New federal approach may allow Senecas to operate downtown casino
Skretny will play a key role in deciding issue
The federal government says it has come up with a new interpretation of Indian gaming laws that could allow the Seneca Indian Nation to continue operating its downtown casino.
U. S. Justice Department lawyers Wednesday asked U. S. District Judge William M. Skretny to refer the casino dispute back to the National Indian Gaming Commission — an agency that already voiced its approval for the Buffalo casino.
If Skretny goes along with the request, it could be a major victory for the Senecas and allow them to move forward with the development of a $333 million casino and hotel project in the city’s Cobblestone District.
The new interpretation of Indian gaming law was issued in May by the Interior Department but was apparently not known to Skretny when he issued a ruling July 8, stating that the Senecas could not operate a casino on their Buffalo land.
“I’m quite optimistic that the new rule makes a dramatic difference,” Seneca attorney Laurence H. Tribe told The Buffalo News. “Now that the new rule has been called to the judge’s attention, it would be very difficult for him not to give it significant weight.”
Cornelius D. Murray, the lead attorney for casino opponents, sees the issue differently.
“This is so transparently desperate that it’s almost laughable,” Murray said. “It’s a joke, an absolute farce. . . . The government is now saying, ‘Judge, the position we took for six years on this issue was wrong. Please let us reconsider.’”
The dispute now revolves around Section 2719 of the U. S. Indian Gaming Regulatory Act, which deals with questions about which lands owned by Indian nations can be used for gambling. According to government attorneys, the Interior Department changed its interpretation of Section 2719 in May, and the change will take effect Aug. 25.
Under the new interpretation, the government said, “restricted fee lands” — such as the nine-acre parcel that the Senecas own in Buffalo — can be used for casino gambling.
If Skretny agrees to allow the National Indian Gaming Commission to reconsider the Senecas’ application, Seneca attorneys Tribe and Chris Karns said they are “very optimistic” that the application will be approved.
But Murray said the judge should continue to keep the dispute in his courtroom.
The government is doing “a 180-degree, complete about-face” from the previous positions it took on restricted fee lands, he said. Those lands are defined as properties that are owned by an Indian tribe but cannot be taxed and cannot be sold without the permission of the federal government.
Murray added: “I guess the Senecas and the government can’t take no as an answer from Judge Skretny. They want this case to go back to a friendly forum, the gaming commission.”
Until this week, none of the lawyers on either side of the dispute had alerted Skretny to the recent change in interpretation, Tribe said.
“I must say, that’s a little bit of a mystery to me,” Tribe said. “It wasn’t called to his attention by either party. Perhaps it’s because the change doesn’t take effect until Aug. 25.”
In Skretny’s order earlier this month, the federal judge vacated a July 2007 decision by the gaming commission, which granted permission to the Senecas to run a gambling casino in Buffalo.
Skretny ruled that the gaming commission’s decision had been arbitrary, capricious and contrary to law.
But the judge also ruled that, in his view, the land purchased by the Senecas should now be considered sovereign Indian territory under the law.
In what critics see as an act of defiance, the Senecas have continued to operate their small temporary casino on Michigan Avenue since Skretny’s July 8 ruling. And they have continued building their much bigger hotel-casino project nearby.
According to new court papers filed by the Senecas, the government has told the Senecas it has no current plans to take any “precipitous action” to shut down the Buffalo Creek Casino.
Webster’s Dictionary defines “precipitous” as “hasty, rash or sudden.”
While the Justice Department has asked Skretny to allow the gaming commission to reconsider the Senecas’ application for a Buffalo gaming ordinance, Seneca lawyers have filed a new application for a new gaming ordinance at the same downtown location.
The next court appearance on the casino dispute is scheduled for Aug. 21 before Skretny. The judge will hear arguments from Citizens Against Casino Gambling in Erie County, who want him to direct federal marshals to shut down the temporary casino.
Skretny has not yet responded to the Justice Department request that he allow the gaming commission to reconsider the Senecas’ case.
Regardless of the judge’s actions, both sides agree the legal dispute is far from over. The eventual loser in Skretny’s court would be likely to appeal to the Second Circuit Court of Appeals and perhaps beyond that to the U. S. Supreme Court.
