Further reflections on the future of the Seneca Buffalo Creek Casino	by Bruce Fisher

SNAKE EYES

It’s about as complete a victory as the anti-casino forces could have wished for. No casino can operate legally, and no tax-exempt retail complex is likely to be built.

A federal district judge has found that the Seneca Gaming Corporation can’t legally operate a casino on Seneca land in Buffalo. The casino was the driver for what was planned to be a large entertainment complex—one that would have drawn its business entirely from the local marketplace. Under previous County Executive Joel Giambra, Erie County argued in its court papers that the Federal government was failing to protect the public interest—including the interests of legal tax-paying restaurants, hotels, nightclubs, and retailers—by permitting a casino/entertainment complex to go forward. Current County Executive Chris Collins withdrew that complaint.

But now that the casino has been ruled illegal, it’s still possible that the Seneca Gaming Corporation or the Seneca Nation of Indians could go forward with plans to build and operate a hotel, restaurants and other entertainment, and even a truck stop/smoke shop. But the economics of such a development would now depend not on the revenue streams generated by hugely-profitable casino operations, but only on the Senecas’ exemption from the current 8.75 percent sales tax. It’s doubtful that there will be a big tax-exempt retail complex at Michigan and South Park if the only advantage the Senecas have is that.

The precise status of the land turned out to be the core issue. When the Seneca Nation bought the parcel in 2005, they argued that it was thereby made “Indian country.” They were right. But the land was purchased with funds made available by the LaFalce-Houghton law, under which the Seneca Nation of Indians was compensated for 100 years of inadequate lease payments. That law was not a “land claims settlement,” but rather a reimbursement for a too-cheap lease.

The Senecas called the parcel at Michigan and South Park “Buffalo Creek Territory,” evoking the name of the short-lived reservation that was established after the Revolutionary War for those Senecas who chose to stay in the new United States rather than join their relatives in British territory in Canada. Judge William Skretny found that the Federal government was correct to allow the Seneca Nation to buy that land as “restricted fee” land—even though, contrary to the very specific language of the LaFalce-Houghton bill, the land they bought was far from their reservation, and even though the land they bought was never aboriginal Seneca territory. (This is the second major case within a decade to reassert that the Senecas may have destroyed the aboriginal Erie, Wenro, and Neutral inhabitants of the lands west of the Genesee River, but that the Senecas didn’t arrive here until after the Revolutionary War.)

The Senecas succeeded, in the Skretny decision, in asserting that the parcel at Michigan and South Park is now Indian Land. But it’s not land on which the Senecas or anybody else can operate a casino.

The only immediate question is how Judge Skretny’s decision will be enforced. At the end of his opinion, he instructs the clerk of his court to “take the necessary steps to close this case.”

Skretny’s decision, like his Federal District Court colleague Judge Richard Arcara’s 2002 decision rejecting Seneca claims to Grand Island, may be appealed to the Second Circuit Court of Appeals. Bush administration appointees to the Indian Gaming Review Commission would, presumably, look for guidance from the Secretary of the Interior who succeeded Gale Norton, under whom the original decision to allow a Seneca Gaming Corporation casino to operate. An appeal would be a logical extension of Bush policy.

Skretny’s decision is so exhaustive, however, and so tightly focused on the very precise language of the LaFalce-Houghton act, that such an appeal would probably meet the same fate as the Senecas’ appeal of Arcara’s Grand Island land claim decision: denial.

—bruce fisher