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Anti-casino groups file third lawsuit against Seneca’s Buffalo Creek Casino

BUFFALO, N.Y. – An alliance of anti-casino groups has filed a third lawsuit in federal court in its ongoing attempts to shut down the Seneca Nation’s Buffalo Creek Casino.

Citizens Against Casino Gambling in Erie County and Citizens for a Better Buffalo filed a lawsuit March 31 in U.S. District Court for Western New York against federal agencies and officials, including National Indian Gaming Commission Chairman Philip Hogen. The lawsuit alleges that “the casino site is not sovereign Indian land, and even if it were, it is not gambling-eligible, because it meets none of the exceptions to the prohibitions set forth in federal law against Indian casino gambling on land acquired by a tribe after October 1988, when the current law was adopted.”

The lawsuit came in response to two recent actions: On Jan. 20, Hogen approved the nation’s amended Class III gaming ordinance, confirming that restricted fee lands in downtown Buffalo where the casino is located are eligible for gaming under the Indian Gaming Regulatory Act; and Jan. 30, U.S. District Court Judge William Skretny, who has ruled twice in the anti-casino groups’ favor, refused a request from CACGEC to shut down the casino and instead recognized Hogen’s decision.

In the previous lawsuits filed by CACGEC, Skretny had ruled the casino was operating illegally, but he said the NIGC chairman’s decision did not conflict with his own earlier rulings, because “it is predicated on an analysis different from any previously put in issue by the parties.”

The Buffalo Creek Casino is currently housed in a temporary building. Construction of a $333 million new casino and hotel has been halted for the moment while gaming continues at the temporary site.

The nation’s officials fully expected CACGEC to file another lawsuit; indeed, the group had promised to do so after Skretny denied their request in January to shut down the casino.

Richard Nephew, chair of the Seneca Nation of Indians Council, said the nation expects to continue its Buffalo Creek operations and resume construction of the new facility.

What we envision will be a major economic catalyst in the city. We all want a better Buffalo and we all need to work together to pull Western New York out of this deep recession.”

Meanwhile, Cornelius D. Murray, the Albany attorney who represents the gambling opponents, accused federal officials of manipulating the law.

“This time the NIGC has run out of options to circumvent the law. NIGC’s and interior’s self-serving interpretation of the law does not change what the court has already ruled upon. This is their desperate, last-ditch effort to get around the law.”

The nation’s gaming ordinances have a long and controversial history. NIGC approved the first ordinance in 2002 and stated that approval was granted “for gaming only on Indian lands as defined in the IGRA (Indian Gaming Regulatory Act of 1988), over which the nation has jurisdiction.”

In 2005, the nation bought about nine acres of land in Buffalo, got approval from the Interior Department to hold the land in restricted fee status, and announced its intention to open a casino there.

CACGEC and its partners filed suit against NIGC and the Interior Department, claiming Hogen’s decision to approve the gaming ordinance was “arbitrary and capricious.” The court ruled in the group’s favor in January 2007, saying Hogen should have specified the land for the casino under the nation’s compact with the state. The court vacated Hogen’s decision and sent it back to him with instructions to determine whether the Buffalo parcel is “Indian land” within the meaning of IGRA.

Before Hogen could act on the court’s ruling, the nation submitted an amended ordinance in June 2007 that included a legal definition of the Buffalo parcel as Indian lands.

Hogen approved the amended ordinance in July 2007 with an explanation that the commission’s definition of Indian lands included lands held by an Indian tribe in restricted fee.

CACGEC filed a second lawsuit on the same grounds – that Hogen’s decision was “arbitrary and capricious.” In July 2008, the court vacated Hogen’s approval of the ordinance, agreeing with his definition of Indian lands, but now saying the Buffalo parcel was ineligible for gaming because it wasn’t purchased with funds from the Seneca Nation Settlement Act.

Meanwhile, between the time Hogen approved the amended ordinance in July 2007 and the court ruling in July 2008, the Interior Department published new regulations on Indian gaming that define the circumstances by which gaming can occur on Indian lands acquired after Oct. 17, 1988.

The new regulations note Congress’ distinction between trust lands and restricted fee lands for gaming purposes, and clarify that gaming is permitted on restricted fee land without the need for any specific regulatory approval beyond what the nation had already secured.

Murray also said the CACGEC lawsuit is essential to stop local officials from “surrendering their sovereignty” to the Seneca Nation.

“Those city, county and state officials who in the past supported the Senecas’ claim that the land upon which the casino is located is sovereign Seneca land should rethink their position.

“If the land is the Senecas’ sovereign land, then the tribe can just let the unfinished construction sit there. In fact, the Senecas could do virtually anything they want. They could leave the partially-built casino as an eyesore. They can convert it into a slaughterhouse. The state, county and city would be powerless to stop it if they have in fact surrendered their sovereignty. Our elected officials must begin to recognize the consequences of surrendering their sovereignty.

“This lawsuit seeks to prevent that surrender from becoming effective before it is too late. It’s time for them to wake up,” Murray said.

Nephew pondered the usefulness of an expensive legal battle during the current economic downturn.

“In these times of economic difficulty and diminished resources, we wonder if fighting a losing battle is a good use of money, particularly to oppose a project that guarantees jobs for families, requires no investment dollars or tax breaks and will generate millions of badly needed revenues to the city. We strongly believe that the Seneca Nation is a critical part of the area’s future growth and we remain committed to that.”