N.Y. judges disagree on legality of Indian casinos

Joel Stashenko

Monday, June 16, 2003 | 9:48 a.m.

ALBANY, N.Y. -- Judges on the state's highest court have revealed some serious disagreements among themselves over whether Indian-run casinos are legal in New York.

The seven Court of Appeals judges, in a 60-page ruling on Thursday invalidating a compact former Gov. Mario Cuomo reached with Mohawk Indians in 1993 to run a casino near Hogansburg, sent mixed signals about the broader question of the validity of Indian gambling.

Three of the judges indicated in a dissent that they believe the federal Indian Gaming Regulatory Act supersedes the state constitution and permits Indian-run casinos. One of the judges said flatly the constitution prohibits casinos in New York. The other three judges seemed to consciously avoid tipping their hands.

Ultimately, their opinions are crucial to the face of state-sanctioned gambling in New York. A state Supreme Court justice is expected to decide a case soon in Albany directly challenging the constitutionality of Indian casinos. It is widely believed in legal circles that it will become the make-or-break case on the question of the casinos' legality when it reaches the Court of Appeals.

There are currently three Indian casinos in New York: the Mohawks' casino, which the state's highest court essentially said on Thursday is operating illegally; the Oneida Indians' Turning Stone casino near Utica; and the Seneca Indians' new casino in Niagara Falls.

The court last week said the Mohawk compact is illegal because it has never been ratified by the state Legislature. The judges said lawmakers can do so at any time, validating the Mohawk casino after the fact.

The lawyer who is arguing against the casinos in both the case decided last week and in the pending case in Albany, Cornelius Murray, said he wants the number of legal casinos to stay at three. He said he is not seeking to have existing casinos closed and people thrown out of work.

"They are already open," Murray said. "They spent a ton of money. There are a lot of people employed. You just can't rewrite history. If this were just starting and we were looking for prospective relief we could say, 'Hey, don't open.' But I do empathize with the Indian tribes."

Murray also probably realizes that there are very few, if any, judges who would order a thriving enterprise such as Turning Stone to close. About 5,000 people work at the three existing Indian casinos.

Court of Appeals' Judge George Bundy Smith was unequivocal last week about what the constitution says about casino gambling.

"The constitution forbids gambling, except for limited exceptions, and prohibits commercialized gambling," Smith wrote in a concurring opinion Thursday. "Commercialized" gambling includes the games that casinos typically offer, Smith said.

"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 the policy, they should begin the process of amending the constitution."

The three dissenting judges, Richard Wesley, Susan Phillips Read and Victoria Graffeo, agreed with Smith that the court should have addressed the constitutional question in last week's ruling. The dissenters indicated that the federal Indian gaming act supersedes the constitution's prohibitions against casinos.

However, complicating the reading of the judicial tea leaves in the casino case even more is the fact Wesley has been confirmed by the U.S. Senate to a seat on the U.S. Court of Appeals and will be leaving the state Court of Appeals within the next few weeks. Gov. George Pataki will be nominating his successor in a couple of months.

The other three judges on the state's high court, Chief Judge Judith Kaye, Carmen Beauchamp Ciparick and Albert Rosenblatt did not give a hint last week how they'd rule on the constitutional question.

State officials were guarded in their comments about the ruling, saying they were reviewing the lengthy decision.

Murray said he is eager to see how the case before Teresi will turn out when it reaches the state Court of Appeals, a process that could take a year or more.

"I feel very confident on the underlying constitutional question," he said. "I can't wait to get back there to argue it."