Supreme Court considers petition in Seneca Nation casino dispute

The Seneca Nation owns and operates the Seneca Buffalo Creek Casino in Buffalo, New York. Photo from Facebook

The U.S. Supreme Court is meeting behind closed doors on Thursday to consider a petition in a long-running Indian gaming case.

Opponents of the Seneca Nation have been questioning the legality of Seneca Buffalo Creek Casino in downtown Buffalo, New York, for years. They claim the facility doesn't qualify for gaming under the Indian Gaming Regulatory Act.

At issue is a provision of IGRA that, generally, bars gaming on lands placed in trust after 1988. The tribe acquired the Buffalo site in 2005, long after the deadline laid out in Section 20 of the law.

But the 2nd Circuit Court of Appeals ruled that IGRA's general prohibition does not apply to the tribe because the site was acquired in connection with the Seneca Nation Settlement Act of 1990. That law requires the land to be held in "restricted fee" status, a different category than land placed "in trust," a three-judge panel determined.

"We presume that Congress was familiar with the regulatory definition of these terms when enacting IGRA because Congress is aware of existing law when it passes legislation,'" Judge Christopher F. Droney wrote for the majority last September. "Congress’s awareness of the distinction between trust lands and restricted fee lands is also explicit in the text of IGRA itself."

Seneca Nation leaders and Buffalo Mayor Byron Brown, center, sign the last steel beam that's part of a $40 million expansion of the Seneca Buffalo Creek Casino in Buffalo, New York. Photo from Facebook

Despite the victory, a group known as Citizens Against Casino Gambling in Erie County continues to pursue the case. A petition seeking to overturn the 2nd Circuit was filed with the Supreme Court on December 14, 2015, according to the docket sheet.

The National Indian Gaming Commission initially waived its right to respond. That often happens when a party believes the petition stands no chance of being granted or when the record is so strong that the justices can review the case without additional information.

But the Supreme Court ended up asking the NIGC to respond. A brief was finally filed on April 8, according to the docket sheet.

"The court of appeals’ decision does not conflict with any decision of this Court or another court of appeals," government attorneys wrote in the brief. "Further review is therefore unwarranted."

The anti-casino group filed one more reply before the petition was listed for consideration at a May 12 conference. That means the justices are getting ready to announce whether they will hear the case, something that typically happens in the week following their conference.

The passing of Justice Antonin Scalia, however, has affected some of the inner workings of the court so there is no guarantee of the timing of the order.

The last steel beam was placed atop a new $40 million structure at the Seneca Buffalo Creek Casino in Buffalo, New York. Photo from Facebook

Historically, the justices have avoided Indian gaming. The last decision that directly addressed IGRA was Michigan v. Bay Mills Indian Community from May 2014. Before that was Chickasaw Nation v. US in 2001.

Both of those cases drew significant interest in Indian Country. In contrast, the current petition only drew one brief -- from the anti-Indian Citizens Equal Rights Foundation.

The case is Citizens Against Casino Gambling in Erie County v. Chaudhuri. The Seneca Nation is not a party in the matter.

The tribe opened the Buffalo casino in July 2007. A $40 million expansion is underway -- a ceremony was held on Wednesday for the placement of the final steel beam in a new 57,000 square-foot, two-story addition that will offer more space for more slot machines, table games, a performance stage, a restaurant and retail.

"When completed, the ground floor will add more than 300 additional slot machines and additional table games, and the second floor will include a new Western Door restaurant with indoor and outdoor seating!" the casino wrote on Facebook.

The project is due to open in early 2017.

2nd Circuit Court of Appeals Decision:
Citizens Against Casino Gambling in Erie County v. Chaudhuri (September 15, 2015)

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