Law 360 Article: High Court Declines To Hear Seneca Casino Land Dispute

High Court Declines To Hear Seneca Casino Land Dispute

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Law360, New York (May 31, 2016, 4:39 PM ET) — The U.S. Supreme Court on Tuesday declined to review a petition by a New York citizens’ group seeking to overturn a Second Circuit decision that allowed the Seneca Nation of Indians to operate a casino on a parcel of tribal land in downtown Buffalo.

The high court denied a cert petition filed by Citizens Against Casino Gambling in December claiming that the Second Circuit misread the federal Seneca Nation Settlement Act of 1990 by deeming the nearly 10-acre plot of land where the nation runs its casino as “Indian country” and misconstrued the term “dependent Indian community.”

The Second Circuit had found in September that the nation’s land acquisition in 2005 qualified as a “dependent Indian community” — one of three categories of Indian lands — since it was set aside by the U.S. government for Indian use and does not therefore fall under New York’s jurisdiction.

The circuit court’s ruling upheld a decision by the National Indian Gaming Commission that cleared the way for the Buffalo casino, rejecting arguments by challengers in litigation that stretches back to 2006.

The NIGC had pressed the justices in April to deny the petition, arguing that the Second Circuit had correctly applied a test aimed at determining whether the land was “Indian country” over which the tribe has jurisdiction by virtue of being a so-called dependent Indian community.

The Indian Reorganization Act allows the establishment of Indian country by taking land into trust without specifying particular plots of land, the agency said, and the IRA’s scope is even broader than the Seneca Nation Settlement Act because it doesn’t require trust land to be located within a tribe’s aboriginal area or near its former reservation land.

The citizens’ group responded later in April that the Second Circuit had erred on several fronts in a decision it said threatens to undermine state sovereignty by allowing the federal government to acquire land and transfer sovereignty over it from the state to a tribe.

The Second Circuit’s holding that the state of New York had lost jurisdiction to the tribe over the casino land parcel in Buffalo conflicts with Supreme Court precedent recognizing state authority in Indian country, the group said.

The land where the Seneca Nation operates its casino is “neither dependent, nor Indian, nor a community,” the group said, claiming that the land had been under state jurisdiction for two centuries and that no Indians lived there. Even if the land had dependent Indian community status, that wouldn’t make it eligible for gambling under IGRA, the group argued.

Representatives for the parties and the Seneca Nation were not immediately available for comment Tuesday.

The citizens’ group is represented by Cornelius D. Murray of O’Connell and Aronowitz.

The federal government is represented by U.S. Solicitor General Donald B. Verrilli Jr., Assistant Attorney General John C. Cruden and William B. Lazarus and Katherine J. Barton of the U.S. Department of Justice.

The case is Citizens Against Casino Gambling in Erie County et al. v. National Indian Gaming Commission et al., case number 15-780, in the Supreme Court of the United States.

–Additional reporting by Christine Powell, Vidya Kauri and Jeff Zalesin. Editing by Emily Kokoll.

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