Denied!
Supreme Court refuses to hear case prohibiting Indian casinos

by Andrea Barrist Stern Saugerties Times  December 2, 2005

In its refusal on Monday to hear a case filed by a broad-based anti-gambling coalition from New York, the U.S. Supreme Court has allowed a 2001 state law permitting gambling in Ulster and Sullivan counties to remain standing.
The Supreme Court's denial leaves in place a decision rendered in May by the state's highest court, the Court of Appeals, which had determined that federal law allowing for Indian-operated, Las Vegas-style casinos on sovereign Indian lands supersedes state law, which prohibits gambling under the New York Constitution.
The high court's refusal - although not unexpected, since it hears only about one percent of all cases appealed to it - nonetheless signaled the end of the road for a strategy by a large group of gambling opponents that included the Coalition Against Casino Gambling, New Yorkers for Constitutional Freedom, the Saratoga Chamber of Commerce, the Saratoga Springs thoroughbred racing industry, several state legislators, and members of the clergy.
"We have hit the proverbial stone wall," said the coalition's attorney, Cornelius Murray of the Albany firm O'Connell and Aronowitz P.C., on Tuesday. "We now have to consider what other options are available."
While the Supreme Court's refusal to hear the case regarding the 2001 law does not mean it agreed with the lower court, Murray emphasized, he acknowledged that a new lawsuit based on a different strategy would have to be filed in order for the issues to have another chance of being taken up by the high court. Is that possible? "One never knows," he said.
The 2001 legislation that was signed into law by governor George Pataki on October 31 of that year in the wake of the September 11 terrorist attack on New York City constituted the largest expansion of state-sanctioned gambling in the state's history. Claiming the attacks had cost the city some $9 billion in lost revenue, legislative leaders and the governor worked out a deal that included the approval of six new Native-American-run casinos: three in western New York to be run by the Seneca Nation and three in Sullivan and Ulster counties. No tribes or sites were specified in terms of the three gaming operations in the Catskills; the only requirement was that they had to be Indian-operated. Two of the three casinos in western New York have already been built - one in Allegheny County and one in Niagara County - and the third is under construction in Erie County.
That leaves the Catskills, where the Oklahoma-based Seneca-Cayuga tribe has joined forces with billionaire mall developer Thomas Wilmot to build a casino resort at the Winston Farm in Saugerties and the New York Oneidas are believed to have an option on the former IBM property in the town of Ulster in the hope of building a casino there.
Last year, the governor submitted legislation increasing the total number of casinos in the Catskills to five, claiming they would bring jobs and economic development to the region. He withdrew this legislation calling for two additional casinos immediately after another U.S. Supreme Court decision on March 29 involving the New York Oneidas and the city of Sherrill in central New York ruled the tribe had to pay taxes on lands that had not been rendered sovereign by the federal government. He then resubmitted legislation in June calling for one casino in Sullivan County to settle a 23-year-old land claim against the state by the Akwesasne Mohawks, who have applications for casinos at the Monticello Raceway and the former Kutcher's resort.
The 2001 legislation calling for three casinos for the Catskills remains as law, however, as a result of the Supreme Court's refusal to take up the Appeals Court ruling upholding it. That law also removed the state prohibition on slot machines.
In challenging the law, Murray had argued on behalf of the coalition that the governor does not have the power to authorize gambling compacts with Indian tribes because gambling is prohibited under state law. Federal law does not always supersede state law, he pointed out by phone on Tuesday.
"The federal law [the 1988 Indian Gaming Regulatory Act] said in this case that Indians can engage in class three gambling [Las Vegas-like casinos] provided they enter into an agreement with the state in which they are located to permit such gambling," noted Murray. "It doesn't say the state of New York must enter into a compact with the tribe to allow commercial gambling; it says the tribe can only enter into commercial gambling if it has a compact with the state. It leaves it to the state to decide whether or not to enter into a compact. I argued that federal law doesn't compel, nor could it compel, a state to enter into a compact and under our state Constitution it can't because our state Constitution prohibits commercial gaming and directs the legislature to pass laws to prevent it."
Murray said that while federal preemptive doctrine does knock down state laws that are in conflict with federal legislation, it does not permit the federal government to tell states what they can and cannot do. He noted that "if enough other states scream and yell enough," the high court may hear a case based on this issue in the future.
Saleem Cheeks, a spokesperson for the governor, had a very different take on the ruling.
"We are very pleased with the Supreme Court's decision to uphold the law allowing us to continue creating jobs and spurring economic development important to the people of the Catskill region and across the state," said Cheeks on Tuesday. Asked whether the governor intends to allow additional casinos in addition to the one pending for the Mohawks, Cheeks noted "there are no discussions going on at this time."
After the governor introduced the legislation in June granting a casino to the Mohawks, the assembly approved the measure but the state senate refused to take action. State senate majority leader Joseph Bruno (R-Rensselaer) said at the time that he would not support a one-casino package because it was unlikely the legislature would ever approve additional Indian gaming operations. The state senate has two years from the date of the measure's introduction to vote on it before it dies and would have to be reintroduced.
On March 14, 2000, when he introduced the legislation that would pass the state legislature the following year, Pataki issued a statement that said, "As governor, I have made it clear that I believe casinos in traditional resort areas like the Catskills and Western New York will provide an important boost for the local economy." Acknowledging federal approval would be required in order for the state to enter into a compact with a tribe, the governor stated, "We must be in the best position to move forward if the federal government gives the go-ahead."
In addition to removing the ban on slot machines, the legislation would enable the state to collect 25 percent of all slot machine revenues at casinos. The 2001 measure also allowed for the installation of video lottery terminals, a kind of electronic slot machines, at various raceways. Critics have claimed they are little more than slot machines masquerading as the lottery.

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