News	Silence in the Court: Where the Casino Case Stands by Bruce Jackson

Two motions are presently before US District Court Judge William M. Skretny in the Buffalo casino case. He was scheduled to hear oral arguments on both of them on August 21, but late last week he announced he had read enough to let him respond to both motions. He cancelled the oral argument and announced that he would be issuing his decision on or before August 26.

The motions

On July 8, Judge Skretny vacated the Class III gambling ordinance issued to the Seneca Nation of Indians by the National Indian Gaming Commission. Such an ordinance is required before gambling can take place on Indian-owned land; Judge Skretny’s ruling said the land the Senecas own in Buffalo is Indian country (in the narrow legal sense of that term) but it is not the kind of Indian country on which gambling could occur.

A week later, the plaintiffs (the group of citizens and citizens’ groups opposing the casino in downtown Buffalo) followed up with a motion asking the judge to turn that opinion into action, either by directing the National Indian Gaming Commission to take steps to shut the Senecas’ Buffalo gambling operation down, or, if NIGC did not respond appropriately, by sending US marshals do the job.

The defendants in the case—National Indian Gaming Commission chairman Philip N. Hogen and US Department of the Interior Secretary Dirk Kempthorne—did not at first respond to the shutdown motion. Instead, they submitted a motion of their own saying that because the Department of the Interior had recently changed its internal rules and its reading of the federal legislation changing all of this (the 1988 Indian Gaming Regulation Act, or IGRA), the judge should send the whole thing back to the National Indian Gaming Commission and let the process of applying for and issuing of an ordinance start over. (This is detailed in “The House Plays Two Cards,” Artvoice, July 10, 2008)

The Seneca Nation of Indians, which is not a party to the lawsuit but is obviously central to it, submitted an amicus brief to the court supporting the defendants’ motion.

The plaintiffs responded to the defendants’ motion, arguing among other things that IGRA defines the gambling status of land, not transient changes in the way a federal agency reads IGRA. The response suggested that the changes in Interior’s reading may even have been crafted to fit this specific lawsuit.

The defendants responded to the plaintiffs’ motion that the judge get someone to shut down the casino.

The Seneca Nation of Indians submitted an amicus brief in support of that response.

The plaintiffs responded to the defendants’ response.

The defendants responded to the plaintiffs’ response to the defendants’ motion that the judge abandon the case and give it back to NIGC.

That’s when Judge Skretny had enough of the lawyers’ words, announced he was canceling oral argument, and that he was moving directly to a decision on the two motions.

Money matters

The defendants are represented by the US Department of Justice, which by law represents all federal officials and agencies in legal actions arising out of their official duties. The Justice Department attorneys are paid by tax dollars.

The Seneca Nation of Indians and its various gambling corporations are represented by private attorneys paid for by profits from the Senecas’ gambling operation.

The plaintiffs are represented by private attorneys paid for by individual and corporate contributions, but primarily by the Margaret L. Wendt Foundation. The legal case has been coordinated by Citizens for Better Buffalo. Were it not for the Wendt Foundation support, there is no way the concerned citizens in this case could have gotten or maintained a seat at the table with all those very well funded government and gambling industry attorneys.

Steppenwolf or Madonna?

What’s it going to be, the plaintiffs’ “Turn Out the Lights” or the defendants’ “Like a Virgin”? Will the judge shut down the temporary slot machine operation in the blue steel shed and tell the Senecas they cannot run a gambling operation in the big complex they now have under construction?

The judge could go either way, and he could opt for something neither side has thought of. He could say, “No, I won’t do that, but, given the arguments you’ve presented, here’s what I will do…”

That is, after all, what happened last time. In the original proceeding, the plaintiffs asked him to declare the Buffalo gambling operation illegal; the defendants asked him to throw the plaintiffs’ and their complaint out of court. The judge took a third way: He sent the ordinance back to the NIGC and told NIGC commission to give it the kind of serious examination and consideration it was supposed to give it under law but which it had not given it the first time around. NIGC ignored him: It quickly approved a barely modified version of the Senecas’ request. It was only then that the judge declared the Buffalo gambling operation outside the law.

So we won’t know until or about August 26 what he’ll say this time.

And once he rules, we still won’t know for a while what will happen next.

Previously, I would have said at this point that the only thing that is certain is that the losing side will appeal. The Wendt Foundation is not about to abandon a case its trustees think vital to the health of the City of Buffalo. The Seneca Nation of Indians is not about to abandon what they see as a potential third profit center.

But are they as strong in their convictions about the value of the Buffalo profit potential as they were a year ago? The gambling industry across the nation has taken a big hit this year, in part because of the contraction of the overall economy, in part because of the escalating cost of travel. Credit for construction of gambling operations is more expensive than it was a year ago. The Senecas recently announced that they were rethinking expansion plans on their three locations—Niagara Falls, Allegany, and Buffalo. But unlike the other two, the Buffalo operation has always been designed to depend primarily on a local market; no one (other than perhaps Buffalo Mayor Byron Brown) thinks that a downtown casino will be a big tourist draw. Will the Senecas try to shore up Niagara Falls and Allegany or will they pour major resources into a casino designed to appeal to people too lazy or pressed for time to drive to either US or Canadian Niagara Falls?

If the Buffalo numbers aren’t as pretty as they were a year ago, and if the highly priced gambling industry lawyers tell the Senecas that Judge Skretny’s opinion is likely to withstand appellate scrutiny, there is a possibility that they might fold their Buffalo hand and concentrate on the two operations they have up and running and minting money for them now. The chances are slim they’ll do that, but the odds have been against Buffalo and its citizens all along in this. And if the Senecas don’t bail out now, maybe they’ll bail out after they’re rejected by the Second Circuit Court of Appeals in the next judicial round. Nobody’s folding any hands yet.

This is the 46th in a series of articles about attempts to establish gambling operations in northwestern New York that Bruce Jackson has written for Artvoice and other publications since June 2001. From 2006 to July 2007 he was vice president of Citizens for Better Buffalo. He is SUNY Distinguished Professor and Samuel P. Capen Professor of American Culture at UB.