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Feds reaffirm Seneca casino

SENECA NATION, CATTARAUGUS TERRITORY – The Seneca Nation won a crucial victory in its long-fought battle to keep operating its casino in downtown Buffalo, and expand it.

In a 22-page letter to Seneca Nation President Barry Snyder Sr., National Indian Gaming Commission Chairman Philip Hogen approved an amended Class III gaming ordinance for the Buffalo Creek Casino and confirmed the restricted fee lands in downtown Buffalo where the casino is located are eligible for gaming under the Indian Gaming Regulatory Act.

“With the reaffirmation by the NICG chairman and the Interior Department, the Seneca Nation is pleased that its Buffalo Creek Casino is endorsed and free to remain open and operating,” Snyder said in a press release.

But the nation’s attorneys still expect Citizens Against Casino Gambling in Erie County, an anti-Indian casino group, to challenge the latest NIGC ruling as it has challenged earlier approvals.

The Buffalo Creek Casino is currently housed in a temporary building; plans are in place for a permanent building and expansion.

“Construction of its $333 million permanent version will also be free to continue when Seneca Gaming Corp. determines the time is right,” Snyder said.

The nation’s gaming ordinances have a long and controversial history, including two lawsuits.

The first ordinance was approved 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 to hold the land in restricted fee status, and announced its intention to open a casino there.

The titles to trust lands are held in the name of the United States, which holds the lands “in trust” for tribes or individual Indians. The Seneca Nation holds title to its own lands and the title is “restricted,” meaning that Congress must approve any transfer of rights and interests in those lands to third parties for the transfer to be valid.

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.

Hogen said the court decision has put him “in a difficult position.”

“Since the July 2007 approval, the NIGC’s analyses regarding Indian lands generally, and lands held in restricted status in particular has undergone significant review, rethinking and revision. … Such a change of course leads me to review this new ordnance and the agency’s Indian lands analysis afresh,” Hogen wrote in his decision. “I wish to emphasize in so doing that I am mindful and respectful of the court’s opinion and the proceedings before the court.”

But, according to Hogen, the district court did not take into consideration the interior’s recent interpretation of the rules regarding Indian land status.

“In light of such interpretation, I must exercise my statutory obligations consistent with the best reading of the law.”

The years of complicated legal back and forth has brought the nation close to where it wanted to be at the outset of the casino project.

“Strip away all the complicated legal rulings and arguments and this is what we have,” Snyder said. “We have a temporary casino operating legally and around the clock with the concurrence of the federal, state and county and city governments; we have the expected construction of a $333 million permanent casino and hotel that hundreds of hardworking union members will resume building when the national and state economies turn around. We will eventually have a facility that will employ 1,200 workers from this region, while paying the city up to $7 million a year and when that opens, we will have three prominent gaming attractions in the region that will help draw customers and potentially future employees and residents from Ontario, Pennsylvania, Ohio and beyond.”

Since 2002, the nation has paid the state more than $350 million in “exclusivity payments.”

CACGEC could not be reached for comment, and there was no response to the NIGC action on the group’s Web site at by press time.

In a press release issued Jan. 21, CACGEC vowed to challenge Hogen’s approval of the gaming ordinance.

“They did a 180-degree about-face and contradicted themselves,” CACGEC attorney Cornelius D. Murray said. “This is a joke. ... We will be back before Judge Skrenty and will take every step necessary to stop this contemptuous behavior once and for all.”

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