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Wanamaker: "Let the Games Begin"

A bipartisan group of New York politicians led by Governor George Pataki plans to propose federal legislation to ban "venue shopping" in Indian gaming. The term describes a rather common and logical practice in the business world, that of siting one's business in the most desirable location possible.

The Pataki-led legislation is specifically aimed at the Seneca-Cayuga Tribe of Oklahoma, which is attempting to build and operate a bingo hall on land-claim territory in Upstate New York. The resulting legal matter, currently being heard in U.S. District Court in Syracuse, came about when the tribe refused to acknowledge local authority over building-permit requirements and land-use regulations.

Take a convenience store/gas station for example. Anyone with a shred of common sense will agree that putting such a store on an inaccessible back road will do little to enhance business. But siting your operation adjacent to an Interstate exit or at the intersection of two busy highways will increase visibility and almost certainly boost customer volume.

Likewise, if you run a wilderness guide service offering camping, hunting or fishing trips, a backwoods location is highly desirable and indeed creates an aura of legitimacy. I'd be wary of such a company operating out of a Manhattan storefront.

Casinos, whether they are commercially or Indian-owned, must be in a visible, easily accessible location in order to succeed. This explains why tribes located on remote reservations have generally had minimal success attracting casino patrons.

But just what, exactly, is wrong with venue shopping as it pertains to Indian gaming? Legal factors and political realities unique to Indian gaming restrict tribal ability to choose venues.

The Indian Gaming Regulatory Act mandates that tribal gaming take place on federal trust land. Since 1988, according to the National Indian Gaming Association, there have been only 23 instances in which Indian-acquired land has been taken into trust for gaming purposes. Of these, only three such acquisitions have involved off-reservation land, totaling a mere 78 acres. Thus, a vast majority of Indian gaming operations are currently located on land that has been reservation territory for many years. Venue shopping, for all intents and purposes, has not really occurred to any great degree in Indian gaming. To date no tribe has crossed state lines for gaming purposes.

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In New York, Pataki has refused to enter compact negotiations with non-New York tribes, despite whatever ancestral ties they may have to territory within the state's current borders. This policy has effectively eliminated the Oneida Tribe of Wisconsin and the Stockbridge-Munsee Band of Mohican Indians from opening a casino in the Empire State.

The Seneca-Cayugas, however, cleverly attempted to sidestep both the compact issue and their "out-of-state" status. Since they seek to operate a Class II facility, a tribal-state compact is unnecessary under the provisions of IGRA. And because the tribe is a winning party in the Cayuga land claim case it insists it can exercise sovereignty over land it acquired within the claim area, and thus open its bingo hall without state or local permission. Local, county and state officials believe otherwise; thus the current legal action.

When Pataki signed legislation in October 2001 authorizing six Indian casinos in New York didn't he "venue shop?" That law allowed the Seneca Nation to open casinos on non-reservation land in or around the cities of Niagara Falls and Buffalo. Likewise, three Indian casinos were permitted in the Catskill Mountains, which lie nowhere near any of New York's several reservations. If this isn't venue shopping on Pataki's part, what is it?

Rather than imposing their will through legislation, Pataki et al. ought to let the federal court system function as intended - to decide the merits of the case independent of executive and legislative influence. Pataki, through the state Attorney General's office, is already an intervenor in the Seneca-Cayuga v. Town of Aurelius matter. If, once the case is decided, he doesn't agree with the outcome, he may then appeal to a higher court.

Indeed, legislation aimed at a particular tribe gives the appearance of discrimination. As we have seen in Rhode Island, the Narragansett Tribe was and remains the victim of 1996 end-run legislation that effectively pushed it out from under the IGRA umbrella. The Pataki legislation would presumably apply across the board to all tribes. But the fact that the Governor announced the proposal on the day of one of the Seneca-Cayuga/Aurelius hearings after he himself has "venue shopped" gives the whole thing a rather dubious air.

IGRA provides states a role in good faith compact negotiations and gaming regulation (for Class III or "Las Vegas" style casinos). Otherwise gaming, like other tribal businesses, is supposed to operate free from state and local interference - including building and zoning ordinances. Properly crafted and enforced tribal codes and legal systems can work just as effectively as municipal laws and courts. The 1988 act did not however, anticipate the crossing of state lines, which tribes do not generally recognize, for gaming purposes.

Right or wrong, the Seneca-Cayuga Tribe is exploring uncharted waters. Whatever the courts ultimately decide (after the inevitable string of appeals are exhausted) will no doubt set a precedent. As with any area of developing case law, this should be allowed to happen of its own accord. The tribe has no recourse other than federal court; it is unfair, heavy-handed and even prejudicial for Pataki and friends to take advantage of their position as politicians and lawmakers.