NIGC approval of Seneca casino survives challenge

Law | Politics

Monday, February 2, 2009

A last-minute Bush administration action survived a challenge on Friday as a federal judge refused to shut down a Seneca Nation casino in New York.

On the morning of January 20, just as President Barack Obama was being sworn into office, the National Indian Gaming Commission approved a gaming ordinance for the off-reservation Buffalo Creek Casino. The decision drew fire not only for its timing but due to litigation surrounding the gaming site.

Casino opponents had convinced Judge William Skretny to declare the site illegal. But he refused to shut down the casino because he said the decision by NIGC Chairman Phil Hogen, a Bush nominee, was based on a "new analysis" of the Indian Gaming Regulatory Act.

"This new analysis is presumed valid unless and until it becomes the subject of a successful legal challenge," Skretny wrote in a four-page order.

That means opponents will have to start the litigation process all over again despite winning prior rulings against the NIGC. Skretny's earlier decisions -- including one that the Bush administration appealed -- are effectively moot because of Hogen's latest move.

But for the Seneca Nation, the latest development is good news. Due to the worsening economy, the tribe suspended all work on the Buffalo casino and laid off more than 200 gaming employees.

Seneca President Barry E. Snyder Sr. has vowed to complete the $330 million facility despite the economic climate. The tribe has even proposed another off-reservation casino in the Catskills, an area close to New York City.

The Catskills casino is years away and could be difficult, if not impossible, to secure due to a controversial "guidance memorandum" issued by the Bush administration in January 2008. The policy makes it harder for tribes to acquire land more than 40 miles away from their reservations.

Snyder said he hopes the Obama administration will be more receptive to off-reservation casinos. Tribes also want the new president to rescind the guidance memo, which is the subject of ongoing litigation.

The off-reservation casino in Buffalo, however, benefited from a different Bush administration action. In August 2008, seven weeks after Skretny had determined the site was illegal, new IGRA regulations became effective that changed the legal landscape.

Generally, IGRA bars casinos on land acquired after 1988, the year the law was passed. The regulations, for the first time, set out the criteria to determine whether a tribe can engage in gaming on a newly-acquired site.

Using funds authorized by an act of Congress, the Seneca Nation acquired the Buffalo site in October 2005, long after the 1988 deadline. But Hogen said the regulations don't apply to lands held in "restricted fee" status, the term used in the Seneca Nation Settlement Act.

Hogen also said the regulations support the site because it was acquired through a land claim settlement. IGRA allows tribes to engage in gaming in such cases.

A group called Citizens Against Casino Gambling in Erie County plans to challenge the new analysis and NIGC's last-minute approval of the gaming ordinance. It would appear to be the first case against the IGRA regulations.

Obama has the power to name a new chairman of the NIGC but has not made an announcement. His administration will also be appointing two other members of the commission.

Court Decision:
Citizens Against Casino Gambling in Erie County v. Hogen (January 30, 2009)

NIGC Approval:
Seneca Nation of Indians’ Class III Gaming Ordinance (January 20, 2009)

IGRA Regulations:
Part I-IV | Part V | PDF