United States District Court
Western District of New York
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Plaintiff, vs. United States of America, individually, and as trustee of the goods, credits and chattels of the federally recognized Indian nations and tribes situated in the State of New York;
Dirk Kempthorne in his official capacity as Secretary of the U.S. Department of the Interior;
James Cason, in his official capacity as the Acting Assistant Secretary of the Interior for Indian Affairs;
United States Department of the Interior;
Philip N. Hogen, in his capacity as Chairman of the National Indian Gaming Commission;
National Indian Gaming Commission;
George E. Pataki, as Governor of the State of New York;
Cheryl Ritchko-Buley, as Chairwoman, of the New York State Racing and Wagering Board;
Defendants |
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First Amended Verified Civil Complaint
Case # 06-CV-00226 E(SR) |
Jurisdiction and Venue
1. That this court has subject matter jurisdiction of this action which is founded on the existence of a Federal question pursuant to 28 U.S.C. §§ 1331, 1361.
2. Venue is vested in the United States District Court for the Western District of New York pursuant to 28 U.S.C. § 1391(e) and 5 U.S.C. § 703.
3. This action arises under the Constitution and the laws of the United States; 10th Amendment to the United States Constitution; Article 1, § 8, Clause 3 of the United States Constitution (Indian Commerce Clause); 5th Amendment to the United States Constitution; Administrative Procedure Act (APA), 5 U. S. C. § 551 et. seq., Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 et seq., and seeks injunctive and declaratory relief pursuant to 28 U.S.C. §§ 2201, 2202; as hereinafter more fully appears.
4. Plaintiff further invokes the supplemental jurisdiction of this court to decide claims arising under the New York State Constitution and New York law pursuant to 28 USC § 1367.
Factual Allegations
5. Plaintiff, Daniel T. Warren is a resident of the Town of West Seneca, County of Erie and State of New York and resides within 6 miles of the proposed gambling casino.
6. Plaintiff owns property in the Town of West Seneca, County of Erie, State of New York and pays New York State Income Taxes, Town and County property taxes on property with an assessed value of more than $1,000.00 and sales taxes on all purchases made within the State of New York.
7. Plaintiff works full time in the City of Buffalo, County of Erie and State of New York within 1.5 miles of the proposed gambling casino and is concerned about the increased risks and effects a gambling casino will have on him and his environment which includes, but is not limited to: the blight that such a facility may cause him to be exposed to, exposure to, and the increased risk of being a victim of, crime that will emanate from such a facility, the lack of parking and the increase in traffic and its attendant risks, air pollution and noise as well as other negative environmental, health and social consequences that are attendant by the proposed development and use of the subject lands. He is also concerned about the integrity of the laws of the United States and the State of New York and wishes to assure those laws are carried out.
8. Attached hereto and incorporated by reference marked as Exhibit “A” is a copy of “Measuring Industry Externalities: The Curious Case of Casinos and Crime” by Earl L. Grinols and David B. Mustard. This study concludes that 8% of crime in counties with a casino is attributable to casinos and that this increased crime results in an annual cost of $65 per adult. The data also indicates that casinos create crime and not merely move it from one area to another.
9. Attached hereto and incorporated by reference marked as Exhibit “B” is a copy of a July 2004 report from the United States Department of Justice, Office of Justice Programs, National Institute of Justice entitled “Gambling and Crime Among Arrestees: Exploring the Link.” This report concludes that compulsive or pathological gamblers represent only a small percentage of the general population. Yet those who meet APA’s definition for pathological gambling accounted for slightly more than 1 in 10 arrestees surveyed in Las Vegas and about 1 in 25 in Des Moines. Together, 14.5 percent of arrestees in Las Vegas and 9.2 percent of those in DesMoines were either problem or pathological gamblers -- three to five times the percentage in the general population. Also more than 30 percent of pathological gamblers who had been arrested in Las Vegas and Des Moines reported having committed a robbery within the past year, nearly double the percentage for low-risk gamblers. Nearly one-third admitted that they had committed the robbery to pay for gambling or to pay gambling debts. In addition, about 13 percent said they had assaulted someone to get money. Nearly 40 percent had committed more than one theft in the past year, four times the number of arrestees without either a gambling or a substance use problem. Approximately 38 percent of arrestees with both gambling and substance use problems reported having sold drugs, nearly eight times the number of those with no gambling or substance use problem. One of the key conclusions of this report is that arrestees who report that they are or can be defined by their responses to interviews or questionnaires as compulsive or pathological gamblers are drawn disproportionately from the social and economic fringes of society. As legalized gambling spreads to States and localities that do not now permit gambling or have it only on a small scale, these jurisdictions must prepare to deal with the social ills engendered by problem gambling.
10. Defendant Dirk Kempthorne in his official capacity as Secretary of the U.S. Department of the Interior is charged with the duty of carrying out the declared trust responsibility of the United States towards Indian nations and tribes. Under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701, et seq., the Secretary has the authority to approve or disapprove Indian gaming compacts that are governed by the Act, or to allow such compacts to be considered to have been approved. Under the Seneca Nation Settlement Act of 1990, 25 U.S.C. § 1774, et seq., the Secretary has the authority to subject lands acquired by the Seneca Nation of Indians (“SNI”) to the provisions of Section 2116 of the Revised Statutes, 25 U.S.C. § 177, and “depending on the proximity of the land acquired” to expand the boundaries of existing SNI reservations at Allegany, Cattaraugus and Oil Spring in accordance with established procedures for that purpose.
11. Defendant United States of America has waived sovereign immunity to actions, such as the instant action, seeking declaratory and injunctive relief pursuant to 5 U.S.C. § 702.
12. Defendant James Cason is the Acting Assistant Secretary of the Interior for Indian Affairs. In that capacity he oversees the Bureau of Indian Affairs within the U.S. Department of the Interior, and he may exercise the Secretary of the Interior’s delegated authority for decisions affecting Indian Affairs.
13. Defendant United States Department of the Interior is a Cabinet-level agency of the United States government.
14. Defendant Philip N. Hogen is the Chairman of the National Indian Gaming Commission. The Chairman has the authority to approve tribal ordinances authorizing Class III gaming on “Indian lands” under Section 11 of the IGRA, 25 U.S.C. § 2710.
15. Defendant National Indian Gaming Commission is a federal agency established within the U.S. Department of the Interior by Section 5 of the IGRA, 25 U.S.C. § 2704.
16. Defendant George E. Pataki is currently the duly elected Governor of the State of New York.
17. Cheryl Ritchko-Buley is the duly appointed Chairwoman of the New York State Racing and Wagering Board.
18. On or about the 10th day of September, 2002 a compact was executed by Governor Pataki and the President of the Seneca Nation of Indians (hereinafter SNI) that purports to be a compact under the Indian Gaming Regulatory Act that will permit Class III gaming at three locations in the State of New York.
19. The compact also provides that a Casino will be located within the County of Erie, New York.
20. The compact requires the use of Seneca Nation Settlement Act funds to acquire the land within Erie County for the site of the proposed casino. (Compact ¶¶ 11(b)(3), 11(a)(2))
21. On or about October 24, 2002, Secretary Norton announced that she would, in accordance with § 11(d)(8)(C) of IGRA, neither approve or disapprove the Class III gaming compact between the Seneca Nation of Indians and the State of New York and that the compact is considered to have been approved, but only to the extent that its terms comply with the requirements of IGRA.
22. On or about October 25, 2002, the SNI acquired approximately 12.8 acres of land in downtown Niagara Falls, New York, known as the Niagara Falls Convention and Civic Center Property, from the New York State Urban Development Corporation for a purchase price of $1.00. These lands [hereinafter “the Niagara Site”] were identified in Appendix I of the Compact as the site of Gaming Facilities.
23. On or about the same day, the SNI leased the Niagara Site to the New York State Urban Development Corporation n/k/a Empire State Development Corporation. Also on the same day, the New York State Urban Development Corporation n/k/a Empire State Development Corporation subleased the Niagara Site to the Seneca Gaming Corporation.
24. On October 29, 2002, the SNI requested the Secretary of the Interior to have the Niagara Site placed into restricted fee status pursuant to Section 8(c) of the Seneca Nation Settlement Act of 1990, 25 U.S.C. § 1774f(c). That subsection states in pertinent part, “Unless the Secretary determines within [a certain time period] that such lands should not be subject to the provisions of Section 2116 of the Revised Statutes (25 U.S.C. § 177), such lands shall be subject to the provisions of that Act, and shall be held in restricted fee status by the Seneca Nation.”
25. On November 12, 2002 Secretary Norton declined to approve or disapprove of the Compact between the State of New York and the Seneca Nation of New York. Attached hereto and marked as Exhibit “C” is a copy of Secretary Norton’s letter to Seneca Nation President Schindler.
26. On November 25, 2002, the SNI submitted a Class III Gaming Ordinance to the National Indian Gaming Commission for approval. The gaming ordinance was accompanied by a copy of the Compact. By letter of November 26, 2002, to the SNI President, the Chairman of the National Indian Gaming Commission approved the SNI Class III Gaming Ordinance. The letter stated: “It is important to note that the gaming ordinance is approved for gaming only on Indian lands, as defined in the IGRA, over which the Nation has jurisdiction.”
27. On November 29, 2002, Neal A. McCaleb, then the Assistant Secretary –Indian Affairs, concurred in a recommended decision of the BIA that he declined to make a finding that the Niagara Site should not be subject to the provisions of 25 U.S.C. § 177. Attached hereto and marked as Exhibit “D” is a copy of this decision and concurrence.
28. Attached hereto and marked as Exhibit “E” is the July 9, 2003 testimony of Aurene Martin, Acting Assistant Secretary – Indian Affairs before the United States Senate Committee on Indian Affairs. This document was obtained from the Department of Interior’s website (http://www.doi.gov/ocl/2003/IndianGaming.htm) and this Court is requested to take judicial notice of it. In this testimony Assistant Secretary Martin testified that only three section 20(b)(1)(a) approvals have been granted since the enactment of the IGRA (Ex. E page 3 ¶ 4). She further testified that those three approvals were for “the Forest County Potawatomi gaming establishment in Milwaukee, Wisconsin; the Kalispel Tribe gaming establishment in Airway Heights, Washington; and the Keweenaw Bay Indian Community gaming establishment near Marquette, Michigan.” (Ex. E page 3 ¶ 2).
29. In or about October 2003, the Seneca Gaming Corporation or those in privity, or acting in concert with it acquired land in Niagara Falls, New York on the south side of Niagara Street for a price of $2 million of which, upon information and belief, none of this money where funds from the Seneca Nation Settlement Act of 1990.
30. On or about October 13, 2003 the Seneca Gaming Corporation sold the property on the south side of Niagara Street in Niagara Falls, New York to the Seneca Nation of Indians for $1. This dollar was from the funds established under the Seneca Nation Settlement Act of 1990.
31. In or about October 2003, the Seneca Gaming Corporation or those in privity, or acting in concert with it acquired land in Niagara Falls, New York on the east side of Fourth Street for a price of $1.8 million of which, upon information and belief, none of this money where funds from the Seneca Nation Settlement Act of 1990.
32. On or about October 13, 2003 the Seneca Gaming Corporation sold the property on the east side of Fourth Street in Niagara Falls, New York to the Seneca Nation of Indians for $1. This dollar was from the funds established under the Seneca Nation Settlement Act of 1990.
33. In or about February 2004, the Seneca Gaming Corporation or those in privity, or acting in concert with it acquired land in Niagara Falls, New York on the both sides of Fifth Street for a price of $180,000.00 of which, upon information and belief, none of this money where funds from the Seneca Nation Settlement Act of 1990.
34. On or about February 3, 2004, the Seneca Gaming Corporation sold the property on both sides of Fifth Street in Niagara Falls, New York to the Seneca Nation of Indians for $1. This dollar was from the funds established under the Seneca Nation Settlement Act of 1990.
35. In or about June 2004, the Seneca Gaming Corporation or those in privity, or acting in concert with it acquired land in Niagara Falls, New York on the east side of Fifth Street for a price of $127,500.00 of which, upon information and belief, none of this money where funds from the Seneca Nation Settlement Act of 1990.
36. On or about June 30, 2004, the Seneca Gaming Corporation sold the property on the east side of Fifth Street in Niagara Falls, New York to the Seneca Nation of Indians for $10. This money was from the funds established under the Seneca Nation Settlement Act of 1990.
37. In or about September 2004, the Seneca Gaming Corporation or those in privity, or acting in concert with it acquired land in Niagara Falls, New York on the corner of Fourth Street and Niagara Street for a price of $3.95 million of which, upon information and belief, none of this money where funds from the Seneca Nation Settlement Act of 1990.
38. On or about September 22, 2004 the Seneca Gaming Corporation sold the property on the east side of Fourth Street in Niagara Falls, New York to the Seneca Nation of Indians for $1. This dollar was from the funds established under the Seneca Nation Settlement Act of 1990.
39. On or about July 27, 2005, Penny Coleman, Acting General Counsel of Defendant National Indian Gaming Commission testified before the Senate Committee on Indian Affairs. Attached hereto and marked as Exhibit “F” is a copy of her testimony.
40. On or about July 27, 2005, George T. Skibine, Acting Deputy Assistant Secretary – Indian Affairs For Policy And Economic Development of Defendant Department of Interior, testified before the Senate Committee on Indian Affairs. Attached hereto and marked as Exhibit “G” is a copy of his testimony.
41. In or about July 2005 the Defendants NIGC launched a full-scale review of every tribal casino to ensure they are operating within the law.
42. That prior to July 2005 the Defendants did not have a system to track the land status of all 404 tribal casinos and identify new concerns. The goal of this full-scale review is to determine whether the casinos are operating on Indian lands as defined by the Indian Gaming Regulatory Act of 1988.
43. Upon information and belief, the comprehensive review comes in response to Defendants’ internal criticisms. In a report, the Interior Department's Inspector General found at least 10 instances of tribes operating casinos on land that was taken into trust without following the IGRA process.
44. Plaintiff made numerous complaints and submissions to the Defendants individually and as a member and officer of a group known as Upstate Citizens for Equality.
45. On or about July 29, 2005 Plaintiff sent an e-mail to Penny Coleman, Acting General Counsel for Defendant National Indian Gaming Commission. Attached hereto and marked as Exhibit “H” is a true copy of this e-mail.
46. On or about August 14, 2005 plaintiff received a response to his FOIA request for “all records pertaining to all decisions, determinations, or rulings that gaming on lands acquired after October 17, 1988 is permitted for the land occupied by the Turning Stone Casino and Resort and the Seneca Niagara Casino along with any supporting documents submitted” from the Records Access Officer of Defendant National Indian Gaming Commission. Attached hereto and marked as Exhibit “I” is a true copy of this response.
47. On or about August 31, 2005, plaintiff received a response to his letter dated July 7, 2005 to the Defendant Department of Interior. Attached hereto and marked as Exhibit “J” is a true copy of this response.
48. Upon information and belief, on or about October 3, 2005, the Seneca Gaming Corporation or those in privity, or acting in concert with it acquired approximately 9 acres of land in downtown Buffalo, New York, bounded by Michigan Avenue, South Park Avenue, Perry Street and Marvin Street for a price of $4.6 million of which, upon information and belief, none of this money where funds from the Seneca Nation Settlement Act of 1990. These lands [hereinafter “the Buffalo Site”] are within the geographic area designated in Paragraph 11, subparagraphs (a)(2) and (b)(1), of the Compact as the site of Gaming Facilities.
49. On or about October 13, 2005 the Seneca Gaming Corporation sold the Buffalo Site to the Seneca Nation of Indians for $4. The $4 was from the funds established under the Seneca Nation Settlement Act of 1990.
50. Upon information and belief, on or about October 3, 2005, the SNI requested the Secretary of the Interior to have the Buffalo Site placed into restricted fee status pursuant to Section 8(c) of the Seneca Nation Settlement Act of 1990, 25 U.S.C. § 1774f(c). That subsection states in pertinent part, “Unless the Secretary determines within [a certain time period] that such lands should not be subject to the provisions of Section 2116 of the Revised Statutes (25 U.S.C. § 177), such lands shall be subject to the provisions of that Act, and shall be held in restricted fee status by the Seneca Nation.”
51. On or about October 19, 2005, plaintiff submitted through the Department of Interior’s website via the Defendant’s comment form located at http://www.doi.gov/contact.html. A copy of the acknowledgement receipt is attached hereto and marked as Exhibit “K”
52. Upon information and belief, on or about December 3, 2005, defendant James Cason, Acting Assistant Secretary – Indian Affairs, or another official of the defendant Department of the Interior acting in his stead, either declined or concurred in a recommendation that he decline to make a finding that the Buffalo Site should not be subject to the provisions of 25 U.S.C. § 177.
53. The Defendants have and are acting contrary to constitutional right, power, privilege, or immunity and/or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right and/or without observance of procedure required by law and/or their actions were arbitrary, capricious, an abuse of discretion, and not in accordance with law.
54. Plaintiff has no adequate remedy at law to eliminate the threat of increased or enhanced risk and restore his ability to hold his state leaders accountable for their actions and to represent the people of the State of New York.
As and for the First Cause of Action
55. Plaintiff re-alleges and incorporates herein the allegations in paragraphs 1 through 54 above.
56. Defendants acted contrary to constitutional right, power, privilege, or immunity in approving the Compact.
57. In enacting the Indian Gaming Regulatory Act, Congress exceeded its authority under the Indian Commerce Clause as limited by the 10th Amendment of the United States Constitution in that it commandeers state officers and the state legislature to carry out and implement federal policy regarding the economic development of Indian nations and tribes by compelling them to enter into agreements that are prohibited by state law and regulate gambling conducted pursuant to those agreements and the act is therefore unconstitutional.
As and for the Second Cause of Action
58. Plaintiff re-alleges and incorporates herein the allegations in paragraphs 1 through 57 above.
59. If the Indian Gaming Regulatory Act is held to be constitutional the Compact is invalid because it does not meet the requirement that a tribal-state compact can only be entered into where located in a State that permits such gaming for any purpose by any person, organization, or entity (25 U.S.C. § 2710(d)(1)(B)).
60. The compact is invalid and in further violation of the Indian Gaming Regulatory Act in that it provides for games of chance that are prohibited in the State of New York which includes, but is not limited to, slot machines that are illegal in the State of New York and not permitted for any purpose by any person, organization, or entity.
As and for the Third Cause of Action
61. Plaintiff re-alleges and incorporates herein the allegations in paragraphs 1 through 60 above.
62. On October 24, 2001 the NYS Legislature passed bill S5828 & A9459 which ultimately became law and recorded in Chapter 383 of the Laws of 2001.
63. This bill was for twenty seven different purposes ranging from providing low cost electricity to businesses dislocated by the events of 9-11 to establishing tourism councils.
64. The portion of this bill/act which is the subject of this action is Part B. This part added a new § 12 to the Executive Law, added a New Section 99-h to the State Finance Law, and amended section 225.30 of the Penal Law.
65. Part B of Chapter 383 of the Laws of 2001 is a private and/or local bill.
66. Part B of Chapter 383 of the Laws of 2001 is a special law.
67. Executive Law § 12 as enacted purports to delegate to the Governor the authority to negotiate and enter into a tribal-state compact under the Indian Gaming Regulatory Act.
68. On or about the 10th day of September, 2002 a compact was executed by Governor Pataki and the President of the Seneca Nation of Indians that purports to be a compact under the Indian Gaming Regulatory Act that will permit Class III gaming at three locations in the State of New York.
69. By the terms of this compact the State is required to expend funds and dispose of state property to assist in the acquisition of property for the Seneca Nation of Indians.
70. The compact also requires that the State of New York reach agreements with the host municipalities to compensate them for the increase in expenses they will incur as a result of locating a Class III gaming facility therein.
71. The compact contains a provision where the fee title to the Niagara Falls Convention Center and its land will be transferred to the Seneca Nation for $1.00. The Nation will then lease the convention center back to the state for $1.00 a year for 21 years. The State then sub-leases the convention center to the Seneca Gaming Corporation for $1.00 a year for 21 years. At the end of 21 years the Seneca Nation will pay the State the balance of the general obligation bonds pledged in connection with the convention center as of July 1, 2002.
72. The compact also provides that a Casino will be located within the County of Erie, New York.
73. The compact also requires the State to use its powers of eminent domain to assist in acquiring property for the Seneca Nation of Indians to locate the subject gaming casinos.
74. The compact also requires the State to give to the Seneca Nation of Indians exclusive rights to install and operate gaming devices including slot machines within a defined geographic area. That area is defined as “(i) to the east, State Route 14 from Sodus Point to the Pennsylvania border with New York, (ii) to the north, the border between New York and Canada, (iii) to the south, the Pennsylvania border with New York, (iv) to the west the border between New York and Canada and the border between Pennsylvania and New York.”
75. In 1993 New York State Racing and Wagering Board was purportedly given authority to regulate Class III Indian gaming in the State.
76. According to the New York State Racing and Wagering Board, it “maintains a constant twenty-four hour presence within the gaming facilities of the three Class III facilities to maintain the integrity of all activities conducted in regard to Class III gaming, and to insure the fair and honest operation of such gaming activities. Additionally, the State conducts background investigations on all employees of the casino and enterprises who conduct gaming related business with the casino to ensure their suitability.”
77. This act and compact was not lawfully ratified by the Legislature of the State of New York and is therefore null and void.
78. This act is illegal and unconstitutional in that the State Legislature exceeded its power by ratifying this special law in violation of the Home Rule provisions of Article IX of the New York State Constitution and the laws of the State of New York.
79. This act is illegal and unconstitutional in that the State Legislature exceeded its power as limited by Article III § 15 of the State Constitution which provides “No private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.”
80. This act is illegal and unconstitutional in that the State Legislature exceeded its power as limited by Article III § 17 of the State Constitution which prohibits the legislature from passing any private or local bill “Granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever.”
81. This act and compact is illegal and unconstitutional in that it loans the State’s money or credit to or in aid of any individual, or public or private corporation or association, or private undertaking in violation of Article VII § 8 of the State Constitution.
82. If the Court finds that the Indian Gaming Regulatory Act is Constitutional and Article I § 9 of the New York Constitution is not pre-empted by federal law then Part B of Chapter 383 of the Laws of 2001 and the Compact is illegal and unconstitutional in that it violates the State Constitutional prohibition on commercial gambling.
83. The state officials who authorized and entered into this tribal-state compact acted in excess of their authority and the compact is not in effect as required by 25 U.S.C. § 2710(d)(1)(C).
As and for the Fourth Cause of Action
84. Plaintiff re-alleges and incorporates herein the allegations in paragraphs 1 through 83 above.
85. Defendants are charged with the duty to promulgate and implement the United States trust responsibility towards Indian Nations and tribes and their members which include when and how lands acquired by the various Indian nations and tribes will be taken into trust or restricted fee status and the duty to make the necessary determinations relative to gaming on Indian lands and, if permitted, the monitoring and regulation of the on-going conduct of such gaming.
86. Defendants are charged to carry out this duty consistent with the Constitution and Laws of the United States which includes, but is not limited to, the duty to carry out its duties according to due process of law.
87. The failure of Defendants to adhere to what regulations they have promulgated and their failure to promulgate and implement regulations setting forth their longstanding policies that are necessary to carry out their duties has resulted in ad hoc and irrational, arbitrary and capricious decisions in determining land status and the applicability of the provisions of the IGRA.
88. As testified to by Earl E. Devaney, the Inspector General for the Department of the Interior before the U.S. Senate Committee on Indian Affairs on April 27, 2005 “We determined that neither the BIA nor NIGC has a systematic process for identifying converted lands or for determining whether the IGRA exemptions apply. Therefore, unless a tribe abides by the rules and applies for approval, conversion of trust lands to gaming purposes goes essentially unchecked. Neither the Department nor NIGC has a way to ensure that Indian gaming is being conducted only on approved lands.” Attached hereto and marked as Exhibit “L” is a true copy of this testimony.
89. As testified by Penny Coleman, Acting General Counsel of the National Indian Gaming Commission before the U.S. Senate Committee on Indian Affairs on July 28, 2005, “The Commission and the Department have been criticized by the Department’s Office of Inspector General for failing to decide the Indian lands questions before a facility opens and for failing to have a systematic approach to making such decisions. We share the Inspector General’s concern on this. Good government requires that regulators know the extent of their jurisdiction. Furthermore, if we decide that a tribe should not have opened a facility because the lands did not qualify for gaming under the Act, extensive litigation is guaranteed and, if the Commission is correct, the tribe will have incurred millions of dollars in debt with few options for repaying the debt.”
90. On or about February 1, 2006 a hearing was held before the U.S. Senate Committee on Indian Affairs at which George T. Skibine, the Bureau of Indian Affairs official in charge of gaming, testified that he has circulated proposed regulations to cure the aforementioned deficiencies. After further questioning by the Committee, Senator McCain, the Chairman of the Committee, stated to Mr. Skibine “I'm a little dispirited when you, sort of as an aside, said, 'Well, we haven't begun a consultation with the Indian tribes over proposed regulations,'. . . That means that we have a long way to go.” Senator McCain further stated "I don't see how we can effectively regulate Indian gaming, and certainly exercise Congressional oversight, unless there's regulations to implement the law we passed. . ."
91. Senator Dorgan, Vice-Chairman of the Senate Committee on Indian Affairs at the February 1, 2006 hearing stated “This is a controversial and difficult issue and I think regulations are necessary, uniform interpretations are necessary. . .”
92. Mr. Skibine testified at the February 1, 2006 hearing before the Senate Committee on Indian Affairs "As we do the consultation, we have not as this point figured out exactly how we are going to proceed . . . At this point we haven't come up with a plan yet, except that we will do it, for sure."
93. At this Febraury 1, 2006 hearing Sen. John McCain and Sen. Byron Dorgan expressed frustration with the slow-moving pace. They said it was unacceptable that the rules aren't in place 17 years after the passage of the Indian Gaming Regulatory Act.
94. Additionally the Defendants’ own internal criticism prompted a review of all 404 casinos to make sure they are operating legally.
95. These systemic issues have resulted in inconsistent, arbitrary and capricious decisions such is the case at bar by failing to follow a procedure which satisfies elementary standards of fairness and reasonableness essential to the due conduct of the proceeding which Congress has authorized.
96. These systemic issues have resulted in the Federal Defendants approving gaming ordinances and tribal-state compacts prior to a proper determination as to whether gaming is permitted under 25 U.S.C. § 2710(d)(1)(C) or § 2710(d)(1)(b) and/or prior to a proper determination as to whether or not gaming on land acquired, or to be acquired, is permitted under 25 U.S.C. § 2719.
97. Just in this state the Defendants have allowed the Turning Stone Casino to continue to operate absent a valid tribal-state compact on land acquired after October 17, 1988 and not currently held in trust or restricted fee status. In a July 13, 1993 article that appeared in The Buffalo News entitled “LAND-STATUS ISSUE PUTS FUTURE OF ONEIDAS' CASINO IN QUESTION” by Associated Press reporter William Kates, Michael Cox, then general counsel of the National Indian Gaming Commission stated in regards to the status of the land where the Turning Stone Casino is situated “It's a matter that needs to be resolved because it has interesting ramifications. . . It could open a whole new way for Indian tribes to get into gaming and have a major impact on where their gaming operations are located.” Mr. Cox further stated that “It is an issue we are going to look into. . . We can't just not decide it.” In regards to questions relating to the NIGC possibly closing the Turning Stone Casino Mr. Cox stated “We are not interested in testing our authority.”
98. The New York Court of Appeals has declined to review a decision of the Appellate Division, Fourth Department of the New York Supreme Court affirming a trial court’s ruling that the compact under which the Oneida Indian Nation of New York operates the Turning Stone Casino as being illegal and unconstitutional.
99. Despite these rulings of the New York Courts the NIGC has failed to take any action on this obviously illegal gambling.
100. Defendants Hogen and the National Indian Gaming Commission has reduced its duty to review and approve tribal gaming ordinances to a perfunctory approval with no real or hard look at the proposed ordinances to determine if it in fact complies with the IGRA including boiler plate language which merely states that the gaming must not be inconsistent with the provisions of the IGRA which is the very thing it is suppose to determine.
101. Furthermore the Federal Defendants have failed to apply its own regulations and policy in taking land into restricted fee or trust status relative to the Niagara Site and upon information and belief relative to the Buffalo Site.
102. Specifically, according to the decision to take the Niagara Site into restricted fee status (Exhibit “D”) under Section VIII Other Requirements it states “There are no other requirements. The regulations governing the acquisition of trust land for Indian tribes set forth in 25 CFR Part 151 do not apply to this request because the land is acquired by the Nation in restricted fee.” This is contrary to 25 CFR § 151.3 and the Defendants position in promulgating and implementing 25 CFR Part 151. In addressing comments received as a result of the proposed Part 151 that were published in the Federal Register the Defendant stated “the rule is amended in Sec. 151.3 to provide that the requirements of the rule only apply to conveyances from fee simple to trust, fee simple to restricted fee and land exchanges involving fee simple land.” Federal Register: January 16, 2001 (Volume 66, Number 10, Page 3453).
103. Upon information and belief Defendants used this same flawed rational in taking the Buffalo Site into restricted fee status.
104. The Seneca Nation of Indians is seeking the acquisition of Fulton Street in the City of Buffalo, County of Erie and State of New York from the City of Buffalo.
105. That this land must be taken into restricted fee or trust status and the Defendants will have to review this application.
106. It appears that the Federal Defendants despite being given guidelines for the agency to follow in exercising its enforcement powers under the IGRA and have failed to follow them and/or they have conspicuously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.
107. The defendants have failed to adhere to their own regulations and policies, make regular inspections, or take vigorous inspections in order to carry out their enforcement duties under the Indian Gaming Regulatory Act of 1988 (25 U.S.C. § 2706) and the United States Trust Obligation toward the Indian nations and tribes.
Prayer For Relief
WHEREFORE, Plaintiff respectfully request that the Court issue an Order and Judgment:
Dated August 16, 2006
Buffalo, New York
_____________________________
Daniel T. Warren
Plaintiff, Pro Se
836 Indian Church Road
West Seneca, New York 14224-1235
Verification
I Daniel T. Warren, am the Plaintiff in the within action. I declare and affirm under the penalty of perjury that I have read the foregoing complaint and know the contents thereof. The contents are true to my own knowledge except as to matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true.