As a federal investigation into the fate of the $100 million New York Power Authority settlement with the Tuscarora Nation of Indians heats up, prominent Niagara Falls attorney John Bartolomei said he is planning a class action lawsuit on behalf of the Tuscarora people that could potentially derail the settlement altogether.
On Tuesday, Bartolomei met with a delegation of Tuscaroras concerning the lack of an environmental impact statement required in a memorandum of understanding signed between the Power Authority and the nation in 2005.
Bartolomei said he was stunned by the lack of any formal environmental study in light of the fact that known hazardous waste repositories -- including the Lewiston Reservoir -- directly encroach on the Tuscaroras' 1,500-acre reservation.
While he is still working out the details of the planned lawsuit, he said a civil RICO suit might be in the cards. The federal civil RICO statute provides for civil remedies in addition to any criminal remedies that exist in the prosecution of a criminal enterprise.
The statute requires proof of at least two predicate acts over any 10-year period. Predicate acts include but are not limited to bribery, mail fraud, extortion, obstruction of justice, obstruction of a criminal investigation, and witness tampering or intimidation.
Congress intended the civil RICO statute to supplement governmental efforts to eliminate racketeering activity. The statute authorizes successful plaintiffs triple damages, plus legal fees.
According to Jeffrey E. Grell, who wrote a book on the RICO Act and teaches law at the University of Minnesota, civil RICO claims are common in federal courts.
"The most common defendant to a civil RICO claim is not the stereotypical godfather figure, but is instead the CEO of a corporation, the controlling shareholder of a closed corporation, the trustee of an estate or trust, or the leader of a political group," Grell said. "Even the Catholic Church has been named as a RICO defendant."
The FBI defines a criminal enterprise as a group of individuals with an identified hierarchy engaged in criminal activity. Such groups maintain their position through the use of actual or threatened violence, corrupt public officials, graft, or extortion, and generally have a significant impact on the people in their locales, region, or the country as a whole.
According to documents made available to the Niagara Falls Reporter, the Tuscarora have thus far received $12.5 million from the Power Authority, in the form of checks delivered to the private residences of tribal Clerk Leo Henry and the Patterson family on Upper Mountain Road. Checks written on behalf of the "Tuscarora Nation" also contain the addresses of these private residences.
Aside from the cash, the Tuscarora Nation also receives one megawatt of electrical power annually, enough to power every home on the reservation. What happens to this electricity is unknown, but thus far it has not benefited the vast majority of Tuscaroras.
The documents further show that the first Power Authority payment, for $5 million, occurred in 2005, two years prior to the issuance of the Power Authority's new, 50-year license and the formation of a Tuscarora "finance committee," charged with the task of deciding what to do with the money when it came.
According to three committee members interviewed by the Reporter, they were never made aware that this money already had been received by the tribe, nor were they apprised of the true amount of the settlement.
The apparent waiver of the environmental impact statement is another issue, one that many Tuscaroras say is the most egregious. Those who can afford it drink only bottled water, and in fact doctors have prescribed bottled water for those living on the reservation.
The requirement of an environmental impact statement seemed to disappear around the same time that the current Tuscarora leadership received the first $5 million check from the Power Authority.
Another area of concern is the inability of many on the reservation to receive medical care at the Tuscarora Clinic, electrical service from Niagara Mohawk, or permission to install wells or septic systems on their own property. All of these "perks" are carefully doled out by Henry and the Pattersons, who use them as rewards or punishments, according to a dozen Tuscaroras interviewed by this paper since May.
Have Henry and the Pattersons used their positions to enrich themselves personally at the expense of the vast majority of Tuscaroras? And does sovereign immunity extend to the use of the U.S. Mail, contracts signed off the reservation, or dealings with financial institutions known to be holding significant amounts of the money meant for the Tuscarora people?
Neil Patterson Sr. was recently paid $87,000 for acting as a "consultant" on the $7 million construction of the Tuscarora Nation House, a building that the U.S. Department of Health and Human Services and a private appraiser working for the Reporter said should cost between $2 million and $2.2 million. The land on which the building was erected belonged to Leo Henry.
And what of Kendra Winkelstein, the tribal attorney who also represented Neil Patterson Jr. in a minor criminal matter a few years back? Does she work for the nation or does she work for the Pattersons? Winkelstein, who is white and lives on Grand Island, could certainly hold no claim to sovereign immunity, even though attorney-client privilege would be in effect.
These questions and many more likely will be asked by Bartolomei during the discovery process that will precede the Tuscarora lawsuit and also by federal agents with an interest in the case.
The near-feudal conditions under which most Tuscaroras live with the current regime seem alien in 21st-century America. That a small group of people, seemingly in office for life, can dictate the living standards of an entire community seems more akin to the rapidly disappearing regimes of the Middle East. In countries like Libya, Egypt, Yemen and Syria, the people have risen up against oppressive regimes, overthrowing longstanding dictatorial governments and opening the door to self-determination.
Repeated attempts by the Reporter to get Winkelstein, Henry and the Pattersons to comment on the record have been rebuffed.
| Niagara Falls Reporter | www.niagarafallsreporter.com | Sept. 27, 2011 |