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A Game of Chance?

It should come as no surprise that the parties on either side of the Seneca Buffalo Creek Casino issue are working through the courts this week to push each of their objectives forward.
In a statement from the National Coalition Against Gambling Expansion (NCAGE), based in Washington, D.C., NCAGE Chairman Dr. Guy C. Clark of Albuquerque, NM, stated, “Though it was well overdue, the federal courts last week finally drew a line in the sand beyond which illegitimate gambling expansion cannot cross.” Clarke went on to praise the Buffalo case and Judge William Skretny’s decision, stating that it “should slow the process by which tribes have been expanding their land holdings purely for the purpose of building casinos and circumventing state and local laws across the nation.”
Though attorneys for Citizens Against Casino Gambling in Erie County (CACGEC) et al. are attempting to obtain a court order that would enforce closing of the temporary Seneca Buffalo Creek Casino, gambling and construction on the new building continue in accordance with remarks by Seneca Nation of Indians President Maurice John Sr., when he said the Senecas would conduct “Business as usual.”
John made the remark in the aftermath of Judge William Skretny’s July 8th decision stating that the Senecas were not eligible to gamble legally on the sovereign site due to the date on which it was purchased as well as the funds used to purchase it.
In his statement, Clark referred to the 1988 legislation allowing gambling as “one of the most misguided attempts at economic development ever contrived.” He went on to say, “This much-abused law has cynically given tribes a general franchise on an addictive, corrupting menace to the national economy and to public health. The act pitted a federal agency, the Department of Interior, against states and communities, frequently overriding even state constitutions and the fervent objections of surrounding communities. To tell Native Americans, many of whom have suffered in poverty for centuries, that their only hope of economic parity is to damage the health, economy and families of their neighbors, is among the most despicable things the U.S. Congress has ever done.”
On the Seneca side, National Indian Gaming Commission (NIGC) Chairman Philip N. Hogen has filed a motion in US District court to have Skretney’s decision remanded. See the document here. Within the legalese, the following sentence may shed the most light on the objectives hoped to be gained from the motion: The fact that Section 2719’s applicability to restricted fee Indian lands is subject to interpretation and reinterpretation demonstrates that it is ambiguous.
The NIGC’s hope is to have the courts interpret the original law, once more and forever, in favor of the Senecas.
From a letter issued today by the Seneca Nation of Indians: The regulation provides that the statutory prohibition Judge Skretny relied on in his decision has no application to “restricted fee” lands, such as the Nation’s in Buffalo.
This is a significant development and one that, under well-established principles of law, fully justifies a motion for remand for NIGC reconsideration.
“A remand to the NIGC is the only constitutionally appropriate option available in these circumstances,” said Laurence H. Tribe, a renowned professor of constitutional law at Harvard Law School and a leading Supreme Court advocate who agreed to serve as chief legal consultant for the Nation in this case.
“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.
“As this court is aware, the Nation has consistently argued in these proceedings, as well as before the NIGC and the Department of Interior, that [the law’s] presumptive prohibition on after-acquired gaming does not apply to restricted fee lands. Until very recently, the NIGC and the department took the contrary position, although never as the result of formal rulemaking, and the United States accordingly argued to that effect before this court. Now, however, the Interior Department has, as the result of notice-and-comment rulemaking, promulgated a final rule interpreting [the law].
“That rule, and the department’s discussion of it in the preamble of the rule, make clear that the department interprets the … provision not to apply to restricted fee lands.”
“Because these regulations are new and were not considered by either the NIGC or the court prior to the court’s decision, it is appropriate to remand this case to the agency for further consideration,” the motion argues.

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