News	The Casino Craps Out by Bruce Jackson

The Buffalo gambling case and the judge’s decision

The small casino currently operated in downtown Buffalo by the Seneca Nation of Indians is an unlawful operation. The Senecas own the land and it benefits from and carries the special conditions regulating land that, in federal law, is “Indian country.” But it is not the narrowly defined and strictly regulated kind of Indian country on which gambling can take place. The Senecas can build whatever they like there—hotels, theaters, shops, hospitals, schools, anything at all. They can even build a gambling joint. But they cannot legally permit anyone to gamble in it.

So ruled US District Court Judge William M. Skretny, in a 122-page decision (127 pages with the front matter) rendered Tuesday afternoon in federal court in Buffalo. The decision is detailed, scholarly, at points elegantly written. Judge Skretny outlines the history and character of the treaties and laws governing Indian lands in general and Indian lands in Western New York in particular. He takes on the issues raised by the plaintiffs and argued by the defendants one by one and endorses or rejects each one.

The plaintiffs are a mixed group of organizations and individuals: Citizens Against Casino Gambling in Erie County, Network of Religious Communities, Preservation Coalition of Erie County, The Campaign for Buffalo—History, Architecture and Culture, Assemblyman Sam Hoyt, Erie County legislator Maria Whyte, Pastor Keith H. Scott Sr., and others. Erie County was one of the plaintiffs but pulled out when Chris Collins succeeded Joel Giambra as county executive early this year.

The case has been organized and directed by a group calling itself Citizens for Better Buffalo, the president of which is Buffalo attorney Diane Bennett. (I was vice president of the group from its organization in 2005 through July 2007). The lawsuit has been funded primarily by the Margaret L. Wendt Foundation. The plaintiffs were initially represented by a team headed by Buffalo attorney Joseph Finnerty, who was replaced by Albany lawyer Cornelius D. Murray.

The defendants are Philip N. Hogen, in his official capacity as chairman of the National Indian Gaming Commission, the National Indian Gaming Commission, the United States Department of the Interior, and Dirk Kempthorne, in his official capacity as the Secretary of the Interior. They were and continue to be represented by the US Department of Justice.

Judge Skretny’s ruling is a response to the plaintiff’s First Amended Complaint, filed on July 12, 2007, which amended the complaint that was originally filed on January 3, 2006. Based on the original Complaint, the judge remanded the questions to the National Indian Gambling Commission, telling it to subject the Seneca Nation’s gambling request to a serious measure of scrutiny in terms of the law. The NIGC made a few linguistic changes in its authorization to set up a casino in Buffalo, but apparently ignored all the judge’s requirements about making it in terms of the law.

So this time the judge held that the NIGC ruling was “vacated” because:

The NIGC approved the SNl’s gaming ordinance based on its conclusion that the Buffalo casino site was acquired as part of the settlement of a land claim. The NIGC deferred to the Secretary’s opinion in this regard. The NIGC and the Secretary failed to: consider the text of the SNSA, review related statutes and case law, interpret the meaning of the statutory language at issue, or offer reasoned explanations for their conclusions. For these reasons, the NIGC Chairman’s conclusion, which relies on the Secretary’s opinion, is arbitrary and capricious. Moreover, the Buffalo casino site was not acquired as part of the settlement of a land claim. Because the Indian Trade and Intercourse Act did not apply to the SNl’s land leases, there was no claim for the SNSA to settle. The NIGC’s determination to the contrary is not in accordance with the law. The Court vacates the NIGC’s approval of the Class III Gaming Ordinance for the Buffalo casino site as arbitrary and capricious, and contrary to law.

Terms of art, points of law

“Arbitrary and capricious” are what lawyers call a “term of art,” and is the term used when an agency (or lower court) makes a determination without reasonable grounds or adequate consideration of the circumstances, and that decision cannot withstand scrutiny by the reviewing court. Judge Skretny’s decision, in fact, reads as much like a brief for a higher court hearing an appeal as a ruling on a local case. After his detailed historical and legal analysis he takes on the plaintiffs’ and defendants’ arguments one by one, setting each in a broader legal context and examining them in this specific context.

He rejects, for example, the plaintiffs’ argument that the Seneca purchase isn’t Indian territory at all, that it is land owned by the Senecas, but not in a way that qualifies as Indian country. It is indeed Indian country, he says, and then details why. He rejects the defendants’ argument that the plaintiffs have no standing in federal court to sue on this issue. He also rejects the defendants’ claim that the court has not right to adjudicate this issue because it had to do with land title and the court cannot interfere with land in which the government has a title interest under the “Quiet Title Act.” No title is involved in this case, writes Judge Skretny; the case is entirely about whether the Seneca ownership of the land meets the requirements of the Indian Gaming Regulatory Act of 1988 (IGRA).

What kind of land is that nine acres?

Most importantly he rules on whether or not the Seneca property in downtown Buffalo qualifies for an exclusion from IGRA’s prohibition against gambling on lands acquired after October 17, 1988. The exclusion depended on by the Seneca Nation of Indians, the US Department of the Interior, the National Indian Gaming Commission, the Secretary of the Interior, and New York Governor George Pataki was one that permitted gambling on land acquired after that cutoff date if the land had been acquired a part of a land settlement.

The defendants insisted that since a small portion of the money used to purchase the Buffalo property came out of funds from the Seneca Nation Settlement Act of 1990 (SNSA), the entire purchase was therefore the product of a land settlement and therefore land on which gambling could take place. The plaintiffs argued that SNSA wasn’t a land settlement; it was a lease adjustment act: The Senecas had been underpaid for years for lands they leased to non-Indians in Salamanca and the act redressed that wrong by giving them $35 million in compensation. The Senecas owned the Salamanca land before SNSA and they owned it after SNSA. No land changed hands as a result of the SNSA.

That position was argued most forcefully and publicly by former Congressman John LaFalce, who was co-sponsor of the bill. He argued it in planning meetings of Citizens for Better Buffalo (often over the opposition of then lead counsel Joseph Finnerty who was, for a time, anxious to base the case on his notion of what he called “environmental justice,” an idea no one in the group picked up and which eventually faded away). LaFalce reiterated his position most recently in an article posted June 16 on the Buffalo Report Web site (buffaloreport.com) and reprinted two weeks later in abbreviated form in the Buffalo News “Another Voice” column (both versions are available online).

LaFalce’s essay was argued in the News’ letters column by Barry E. Snyder Sr., chairman of the Seneca Gaming Corporation. The casino, argued Snyder, is a great economic engine for the community, and the Buffalo land was acquired “through the settlement of a land claim.” The name of the act empowering gambling in Buffalo, wrote Snyder, is “Seneca Nation Land Claims Settlement.”

NIGC chair Hogen had said the same thing in his determination. He tried to read SNSA as a settlement act because the title in the United States Code is “Seneca Nation (New York) Land Claims Settlement.” Hogen should, Judge Skretny wrote, have looked at the act itself because that title was provided by a printing clerk or editor; it is not the title of the act itself, which is “To provide for the renegotation of certain leases of the Seneca Nation, and for other purposes.” Congress, the judge points out, “gave the Act the short title ‘Seneca Nation Settlement Act of 1990. Congress did not include the term ‘claim,’ much less ‘land claim,’ in the SNSA’s long or short titles.”

So that title relied on by Snyder in his letter to the Buffalo News and by the National Indian Gaming Commission in its determination that the nine Buffalo acres were gambling eligible was a clerical error, nothing more. It had nothing to do with the legislation co-authored by John LaFalce and passed by Congress. The Buffalo land was Indian country but not gambling territory, which was why the judge said the Seneca Buffalo casino was outside the law.

Byron Brown’s response

A few hours after Judge Skretny published his decision on July 8, Buffalo Mayor Byron Brown issued this response:

The proposed Seneca Buffalo Creek Casino remains the largest private development project in this history of the city.

The ongoing $333 million project has already created over 100 construction jobs and it is expected that more than 1,000 people will be employed upon the project’s completion, including approximately 50% city residents earning an estimated average salary $35,000 per year.

The City of Buffalo is not a party of the federal lawsuit. According to initial legal analysis, the judicial review process will continue and the city remains committed to receiving 100% of the estimated $5-7 million a year in revenue as the host municipality to the casino.

This needs a gloss:

• It’s a really big construction project (he says nothing about other construction that won’t happen because of the money the casino will suck out of the community, nor of business that won’t relocate here because there would be a casino in the heart of town).

• It will create a lot of construction jobs (he never says or does anything that might in any way displease the trades unions, however harmful a particular project might be to the city in the long run).

• It will provide lots of jobs (he says nothing about the greater number of jobs that will be lost elsewhere in the city).

• The City has nothing to do with the lawsuit (don’t blame us for this debacle, the dream that may be dissolving in the light of day).

• And finally, a sentence that is at once irrelevant, a non sequitur and pouty: a legal analysis (by whom?) says the legal activity regarding the casino will continue (someone will probably appeal?) and (the conjunction doesn’t connect anything; it indicates a move to a totally different subject) his administration still wants that $5-7 million a year as its cut of the slot drop (no matter that that $5-7 million comes to City Hall at the cost of more than 10 times as much money taken out of the local economy), every single penny of it (County Hall better not get the idea that we’re going to share this because we’re not. It’s ours, all ours).

Since he took office Byron Brown has remained perfectly consistent about the casino project. His lines could have been taken from the Seneca gambling operation’s public mantra (and frequent Buffalo News “Another Voice” columns) about the casino’s unalloyed benefits to the city. It makes sense for the Seneca gambling bosses to make the same claims again and again and for them never to refer to the harm all studies have shown downtown casinos have done to local economies, especially casinos, like this one, that would pay no local or state taxes and be subject to no state employee benefit or environmental laws. The gambling bosses are in it to make money for themselves and the Seneca Nation; they have no responsibility to look out for us. (See for example, the glowing July 3 Buffalo News “Another Voice” essay by SNI President Maurice A. John Sr., “Seneca economy helps New York, no incentives needed.” It’s about all the money SNI is spending in Buffalo with nary a word about the fact that the money being spent is money that was first being taken out of Buffalo.)

The mayor of Buffalo should be looking out for us; that’s his job. And that’s what’s so strange about Byron Brown’s unwavering and uncritical position on the casino.

He is like a businessman who looks only at the plus side of the ledger and goes out to the stockholders and gives smiling, glowing reports. When stockholders ask what about the other side of the ledger he seems not to hear the question, or not to think it matters as long as the positive side is really, really positive. He is a walking, talking, speechifying, statement-issuing illustration of why the citizenry needs the courts.

The Seneca response

The SNI response to the lawsuit was more measured and rational than Byron Brown’s. President Maurice A. John Sr. had scheduled a press conference Tuesday afternoon but cancelled it after the decision was made public. Apparently he had expected the judge to rule in favor of SNI. He later issued a statement claiming the judge had validated SNI’s ownership of the land and the fact that the land was Indian country, but:

We were disappointed, however, that the Court concluded that the National Indian Gaming Commission did not properly approve our gaming ordinance.

The Court’s decision is lengthy and requires much closer analysis. We will be reviewing the decision carefully, as we want to be sure that the Court was aware of and considered all of the applicable federal law. We will be speaking further with the United States as we study our options and examine the decision in greater detail…

The Seneca Nation has faced many challenges in our 1000-year struggle of survival. This is but another. I am confident that we will be successful in achieving the destiny of the Seneca people.

What now?

At this point, the Seneca Nation of Indians can’t do anything but issue statements and lobby government officials. It wasn’t a party to the lawsuit so it can’t appeal the judge’s decision. They’ve retained famed Harvard Constitutional lawyer Lawrence Tribe, but it’s not yet clear what they intend to do with him. Will he advise them on how the Second Circuit Court of Appeals in Manhattan or the Supreme Court might deal with Judge Skretny’s careful text? Will they ask him to initiate an entirely new lawsuit of their own, one designed to derail the current process?

The Justice Department, acting on behalf of the Department of the Interior and the Indian Gaming Regulatory Commission, is almost certain to appeal Judge Skretny’s ruling. Buffalo isn’t the only place where the Secretary of the Interior and IGRA rubber-stamped a request for a gambling ordinance. Indian gambling is very big money and very big money translates into very big campaign contributions. Jack Abramoff is gone but he’s got scores of clones still in business on K Street who learned from his mistakes. The Bush administration has been consistent in its agency response to big money and big business. (Note, for example, the recent secret attempt by the former timber lobbyist Bush put in charge of the US Forest Service to convert hundreds of thousands of public mountain forest land to residential subdivisions.)

How successful will an appeal be? Judge Skretny’s decision is very well researched and carefully grounded in a great deal of history and law, so sustaining it on appeal seems like a no-brainer. But if you read the majority opinions in Bush v. Gore (the 2000 Florida vote count case) and District of Columbia et al v. Heller (the 2008 Second Amendment handgun case), you know that, with this court, the fact that something might be a no-brainer is a non-starter.

But it usually takes a long time for a case to get to the Supreme Court. What about the short term? Will the Seneca gambling operation continue as it is now—lots of slots in the blue shed on Michigan Street and then a huge dazzling array of them in the gambling palace presently under construction?

The day Skretny’s decision came down, a spokesman for SNI said it was their intention to keep on running the gambling operation in downtown Buffalo and to keep on with their big hotel and casino construction project. They would, he said, take time to study the opinion in detail before coming to a final decision.

There is a distant possibility that they might fold their Buffalo hand and be content to reap profits from their Niagara Falls and Allegany operations. But hardly anyone expects them to do that. Why should they? Washington has been and continues to be friendly to gambling operations. Obama has said nothing likely to offend gambling interests so there’s no reason to expect him, if he is elected, to jump in and order his Justice Department to stand down on this one and his Department of the Interior to back off. On issues connected with big money, McCain is Bush Redux, so he’s not likely to get his hands dirty with this one either.

What power, exactly, does a federal district court judge have over an agency in the executive branch? Judge Skretny has declared NIGC’s Buffalo gambling ordinance “vacated,” but can he force NIGC to force the Seneca Nation of Indians to close shop? There is no question a federal judge can order a city to integrate its schools or fire department, but can he do that to a federal agency? What if the federal agency says, “You’re wrong, we don’t want to do what you want us to do, and we’re going to find another judge who will rule our way?”

Judge Skretny has delivered a learned, carefully reasoned opinion in which he determines that the gambling operation in Buffalo was improperly authorized and is therefore operating outside the law. It may be a while before anyone knows the practical consequences of that opinion.

Bruce Jackson is SUNY Distinguished Professor and Samuel L. Capen Professor of American Culture at UB. His most recent books are The Story Is True: The Art and Meaning of Telling Stories and Cummins Wide: Photographs from the Arkansas Penitentiary. He edits the political Web site BuffaloReport.com.