8 letter sent by Tuscarora Elder Douglas S. Anderson and addressed to both President Barack Obama and New York Gov. Andrew Cuomo stated in plain English that the $100 million settlement the Tuscarora received had been "misappropriated" and that the state and federal governments should immediately freeze all tribal assets.

Repeated attempts over the past several months to get Patterson, Henry or the tribe's attorney, Kendra Winkelstein, to comment on the record have been unsuccessful. Frustrated Tuscaroras have told the Reporter their own efforts to find out what their money is being spent on have been likewise rebuffed.

The tribe has no written constitution, and decisions are often made on the fly in the living room of the Patterson home, where "tribal council" meetings are held. No public records are made of these meetings.

Ross Johnson, one of the most vocal opponents of the Henry-Patterson leadership, expressed the frustration of many on the reservation.

"I personally became involved in this after I couldn't tolerate this type of dysfunctional government any longer, and I know I'm not alone," he said. "Our nation could have so many programs for our children, money for businesses, a source of income for the nation that each member would benefit from, and more. But with our current leaders, it will never happen. We will continue to become more reliant on public assistance from New York state."

Niagara Falls Reporter www.niagarafallsreporter.com Sept. 20, 2011