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Warren v. United States of America, et al

This is a civil action commenced by Daniel T. Warren against the United States of America, Governor George E. Pataki, New York State Racing and wagering Board Chair Cheryl Ritchko-Buley, and others on April 6, 2006. This action has been assigned case # 06-CV-226.

This action challanges the consitutionality of the Indian Gaming Regulatory Act (IGRA). This action also challenges the validity of the NIGC's approval of the Seneca Gaming Ordinance and the Secretary's approval by inaction of the tribal-state compact between the Seneca Nation and the State of New York which was approved by the Secretary of the Interior based on the unconstitutionality of Part B of Chapter 383 of the Laws of 2001, Executive Law § 12, and the subject tribal-state compact between the Seneca Nation of Indians and the State of New York.

The basis of the constitutional challenge against the IGRA is that as interpreted and applied by the New York Court of Appeals decision in Dalton v. Pataki it violates the Tenth Amendment to the United States Constitution which prohibits the commandeering of state officers to carry out federal policy.

There are a number of principles that emerge from the Supreme Court's Tenth Amendment decisions (Reno v. Condon, 528 U.S. 141 (2000); Printz v. United States, 521 U.S. 898 (1998); New York v. United States, 505 U.S. 168 (1992); and South Carolina v. Baker, 485 U.S. 505 (1988)):

1) Where Congress has plenary power it may legislate directly to establish gambling on tribal lands;

2) Congress can properly displace state law as part of the doctrine of preemption; and,

3) Congress can offer a "choice" or "option" to States and their people by encouraging them to participate in a federal regulatory program as part of a cooperative effort to achieve the goal of a federal act.

On the other hand:

1) Congress, through IGRA may not enlarge the State legislative or gubernatorial power beyond the limitations contained in the State Constitution and Bill of Rights;

2) Congress may not conscript the State, leaving it no choice or option, but to carry substantial burdens in order to further the purpose of IGRA;

3) Congress may not require State officials to act in disobedience of their State Constitution with respect to gambling, when the people made the ultimate decision to prohibit this activity and placed the ban in their Bill of Rights in order to insure protection against governmental intrusion;

4) Congress may not require the State to enter the compacting process and coerce it, under guise of affording it a supposed "choice," to agree to a compact or else face the Secretary of the Interior ("Secretary"), after consultation only with the tribe, prescribing procedures permitting commercialized Class III gaming consistent with a compact selected by a mediator which will be binding on the State, through threat of federal court action and contempt orders;

5) Congress may not interfere with and disrupt the enforcement scheme between State government and its citizens, which has made criminal the commercial gambling activity that is the subject of IGRA and all contracts related to that gambling unlawful and unenforceable;

6) Congress may not act in a way that will, of necessity, diminish the confidence of the people of a State that their government will act to protect their fundamental rights; and,

7) Congress may not ignore that State sovereignty is not an end unto itself, but has, as one of its objectives, the protection of fundamental liberties and rights of citizens, affording citizens "double security" (as James Madison wrote in Federalist No. 51). The State is not empowered to consent or waive any of these rights or powers of the people.

To require the State to take action in order to ensure the success of a federal program, in the face of such action being violative of the constitutional duty the State owes its citizens, is to sanction Congress' use of the State as a mere agent serving the interests of the federal government to the detriment of the interests of State citizens. Alden v. Maine, 527 U.S. 706 (1999). It is particularly egregious when the federal government in effect "walks away" having no role in advancing the goal it seeks.

The means chosen by Congress, i.e. compacting, indelibly blurs the matter of accountability. State citizens will see their government as the one entity acting to advance conduct prohibited by their Constitution and Bill of Rights. New York, 505 U.S. at 168-169. There are ample other means to accomplish the goal of IGRA without any coercion of the state and its people. That is, provide for gambling through out the country pursuant to Congress' plenary power. It is no answer to argue that IGRA should be sustained since Congress has bestowed more participation upon the State than the State would ordinarily have were Congress to directly use its plenary power. For now the Courtís task is to enforce constitutional limits on Congressional power presented by this Act.

The Act is not one where the federal government, through the Supremacy Clause, in effect strikes down a State statute or so occupies a field that the State is barred from entry unless the federal government and the State acting voluntarily enters into a cooperative arrangement. However, IGRA gives the State no choice but to accept obligations and burdens to satisfy Congressí express goal while the resources of the federal government are directed elsewhere.

The relief sought is declaratory and injunctive in nature and includes declaring the challenged provisions of law including the tribal-state compact between the Seneca Nation of Indians and the State of New York which the Seneca Niagara Casino, Seneca Buffalo Creek Casino and Seneca Allegany Casino operates under unconstitutional, illegal, and void and setting aside the determinations by the Department of the Interior, Bureau of Indian Affairs and the National Indian Gaming Commission as being contrary to constitutional right, power, privilege, or immunity and/or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right and/or without observance of procedure required by law and/or their actions were arbitrary, capricious, an abuse of discretion, and not in accordance with law.

There is another action pending that is challenging the Buffalo Seneca Creek Casino on other grounds.

On March 13, 2012 Judge Skretny granted the State and Federal Defendants motions to dimsiss and denied leave to amend the complain. Judge Skretny's decision cis available here: Decision and order

This order is being appealed and the Briefs are available here:

This appeal is currently scheduled to be heard by the United States Court of Appeals for the Second Circuit on April 22, 2013.


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