Judge hits NIGC on off-reservation gaming site

Tuesday, January 16, 2007  

An off-reservation casino in downtown Buffalo, New York, faces further review after a federal judge on Friday said the National Indian Gaming Commission failed to do its job.

The Seneca Nation was given approval to open the casino by the Bush administration. In what is known as an Indian lands determination, Interior Department officials said the Buffalo site qualified for gaming under a little-used provision of the Indian Gaming Regulatory Act.

As a tribe with a settled land claim, the Seneca Nation is the only one to have utilized the land claim exception found in Section 20 of the law since its passage in 1988.

Opponents of the off-reservation casino filed a lawsuit in hopes of stopping the tribe from moving forward. But U.S. District Judge William M. Skretny said they had no legal standing to challenge the Indian lands determination made by Interior.

He didn't let the government off the hook though. Skretny said the NIGC's approval of the tribe's gaming ordinance failed to consider whether the Buffalo site meets the Indian lands requirement of IGRA.

"Because the Indian lands determination is one that Congress placed in the NIGC's hands, the NIGC's 2002 ordinance approval is vacated as arbitrary and capricious insofar as it permits gaming on land to be acquired thereafter in the City of Buffalo," the judge wrote in the 51-page decision.

In his ruling, Skretny placed more decision-making burdens on NIGC, an independent regulatory agency, and less on the Interior Department. He said a letter by former Interior Secretary Gale Norton about the legality of the Buffalo site isn't a "final agency action" that can be challenged in court.

"As such, the views set forth in the Secretary's November 12, 2002 opinion letter do not represent the final product of agency deliberation as to whether the Buffalo Parcel is gaming-eligible Indian lands," the decision stated.

On the other hand, the NIGC's views do matter because "NIGC is the agency expressly charged by Congress with administering the IGRA," Skretny wrote. Government lawyers had argued that the agency isn't required by law to make an Indian lands determination.

"Prior to approving an ordinance, the NIGC Chairman must confirm that the situs of proposed gaming is Indian lands," Skretny said. "In sum, the NIGC is the gatekeeper for gaming on Indian lands," he added.

As a result, Skretny ordered NIGC to consider whether the Buffalo site indeed meets the land claim exception of Section 20. Opponents claim the Seneca Nation didn't buy the parcel with land claim settlement funds, an issue at the heart of another off-reservation casino dispute involving an Oklahoma tribe and its Kansas gaming site.

Despite Skretny's decision, the NIGC is moving to lessen its burdens. The agency is developing a regulation that would require tribes to certify that their casino sites meet the Indian lands definition of IGRA.

NIGC Chairman Phil Hogen said the rule is needed because the agency isn't always sure that casinos are located on Indian lands. The issue is a crucial one because IGRA generally bars gaming on land acquired after 1988.

Exceptions are allowed for Oklahoma tribes with former reservations, newly recognized tribes, restored tribes and tribes with land claim settlements. For those who can't meet any of the four tests, IGRA provides a two-part determination process that requires federal and state approval.

In the history of IGRA, only three tribes have successfully completed a two-part determination application. The process is timely and costly, with states and local governments, as well as other tribes, often objecting to such projects.

As for the land claim exception, only the Seneca Nation has been successful. But the Wyandotte Nation of Oklahoma convinced a federal judge last year that its Kansas site qualified, over NIGC's objections.

The other Section 20 exceptions -- for newly recognized tribes and restored tribes -- have been utilized far more often. But some tribes, most notably the Chickasaw Nation of Oklahoma, have skipped the process altogether by opening casinos without an Indian lands determination.

Court Decision:
Citizens Against Casino Gambling in Erie County v. Kempthorne (January 12, 2007)

Relevant Links:
Seneca Nation - http://www.sni.org
Citizens Against Casino Gambling in Erie County - http://nocasinoerie.org
National Indian Gaming Commission - http://www.nigc.gov
National Indian Gaming Association - http://www.indiangaming.org