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John LaFalce on Casino Gambling

Bruce Jackson has just posted this essay by former Congressman John LaFalce over at Buffalo Report:

On June 25, 2008, a gigantic struggle took place on the floor of the U.S. House of Representatives involving casino gambling in the State of Michigan. That controversy and struggle is highly instructive on the question of the legality of casino gambling in Buffalo.

Two titans of the House, John Dingell (D-Mich), Chairman of the House Energy and Commerce Committee, and John Conyers (D-Mich), Chairman of the House Judiciary Committee, stood in opposing corners and came out fighting.

Rep. Dingell wants a casino in Port Huron, and doesn’t want the issue to go to the U.S. Department of Interior for its review. So he is trying to “legislatively” bypass Interior review, and permit casino gambling in Port Huron by mandating that the Secretary of the Interior “shall” take into trust certain land as part of a land claim settlement. The bill at least recognized that the land had to be taken into trust.

Rep. Conyers says he opposes gambling in principle, but also doesn’t want another casino in Michigan, which would compete with the casino that already exists in his city of Detroit. Conyers also argued it would be wrong to bypass the Interior Department’s review as to whether it should take it into trust, especially since he is confident Interior will render a negative opinion. An overwhelming majority of the House agreed with Conyers, and defeated the attempted bypass by a vote of 121 to 298.

So how is this relevant to Buffalo?

First, and very importantly, the 1990 Seneca Nation Settlement Act passed by VOICE VOTE in both the House and Senate in 1990. Everyone must realize that there was and is STRONG opposition to casino gambling in Congress; and there was and is STRONG opposition to the concept of legislatively bypassing Interior Department consideration. The present Michigan controversy is illustrative of the disagreement that exists now and also existed in 1990 within the Congress. The chief sponsor of the 1990 Act stated repeatedly that no one at that time ever contemplated casino gambling as “part of” any settlement. If there were even a “suspicion” of gambling, there would have been vigorous debate and dissent, and, I assure you, a recorded vote in both houses, not “voice” approval.

Second, the 1990 Settlement Act was not a “land claim”. Title to the Indian land was NEVER in question. Congress simply wanted to protect the rights of non-Indians to continue renting Indian property in Salamanca, and also to give the Senecas fair rents, prospectively and retroactively. Proponents of casino gambling call the 1990 Law the Seneca Nation “Land Claim” Settlement Act. But, the words “Land Claim” were not in the title of the bill that was introduced in either the House or the Senate, nor when it was considered in committee, nor on the floor of the House or Senate when it was passed by VOICE VOTE, nor was it in the bill that was signed into law by President George H.W. Bush. When the chairman of the National Indian Gaming Commission cited the words “Land Claim” in the title as an indication of congressional intent, when those words were simply not there, he evidenced the baselessness of their case.

Third, the word “gambling” NEVER came up – not in House or Senate Committee Hearings, nor in floor discussion in either body. In short, it was never contemplated, much less legislatively intended.

Fourth, the Senecas at that time overwhelmingly opposed gambling as contrary to their mores and culture. A Seneca referendum in the early 90’s was overwhelmingly, about 2 to 1, against gambling. That did change by the late 1990’s, and the concept of gambling was very narrowly approved by the Senecas. (It should also be noted that under Indian Law it is NOT ILLEGAL TO BUY VOTES in an Indian referendum, and no U.S. or New York Law can change that.) It is therefore ludicrous to even suggest that casino gambling was “part of’ any settlement. How could it be? For at that time, an overwhelming majority of the Senecas opposed gambling.
To be sure, a certain number, in my judgment, did see an opportunity for gambling, because while the 1988 Indian Gaming Regulatory Act does prohibit casino gambling off reservation, it does permit certain narrow exceptions, i.e., if land is placed into trust as part of the settlement of a land claim. So, this group did bring a lawsuit in 1993 claiming title to all the land on Grand Island and a significant portion of the land in the City of Niagara Falls, hoping for a settlement permitting gambling. This was their “first bite” at the apple of their eye—casino gambling.

It took a long time to resolve that lawsuit, for the State of New York, under the governorship of Mario Cuomo, strongly opposed the claim and did not wish to settle. The Attorney General was requested to oppose the claim vigorously, and not engage in settlement negotiations. The Senecas, I believe, would have settled, gladly, for the right to gamble on either Grand Island, Niagara Falls or both. But the State wouldn’t go along, and in 2002, Judge Richard Arcara figuratively threw their case out of court. But the Senecas were plotting that year for a “second bite” at the apple. If a new land claim wouldn’t work, they concocted the argument that the 1990 Settlement Act, passed TWELVE years earlier, dealing basically with Salamanca, permitted gambling in my Congressional District. When I first heard of this, I considered that notion preposterous. I still do.

But I was not aware of how influential the strong lobbying forces for it would be -both for Governor Pataki in an election year, and for the Senecas, and how closely the Bush Administration would “cooperate”.
If the Secretary of the Interior, Gale Norton, could be persuaded to do “NOTHING” on the Seneca’s application, the law said that it would be deemed approved.

How could she do nothing, I thought; and how could she, in 2002, in all good conscience, say that casino gambling in my district was “part of” the 1990 Settlement Act dealing basically with Salamanca, that passed both houses by a Voice Vote, did not have the words “land claim” in its title or in any portion of the bill, and had never even remotely contemplated “casino gambling”.

The words of the Inspector General of the Department of the Interior, Earl E. Devaney, in his testimony, on a different subject, before Congress in September 2006 might be instructive. He testified:

Simply stated, short of a crime, anything goes at the highest levels of the Department of the Interior. Ethics failures on the part of senior Department officials – taking the form of appearances of impropriety, favoritism, and bias – have been routinely dismissed with a promise “not to do it again.” Numerous OIG reports,…have chronicled such things as complex efforts to hide the true nature of agreements with outside parties; intricate deviations from statutory, regulatory and policy requirements to reach a predetermined end…

The 2002 “non-decision decision”, being such, can be reviewed de novo in court. A non-decision decision is entitled to no deference. To say that the 1990 law permits casino gambling in Buffalo would be a pernicious distortion of the law. It would validate the “non-decision decision” of the Secretary of the Interior that deviated “from statutory, regulatory and policy requirements to reach a predetermined end.” There are a multitude of other issues, to be sure. But the overriding issue must be preserving the integrity of the law, rather than its perversion. That is even more important than the issue of casino gambling.

If, arguendo, casino gambling is to exist in Buffalo, let it be permitted after appropriate regulatory review by the Secretary of the Interior as called for by the Indian Gaming Regulatory Act; or, let it be decided by a new law, after appropriate debate and a transparent and knowing recorded vote in Congress, not by making a mockery of the law by distorting it to reach a predetermined end.

  • Bruce Fisher

    While we await Judge Skretny’s decision on the Buffalo casino case (which was argued last fall, over 8 months ago), the Seneca Gaming Corporation proceeds with construction of the casino-retail-entertainment complex at the intersection of South Park and Michigan.

    The former Erie County administration, which I served as deputy county executive, sued the U.S. Department of the Interior and Secretary Gale Norton and her successor for having ignored statutes (the Indian Gaming Regulatory Act and the LaFalce-Houghton legislation) as well as for having violated the Administrative Procedure Act in failing to follow proper process.

    In 2005, when the Department of the Interior asked government officials whether they had any comment on its non-decision decision to allow the Seneca Gaming Corporation to let a casino be built in Buffalo, Erie County Executive Joel Giambra was the only elected official to object. Our grounds: that the proposed casino-retail-entertainment complex would injure the local economy by drawing trade from existing taxpaying businesses; that it would swell the numbers of problem gamblers and of those who engage in the criminal conduct associated with casinos, and that both of these groups would in turn cost taxpayers; that the public health would be injured by unregulated smoking; and that the economic harm could not be mitigated by the proposed distribution of part of the projected revenue-sharing agreement.

    In 2008, Erie County Executive Collins withdrew the County as a plaintiff.

    We all await Judge Skretny’s decision on the substantive and procedural issues.

  • WNYMind

    This has nothing to do with the Seneca. The courts ruled in favor the the Seneca and the Seneca’s right to build on their land in Buffalo was upheld. In fact, under treaty the Seneca have a legal claim to all the land in WNY. It is under their treaty with the US Government and the US Courts that hold their land in trust already. Nations in Michigan operate under their own seperate treaties. So, if the Congress wants to invalidate the Seneca treat, which is over 100 years old and the subject of numerous federal court determinations, then go for it. Invalidating the treaty would revert most of the land in WNY back to the Seneca, which would mean more casinos could be built.

    You can also thank Bruce Jackson for trying to throw out another red hearing in the latest attempt to stop a major development and employment project from coming to Buffalo. Yes, Buffalo, the place losing jobs like wildfire.

  • jamie moses

    Gambling casinos are not development by any stretch. Manufacturing, technology companies, new colleges and universities, waterfront expansion, these are healthy development projects. Creating a building complex that exists simply to suck money out of people’s pockets and give nothing back in return is not development, it is parasitic. State government with budgets dependent on encouraging gambling through lotteries, OTB, video terminals and other state sanctioned betting ruses to gather what amounts to nothing more than taxes are just as guilty as the Senecas. It all adds up to reaping unearned money by convincing people that it’s okay to be a sucker. As for a casino being an employment project, in just the first three months of Seneca Niagara opening over 35 small independently owned taverns in Niagara Falls went out of business. How is that contributing to employment. What a joke.

  • WNYMind

    I understand that some people have legitimate concerns about gambling, but it is economic development in this case. Here are some reasons:

    $8 million guaranteed to the City of Buffalo per year (which is more than many of the other things cited would produce due to nonprofit status or pure public uses. Colleges and universities pay no property taxes, waterfront expansion results in new costs for public infrastructure and parks, and manufacturing and technology parks typically come with tax breaks and infrastructure costs).

    The casino involves no public money.

    The casino will bring hundreds of temporary construction jobs and over 1000 permanent jobs for people in the city and Native Americans who currently have no income or lower paying jobs without benefits. Some are low skill jobs, but others are skilled jobs.

    The casino also has many multipliers (i.e. spillover effects in the economy). Lots of contracts for services and supplies for the hotel and restaurants. Well paid jobs for educators in ECC and Niagara University’s hotel management school, etc….

    The casino’s hotel will increase the city’s capacity to host conventions and conferences, as well as bring people traveling for sabres games and other events to the city, as opposed to other destinations.

    Even a negative, the small number of people who gamble and have problems with that choice, will have a better chance of getting into gambling adversion programs, since the casino funds them. A byproduct of that will be more jobs for counselors and social workers. Illegal gambling groups don’t promote that kind of activity, and the state’s lotto money for such programs never really reach Buffalo (it gets sucked up by NYC and other municipalities).

    Also, losing the taverns is not big loss, and there is no reason to believe that the casino caused them to fail in Niagara Falls. The City of NF changed its zoning in an effort to close a lot of those businesses since they were magnets for drug dealing and illegal activities, as well as being located in buildings with multiple code violations. In addition, some would say the NY state smoking ban had more to do with tavern failures. But any way you look at it, closing the taverns meant that some people cut back on their drinking (i.e. fewer drunks and drunk drivers). This resulted in lower costs for policing and safer streets. The little taverns with all their complications were 100 times more of a puplic problem than a well regulated casino with a real stake in the community due to its visability and investment.

  • Mr. Bumble

    The little taverns add to the neighborhoods.
    You didn’t drive the two sides of a city block to get to your “local”.
    There weren’t DWI’s.
    Like on “Cheers” everybody knows your name.
    You weren’t a stranger plied with free drinks to entice you to go into debt:
    first your charge cards, then your car, followed by your home and finally your family!
    The honesty of casino spokespeople can be heard everytime they state; “It’s not Gambling; it’s Gaming!”

  • MaydayMalone

    Corner bars in Buffalo are like Cheers? Wow, this is very insightful. You know Cheers was a TV show and not real life. If you remember the show, it was about a bar in the basement of Melville’s restaurant. So, right there it was not a corner tavern, but a classy bar attached to a downtown restaurant. The typical corner bar is hardly a neighborhood asset, but a dive full of vice and neighborhood disruption.

    That said, the TV Cheers was a hangout for alcoholics who neglected their families, careers, and communities. Let’s go through the characters:

    Sam the alcoholic bartender who drinks club soda, but can’t get out of his bar. He uses his bar as a hookup zone to sleep around with any drunk woman in the bar.

    Carla the baby machine and anti-intellectual

    Coach and later Woody, both are borderline imbeciles, but capable of slinging drinks and outsmarting drunks on occasion

    Norm the alcoholic slob who neglects his wife and job (when he has one) in order to drink beer he never pays for.

    Cliff the mailman and social misfit, also a 50 yr old virgin.

    Fraiser the alcoholic psychologist who also allows his drinking to ruin his marraige and career.

    Rebecca, the nymphomaniac (alcohol induced usually)

    Diane, the unstable psydo-intellectual who is mocked by the drunks for being educated and working to leave the bar life for something else.

    Let’s not fantasize about alcoholism and marginal businesses that facilitate these dives.

  • jamie moses

    Mayday, You certainly seem to have watched an awful lot of Cheers episodes. I couldn’t have named any of those people. Which makes me think you must have really enjoyed the small bar “every-body-knows-you” atmosphere they were broadcasting. Nevertheless, your descriptions of the characters are obviously twisted to suit your argument, because the show was a comedy, and a very successful one. So clearly there was more to the characters than you negative interpretations.

    As for WNYMind’s claim that the city gains $8 million, or that ECC will hire educators for the hotel industry, or that there is spill over business, or that 35 taverns in Niagara Falls closed because of the smoking ban and drug dealing. Let me say this: wrong, wrong, wrong, wrong, wrong. The supposed $8 million dollar gain to the city (and the figure is far less than that) would come at a cost of more than $200 million in gambling losses from Buffalo citizens. You’re right, universities don’t pay property tax, NEITHER do the Senecas! There is NO spillover business from casinos other than the vendors who supply them with liquor and food and such. Every meal and drink served in a tax free Seneca casino is a meal or drink not served in a local Buffalo restaurant. The 35 small taverns that went out of business 3 months after Seneca Casino opened went out of business directly because of the casino, not the smoking ban. The casino opened in December of 2002, the smoking ban wasn’t in effect until mid-2003. It is very difficult to compete with FREE drinks. As for DWIs, when you drink at the corner bar, you only have to walk, not drive.
    You can go on and on as much as you like, and for whatever reason you will continue to convince yourself there is something good about a casino. This country is rotting from within, and these casinos are only adding to the collapse of the country, the state, and now possibly our little city. America was never in so much danger as it is today. And the biggest threat is our willingness to do damage to ourselves.

  • WNYMind

    So much fear in the place of logic. As you know, the $8 million is a share to the city in recognition of the fact that Seneca land is not subject to taxes by US cities. Of course, all employees of the casino will pay state income tax and local sales and property taxes with their wages (off casino site that is). I can guarantee you that 35 taverns (34 of which would go under anyway) don’t inject any meaningful revenue into a city, and not enough to cover the police costs, etc….

    As for the country going down to tubes due to gambling, what a joke. The country’s economic problems are more the result of the War in Iraq than anything else. We borrow for the war from China, and have racked up a debt so large it will take generations to repay it. Our gas prices have gone up in large part due to the devaluation of our dollar driven by our national debt. China and other financers of the war use the profits from loaning us money to develop and add to the demand for oil. Etc… etc…, no Seneca casinos in that loop. The Seneca didn’t close steel and auto plants either.

    Maybe you should focus your energy on the REAL causes of industrial and economic decline and leave the Seneca alone. All they want to do is create jobs and run a business. Remember, the big opposition wasn’t to the casino, but to the hotel development. Why? To protect the monopoly for a few downtown interests.

    So focus on China. It seems that they are profiteering from the war in Iraq and running our economy down in the process. Maybe they should forgive our debt (kind of like the world bank did for South American countries 30 years ago).

  • Pomeroy

    The whole idea of Seneca Casinos is phony.

    The “Native” Americans came here from the Northwest (Asia).
    How about a Puerto Rican Casino?
    So what if they came from the Southeast.
    And when do the Afro-Europeans get a Casino?

    All Americans are equal; but some Americans are more equal than others?

  • jamie moses

    I agree with everything you’ve said about the war in Iraq, the borrowing, the price of oil, the closing of the steel plants, and so on. So tell me, how does putting Americans in front of a row of slot machines and plying them with free booze help anything?

  • WNYMind

    Great idea, lets get more casinos in Buffalo, and make them all minority owned businesses. I am all for it.

    As far as the Iraq issue goes, there are a few things people cannot do in the new “free” Iraq. Drink, gamble, and have fun. If casinos are your idea of recreation, then I say you should have the opportunitiy to go. If you don’t like casinos, then so be it. Nobody is forcing people to go to the casino.

    It is part of living in a free country. Free drinks included.

  • Pomeroy

    Do the Seneca’s have a treaty?

    Article II, section 2, of the Constitution states that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.”

    Did two-thirds of the Senate concur with the President?
    The authority can not be delegated.

    What will the ruling be next Tuesday, July 8, 2008?

  • WNYMind

    In 1842 2/3 of the Senate concurred with President Tyler and signed the treaty with the Seneca. All decision on land since then have been subject to that treaty. Look it up. Everything the Seneca have done is legal and under the treat they have had with the US government for over 160 years. If you want to invalidate that trearty then WNY will revert back to the Seneca and they can build as many casinos as they want, wherever they want.

  • Pomeroy

    Thanks WNYMind; I enjoy your writings!
    But I’m talking about Clinton/Bush and casinos.
    I have Godchildren that are Cayuga (RC not Longboat; which I hope for!).

    In 1842 “did the treaty state “the Seneca Nation could and should open casinos in the middle of Buffalo?”

  • Hi,

    When the US controversy ends, as they banned Gambling, because of there controversy.

    Keep Sharing!