Judge William Skretny, who previously took the side of the
Citizens Against Casino Gambling in Erie County (CACGEC), has changed his
outlook due to the National Indian Gaming Commission’s (NIGC) recent approval of Class
III gaming on its Buffalo Creek Territory in downtown Buffalo.
On Jan. 20, the NIGC and the Interior Department, the two
federal agencies charged with regulating Indian gaming, approved new ordinance
amendments that specifically reaffirmed the Nation’s casino operations at
Buffalo Creek.
“It appears that the (NIGC) chairman’s recent approval of Class
III gaming on SNI’s Buffalo Parcel is not based on a reaffirmance of positions
or conclusions previously rejected by the court,” Judge Skretny wrote. “Rather,
it is predicated on an analysis different from any previously put in issue by
the parties.”
The NIGC’s action 10 days ago confirmed that the Nation’s
restricted fee lands in downtown Buffalo are eligible for gaming and always
have been.
“We are pleased with today’s federal court decision as it
reinforces the Nation’s interpretation that the NIGC ordinance amendments
earlier this month place this case in a whole new realm of consideration, as
the judge has now affirmed,” said Barry E. Snyder Sr., president of the Seneca
Nation. “We find that most encouraging.”
Trust lands are titled in the name of the United States and the
United States, in turn, holds and manages those lands “in trust status” for
Indian tribes or individual Indians. The Seneca Nation holds title to its own
lands and the title is “restricted” in that Congress must approve any transfer
of rights and interests in those lands to third parties for that transfer to be
valid.
The new Interior Department interpretation announced in June
clarifies that gaming is permitted on restricted fee land without the need for
any specific regulatory approval beyond what the Nation already secured. Thus,
the NIGC ruled, gaming is permitted on the Buffalo Creek property because the
restricted fee land is gaming eligible and because, under a decision of U.S.
District Court in Buffalo last summer, the site is sovereign Indian land.
“This new analysis is presumed valid unless and until it becomes
the subject of a successful legal challenge,” Judge Skretny wrote in his
four-page order. “As such, the chairman’s January 20, 2009 ordinance approval
renders moot plaintiffs’ motion to enforce the court’s vacatur of the July 2,
2008 ordinance approval.”
The federal court ruling of July 8, 2008 found the NIGC erred in
its July 2, 2007 ruling on the ordinance amendments. The federal government
filed a notice of appeal of that decision.
On another track, the Nation submitted the new amendments for
NIGC approval and that strategy led to the NIGC issuing the new ruling Jan. 20.
The CACGEC filed its closure motion Oct. 21, 2008 and asserted that the NIGC
and Interior Department were ignoring the judge’s orders. The Seneca Nation is
not a direct party to the lawsuit, but is interested in its outcome.
Meanwhile, Cornelius D. Murray, the Albany attorney
for the CACGEC contends that this most recent ruling was a “midnight
maneuver” made on the last day of the Bush administration, and will prompt
a new lawsuit from the citizens group.
“We understand Judge Skretny’s concern that
this latest ordinance was technically not before him in the current lawsuit
and, therefore, a new legal challenge is required, “Murray said. “Our
clients have every intention of bringing that challenge as soon as the proper
legal papers are assembled. This time we are confident that we can obtain a
definitive final ruling that will leave the NIGC no escape.”
The overall ruling will have an effect on the stalled Buffalo Creek Casino project on the downtown site. As of now, Nation spokespeople have said that the construction was stopped due to economic conditions and not because of the threat of gaming restrictions.