It’s been a tough week for the NIGC.
After waiting five years for the National Indian Gaming Commission to review an appeal filed by the Fort Sill Apache Tribe, the tribe recently sued the agency in U.S. District Court in Washington, D.C. The lawsuit relates to a 2009 notice of violation the NIGC issued to the tribe for conducting bingo games at its Apache Homelands Casino in southern New Mexico, threatening to fine the tribe $1 million a month. The tribe closed the bingo operation while the NIGC conducted an “expedited review” that was supposed to be completed in 2009. The tribe asked the court to vacate and invalidate the NIGC’s notice of violation, calling it “arbitrary and capricious and in violation of federal law.”
Tribal Chairman Jeff Haozous said, “We are asking the court to do what the NIGC promised to do five years ago: review our case in a reasonable amount of time. We were concerned about the motivation behind the former chairman’s action and the legal theory used to justify it. We were troubled that it violated the agreement the United States made with us in 2007, an agreement that we relied upon when deciding to offer bingo at our reservation.” Haozous added, “Our people have long experienced broken promises. Geronimo couldn’t go to court, but we can. Perhaps now we can finally receive the justice that’s been denied us for so long.”
In 2014, the Fort Sill Apache tribe successfully sued Governor Susana Martinez’s administration to be recognized in New Mexico. The state Supreme Court deliberated only 15 minutes before unanimously ruling that the state must recognize the Fort Sill Apaches as a New Mexico tribe and include it in policy discussions on education, health care, water and natural resources. The state also must consider the tribe for capital construction projects.
Enrique Knell, Martinez’ press secretary, said, “The governor warned our Supreme Court that the recent lawsuit by Fort Sill was simply a pretext to further Fort Sill’s gambling ambitions. Indeed, Fort Sill is now using the court’s ruling in a lawsuit against the National Indian Gaming Commission, attempting to gain approval for gambling on its lands.”
The governor’s lawyers said the Fort Sill Apaches was “an Oklahoma tribe” with only 147 tribal in New Mexico when the Supreme Court heard the case. But tribal members said they were removed from their New Mexico homeland in the late 19th century by military force, not by choice, and they want to return to there. The tribe owns 30 acres in Luna County where its former casino is located. It operates a restaurant and smoke shop on the property.
Haozous never has denied the tribe was interested in operating a casino in New Mexico. But he said the lawsuit for state recognition was a separate matter with historical importance.
And in New York, the anti-gaming group Citizens Against Casino Gambling in Erie County, which has filed three lawsuits to close the Seneca Buffalo Creek Casino in Buffalo, New York, has reason to hope its ongoing fight with the Seneca Nation may come to an end?eventually.
The group has waged war against the Indians since 2006. It claims the 9.5 acres of downtown real estate where the casino opened is not Indian land. Even if it was, group members say, the land was acquired after 1988. The Indian Gaming Regulatory Act prohibits gambling on Indian land acquired after that statute was adopted, reported the Buffalo Business Journal.
“Somehow, someone got to them to change the argument and say the prohibition does not apply,” said John LaFalce of the citizens group. “It’s funny business.”
A motion by the NIGC to be a party to the group’s lawsuit was denied May 28 by the U.S. Court of Appeals Second Circuit. But the NIGC can go ahead and file an amicus brief, which would allow it to influence the outcome of the suit even though it is not a party to it.
According to LaFalce, a former member of the U.S. House of Representatives, that ruling means the Senecas cannot stop the group from trying to overturn the ruling by federal Judge William Skretny that said the Buffalo Creek Casino is legal. The citizens group has won two of its three lawsuits, but twice Skretny overturned them. The $130 million casino opened in 2013.
“So the case goes on,” LaFalce told the Business Journal. “The case was started in 2006 and it’s now 2014, and if the (Senecas) had been allowed to intervene, I think this case might go into the next century. They could make a million and one additional appeals. As long as the appeals go on and they’re not ordered to cease gambling, they can make money every single day. They can’t lose.”
