By JAMES FINK
jfink@bizjournals.com | 716-541-1611

The Seneca Nation of Indians will not appeal a ruling from the 2nd Circuit Court of Appeals that denies them an opportunity to be a full party in a lawsuit concerning operation of  Seneca Buffalo Creek Casino in downtown Buffalo.

The ruling has alternately been called a big step forward by the local group that initiated the lawsuit and an anticipated, legal speed bump by the Seneca Nation and its team of lawyers. The Senecas had 90 days from the March 28 ruling to file an appeal.

The appeals court agreed with U.S, District Judge William Skretny that the Seneca Nation cannot intervene in a lawsuit between Citizens Against Casino Gambling in Erie County and the federal government concerning Seneca Buffalo Creek Casino. Skretny said the Seneca Nation could only join the legal action by waiving its sovereign immunity from federal court jurisdiction.

The Seneca Nation does retain its amicus - or friend of the court - status. The status allows the Senecas to file advisory briefs that complement other legal actions.

"If the Senecas don't appeal this, then we are going to push to move the case forward," said Dianne Bennett, a Buffalo attorney and president of Citizens Against Casino Gambling in Erie County. "We want this decided."

The lawsuit has been in the federal court docket for more than five years. The Seneca Nation, under terms of a 2002 compact signed with New York state, allows them to operate casinos in Salamanca, Niagara Falls and downtown Buffalo.

Seneca Buffalo Creek Casino opened in July 2007 and was expanded one year ago. Plans for a larger, permanent gaming facility remain in the economic development pipeline of the Seneca Nation and its Seneca Gaming Corp. affiliate. The lawsuit only focuses on the Buffalo casino and not Seneca Niagara Casino & Resort in Niagara Falls or Seneca Allegany Casino in Salamanca.

The case was argued before the appeals court in Manhattan on March 18 and the decision was handed down 10 days later.

"It sends a clear message that an Indian tribe cannot employ the considerable power of the U.S. federal courts as a sword, by participating in litigation as a party, while simultaneously shielding itself, under a concept of tribal sovereign immunity, from the consequences of its action," Bennett said.

Robert Odawi Porter, Seneca Nation president, said the appeals court ruling was not a surprise.

"We are disappointed in the result, but the (Seneca) nation will continue to work with our treaty partner, the United States, as a friend of the court, just has it has all along with this litigation," Porter said.

Seneca Buffalo Creek Casino remains open and fully operational.