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Forthwith, Continued

Maybe the city will shutter the casino that Obama won’t

Buffalo Common Councilman Mike LoCurto wants to end the City of Buffalo’s contract with the Seneca Gaming Corporation, which operates a gambling casino in a blue metal pre-fab hut next to a housing project near downtown.

The half-dozen anti-casino activists who climbed down the elegant, steeply banked spectators’ gallery of the Buffalo Common Council told City elected officials that they want the casino closed. The citizens group that has been suing in federal court just filed a motion for summary judgment because it wants US District Court Judge William Skretny to shutter once and for all the casino he decided over four years ago was illegal.

Governor Andrew Cuomo wants casino gambling to yield revenue to the State of New York, not to any other entities. The Seneca Gaming Corporation, not surprisingly, wants to keep its Western New York monopoly, and its $500-million-a-year stream of profits. And so far, the Erie County executive’s office—which under Joel Giambra sued to stop the federal government from allowing the Senecas to build and run a casino in Buffalo in the first place—under Mark Poloncarz is taking the same position that Chris Collins took: Leave us out of this.

The lawsuit is moving ahead, once again. A response from the Obama administration’s lawyers is due to Judge Skretny by mid-October. Meanwhile, the Buffalo Common Council could act on LoCurto’s resolution as soon as next week. The question is this: Will the issues ostensibly before local elected officials and a local federal judge be decided in Washington, Albany, or Buffalo?

Big stakes

The court papers filed by the Citizens Against Casino Gambling in Erie County (CAGEC) are alternately hilarious and depressing, opaque and lucid. The complexities boil down to one issue: Will there, or won’t there, be a Seneca-owned casino operating inside Buffalo?

Judge Skretny’s August 2008 instruction to the federal agency that twisted the rules in order to let that casino stay open was straightforward: Skretny said that the agency needed to rescind its permission, and thus close the Buffalo casino “forthwith.” That was four years and one month ago. So why is it still open? Essentially because the federal agency, the anti-casino people say, ignored their own procedures, ignored the standard way in which agencies make rule changes on those occasions when they do, and worse, much worse.

The new legal papers explain that officials of the United States Department of Interior cooked up a completely bogus rationale just so that the Seneca Gaming Corporation could keep its Buffalo casino open. The CACGEC people are back in court, once again facing dedicated, talented, career Justice Department lawyers whose job it is, once again, to defend the shenanigans of the Interior Department’s politically connected, conflicted, self-recusing then self-un-recusing lawyers, one of whom is married to a lobbyist for the Seneca Gaming Corporation.

The 50-page motion filed by the folks who want that casino shuttered tells a very upsetting story, based on an Interior Department lawyer’s paper trail. That trail—which the Justice Department lawyers worked strenuously to conceal, and that they almost succeeded in concealing—is now revealed. The memos, emails, and filings are laid out, and the story is simple in a way that the story of Rod Blagojevich is simple. It leaves no doubt that somebody told somebody to bend rules, ignore rules, or just invent rules so that that Buffalo casino stays open.

Bipartisanship, at last

This story is worth a long, depressing book. As the CAGEC papers reiterate, first it was the Republicans of the Bush administration, working with the Pataki administration in Albany, to do the bidding of Seneca Nation of Indians lobbyist Bill Paxon. Paxon had been George Pataki’s friend when they both served in the New York legislature, before Paxon went to Congress as the representative from Buffalo’s Republican suburbs and Pataki became governor. Bill Paxon left Congress to go to work for a law firm named Akin, Gump and Strauss, the firm that has been lobbying for the Seneca Nation and for its gambling corporation. It was Akin, Gump that worked with Pataki when Pataki was governor of New York to help the Senecas conclude the 2002 compact that gave the Senecas the opportunity to build casinos in Niagara Falls, in Salamanca, and in a then-unknown, yet-to-be-chosen place in Erie County.

The place they chose was Buffalo, with a PR firm endlessly repeating the fiction that the land on which the Senecas’ gambling corporation built a casino in a blue hut, at the intersection of Michigan and South Park, next to the housing project, was aboriginal Seneca land. They’d wanted to build a casino on Grand Island, but in 2002 another federal judge, Richard Arcara, had decided against the Senecas’ claims that they were the aboriginal owners of the islands in the Niagara River. The Senecas had admitted in a lengthy stipulation of “undisputed facts” that they had never occupied the westernmost part of New York State until after the Revolutionary War, in which they’d faced the retribution of George Washington, and of an officer named Sullivan, who ruthlessly drove them out of their ancient aboriginal homes in the Genesee River valley.

Greatly tragic events occurred in Western New York subsequent to the Revolution: The temporary occupation of land that was called the Buffalo Creek Reservation came to an ignominious end in the 1830s, but from that loss of land came the innovation called elected government, such that two of the three remaining Seneca reservations where there are actually people (not like the tiny Oil Springs reservation) are organized as territories of the Seneca Nation of Indians, while the Tonawanda Reservation remains under the governance of the ancient structure known, variously, as traditional government, the League of the Iroquois or Hodenosaunee, or the Six Nations council.

Compensating the Senecas for some of their losses has itself had consequences for the Senecas, but also for their neighbors. The Senecas lost the lands adjacent to the Allegheny River when John F. Kennedy approved the Kinzua Dam, which flooded out the home of 18th-century heroes Cornplanter and Handsome Lake, but which spared the city that is entirely on what’s left of the Seneca reservation there. The Kinzua Dam project also failed to flood out the place where the Cold Spring longhouse sits, which is one of the traditional places where the “good word” that was revealed to Handsome Lake is recited, a couple of times annually, in presentations that feature that prophet’s admonitions to observe the ancient ceremonials and laws, and to abstain from gambling.

Back in court

The anti-gambling litigants are back in court. They argue in their papers that there is “not one scintilla” of evidence that the 1990 law Congress passed had one darned thing to do with letting off-reservation casinos be built and operated on non-reservation land, but rather that that 1990 law was all about compensating the Senecas for a lousy deal they’d made with the city of Salamanca.

But just as the anti-casino litigants come to the Buffalo Common Council and recite the factual basis for their suit—that the federal laws and rules are being ignored—they also sound off on the social and economic consequences of gambling. They actually sound like secularized, latter-day version of the Seneca prophet whose followers are opposed to the three Seneca casinos, the great big Oneida casino in central New York, and to the Mohawk efforts to build casinos in the Catskill resort areas. There is a divide among the people who self-identify as Native Americans of the several Iroquois nations, even though there is now, thanks to the casinos, just a little bit of money finding its way into cultural survival and continuity efforts.

There is still, though, the trouble that that money makes for others. Washington lobbyists helped Albany politicians make a deal such that the mayors of Niagara Falls and of Buffalo signed off on big, monopoly gambling casinos within their city limits in return for the promise of millions of dollars year after year to compensate these cities. But the State of New York, which made the deal with the Senecas, has been fighting the Senecas’ gambling company, and the Senecas haven’t been keen to part with the funds they’ve set aside for Niagara Falls and Buffalo—because the Senecas are dealing with a state government that has, it’s argued, violated the Senecas’ exclusive deal, namely, to be the only, the unique, the sole purveyor of Las Vegas-style gambling in this part of New York State. And as Andrew Cuomo made clear in his State of the State address this past winter, New York’s governor wants casinos to be owned by New York State, not by any other entity, because New York State needs the money.

There’s a lot of money at stake. The last filings of the Seneca Gaming Corporation that are publicly accessible show that there is, just at the Niagara Falls casino, well over $200 million in annual profits—profits that are exempt from taxation by either the New York or the United States governments. But some small pieces of that lucre were supposed to flow to the cities. It hasn’t because the Senecas are extremely clear on what’s been happening: the new governor wants their money—namely, that they had best hold on to their funds while they’re still generating them.

Councilman LoCurto’s plan, which will be before the entire Common Council very soon, is like Niagara Falls Mayor Paul Dyster’s plan—a gesture of desperation, and of frustration, at the fact that neither the state nor the federal governments is willing to get these struggling towns the money they thought they’d get, and have been promised, since the day that their predecessors signed off on the deal to avoid the State constitution, avoid the admonitions of a critical Seneca religio-cultural authority, and avoid the well established fact that foreign-owned casinos suck money out of a regional economy, that the gambling relies on addiction, and that any casino, whoever owns it, is a drag.

Watching the community activists and the eggheads clutching their facts in another Common Council session on the Senecas, one is tempted to despair. The law is really quite straightforward. The economics is too. The federal government is ignoring the law, and it doesn’t matter whether the president is Republican or Democratic, because the true economics of gambling is that the house always wins. The only countervailing force against Native American casinos is a governor who is going to displace, but not end, casino gambling. Spikes in addiction, in lost productivity, in bankruptcy, and in social and family life dysfunction, are as nothing compared to the potential for greater revenue. Should the CACGEC prevail in its lawsuit against the Seneca Gaming Corporation, and once again gain a verdict from a judge that the Senecas will have to relocate or lose their Buffalo operation, the net result in New York State will be that the name on the slot machine, the nightclub, and the attached casino hotel may change, but the activity won’t.

Bruce Fisher is director of the the Center for Economic and Policy Studies at Buffalo State College. His new book is Borderland: Essays from the US-Canada Divide, available at bookstores or at www.sunypress.edu.

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