N.Y. court rejects tribal casino deal

Joel Stashenko

Thursday, June 12, 2003 | 9:50 a.m.

ALBANY, N.Y. -- The state's highest court ruled today that the 1993 compact allowing the Mohawk Indians to operate their casino in northern New York is invalid.

The Court of Appeals decided 4-3 that the Legislature must ratify the compact. Former Gov. Mario Cuomo and the Mohawk tribe reached the agreement between themselves, and it was never placed before legislators for their approval.

The state had argued the Legislature tacitly approved the compact by appropriating money to the state Racing and Wagering Board starting in 1993 to regulate the Mohawk casino. The three dissenting judges today agreed.

But the four judges in the majority said "those enactments are no substitute for approval or total ratification."

"There is no legislative authorization for state agencies to promulgate regulations for the oversight of casino gambling," the court said in decision written by Judge Albert Rosenblatt. "The compacts therefore have usurped the Legislature's power."

The court gave lawmakers a not-very-subtle hint in Rosenblatt's ruling that they remain free to take up the compact.

"The Legislature has been free to ratify the compact but, as yet, has not done so," Rosenblatt pointed out.

The majority of judges noted that in every state where the question has been raised, high courts have concluded that governors cannot enter into the agreements without legislative approval.

Significantly for both opponents and proponents of casino gambling, the court declined to address the question of whether the casino authorized by the 1993 pact violates the state constitution. Rosenblatt's ruling noted that another case, currently before state Supreme Court Justice Joseph Teresi in Albany, is more squarely on the constitutional validity of casinos.

But Judge George Bundy Smith said the Court of Appeals should have taken up the constitutionality of the Indian casino. If it had, he wrote in a concurring decision, "the New York State Constitution clearly forbids the gambling permitted by the 1993 compact."

"The people of the State of New York have decided in New York's Constitution to prohibit commercial gambling," Smith wrote. "If the elected representatives of the People want to change that policy, they should begin the process of amending the Constitution."

The Mohawks' Akwesasne casino opened in April 1999 in Hogansburg, near the New York-Canadian border. Because of its location and the region's relatively sparse population, the casino has not been as successful as the Oneida Indians' sprawling Turning Stone casino and resort complex just off the state Thruway near Utica.

The Seneca Indians recently opened the state's third casino, in Niagara Falls. The Legislature in October 2001 gave its approval to that casino and up to five other new Indian casinos.

The Mohawk tribe has reached a tentative agreement with Gov. George Pataki to open a casino at the former Kutsher's resort in the Catskills, perhaps by the end of this year.

The legality of the October 2001 gambling law, which also allowed video slot machines to be operated at horse racing tracks and the state to enter the Mega Millions multistate lottery game, is being challenged in the case Teresi is deciding in Albany.