Akwesasne compact ruled invalid; Is this much ado about nothing?

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ALBANY, N.Y. - The New York Court of Appeals has ruled that a 1993 gaming compact between the St. Regis Mohawk Indians and the State of New York is invalid. The state's highest court on June 12 said that because the Legislature did not approve the compact, which governs the operations of the tribe's Akwesasne Casino in Northern New York, that the agreement is null and void.

The ruling, decided by a 4-3 vote, stems from a 1999 lawsuit filed by the Upstate Citizens for Equality, which says its aim is not to close casinos but rather to force compact revisions to include monetary payments to the state.

The Mohawks negotiated their compact with former Governor Mario Cuomo, who was succeeded in 1994 by current Governor George Pataki. The gaming facility, which opened in April 1999, is a Class II operation located near remote Hogansburg on the St. Regis reservation. Akwesasne has not enjoyed nearly the same level of success as the Oneida Indian Nation's Turning Stone Casino and Resort, which sits off the Thruway (Interstate 90) between Syracuse and Utica.

Washington, D.C.-based attorney Eric Facer observed that only the U.S. Attorney and not the State of New York has the power to shut down the Akwesasne casino. Facer, who represents a number of tribes including the Oneidas (owners of this newspaper's parent corporation), speculated that the U.S. Attorney would likely wait to see what action, if any, the Legislature chooses to take before any attempt to shut Akwesasne's doors is made.

"This is not the first time something like this has happened," Facer told Indian Country Today, noting that similar situations occurred in New Mexico and Arizona, among other states, in recent years. "I think in virtually all the other states the legislatures eventually got around to ratifying the compact."

Could the decision have implications for the Turning Stone and the Oneidas?

"The Oneida Indian Nation believes its compact is valid and enforceable and will be upheld by the courts," said spokesman Jerry Reed. "The decision relative to the Mohawk compact does not affect the Oneida Nation nor the Turning Stone."

Facer noted that the compact governing Turning Stone's operations is subject to a separate legal challenge that is "a few years away" from reaching the Court of Appeals. He is also confident that the Oneidas will ultimately prevail if and when that case is litigated.

Indeed, the Mohawk compact situation is easily remedied. Before it adjourns next week, the legislature can ratify the compact retroactively, as the court suggested in its opinion.

Could the decision be used as leverage against the Oneidas and Mohawks to try and get money from them? Facer believes that's unlikely, largely because of the outstanding land claims both tribes have against the state. "The Oneidas have agreed to accept less money and less land than they know they would get if they were to litigate it. If the state were to be so bold as to suggest that it should get a piece of Turning Stone, the Oneidas ? would likely say 'choose your poison.' ? We don't think the governor's office is going to be that foolish."

"I don't that the state wants to shut that casino down - it employs a lot of people, the vast majority of whom are not Indian," Facer added. "The state fought on the side of the Mohawks in this litigation." This was not, he said, so much to defend the casino per se but rather to defend the office of the governor, who is responsible for negotiating gaming compacts.

In the final analysis, the decision may not be as dangerous as it might sound. "There are a lot of anti-Indian and anti-gaming folks out there that are hailing this as a huge victory," Facer said. "In reality it's not going to change anything."

The June 12 decision has no implications for the Seneca-Niagara Casino, opened in Niagara Falls last New Year's Eve by the Seneca Nation of Indians, because that casino did have specific legislative authorization. Likewise, the Senecas' two other Western New York gaming centers as well as three proposed for the Catskills would not be affected. In October 2001, the Legislature gave Governor Pataki the go-ahead to negotiate compacts for these six actual and proposed casinos.

The Court of Appeals did not rule on the constitutionality of casinos under the New York State Constitution, noting that another case addressing that specific issue is currently in state Supreme Court.