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N.Y. casino expansion given go-ahead by court

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WASHINGTON -- The U.S. Supreme Court has refused to hear a challenge to
tribal gaming in New York state, effectively upholding the supremacy of the
Indian Gaming Regulatory Act over an anti-gambling provision in the state's
constitution.

The action, in a Nov. 28 order denying an appeal from a decision of the
state's highest court, cleared away the last legal uncertainty over the
ongoing expansion of Indian gaming there. The state Court of Appeals in May
had upheld the constitutionality of a post-Sept. 11, 2001 state law
authorizing six new tribal casinos.

The Seneca Indian Nation has already opened two of the three casinos in
western New York as provided for in the act. But the three other casinos,
in the Catskills resort area near New York City, have been bogged down in a
morass of stalled negotiations and hostile federal court rulings on land
claims, not to mention uncertainty over the state constitution.

By refusing a writ of certiorari, the procedure for accepting an appeal,
the Supreme Court at least settled the challenge based on the state
constitution. The petitioners in Joseph Dalton v. Gov. George Pataki argued
that Indian casinos were barred by a provision in the New York Constitution
prohibiting all gambling except for the state lottery and pari-mutuel
racing.

Anti-casino lawyer Cornelius Murray also asked the Supreme Court to limit
the scope of IGRA. In applying for a writ of certiorari, he posed the
question: "In enacting IGRA ... did -- and if so, could -- Congress empower
states to pass laws that were otherwise in direct violation of the Bill of
Rights of their own constitutions?"

He also asked whether states would open the door to full-scale commercial
gaming under IGRA if they allowed limited charitable gaming.

New York's highest court had already answered yes to both queries in its
May ruling. The Supreme Court's refusal to hear the appeal means that the
May ruling is the final word, at least for New York. The status of IGRA is
not entirely clear, however, because federal courts in Texas refused to
give the statute primacy over another act prohibiting gaming for the Tigua
and Alabama-Coushatta tribes. The Supreme Court refused to hear that case
in 2002.

The New York decision also declined to reach the question of the scope of
gaming allowed by IGRA, a point on which lower federal courts still differ.
The opinion by N.Y. Justice Carmen Beauchamp Ciparick cited a recent 10th
Circuit Court ruling in Northern Arapaho Tribe v. State of Wyoming:

"The Northern Arapaho court noted that there is a conflict in the
interpretation of IGRA -- whether a state must negotiate with tribes
concerning all forms of Class III gaming when it allows any type of Class
II gaming, or whether it must only negotiate for the specific games
permitted in the state."

But Ciparick said the plaintiffs had not raised that specific point, so the
New York court would not address it.

The Supreme Court action brought expressions of relief from two New York
gaming tribes and sharp disappointment from their opponents. In a
statement, Seneca Nation of Indians President Barry Snyder Sr. said, "This
decision is now the law of the land and removes any doubt about the lawful
operation of the Seneca Nation's gaming enterprises."

Brendan White, spokesman for the St. Regis Mohawk Tribal Council, said,
"We're hopeful that our efforts to develop a Catskills casino in Sullivan
County will now see increased momentum."

Murray called the Supreme Court action "the end of the road." Upstate
Citizens for Equality, a group opposing tribal casinos and land claims in
central New York, called the decision "definitely a blow." But a statement
on its Web site said: "It is not over. First the U.S. Supreme Court has not
spoken on the issues presented in this case and although it is now
precedent for New York this decision does not bind other states and the
court may review this issue in another case. We should be prepared to
support that when it does come."

Both UCE and Murray called for federal legislation to amend IGRA. UCE
specifically endorsed a bill introduced by Sen. George Voinovich, R-Ohio.

The Supreme Court also rejected a companion case to Dalton, ending one
prong of a delaying action by real estate mogul Donald Trump against
potential competition for his Atlantic City casino. The lawyer in the
second case, Lee Karr v. Gov. George Pataki, was Jay Goldberg, a close
associate of Trump. Other plaintiffs in the cases also acknowledged
receiving support from Trump.

But the loss might not be that urgent for the tycoon. Since the case began,
he lost control of his casino interests to creditors, and a host of other
delays have beset the Catskills projects.