Super Lawyers
William C. Altreuter

Wednesday, November 01, 2006

To the oral argument of the Citizens Against Casino Gambling v. Gail Norton, et al matter this afternoon. I'm going to talk about this lawsuit at AHIA next week, so I wanted to be as current as possible. This meant that I ended up sitting in court until about six, which was not something I'd planned on, but the arguments were interesting, and the level of advocacy was pretty high.

The story goes like this: Salamanca, New York is a city near the Pennsylvania border that sits on land that was leased from the Seneca 99 years ago. (Actually, in 1890.) When the lease was running out Congress realized something was going to have to be done. The deal that had been struck back in the day was pretty unfair in the waning days of the 20th century, and the Seneca had made it clear that they intended to make up for it this go-round. John LaFalce was the congressman for the area at the time, and after some wrangling a deal was cut, and the Seneca Nation Settlement Act was passed. The statute provided that the Seneca would get $45 million bucks from the feds, and $24 million from New York State. The Seneca would negotiate new leases with the people who lived in Salamanca, or owned buildings on the land. The statute provided that the Seneca could use the money to buy "Land within its aboriginal area in the State or situated within or near proximity to former reservation land".

This land could acquire "restricted fee status" unless the Secretary of the Interior made a determination within 30 days after the comment period that such lands should not be subject to the provisions of section 2116 of the Revised Statutes (25 U.S.C. 177)". Governor Pataki then cut a deal with the Seneca which was intended to allow the Nation to acquire property in Niagara Falls and Buffalo, with the idea that they would develop it into casinos. There were payments negotiated and whatnot, none of which were particularly favorable to the cities or counties where this land was being taken off of the tax rolls, but there was a popular school of thought that casinos in those cities would be a good vehicle for economic revitalization. Buffalo's mayor, Tony Masiello, was a huge fan.

There have been all sorts of lawsuits, and efforts to stop the Buffalo casino since. The casino in the Falls is up and running, and although Niagara County and the City of Niagara Falls haven't seen any of the revenue that they were promised-- yet, I guess, giving the venture the benefit of the doubt-- the casino itself seems to be prospering, which makes it unique in that sad, blighted community.

There's a lot of technical stuff about when Indians can have gambling on their land. It boils down to whether it was land that they held before 1988, or if it is after-acquired land purchased or otherwise acquired as settlement of a land claim, subject to approval by the Secretary of the Interior. Today's argument was whether the property in downtown Buffalo can be considered "Indian Land" as defined by the Indian Gaming Regulatory Act. There were some collateral questions as well-- the Seneca wanted the right to file an amicus brief, and the federal government-- which is the party being sued here, since the Seneca have sovereign immunity, argued that the whole thing should be dismissed, but the real, bottom line question is whether the purchase of property pursuant to the Seneca Nation Settlement Act--property which has the restrictions on alienation that characterizes property that is immune from taxation-- is "Indian Land" within the meaning of the IGRA.

One argument that I liked was that the legislation was not intended to settle a land dispute, because there was never a question that the Salamanca property was the Seneca's. Maybe so, but the statute does provide for a means for the Seneca to acquire land, and for that land to acquire restricted fee status. Why?

The case presents a close question, I think, and one of the reasons I think so is the ham fisted way John LaFalce drafted this particular example of the sausage maker's art. He sat in front of me, mugging and shrugging and shaking his head, but the fact is that none of the other land settlement statutes in Article 25 have language like this one, and it looks to me like it was written to keep the possibility of a Buffalo casino open. "Near proximity"-- what the hell is that supposed to mean? One of the things that wasn't really mentioned was the Niagara Falls casino-- it is a lot closer to aboriginal land, but I'm sure there are other issues.

There were a lot of people there I know, and inevitably one of them introduced me to LaFalce, who was, I think, curious about why I was there. I was not dressed in lawyer drag, just a jacket, tie and khakis, but I was not a reporter he knew. "I have an academic interest," I said, whenever someone asked why I was there. "I'm thinking of writing something about this." That seemed to satisfy LaFalce, and although I wanted to ask why he'd drafted the legislation the way he did, I held off. Once the wheels were in motion on the Buffalo property he'd tried to get the brakes applied-- the public record is full of correspondence to Norton objecting. I suppose it's possible that the Seneca put one over on him, and he really was all good intentions. It could be, but I think my theory is probably closer. Still and all, now he is on the anti-casino side for real, and that means I shouldn't cross-examine him in public. Even I'm that polite.

The matter is before Judge Skretny, who I would characterize as "careful". He's probably inclined to give the government a pretty fair amount of deference, but I think he is also probably inclined to find the answer that the Second Circuit will agree with, too. Only chumps make predictions based on the questions asked at oral argument, so here are mine: he'll deny the Fed's motion to dismiss; he'll decline to rule on the environmental and National Historic Places arguments on the grounds that they are moot. He will permit the Seneca to file an amicus brief, but will reject the arguments made in it. And he will rule that the Secretary of the Interior failed to properly rule on the Seneca's application to acquire the Buffalo parcel.

Confidential to whoever that US Attorney was: the grain elevator that the Seneca tore down was an HO Oats elevator. It's pronounced "H" "O"-- not "Ho". A Ho elevator would be something else, I imagine.

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