The temporary Buffalo Creek Casino, temporarily open for business.

(photo: Bruce Jackson)

Two flags over Perry Street

Two large flags—one belonging to the United States, the other to the Seneca Nation of Indians—flutter on black poles twice the height of the new steel shed on Perry street near the Michigan Avenue intersection. The shed is dark blue and windowless. It is a structure of the type and size that usually contains construction equipment or supplies.

This one contains 119 slot machines. A small white sign on the side of the shed near the flags and facing the parking lot says “CASINO ENTRANCE” in red letters above an arrow pointing to the right. The entrance to the shed is behind a larger sign on the side facing Perry street. That sign says “CASINO” and it lights up at nightfall.

The flags are mounted on concrete pavement that juts out into a small blacktop parking lot surrounded by a six-foot-high iron fence. Six or seven parking spaces on either side of the pavement with the flags are reserved for gamblers with physical disabilities. The other parking spaces are open to anyone. On an ordinary afternoon, a car enters or leaves the parking lot every five or 10 minutes.

During the day a Seneca Nation marshal stands guard over the parking lot. He walks back and forth or stands still with his arms folded across his chest, mostly staying in the paved area between the flags and the casino entrance. Now and then, when something catches his interest, he sallies forth.

The guard who was there on Tuesday of this week lives on the Cattaraugus Reservation and drives up to Buffalo every morning and back home every night. Eventually, he said, there will be a permanent Seneca Nation marshals’ station on the property. Perhaps the marshals who work there will live in or around Buffalo, or they, like he, will make that long, daily, round-trip drive.

“Have you been inside?” he asked me, after he had crossed the street to ask me why I was taking pictures of the building. I said I hadn’t. “It’s not much. Have you been to Niagara Falls or Allegeny?” I told him I’d been to the Niagara Falls casino, but not the one in Allegeny. “They’re a lot nicer,” he said. “Does the Nation know you’re here taking pictures?”

He meant the Seneca Nation of Indians, not The Nation magazine. I said I doubted it. “Then why are you doing it?” I told him I was doing it for Artvoice. He said he’d never heard of Artvoice. I told him that if he moved to Buffalo he ought to check it out. He asked what kinds of things it published. I said articles about what’s going on in music and art and food and public works and construction projects, like the one we were both looking at.

The wind shifted and the odor of the air suddenly changed. I asked him a question that has puzzled me every time I’ve gone to that site. “Why does this place always smell like popcorn?”

“It’s not popcorn,” he said. “It’s from the Cheerios factory. It just smells like popcorn.”

I thanked him for telling me that. We talked a little more and then, after a few minutes, we shook hands and he walked back to his position on the concrete paved area between the flags and casino entrance.

Gambling joints

He was there to provide security on the periphery of the temporary casino the Seneca Nation of Indians opened July 3 on their nine-acre site near the Perry Street Projects. They opened for business only a few hours after Philip N. Hogen, chairman of the National Indian Gaming Commission (NIGC), sent a letter to Seneca President Maurice A. John, Sr., saying those nine acres were not only Indian land but the very narrowly defined kind of Indian land on which off-reservation Class III gambling can take place.

Class III gambling is the whole shot: slots, cards, wheels, dice, just about any kind of betting you can think of except horses and dogs, which are otherwise licensed. Class III gambling is where the big money is. It’s the sad old folks pissing away their Social Security checks and it’s the high rollers pissing away money they’ll never know they no longer have. It is all those casinos up and down California. It is Foxwoods in Connecticut and Turning Stone in New York. It is waterfront post-Katrina Louisiana. Class III gambling is why developers and tribes spend huge amounts of money trying to get around the federal laws limiting where casinos like that can go.

Gambling joints on Indian land are especially profitable because all sorts of laws that apply to ordinary businesses and even ordinary gambling joints don’t apply there, and all sorts of taxes paid by regular businesses and regular gambling joints aren’t paid there. There is no state sales tax, for example, and no hotel bed tax. Gambling joints on Indian land aren’t subject to state environmental laws or worker protection laws. People injured there can’t even sue in state court: They have to go to tribal court—which often means a court wholly populated by the people who own the casino. It’s as close to offshore as you can get without risking getting your feet wet. Other gambling operations can’t compete and local entertainment venues can’t come close. Who can, with such a huge discrepancy in the operating profit margin?

Politicians love Indian gambling because the operators provide major lobbying money and when the casinos go in they sometimes give the local pols some say in who gets the entry-level jobs they offer. That killer patronage is one of the things that has Buffalo Mayor Byron Brown utterly bedazzled. He is blinded by the possibility of getting a piece of it. (It is killer patronage because jobs in casinos come to a city at the prize of far more jobs elsewhere in a city. In the long run, the city is bled to death by them, but in the long run the politicians responsible for the deals that made them possible are out of office and don’t have to deal with the consequences.)

Indian casino lobbying has lately gotten more and more out of hand, as in the recent scandals involving lobbyist Jack Abramoff, Rep. Bob Ney (R-Ohio), J. Steven Grille (former deputy secretary of the US Department of Interior) and many others.

And, in situations where gambling interests have used Indian gambling rights as a way to make end runs around state laws prohibiting Class III casinos by acquiring non-reservation land and trying to get it declared gambling-eligible, it has resulted in lawsuits from community groups, such as the one Citizens for Better Buffalo has funded and coordinated against the proposed Seneca gambling operation at the edge of the Cobblestone District in downtown Buffalo.

Where things are now

Last year, a group of citizens, community groups, public officials and public entities brought suit in federal court to prevent a gambling casino operated by the Seneca Nation of Indians from opening up in downtown Buffalo. The suit received funding from many sources, but it was primarily funded by the Margaret L. Wendt Foundation, which has long been one of Buffalo’s most responsible and caring community foundations.

The primary basis of their action was that the proposed Buffalo casino was illegal, since the land on which it was to be built had been bought with gambling money and a very little bit of money from the 1990 Seneca Nation Settlement Act (SNSA). That land acquisition process, the casino opponents say, doesn’t meet the strict requirements for gambling-eligible land set forth in the 1988 Indian Gaming Regulatory Act (IGRA).

Buffalo casino opponents have an important supporter in former Congressman John LaFalce, who was one of the two House sponsors of SNSA. LaFalce has insisted all along that Congress never intended SNSA to be a land settlement action and neither did it ever intend that the act be used to make an end-run around rules limiting off-reservation Indian gambling. SNSA, LaFalce says, settled a lease disagreement. No land changed hands as a result of it and none of the funds paid to the Senecas by the federal or state government were for land acquisition.

On January 12, 2007, US District Court Judge William M. Skretny sidestepped the basic questions of the lawsuit and instead sent the entire matter back to the federal agency that had provided the determination that the Buffalo gambling site was gambling-eligible, the NIGC. He said their 2002 determination had been “arbitrary and capricious”—they’d taken only a day to do it. He told them to do their job and look at this land acquisition in terms of the appropriate law and make a serious, rather than a rubber-stamp determination.

On June 9 of this year, the Seneca Nation of Indians asked the NIGC to approve a revised ordinance. Less than a month later, on July 2, NIGC Chairman Phil Hogen approved it, saying he was responding to a request from the Seneca Nation of Indians identical to the first one different in only one regard: that this time the Seneca Nation specified the Buffalo land in question (in 2002 no specific property was named) and this time the Seneca Nation asserted that the land had been acquired with funds from what he called “the Seneca Nation Land Claims Settlement Act.” This claim, he said, meant that the land acquisition was in “settlement of a land claim,” a key term, since that is one of the few ways Indian lands acquired after 1988 can be gambling-eligible.

His determination, wrote Hogen, “moots the issues” in the case brought before Judge Skretny last year, and which Skretny ruled on in Citizens Against Casino Gambling in Erie County v. Kempthorne, et al, 471 F. Supp. 2d 295 (D. NY 2007). In other words, the NIGC chair seemed to be telling the Federal District Court that it had been trumped and should henceforth stay out of the argument.

Within hours of receipt of Hogen’s letter, the Perry Street slot machine shed was up and running. A few days later, on July 6, former Seneca Nation of Indians President Barry E. Snyder Sr. and Seneca Gaming Corporation chairman/president/CEO E. Brian Hansberry had an “Another Voice” piece in the Buffalo News trumpeting all the good their casino was going to do for Buffalo, such as the “$5 to $7 million annually” they would give the city “once the permanent casino is open.” They said nothing about the $50 to $70 million price the city would pay for that gift $5 to $7 million gift. A few days after that, a carefully-crafted letter appeared in the Buffalo News letters column attacking the Margaret L. Wendt Foundation for underwriting opposition to the casino.

Can you vote yourself a Superbowl ring?

The thrust of Hogen’s determination letter seems to be that since the Seneca Nation of Indians officials voted that the land they owned was gambling-eligible it was therefore gambling-eligible. For casino opponents, this is like the Buffalo Bills saying they were really winners of one of those lost Superbowl games and therefore Superbowl champions after all because they had a lockerroom vote and that, folks, is the way the vote came out. You change laws by votes, you change political office holders by votes, you pick Miss America by votes, they say—but you don’t change facts by votes.

If the logic in Hogen’s letter were valid, the Senecas could, if they had another governor as hungry for money as George Pataki was in 2002 and a legislature as docile as New York’s was the same year, buy huge parcels of private property, turn them into gambling joints, taking them off the tax rolls and out from under the state’s wide range of protective laws forever. Rockefeller Center, say, or downtown Buffalo. The Seneca’s nine acres was bought with only a few dollars of SNSA money and millions of dollars of Niagara Falls Seneca casino money. That’s a ticket that could be parlayed indefinitely.

The group of casino opponents funded by Citizens for Better Buffalo have filed two new actions in federal court opposing all of this. One requests that the court shut down the makeshift casino on Perry Street and declare the Seneca property in Buffalo not the kind of Indian-owned land on which gambling can occur. The other asks that the court accelerate the process and not let the gambling interests’ lawyers drag it out while construction on a new casino takes place.

The problem with Hogen’s determination, they say, is just what John LaFalce says has been wrong with this deal all along: SNSA wasn’t a land claim action in the first place or in its resolution. It was all about a lease. No land changed hands in the course of it or as a result of it, and money paid to the Senecas by the federal and New York State governments was in no way earmarked for land acquisition. Hogen, their lawsuit says, failed to distinguish between land SNI buys and land SNI buys that becomes the kind of Indian land on which gambling can take place. That failure, they say, is, just as Judge Skretny found last January, “arbitrary, capricious, an abuse of discretion, and not in accordance with law.”

What happens now?

Other than the blue windowless building on Perry Street with its 119 slot machines, things are pretty much where they were last year, when Citizens for a Better Buffalo went to Judge Skretny and asked him to determine whether or not the land on which the Seneca Nation of Indians wanted to set up a gambling operation in Buffalo was, in fact, the kind of land on which the law permits Indians to set up gambling operations. Judge Skretny never ruled on that request. Instead, he asked the Washington agency that oversees these matters to do a better job than it had done the first time. He asked it to look at the issues seriously, in terms of the law.

Did the NIGC take his instruction seriously and come to a reasoned conclusion that just happens to be exactly the conclusion they reached the first time, or is their letter just a formal way of telling the judge to screw off, they don’t give a damn what he says or thinks, because what they do down in Washington moots out what he does on the bench in Buffalo?

Judge Skretny will make up his mind about that. Whatever he decides, it is highly unlikely that the losing side will let things rest there. Both have too much to lose. The gambling interests have all that money they hope to suck out of Buffalo. And the people representing Buffalo have all that money they hope to keep from being sucked out of Buffalo.

The players

Neither the Seneca Nation of Indians nor any of the Seneca gaming corporations are or have been defendants in any of the Citizens for Better Buffalo the lawsuits. At this point, it is entirely between Buffalo citizens and citizen groups and officials and agencies of the federal government.

The plaintiffs—those seeking to block the downtown casino—are Joel Rose and Robert Heffern (as cochairs of Citizens Against Casino Gambling in Erie County), Rev. G. Stanford Bratton (executive director of the Network of Religious Communities, a network of 18 denominations, 15 religious organizations and more than 200 individual congregations), the Network of Religious Communities, the National Coalition Against Gambling Expansion, the Coalition Against Gambling in New York-Action, Inc., the Campaign for Buffalo—History, Architecture & Culture, the Preservation Coalition of Erie County, New York State Assemblyman Sam Hoyt, Erie County Legislator Maria Whyte, Erie County, Erie County Executive Joel Giambra, plus several neighborhood residents and property owners.

The attorneys representing them are Erie County’s legal team, Jackson & Jackson, the Knoer Group, Richard G. Berger, Richard Lippes and Associates and Stenger & Finnerty.

The defendants—those who say they have the power to force gambling on the city of Buffalo whether the citizens want it or not—are Philip N. Hogen (chairman of the National Indian Gaming Commission), the National Indian Gaming Commission, the US Department of the Interior and Secretary of the Interior Dirk Kempthorne.

The defendants are represented, primarily, by attorneys from the US Department of Justice, which means citizens of Buffalo and Buffalo community organizations are paying for lawyers in a lawsuit against a gambling organization represented by lawyers paid by US taxpayers, including themselves.

The gambling interests, therefore, are getting a free ride, which is, after all, the name of their game.

Bruce Jackson is SUNY Distinguished Professor and Samuel P. Capen Professor of American Culture at UB. He is a former vice president of Citizens for Better Buffalo. His most recent book, The Story is True: The Art and Meaning of Telling Stories, was just published by Temple University Press.