Upstate Citizens for Equality's statement regarding the illegal gambling at Turning Stone Casino
UCE has filed a lawsuit to challenge the U.S. DOI's June 13, 2007, determination that the tribal-state compact between the Oneida Indian Nation of New York and the the State of New York is still in effect. Click here to view the pleadings in this action
UCE's Statement on the recent decison by the U.S. Department of the Interior on the invalid compact between the Oneidas and the State of New York
The recent decision by the United States Department of the Interior regarding its approval of the tribal-state compact between the Oneida Indian Nation of New York and the State of New York demonstrates that it has abdicated its role as charged by Congress and its role regarding Indian issues should be abolished. Richard Blumenthal, Connecticut Attorney General, in commenting on the Bureau of Indian Affairs in March, 2004 stated that “this rogue agency, out of control, lawless, ready to twist and distort logic and law in reaching a result driven by money and politics.” This is the case in its most recent action. This criticism is not only from those outside the agency, Earl Devaney the Inspector General for the U.S. Department of the Interior testified before Congress recently that “Short of a crime, anything goes at the highest levels of the Department of the Interior.” That could explain why common sense and adherence to the law doesn't seem to matter.
It is well settled that the issue of whether or not a State has entered into a compact under IGRA is determined by state law and the DOI cannot make an invalid compact valid by administrative fiat. In 1995 the New Mexico Supreme Court determined that its governor lacked the authority to enter into a compact under IGRA in the absence of legislative authorization (this is the identical issue decided by the New York courts in Peterman v. Pataki). The United States District Court of Appeals for the Tenth Circuit held that "that the Governor's lack of authority was fatal to the compacts' validity under IGRA" in Jicarilla Apache Tribe v. Kelly, 129 F.3d 535. In Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 the Tenth Circuit held that "[w]hile preservation of tribal sovereignty was clearly of great concern to Congress, respect for state interests relating to class III gaming was also of great concern. We are hesitant to conclude that Congress intended to permit a state to be bound by a compact regulating class III gaming which it never validly entered."
It is clear that under the law the compact between the Oneidas and the State of New York was not validly entered into and is therefore is invalid under IGRA. The governor of the State of New York is mandated by our State Constitution to enforce all laws and is bound by the judgment of our Courts that this compact was never validly entered into.
The Governor must enforce the law of the State of New York and put an end to the illegal gambling engaged in at the Turning Stone Casino. If he fails to carry out his constitutional duties UCE will do what it can to force the Governor’s hand.
Based on the recent decision of the United States Supreme Court declining to review the Decision of Justice McCarthy and affirmed by the Appellate Division of the New Yor Supreme Court, Fourth Department (copies available below) does not mean that the Turning Casino and Resort must shut down completely. They must however cease engaging in illegal gambling.
UCE sought this ruling pursuant to its commitment to the principle of the Rule of Law. The Rule of Law it is often stated, and always recognized as the very cornerstone upon which this Republic is founded, that ours is a nation of laws, not of men. The meaning of the phrase is simple: No one is above the law's command; no one is below the law's protection. When applied to persons serving in public office, the concept is a constant reminder that they have only those powers as are given by law, and that they must perform those duties required by law, even when that performance is personally distasteful. Political disagreements are to be expected, personal disappointments are to be understood, but wilful disobedience of the rule of law is not to be tolerated.
The Oneida Indian Nation of New York (OIN) are the ones responsible for any adverse affect of having their tribal-state compact declared illegal, for building their casino on non-Indian land, and conducting gambling on land acquired after October 17, 1988 in the absence of a determination by the U.S. Department of the Interior that the land upon which Turning Stone sits falls into one of the exception to the general prohibition of gambling on "after acquired" lands or a discretionary two part determination pursuant to section 20 of the Indian Gaming Regulatory Act.
The OIN knew that their casino may be illegal from the day they opened it and knew it would be challenged. It was the OIN who was, and may still be, in the best position to remedy this. UCE is not out to displace any workers, this may be the unfortunate result of the oneidas complete unwillingness to take any steps to cure the known deficiencies in their operations which continue to this day as reflected in their assertion despite these ruling that they have a valid tribal-state compact. The ones that were and are in the best position to have avoided this whole situation are the Oneidas. They did not heed the warnings of illegality and proceeded in continuing what they were bent on doing anyway. Instead of objectively analyzing the situation and taking steps to mitigate them.
The Oneidas even knew that there may be problems with gambling on the site where Turning Stone is located before it was opened. In a letter dated June 4, 1993 the United States Department of the Interior advised the Oneidas that the compact between the Oneidas and New York was approved and advised the OIN that the “compact does not specifically refer to the site where we understand the Nation has built a major new facility in anticipation of being able to conduct gaming in the future. Since the compact tracks the “Indian lands” definition in IGRA, we need not decide and take no position with regard to whether this new facility is on “Indian land” as that term is used in IGRA”
The claimed adversities by the OIN could have been mitigated or eliminated in whole or in part by them. They could have sought ratification of their compact by the legislature, or limited their gambling to those that are arguably offered to others in the state in the absence of a tribal-state compact (slot machines are not one of those).
They knew that the validity of their compacts was being challenged since at least 1999 and took absolutely no steps to mitigate any adverse affect in the event the challenge was successful as it has been. The Oneidas new that there were some concern regarding the validity of at least one of the games they are or had offered because the State sued to enjoin it (State of New York v. Oneida Indian Nation of New York, 90 F.3D 58 (2d Cir. 07/23/1996)) and based on their counsel’s representations to Justice McCarthy that action is still pending. The Court of Appeals in Saratoga noted a 1993 memo from Governor Cuomo’s general counsel which expressed a concern over the validity of the tribal-state compacts entered into without legislative approval the N. Y. Court of Appeals noted that it was a predictably vulnerable compact. There are even references in the record that the Oneidas recognized the vulnerability of their compact with the state. Specifically in the transcript from the trial court on Page 70 line 5 through Page 72 line 12 ( Click here to read the transcript. ) the nation in its brief before Justice McCarthy in light of that tried to distinguish it and raised the issue of whether they new or should have known of the memo or that their compact was like the Mohawk Compact predictably vulnerable. In that proceeding references were made to decisions that were published prior to 1996 that held that other governors lacked the power to bind a state absent legislative authorization. State ex rel. Clark v Johnson, 904 P2d 11 [NM 1995]; State ex rel. Stephan v Finney, 836 P2d 1169 [Kan 1992]; Narragansett Indian Tribe v Rhode Island, 667 A2d 280 [RI 1995]; furthermore the Court of Appeals noted in Saratoga that in 1996 the State Assembly passed a resolution that stated "[a]ny compact permitting casino gambling necessarily requires at a minimum the exercise of legislative power with respect to regulatory appropriations and related police powers," and that therefore "[t]he Governor lacks authority to act on behalf of the State to enter into a Tribal-State compact" (Res of Assembly A 2413 ).
UCE will commit our resources and hold our elected officials to their constitutional and statuorily mandated duties to the People of the State of New York to enforce all laws.
Click here to view the Decision of Justice McCarthy.
Click here to view the decision of the Appellate Division, Fourth Department affimring Justice McCarthy's decision.
Below is the letter from our attorney to the to the Office of the Attorney General and a copy to the Governor:
December 12, 2006
VIA TELEFAX (473-8913) AND HAND DELIVERY
Assistant Solicitor General
Office of the Attorney General
New York State Department of Law
New York State Capitol
Albany NY 12223
Re: Peterman, et al. v. Pataki (Oneida County Index No. 99-533)
Dear Mr. Bing:
This is a sequel to my phone call to you yesterday requesting information as to what action your clients now intend to take in light of the U.S. Supreme Court’s Order of Monday, December 4, 2006 denying the Petition for Certiorari that the Oneida Indian Nation (The “Nation”) had filed with that Court in the above-captioned matter.
In that Petition the Nation had asked the Court to review the decision and summary judgment granted by State Supreme Court, Oneida County, which was subsequently affirmed by the Appellate Division, Fourth Department. Thereafter, both the Appellate Division and the New York State Court of Appeals denied the Nation’s Motions for Leave to Appeal to the Court of Appeals. That in turn led the Nation to file the Petition for Certiorari with the Supreme Court that was rejected last week. Thus, the decision and summary judgment of Supreme Court, Oneida County, are now final. All appeals have been exhausted.
As you know, that decision granted our client summary judgment declaring invalid the 1993 Compact entered into by and between the Nation and Governor Cuomo on behalf of the State of New York, which purported to permit the Nation to operate a Class III gaming casino on Indian lands in New York State. The Nation argued unsuccessfully in all the aforementioned courts, including the U.S. Supreme Court, that New York State courts lacked jurisdiction to rule on the validity of the Compact because the Nation might be adversely affected by any decision and the Nation was an indispensable party over whom the State courts had no jurisdiction because of the Nation’s sovereign immunity. Again, all these arguments were consistently rejected.
As your clients are also aware, in another decision last year, the U.S. Supreme Court ruled in City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), that property that was once part of the Nation’s historic reservation in New York State, but which was thereafter sold off, and which was subsequently purchased by the Nation in the open market, did not revert to reservation status and thus did not return the land to the nation’s sovereign control. The Turning Stone Casino, upon which the Nation operates a Class III gaming casino just off Exit 33 of the Thruway, is such land. Since it has not reacquired reservation status, it is sovereign soil of the State of New York and is, therefore, subject to New York State’s constitutional and statutory law.
As your clients are also undoubtedly aware, under the Federal Indian Gaming Regulatory Act, Native American tribes are prohibited from operating Class III gaming unless, inter alia, they do so on Indian land pursuant to a compact between the Tribe and the State in which such land is located.
Your clients are, of course, also aware from the record in this case that not even the Federal Bureau of Indian Affairs approved Class III gaming by the Nation at Turning Stone. See letter dated June 4, 1993 from Thomas Thompson, Acting Assistant Secretary of Indian Affairs, to Neils Holch, Esq. (reproduced in the Record on Appeal to the Appellate Division at pp. 400-401). Note also that in a recent Draft Environmental Impact Statement, the Bureau of Indian Affairs noted that unless the land upon which Turning Stone is situated were taken into trust, the continued operation of the Turning Stone casino would be assumed to be illegal. This is further confirmed by a letter dated May 20, 2005 from the Bureau of Indian Affairs to Theodore Kulongoski, Governor of Oregon, advising that no Class III gaming compact between an Indian nation and a State on lands that are under consideration for trust status, but which have not yet achieved trust status, can be approved.
New York State’s Constitution, Article I, § 9, prohibits commercialized gambling of the type being conducted by the Nation and affirmatively directs the Legislature to pass laws to prevent it. The Legislature has done so. See generally, Penal Law, Article 225. Moreover, the Legislature has specifically stated that it is the public policy of this state “… that the mandate of Section 9 of Article I of the State Constitution, as amended, should be carried out by rigid regulations to prevent commercialized gambling.” General Municipal Law, § 185. In view of the fact that Turning Stone is not on Indian land, the Constitution and laws of the State of New York apply to activities on that land. Nevertheless, at this very moment, despite two U.S. Supreme Court rulings and the above provisions of the New York State Constitution and statutes, Class III gaming is being conducted by the Nation at the Turning Stone Casino on non-Indian land without a valid compact. Moreover, this gambling is being conducted with the full knowledge - not to mention acquiescence - of State officials, including the Governor and the Attorney General.
We further note that it is the Constitutional duty of the Governor to “take care that the laws are faithfully executed…” (New York Constitution, Article IV, § 3). Given all of the above, and the fact that the Attorney General and the Governor are fully aware of these provisions, we expect them to take action to cause the cessation of illegal expenditures of state funds to pay New York State Racing and Wagering Board personnel who are presently supervising gambling at said site. Note: Comptroller Alan Hevesi recently issued a Report (No. 2005-S-45) stating that the Racing and Wagering Board had deployed 13 on-site gaming inspectors at Turning Stone. Id. at 3. In view of the now well-established illegality of such operations, it is unconscionable to permit taxpayer funds to be further expended for such personnel who would be abetting the continued operation of an illegal enterprise. Also, given the Governor’s duties to take care to ensure that the laws are faithfully executed, he should take the immediate appropriate steps to shut down this illegal operation occurring on New York soil. The “Alphonse and Gaston” charade of deferring to Federal officials should cease immediately. The Supreme Court has made it clear that Turning Stone is not on Indian land to begin with and the Bureau of Indian Affairs itself has so acknowledged in its Draft Environmental Impact Statement. Indeed, by letter dated May 13, 2005, addressed to Mr. Ray Halbritter, the Nation’s Representative, Governor Pataki advised that by virtue of the U.S. Supreme Court’s decision in City of Sherrill, supra, the Nation “does not possess governmental jurisdiction over the lands where Turning Stone is located.”
We also call your attention to 18 U.S.C. § 1511, which makes it a federal felony for two or more persons to conspire to obstruct the enforcement of the criminal laws of the State with respect to gambling. If one of those persons is a state official, and if one of the persons has supervisory powers over the gambling operations, and if one of those persons takes any act to effect the object of such conspiracy, the statute is violated. Negotiations by State officials with the Nation to continue gaming under the present circumstances would clearly violate that law. For the highest ranking state officers to stand by now, knowing that the operation is illegal, and to allow it to continue, notwithstanding the fact that they have supervisory powers over the operation, raises serious concerns. The Court decisions and the mandate of the statutes makes it clear that the ball is clearly in the lap of your clients and not the Federal authorities. It is also the Governor’s statutory duty to defend the State against any action that would seek to impair the sovereignty of the “State over any land under the jurisdiction of the State. See State Law, § 10.
I close with a reminder that the prohibitions against gambling are found in Article I, § 9 of the State Constitution, which is part of the Bill of Rights.
Given the season, I would not expect the operations to be closed until after the Holidays. However, I hereby request that you indicate to me by the close of business at 5:00 p.m. on Friday, December 15, 2006, whether or not your clients intend to cease the expenditure of illegal taxpayer funds at Turning Stone and to take action to ensure that the laws of the State of New York are faithfully executed. Be advised in advance that any indication that they are discussing this matter further with Federal authorities will not be considered an appropriate response. Also be advised that there is no need for further delay. This is no unexpected sudden development. Your clients have had ample time to prepare for this eventuality as the New York Court of Appeals ruled last May that it would not review the Appellate Division’s Order of September 30, 2005, rendered over 14 months ago! One would reasonably expect that State officials would by now have decided upon a course of action in the event the Supreme Court were to rule as it did.
Very truly yours,
O’CONNELL AND ARONOWITZ
Cornelius D. Murray