Judge asked to allow feds to decide on casino
By SHARON TURANOBUFFALO - The United States filed a motion in U.S. Federal District Court asking Judge William H. Skretny to transfer the Seneca Buffalo Creek Casino case to the National Indian Gaming Commission for further consideration.
A suit was previously filed in Skretny's court by the Citizens Against Casino Gambling in Erie County questioning whether gambling on a 9-acre Seneca-owned site in Buffalo was legal.
Although Skretny ruled the land on which the casino sits is sovereign, he said it could not be used for gambling. Seneca Nation officials, who are not a party to the suit between the National Indian Gaming Commission, which originally approved gambling at the site, and the citizens group, said they will comply with a final decision, though the gaming facility will remain open until a decision is reached.
That prompted the citizens group to file another motion, asking Skretny to enforce his judgment and close the casino. Skretny set arguments for motion for Aug. 21. On Wednesday the federal government asked Skretny to rule that the National Indian Gaming Commission further decide the matter instead. The nation also filed a motion in support of the federal government's move.
''They've done 180-degree about face in terms of their legal position,'' said Cornelius Murray of the citizens group about the federal government's Wednesday motion.
He said the law says gambling is prohibited, even on Indian land, after 1988 unless land on which gambling takes place is acquired as a result of a land claim. Murray said Skretny's original ruling said the Buffalo site was not acquired as a result of a land claim. The nation, he said, previously agreed with that, but now wants to tell the judge there is no prohibition on gambling on land obtained after 1988 so the gaming commission can rule on whether gambling can commence on Buffalo land.
''It's almost ludicrous,'' Murray said.
He said the citizens will oppose the nation's newest motion.Taken together, the developments provide the full legal foundation for the nation's decision not to cease gaming operations, pending further developments in the Buffalo Creek case, according to a nation news release regarding the new developments. The U.S. motion for transfer of the case is based on a new, formal regulation adopted in June by the Interior Department, of which the National Indian Gaming Commission is a part. As part of that new ruling, Nation officials said, there are regulations governing Indian land determinations, such as the one for Buffalo Creek. The nation's officials report the new regulation means Judge Skretny relied on terms that do not apply to ''restricted fee'' lands, such as the nation land in Buffalo.
''In our system of government, it is the Executive Branch and not the federal judiciary that is empowered to execute the laws,'' said Laurence H. Tribe, a constitutional law professor at Harvard Law School and a Supreme Court advocate who agreed to serve as chief legal consultant for the nation in the case. ''That principle, deeply rooted in the separation of powers and the rule of law, has special force in a case like this one, where a Cabinet-level department, to which Congress delegated responsibility for Indian gaming law and policy, formally adopted a rule embodying a new and critically-relevant legal interpretation of the governing federal statute - a statute whose text strongly supports that new rule. The federal courts, including the Supreme Court, have long and consistently required that, in a situation like this, the National Indian Gaming Commission must be given the opportunity in the first instance to consider the legal ramifications of the Department of Interior's position, which is the position that the Seneca Nation has taken from the outset.''
Referring to ''those who accuse the Seneca Nation of flouting the law by continuing its gaming operations in the face of the district court's ruling,'' Tribe said, ''They have it backward. It is those who urge Judge Skretny to usurp executive authority and bypass the statutory structure established by Congress who are defying well-settled legal principles and precedents.''
Nation officials also said they filed the motion to support National Indian Gaming Commission involvement ''because the plaintiffs sought to short circuit ... motions,'' like the one the United States filed Wednesday. It is also without merit, nation officials report, because only the National Indian Gaming Commission - not the district court - has the power to order a casino to close.
The nation's brief also says the nation has been and continues to fully respect both the court and the law in awaiting further National Indian Gaming Commission action. The National Indian Gaming Commission has declined to close the casino until it reviews the new ordinance and regulations. The nation also asks the court that its representatives be allowed to make oral arguments to support this brief.
The nation also formally submitted a new gaming ordinance for the National Indian Gaming Commission to consider based on the legal interpretation of the governing law from the Interior Department. The action will be undertaken simultaneously with the federal district court's continued consideration of the motion.
The nation's Buffalo Creek Territory, as Judge Skretny confirmed in his July opinion, is held in restricted fee status and hence is subject to the sovereign control of the nation. Under the Interior Department interpretation issued last month, gaming is permitted on restricted-fee land. For that reason, the nation argues in its brief that gaming is permitted on the Buffalo Creek property because of the Interior Department ruling and because the federal court in Buffalo ruled that it is sovereign land.
''No attempts have been made to evade the federal regulations governing the operation of Class III gaming on sovereign lands, and no attempts are now being made to circumvent this court's July 8 decision,'' the motion states. ''Because these regulations are new and were not considered by either the National Indian Gaming Commission or the court prior to the court's decision, it is appropriate to remand this case to the agency for further consideration. Both as a factual and a legal matter, plaintiffs' arguments are simply wrong. A remand is the most sensible - and, indeed, with the only legally appropriate - course of action in light of the department's promulgation of its rule.''
New York state already indicated its support for the nation's position when it announced July 12 that the state will maintain its state Racing and Wagering Board inspectors at the casino. Buffalo Police still provide security there as well.
Under the terms of a 2002 compact between Albany and the Seneca Nation, the state Racing and Wagering Board has inspectors at the nation's casinos, including the temporary Buffalo Creek facility that opened a year ago while a permanent casino and hotel are constructed on 9.5 acres of land off Michigan Avenue. Seneca Gaming Corp. pays the state the cost of inspections.
