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Federal judge to decide on Seneca-Cayuga bingo hall 'promptly'

SYRACUSE, N.Y. - After hearing oral arguments from the Seneca-Cayuga Tribe of Oklahoma and the Town of Aurelius at a Sept. 8 preliminary injunction hearing here, U.S. District Court Judge Neal P. McCurn ordered that the case be decided expeditiously.

"This case calls out for prompt treatment by the court for the benefit of all the parties," McCurn said in issuing his order. "It cannot lay in wait for a decision to be made in the years ahead."

McCurn, who declined to issue an injunction, instead set a tentative hearing date of Sept. 25. Prior to that date, each litigant's counsel may supplement his Sept. 8 arguments and previously offered briefs by submitting new information for the court's consideration. The judge, however, made it clear that he would allow no further discovery into the legitimacy of the tribe's history or the treaties involved.

"Rightly or wrongly, I've already decided those issues," said McCurn, who has presided over the Cayuga Indian land claim case for most of the 20-plus years it has been in litigation. "I'm not going to try [the] Buffalo Creek [Treaty] or the Cayuga land claim over again."

The current case stems from attempts by the Seneca-Cayugas to construct and open a Class II gaming facility on 229 acres of land purchased last November within the Cayuga Indian land claim, a 64,000-acre parcel around the foot of Cayuga Lake in Upstate New York. The tribe, plaintiffs in the case, sought an injunction preventing the town, Cayuga County, and the state (as interveners) from attempting to force it to acknowledge local and state regulatory authority.

The tribe maintains that, as a federally recognized sovereign entity, it has the right to build and operate a bingo hall without interference or regulation from state or local officials. Attorneys for the tribe argued that its gaming regulations, approved by the National Indian Gaming Commission (NIGC), and its building ordinance, identical to that of the state, are sufficient to regulate operations on reservation land. Copies of tribal gaming and construction codes were submitted for the record.

Attorneys for the Town of Aurelius, defendants in the case, sought their own injunction to force the tribe to comply with local building ordinances and acquire the requisite permits. The State of New York, intervener in the case, insists that the Seneca-Cayugas comply with state environmental and gaming regulations as well as local regulations.

Two factors make this case unique: a) the Seneca-Cayugas are recognized as an Oklahoma tribe, not as a New York tribe; and b) the fact that they are, unless the decision is overturned, a winning party in the land claim case. To date, no tribe has successfully crossed state lines to open a gaming facility of any kind. The key question to be decided is whether or not an "out-of-state" tribe can assert jurisdiction over fee simple land acquired in a state other than where it is recognized.

NIGC, the federal regulator of Indian gaming, is currently studying this key question, according to spokeswoman Tanna Chattin.

"The Commission is reviewing the Indian lands question and drafting an opinion," Chattin told Indian Country Today. "Of course, any opinion would also be guided by the court's decisions on the matter."

Because the Seneca-Cayugas seek to open a Class II bingo hall, they need not negotiate a compact with the state. Governor George Pataki has repeatedly stated that he would not discuss a Class III compact with an out-of-state tribe. The 5,000-member tribe already operates a high-stakes bingo parlor on its reservation near Grove, Okla.

Ed Ide, Aurelius town supervisor, declined to speculate as to the possible outcome of the matter. Likewise, tribal officials would not comment on the pending decision. The current temporary restraining order preventing either side from taking further action will remain in force until the case is decided.

In 2001, McCurn ruled in favor of the Cayuga Indian Nation of New York and the Seneca-Cayugas, allowing them to reacquire lands in the 64,000-acre claim area that were illegally acquired by New York state in the late 18th century. That decision and the subsequent award of $247.9 million are both under appeal to the 2nd U.S. Circuit Court.