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Senecas proceed at their own risk as lawsuit continues

Recently, the Seneca Nation of Indians held a press conference to announce plans for the development of a hotel, parking garage and casino gambling complex in the heart of downtown Buffalo.

Shortly thereafter, Maurice John, president of the Seneca Nation, wrote an article published in this newspaper headlined, "Seneca Nation has followed the letter of the law," insinuating that U.S. District Court Judge William Skretny had somehow approved the project. He did nothing of the sort.

The facts are that in January, Skretny vacated a gambling ordinance that had been adopted by the Senecas and approved by the National Indian Gaming Commission. Commission approval is a prerequisite to legal gambling. The judge ruled that the administrative record provided by the commission was inadequate and he sent the case back to the commission to determine whether the land on which gambling was to occur was "Indian land" and, even if so, whether it was legal to operate a casino on that property under federal law governing Indian gambling.

Since then, the Senecas adopted a new ordinance that the commission approved on July 2. Ten days later, my clients -- a coalition of elected officials, grass-roots organizations and individuals opposed to gambling and concerned about the loss of sovereignty over the land -- filed a new lawsuit in court challenging the commission's approval of the revised ordinance.

Contrary to what the Seneca president might have you believe, Skretny has not approved the validity of the new ordinance. Indeed, he recently directed the parties to submit papers in support of or in opposition to the ordinance by Nov. 20. The federal court ultimately will decide the issue of whether or not a Las Vegas-style gambling casino can be conducted in downtown Buffalo, despite the fact that New York State law clearly and unequivocally prohibits such gambling.

While there is no dispute that the Senecas own the land, mere possession of title does not give them the right to violate the laws of the state unless they can also prove that the land is no longer subject to the jurisdiction of the state of New York. The Senecas must establish that they possess sovereign authority over it. Sovereignty and title are not the same thing. There are compelling legal arguments that Congress never intended to carve out a parcel of property in the heart of a major American city and designate it as "Indian land."

To be sure, this important legal issue will not be decided by an aggressive public relations campaign or even a symbolic groundbreaking, but rather by a court of law. Should the Senecas nevertheless proceed with their development plans before the court rules, they do so at their own risk.

In the meantime, the citizens of Western New York should ponder whether they are inclined to sacrifice sovereign control over this land on the altar of casino gambling.

Cornelius D. Murray is counsel for Citizens for a Better Buffalo.

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