Buffalo Creek Casino Case: Judge Skretny's Decision

On July 8, 2008, the federal district court issued a decision in the case challenging the NIGC's approval of the Seneca Nation's amended ordinance. The case, brought by Citizens Against Casino Gambling in Erie County, is an effort to prevent the tribe from operating a casino in Buffalo.

The plaintiffs claimed that the Buffalo parcel is not "Indian lands," so that Chairman Hogen's conclusion that the parcel meets IGRA's Indian lands requirement is arbitrary and capricious. After a lengthy analysis, Judge Skretny rejected this claim.

The plaintiffs also claimed that the Buffalo parcel did not qualify for the "settlement of a land claim" exception to IGRA's general prohibition against gaming on newly acquired lands, so that Chairman Hogen's conclusion on this point is arbitrary and capricious. On this one, the court sided with the plaintiffs. Recall that the Seneca Nation purchased the Buffalo parcel with funds from the federal Seneca Nation Settlement Act. The Interior Secretary had opined that land purchased with SNSA funds would fall within the "settlement of a land claim" exception.

The court, though, stated, "When the SNSA was enacted, the [Seneca Nation] did not possess an enforceable claim against the United States . . . . Because no claim existed, no claim was settled."

The court went on to hold that "gaming cannot lawfully occur on the Buffalo parcel under the settlement of a land claim exception," and vacated the NIGC's approval of the tribe's amended ordinance.

End of story, right? Wrong. In late July, federal lawyers asked the court to remand the issue to the NIGC. The argument is that while this case was pending, the Interior Department issued new regulations interpreting IGRA's exceptions to the prohibition against gaming on newly acquired lands (the section 2719 exceptions). These new regs take effect this month. And the next scheduled court date is August 21, when the Citizens Against Casino Gambling in Erie County are expected to ask the court to send federal marshals to shut down the Buffalo Creek Casino. Stay tuned.

Buffalo Creek Casino Case: The Challenges to the NIGC's Actions

As we explained last time, the NIGC twice approved the Seneca Nation's gaming ordinance in relation to the Buffalo Creek Casino.

First, in 2002, the NIGC approved an ordinance for gaming on unspecified lands. Then, in 2007, the NIGC approved an amended ordinance specifying the Buffalo parcel as the location for the casino. The 2007 approval expressly found that the parcel was "Indian lands," and qualified for the "settlement of a land claim" exception.

In the meantime, though, Citizens Against Casino Gambling in Erie County had filed federal suit. One of their challenges was to the NIGC's approval of the tribe's gaming ordinance. They claimed that the NIGC’s approval of the 2002 ordinance without making a determination that the lands in question (which, recall, were unspecified) were indeed Indian lands was arbitrary, capricious, an abuse of agency discretion, and contrary to law.

In 2007, right around the time the NIGC was reviewing the amended ordinance, the federal district court decided that in approving gaming ordinances, the NIGC was obligated to make an "Indian lands" determination: "[T]he NIGC is the gatekeeper for gaming on Indian lands and, when acting on a tribal gaming ordinance, it has a duty to make a threshold jurisdictional determination." The court further held that the NIGC's approval of the 2002 ordinance was therefore arbitrary and capricious, and vacated and remanded the agency’s approval.

Back to 2007 and the amended ordinance. In approving the amended ordinance, NIGC Chairman Hogen noted the court's decision regarding the 2002 ordinance, and stated, "Although we disagree with the Court's holding this site-specific ordinance moots the issues in that case."

Citizens Against Casino Gambling in Erie County disagreed, and filed another suit, which resulted in Judge Skretny's July 8, 2008 decision.

Whew! Up next: Judge Skretny's decision.

The Buffalo Creek Casino Case: The NIGC's Actions

When we left off on the Buffalo Creek controversy, we had reached the point where the Seneca Nation had purchased 9 acres of land in Buffalo in 2005. That was followed by a federal suit, filed by Citizens Against Casino Gambling in Erie County, to stop the tribe from opening a casino on the land. At issue was whether the land in question qualified as "Indian lands" under IGRA.

Back in 2002, when the Interior Secretary "pocket approved" the compact between the Seneca Nation and New York, Secretary Norton issued a letter explaining why she was neither disapproving nor affirmatively approving the compact. (Under IGRA, if the Secretary takes no action within 45 days, a compact is deemed approved.) In the letter, Norton stated that the land the tribe intended to purchase with the Seneca Nation Settlement Act (SNSA) funds would be "Indian lands" under IGRA. She also stated that the land would fall within the "settlement of a land claim" exception to IGRA's prohibition against gaming on lands acquired after 1988.

In 2002, the Seneca Nation passed a gaming ordinance that indicated the tribe's intent to conduct gaming on its lands. It did not specify a location, as the compact authorized the tribe to operate a casino in Buffalo "at a location to be determined." The ordinance was submitted to the NIGC Chair for approval, as required by IGRA. Chairman Hogen approved the ordinance, noting that approval was "for gaming only on Indian lands."

Once the land was purchased, the Seneca Nation passed an amended gaming ordinance that specifically identified the Buffalo parcel as the location for its casino. Chairman Phil Hogen approved the ordinance in 2007. Hogen's approval letter concluded, "Based on our review of the submitted ordinance, and taking into consideration the Department of the Interior's earlier decisions regarding the status of the Buffalo parcels, the parcels are Indian lands within the meaning of IGRA and they were acquired through the settlement of a land claim and thus are exempt from the general prohibition on gaming on land acquired after October 17, 1988."

In the meantime, though, the federal suit was pending . . . .

Up next: the challenges to the NIGC's actions.

Arizona Indian Gaming Revenue Down—What, Me Worry?

The Arizona Department of Gaming reports that revenue generated by tribal casinos is down, and that has state and local policymakers worried—about their own coffers.

Since 2003, Arizona tribes have distributed about $430 million to the state, which then channels the funds to various programs, like schools, hospitals, wildlife conservation, police protection, and other social services, including the mitigation of gambling addiction.

Indian gaming revenue fell 7.5 percent in the last quarter, the steepest drop in five years of revenue sharing. The economic downturn is being felt throughout the gaming industry—tribal, commercial, and charitable alike—and high gas and food prices and less disposable income for middle-class families hit “local” casinos particularly hard.

The state, therefore, may feel the pinch.

That’s a downside of tethering state public policy to revenue sharing—and why many states secretly (or not) hope that the Indian gaming industry stays on top of its game.

Read more in the Tucson Citizen.

Buffalo Creek Casino Case: The Story of the Buffalo Parcel

As everyone knows (right?), IGRA only authorizes Class II and III gaming on "Indian lands." For non-reservation land, the determination of whether a parcel of land is "Indian lands" can be very complicated, requiring careful analysis of a complex history of the tribe's interactions and agreements with the state and the federal government. In his July 8 decision, federal judge William Skretny conducted just that kind of analysis, reaching all the way back to the 17th century.

It's a long story that's difficult to make short, but here's the gist: In the 18th and 19th centuries, the Seneca Nation's land was sold and leased under a number of treaties, agreements, and statutes.

In the 1950s, the tribe filed claims against the U.S. for failing to ensure that the Seneca Nation received fair remuneration for its land. In 1969, the claims were still pending. One of the 19th century leases, however, was due to expire, and the New York state legislature set about renegotiating the lease with the tribe. An agreement was reached, and Congress codified it in the Seneca Nation Settlement Act of 1990. The Act included a provision requiring the U.S. to pay the tribe $35 million for past inequities. $5 million was earmarked for the tribe's economic and community development.

Then, in 2002, the Seneca Nation entered into a Class III compact with New York. The compact authorized gaming at three different sites, including on a to-be-purchased parcel of land in Buffalo. The tribe intended to use some of the funds from the 1990 Settlement Act to purchase the land. The compact was "pocket-approved" by the Interior Secretary.

In 2005, the tribe purchased 9 acres of land in Buffalo. A few months later, a citizens group, Citizens Against Casino Gambling in Erie County, filed suit in federal court to prevent the tribe from conducting gaming on the parcel.

Next up: The NIGC's actions