INDIAN TIME NEWSPAPER

BY: NEIL DREW

INDIAN TIME - Vol. 21 #24 - June 19, 2003 Edition - Page 1 & 4

The State's highest legal forum, the New York Court of Appeals, ruled late last week (June 12) that former Gov. Mario Cuomo acted unconstitutionally when he entered into a compact with the St. Regis Mohawk Tribe in 1993. The agreement gave the preliminary green light for what would later become the Akwesasne Mohawk Casino (AMC).

The AMC finally opened in 1999.

In a 4-3 decision, the Justices ruled in favor of the plaintiff in the suit, Saratoga County v. (N.Y. Gov. George) Pataki.

The written opinion invalidated the 1993 casino compact Cuomo negotiated with the Three Chiefs of the St. Regis Tribal Council.

In the Court's summary, it wrote, "The 1988 Federal Indian Gaming Regulatory Act (IGRA) requires a compact between a Tribe and the State before the Tribe will be permitted to conduct 'Class III' gambling. Class III gambling includes 'Las Vegas style' gaming, and it is the type of gambling at issue in this case. Furthermore, IGRA only authorizes compacts in States that allow such gambling. Finally, any compact must be approved by the United States Department of Interior."

The Court explained that "....the Tribe opened a casino on April 10, 1999. One month later, Governor Pataki and the Tribe amended the 1993 compact to allow electronic Class III games such as Keno. The Interior Department approved the amendment, but it expired one year later. Two subsequent amendments were rejected by the Interior Department. However, it was claimed that electronic gambling still occurs on the reservation."

The Saratoga Chamber of Commerce brought suit in 1999 alleging that ".... the 1993 compact and the 1999 amendment violated the separation of powers and the (State) Constitution gambling prohibition."

The New York State Supreme Court later dismissed the action for "Plaintiffs' (Saratoga Chamber) failure to join the Tribe as an indispensable party."

That started a game of slow-mo legal-eagle ping-pong in the State's court system. The Appellate Division reversed the Supreme Court decision, contending that although "the Tribe's interest would be affected by the suit, ... on balance, the Tribe's absence should not prevent the suit from going forward." The Supreme Court threw the case back to the Appellate Division again, granting the Saratoga Chamber a Summary Judgement affirming the Chamber's Constitutional claims, and the Appellate Division finally agreed.

Interesting to note: Judge George Bundy Smith, who sided with the majority last week, nevertheless wrote a separate concurring opinion arguing that Indian casinos are unconstitutional altogether.

The majority opinion, written by Judge Albert Rosenblatt, said Gov. Cuomo had usurped the Legislature's authority to make policy and had violated the State Constitution's "separation of powers clause." The Judge noted that the highest courts of New Mexico, Kansas and Rhode Island have also concluded that Indian casino compacts require State legislative approval. Wrote Judge Rosenblatt, "There is no legislative authorization for the State agencies to promulgate regulations for the oversight of casino gambling. The compacts therefore have usurped the Legislature's power."

Writing for the minority, Judge Sudan Phillips Read argued that the distinction between the function of the legislative and executive branches "is not black and white."

A court spokesman told the WATERTOWN DAILY TIMES that the Court of Appeals' decision was released a week before the scheduled end of the legislative session, which was not a coincidence. Said Gary Spencer, "The court worked hard to get this decision out by the end of the session so the Legislature would have time to act on the compact, if that's what it chooses to do."

Translation: The compact is invalid. It has to be ratified by the State Legislature. Same scenario for the Turning Stone Casino at Verona operated by the Oneida Indian Nation, and the Seneca Niagara Casino at Niagara Falls, which opened on New Year's Eve.

While no one really believes any of the three Indian casinos in the State will be closed, there remains plenty of uncertainty about the future of Native gaming in New York.

The Tribal Council's Washington, D.C. attorney Brad Waterman told the TIMES that the decision means the gambling at the Akwesasne Mohawk Casino is not legally authorized and has to be made legitimate, possibly by a legislative vote. He warned the casino might be forced to close if the Legislature does not act, but it is unlikely the State or Federal Governments would move to actually shutter the casino. "We're talking about 500 jobs here," he said. "I would hope the Legislature acts properly so those jobs are not jeopardized."

New York State Assemblyman Chris Ortloff of Plattsburgh, whose district includes Akwesasne, said the Legislature would have to act on the 1993 compact ratification by no later than Thursday (June 19) when lawmakers end the present session. Otherwise, action couldn't be taken on the measure until after lawmakers return to Albany later this year.

Albany attorney Cornelius Murray, who represented the Saratoga County Chamber of Commerce, the main plaintiff in the case, said late last week that, "The court's majority opinion represents a vindication of the important principal of separation of powers, which ensure that the critical policy decisions of this State cannot be made unilaterally by the Governor or any other State official acting alone." Murray said the Court of Appeals stopped short of ruling on whether large-scale casinos are unconstitutional, even with Legislative approval.

A case involving the question of whether certain gaming procedures employed in Indian casinos in New York violates the State's Constitution is pending in the State's court system. That is the main reason Mohawk gaming partner Park Place Entertainment has cited for months of "no progress" in this community's hopes to build a $500,000,000 off-reservation Mohawk casino on Anawana Lake in the Catskill resort region.

In that suit, more familiar faces: The Saratoga Chamber of Commerce and its lawyer Cornelius Murray.

The legal action, filed in January 2002, is before State Supreme Court Justice Joseph Teresi and could affect the three Indian casinos in the State. It has already had a slowing effect, as INDIAN TIME has reported, on the Mohawk plans for the Catskill region. A Park Place executive said last year that the company still has to answer to its stockholders. Therefore, it was said, the corporation can't proceed to assist the Mohawks build a casino in the Catskills until a State Court rules on the Constitutionality question.

ORTLOFF SUGGESTS MOHAWK CASINO PAY DEBTS.....OR ELSE?

In a week low-lighted by the Court of Appeals decision, the State Legislature immediately went into action to patch-up the illicit AMC compact no later than Thursday (June 18).

Stepping up to the plate on behalf of the local Mohawk community was Sen. Betty Little, whose Senatorial District includes Akwesasne Territory. Little is the woman who replaced the retiring Sen. Ron Stafford on Jan. 1.

Sen. Little, in just about the nick of time, said Tuesday she planned to introduce a Bill Wednesday (June 18) to ratify the Akwesasne Mohawk Casino compact. Little said there seemed to be plenty of support among her colleagues for giving the thumbs-up.

While Sen. Little was working on the Mohawk legislation nearby, Chiefs Hilda Smoke and Paul Thompson, along with Chief-elect Jim Ransom were busy with representatives from Gov. George Pataki's office at the Capital working out the kinks in the pending AMC ratification effort.

Meanwhile, behind the scenes during the three final days of the Legislative session, Assemblyman Chris Ortloff was doing some arm-twisting of his own. He was lobbying his fellow politicos in an effort to link any last-minute casino compact ratification to Mohawk satisfaction of the approximately $2 million subcontractors are still owed from work they performed during the construction phase of the Akwesasne Mohawk Casino in 1999. Ortloff told the JOHNSON NEWS SERVICE that several leading members of the Assembly's Democratic majority support his proposal. He said Gov. Pataki's office has also been apprised of the four-year long unfulfilled Mohawk obligation.

Chief-elect Jim Ransom told INDIAN TIME late Wednesday morning that talk of the $2 million dollar debt never came up Tuesday in the discussions between Mohawk officials and the Governor's people.

While the Legislature may ignore Ortloff's proposal, Ransom says the debt needs to be paid --- if it's legitimate. He said that when the new Tribal Council takes over the reins of Government on July 1, he expects the Chiefs will want to thoroughly review the debt claims. That review will be more than a cursory inspection, he said. He explained there have been claims of extremely poor workmanship performed by some sub-contractors who worked on the local casino project.

As an example, said Ransom, the roof of the gaming hall had to be replaced after only two years.

The incoming Chief said he thinks the new government should also look into allegations made by some Mohawk contractors that they haven't been fully compensated for their efforts in projects not necessarily associated with the casino.

As to Assemblyman Ortloff's charge that sub-contractors are still owed approximately $2 million for the work they did on the AMC:

You may recall what some call the "Monday Morning Massacre". The event took place at the local casino shortly after Midnight, April 17, 2000. That was when the Tribal Council fired President Riverboat Casino-St. Regis Management Co., the non-Native outside management firm that had overseen construction, and was managing gambling operations.

In the aftermath, the Tribal Council claimed it had discovered a "number of serious violations" committed by the managing partner. The Council said the partnership had not kept the casino in compliance with gaming regulations. Later that day, after all the casino records had been seized and partnership-connected employees thrown from the premises, Council spokeswoman Rowena General accused President Riverboat of committing what she termed "....serious violations of the Tribal compact with the State. And," she said, "...there are also questions about the finances."

Following that brawl/donnybrook, lawsuit followed lawsuit, and counter suit chased counter suit.

In the end, the sub-contractors were left in the lurch by both sides with the Council accusing President Riverboat of failing to pay construction debts. President, in return, said the responsibility for the $2 million bill belonged to the Tribe.

The problem for the sub-contractors is this: In the normal course of doing business, a company can seek satisfaction for an unpaid bill by lodging a mechanic's lean against personal property owned by the debtor. But in the case of a company seeking relief from debts incurred on sovereign Mohawk territory at Akwesasne, none is available except a personal appeal to the Tribal Council asking for fair treatment. That often falls on deaf ears.

This, then, is a mess that the new Tribal Council will try to address when it assumes office the First of July.

While Assemblyman Ortloff's effort to force the issue may fall short this week, with the Legislature expected to ratify the State's casino compact with the St. Regis Mohawk Tribe, the debt he wanted to hold up as ransom in exchange for the new compact deal still stands a chance of being paid --- eventually.

Ransom feels it is the honorable thing to do, but not without a rigorous review first.

"We have to make sure we maintain a solid relationship with people who do work for the Tribe."