Saratoga County Chamber of Commerce Inc., et al.,
George Pataki, as Governor of the State of New York, et al.,
2003 NY Int. 83
On this appeal we address the authority of the Governor
to enter into agreements with Indian Tribes to permit casino
gaming on Indian reservations. Plaintiffs are legislators,
organizations and individuals opposed to casino gambling. In
challenging the Governor's authority, they contend that by
negotiating and signing the agreements without legislative
authorization or approval, Governor Mario M. Cuomo in 1993 and
Governor George E. Pataki in 1999 violated the principle of
separation of powers under the State Constitution ( see NY Const
On October 15, 1993, then-Governor Cuomo entered into the "Tribal-State Compact Between the St. Regis Mohawk Tribe and the State of New York." The compact, which underlies this appeal, is the outgrowth of the Federal Indian Gaming Regulatory Act (IGRA) (25 USC §§ 2701-2721; 18 USC §§ 1166-1168), and allows the Tribe to conduct gambling, including games such as baccarat, blackjack, craps and roulette, on the Akwesasne Reservation in Franklin County.
Congress passed IGRA in response to the United States
Supreme Court's decision in California v Cabazon Band of Mission
Indians (480 US 202 ), which held that "Indian tribes have
the exclusive right to regulate gaming activity on Indian lands
if the gaming activity is not specifically prohibited by Federal
IGRA requires a compact between a Tribe and the State
before the Tribe will be permitted to conduct "Class III"
gambling, which includes the Las Vegas-style gaming at issue
When a Tribe requests that a compact be negotiated, a
State is required to do so in good faith ( see 25 USC
§ 2710 [d]  [A]). The compact should resolve such matters as
the applicability of State laws at the casinos, State taxation of
gambling revenues, remedies for breach of contract and "any other
subjects that are directly related to the operation of gaming
activities" (25 USC § 2710 [d]  [C] [i] - [vi]). IGRA
authorizes compacts only in "State[s] that permit such gaming
for any purpose by any person, organization, or entity" (25 USC
According to the terms of the 1993 compact, the New York State Racing and Wagering Board, the New York State Police and the St. Regis Mohawk Tribal Gaming Commission were vested with gaming oversight. Law enforcement responsibilities fell under the cognizance of the State Police, with some law enforcement matters left to the Tribe. As required by IGRA, the compact was approved by the United States Department of the Interior before it took effect.
The Tribe opened its casino on April 10, 1999. On May 27, 1999, Governor Pataki and the Tribe executed an amendment to the 1993 compact. The Interior Department approved the amendment, which allowed the casino to operate electronic class III games, including keno. By its terms, the amendment expired on May 27, 2000, one year after it was signed. Although the Governor and the Tribe later agreed to two additional amendments, the Interior Department disapproved them. As a result, there is no authorization in effect allowing the Tribe to operate electronic gaming. Nevertheless, the parties inform us that electronic gaming continues at the casino.
Shortly after the 1999 amendment took effect,
plaintiffs brought suit alleging that the 1993 compact and the
1999 amendment violated the separation of powers and the
By judgment dated March 10, 2000, Supreme Court dismissed the action for plaintiffs' failure to join the Tribe as an indispensable party ( see generally CPLR 1001 ). On appeal, the Appellate Division reversed, concluding that the Tribe was not an indispensable party. The Court noted that a contrary ruling would put Indian gaming compacts beyond constitutional challenge or review ( see Saratoga County Chamber of Commerce v Pataki, 275 AD2d 145, 151-154  [" Saratoga I"]). While the Appellate Division acknowledged that the Tribe's interests would be affected by the suit, it determined that, on balance, the Tribe's absence should not prevent the suit from going forward. The Court also rejected the State's statute of limitations, standing and laches defenses ( see id. at 154-158).
On remand, by order dated April 12, 2001, Supreme Court
granted plaintiffs summary judgment. The court declared the 1999
amendment and the 1993 compact void and unenforceable, and
enjoined the Governor from taking any further action to reenact
an electronic gaming amendment without legislative approval. The
The jurisdiction of this Court extends only to live controversies ( see Matter of Grand Jury Subpoenas for Locals 17, 135, 257 & 608, , 72 NY2d 307, 311 ; Hearst Corp. v Clyne, , 50 NY2d 707, 713-714 ). We are thus prohibited from giving advisory opinions or ruling on "academic, hypothetical, moot, or otherwise abstract questions" ( Hearst Corp., 50 NY2d at 713-714). Accordingly, where changed circumstances prevent us "from rendering a decision which would effectually determine an actual controversy between the parties involved," we will dismiss the appeal or reverse the lower court order and direct that court to dismiss the action (Karger, The Powers of the New York Court of Appeals § 71 [a], at 426 [3d ed]).
Plaintiffs' challenges to the 1999 amendment are moot. The amendment expired in May 2000, and in the intervening three years no similar agreement has gone into effect. A declaration as to the validity or invalidity of the 1999 amendment would therefore have no practical effect on the parties. Granted, a declaration as to the Governor's ability to negotiate amendments to the compact would provide beneficial advice to future officials who will have to make decisions about this casino and other similar projects. This is true, however, of all requests for advisory opinions.
In Hearst we recognized that the mootness prohibition is subject to an exception, by which we have discretion to review a case if the controversy or issue involved is likely to recur, typically evades review, and raises a substantial and novel question ( see 50 NY2d at 714-715; see also Wisholek v Douglas, , 97 NY2d 740, 742 ). In that event, a court may reach the moot issue even though its decision provides no practical effect for the parties ( see Hearst, 50 NY2d at 714-715). Plaintiffs here ask us to apply the Hearst mootness exception and reach the validity of the 1999 amendment, arguing that the Governor's two unsuccessful attempts to extend the amendment demonstrate a high likelihood of recurrence. They further contend that the one-year length of both the 1999 amendment and the two proposed amendments makes judicial review impracticable.
These are cogent assertions but we are unpersuaded that
Plaintiffs' challenge to the 1993 compact undisputedly
presents a live controversy. Without a valid Tribal-State
compact, IGRA does not permit the operation of a casino.
Therefore, a declaration that the 1993 compact violates the State
Constitution speaks to the legality of the casino's operation,
and thus affects the rights of each party to this suit. Where,
We now proceed to address plaintiffs' standing.
Standing to sue is critical to the proper functioning of the judicial system. It is a threshold question. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress. It is difficult to draw an exquisitely sharp line separating the worthy litigant from one who would generate a lawsuit to advance someone else's cause. The rules governing standing help courts to separate the tangible from the abstract or speculative injury, and the genuinely aggrieved from the judicial dilettante or amorphous claimant.
For generations, New York courts have treated standing
as a common law concept,
requiring that the litigant have
something truly at stake in a genuine controversy.
A number of organizations, legislators and citizen taxpayers are plaintiffs in this action and the State has contested standing as to all of them. Because we conclude that the citizen-taxpayers have standing, it is not necessary to address the State's challenge as to the other plaintiffs ( see County of Rensselaer v Regan, , 80 NY2d 988, 991 n ).
Unlike other plaintiffs, citizen-taxpayers need not
demonstrate an injury-in-fact to acquire standing. Instead,
pursuant to State Finance Law § 123-b, a citizen-taxpayer may
bring suit to prevent the unlawful expenditure of state funds
"whether or not such person is or may be affected or specially
aggrieved" by the challenged action. We have noted that while
the statute might be read to allow actions when little or no
injury has been claimed, courts have been inhospitable to
The task, of course, is to distinguish between cases that present a challenge to the expenditure of money and those that use the expenditure of money as a pretense to challenge a governmental decision. As we have said, "it is one thing to have standing to correct clear illegality of official action and quite another to have standing in order to interpose litigating plaintiffs and the courts into the management and operation of public enterprises" ( Matter of Abrams v New York City Tr. Auth., , 39 NY2d 990, 992 ). Accordingly, a claim that State funds are not being spent wisely is patently insufficient to satisfy the minimum threshold for standing, but a claim that it is illegal to spend money at all for the questioned activity likely would provide the plaintiff with standing. Here, the citizen- taxpayers have sufficiently alleged a challenge to the expenditure of State money to withstand the State's motion to dismiss for lack of standing.
Another reason informs our conclusion. Were we to agree with the State and deny standing as to all plaintiffs in this action, an important constitutional issue would be effectively insulated from judicial review, something we cautioned against in Boryszewski v Brydges (, 37 NY2d 361, 364 ). Plaintiffs allege that the Governor has acted ultra vires, exceeding the grant of authority that the Constitution gives to the Executive Branch. In separation of powers disputes of this kind, there will ordinarily be few who can claim concrete injury resulting from a breach of the constitutional division of authority. As a party to the 1993 compact but not to this suit, the Tribe signed the agreement and twice sought to extend most terms of the 1999 amendment. The Tribe is therefore an unlikely plaintiff. Others who could be considered harmed by casino gambling may be too remotely affected to gain relief in the courts.
The case before us contrasts sharply with Matter of Colella v Bd. of Assessors (95 2 401, 410-411 ), where we denied standing, holding that granting it would "permit challenges to the determinations of local governmental officials having no appreciable public significance beyond the immediately affected parties." The issues in the present dispute are fundamental and of immense public significance.
It follows that our doctrines governing standing must
be sensitive to claims of institutional harm. Actions of this
Here, the citizen-taxpayer plaintiffs argue that the expenditure of State funds and the use of State regulatory personnel for the casino violate the New York Constitution. If standing doctrine precludes them from bringing this suit, the casino will remain operating indefinitely whether or not the 1993 compact was constitutional. Standing is properly satisfied here, lest procedural hurdles forever foreclose adjudication of the underlying constitutional issue. We next address the statute of limitations argument.
The State claims that this suit should have been
Plaintiffs seek a declaration as to the
unconstitutionality of the 1993 compact and an injunction against
the use of State funds to implement it. That relief cannot be
afforded under CPLR article 78. The closest remedy contained in
article 78 is prohibition, where an official is proceeding
"without or in excess of jurisdiction" (CPLR 7803 ). We have
held, however, that article 78 may not be used against executive
officials, and plaintiffs would therefore have been unable to use
article 78 to prevent the Governor from signing the compact ( see
Matter of Morgenthau v Erlbaum, , 59 NY2d 143, 147 ; Matter
of Dondi v Jones, , 40 NY2d 8, 13 ; see also Sears v Hull,
961 P2d 1013, 1016-1017 [Ariz 1998]). Accordingly, the article
78 statute of limitations does not apply. That being so,
plaintiffs' declaratory judgment action falls within the
residuary six-year statute of limitations period under CPLR 213 (1) ( see Vigilant Ins. Co. v Housing Auth., , 87 NY2d 36, 42
The 1993 compact was signed on October 15, 1993, and published in the Federal Register on December 13, 1993. IGRA provides that a compact is not "final" until published in the Federal Register (25 USC § 2710 [d]  [A] [iii]). Plaintiffs filed suit on September 23 and 24, 1999. The actions were therefore commenced within the limitations period. A suit brought in compliance with the statute of limitations may nonetheless be barred by laches, so we proceed to address that issue.
Laches and limitations are not the same. Limitations
involve the fixed statutory periods within which actions must be
brought, while laches signifies a delay independent of statute
( see Siegel, NY Prac § 36, at 44 [3d ed 1999]; 2A Carmody-Wait
§ 13:4, at 94 [2d ed 2001]). The Court has defined laches as an
equitable bar, based on a lengthy neglect or omission to assert a
right and the resulting prejudice to an adverse party ( see Matter
of Barabash, , 31 NY2d 76, 81 ; see also Dreikausen v Zoning
Bd. of Appeals, , 98 NY2d 165, 173 n 4 ). The mere lapse of
time, without a showing of prejudice, will not sustain a defense
of laches ( see Galyn v Schwartz, , 56 NY2d 969, 972 1982];
The State claims that the nearly six-year delay between the effective date of the 1993 compact and the start of this suit has prejudiced the Tribe. The Appellate Division refused to consider the effect of any prejudice to the Tribe, concluding that the State lacked the authority to raise a claim of prejudice on behalf of a non-party. We conclude that the State has the power to argue that prejudice to a non-party bars this action, but that in this instance there has been no prejudice to the Tribe warranting dismissal.
In Schulz v State of New York (81 2 336, 348-350
Nowhere in the present case, however, is there any
indication that the delay in bringing this action has caused the
slightest harm to the Tribe. Plaintiffs point out that the Tribe
has been operating the casino -- and presumably profiting from
it -- during the entire pendency of this suit ( cf. Marcus v
Village of Mamaroneck, 283 NY 325, 332  [noting in a zoning
dispute that "the delay of plaintiffs has afforded defendants
many years of unlawful use"]). While in Schulz the delay could
have caused bond investors to lose the opportunity for
investments were the bonds to be invalidated, here there is no
comparable risk. True enough, had the casino been shut down on
its grand opening, the investment would have been lost. But the
casino has been operating for four years, and there is nothing on
this record to indicate how much money the casino has made during
the pendency of this action. Without knowing how much, if
Plaintiffs argue that the Tribe was on notice as to the
possible illegality of the compact, citing a memorandum from
Governor Cuomo's counsel indicating that the Tribe had been
informed that legislative approval would be required before the
State could enter into effective compacts.
Thus, while the
There is another important distinction between Schulz
The Tribe is not a party to this action. Although its
interests are certainly affected by this litigation, the Tribe
has chosen not to participate. Unless Congress provides
otherwise, Indian Tribes possess sovereign immunity against the
judicial processes of States ( see e.g. Santa Clara Pueblo v
Martinez, 436 US 49, 58 ; United States v United States
Fidelity & Guaranty Co., 309 US 506, 512 ; Turner v United
CPLR 1001 sets forth the rules governing when joinder of parties is necessary to continue an action affecting the rights of those parties. The statute directs that persons must be brought into the action when joinder is necessary to accord "complete relief" between the parties, or when the interests of the person might be "inequitably affected by a judgment in the action" (CPLR 1001 [a]). Where a person who should be joined nevertheless cannot be joined, courts must decide whether the action can proceed without the "necessary" party. Parties who must be joined lest the action be dismissed are termed "indispensable parties." CPLR 1001 (b) provides five factors for courts to consider in deciding whether to dismiss an action where, as here, "jurisdiction over [the necessary party] can be obtained only by his consent or appearance."
"1. whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder;
"2. the prejudice which may accrue from the nonjoinder to the defendant or to the person not joined;
"3. whether and by whom prejudice might have been avoided or may in the future be avoided;
"4. the feasibility of a protective provision by order of the court or in the judgment; and
"5. whether an effective judgment may be rendered in the absence of the person who is not joined" (CPLR 1001 [b]).
The State relies principally on subsection 2, and argues that the prejudice to the Tribe caused by a judgment eviscerating the authority under which they operate the casino should be sufficient to dismiss the action. In contrast, plaintiffs rely on subsection 1, arguing that there can be no remedy for the alleged constitutional violation if the Tribe's absence requires dismissal.
Plaintiffs' arguments are on firmer ground. Not only will these plaintiffs be stripped of a remedy if we hold that the Tribe is an indispensable party, but no member of the public will ever be able to bring this constitutional challenge. In effect, the Executive could sign agreements with any entity beyond the jurisdiction of the Court, free of constitutional interdiction. The Executive's actions would thus be insulated from review, a prospect antithetical to our system of checks and balances.
There are two principal purposes of requiring dismissal owing to the absence of an indispensable party. First, mandatory joinder prevents multiple, inconsistent judgments relating to the same controversy. Second, joinder protects the otherwise absent party who would be "embarrassed by judgments purporting to bind their rights or interests where they have had no opportunity to be heard" ( First Nat'l Bank v Shuler, 153 NY 163, 170 ; see generally, Weinstein-Korn-Miller, New York Civil Practice § 1001.01 ).
Neither purpose applies here. The Tribe has chosen to be absent. Nobody has denied it the "opportunity to be heard"; in fact, the Oneida Indian Nation, which operates the Turning Stone Casino, has appeared as amicus curiae making much the same arguments we would expect to be made by the Tribe had it chosen to participate. While sovereign immunity prevents the Tribe from being forced to participate in New York court proceedings, it does not require everyone else to forego the resolution of all disputes that could affect the Tribe ( see Keene v Chambers, 271 NY 326, 330 ; Plaut v HGH Partnership, 59 AD2d 686 [1st Dept 1977]; Weinstein-Korn-Miller, NY Civil Practice § 1001.10 [citing cases]). While we fully respect the sovereign prerogatives of the Indian Tribes, we will not permit the Tribe's voluntary absence to deprive these plaintiffs (and in turn any member of the public) of their day in court.
The CPLR 1001 factors are meant to be balanced as
appropriate under each case's unique circumstances. The
Appellate Division concluded that the equities weighed against
dismissal, and that conclusion was not an abuse of discretion.
While in other cases sovereign immunity might support dismissal,
We conclude that the alleged constitutional violation will be without remedy if this action is dismissed for the Tribe's nonjoinder. We further conclude that to the extent the Tribe is prejudiced by our adjudication of issues that affect its rights under the compact, the Tribe could have mitigated that prejudice by participating in the suit ( cf. United States ex rel. Steele v Turn Key Gaming, Inc., 135 F3d 1249, 1252 [8th Cir 1998]). The Tribe's nonjoinder is therefore excused, and we proceed to discuss the merits.
Article III of the State Constitution vests the Senate
and the Assembly with the legislative power of the State, while
article IV vests the executive power in the Governor and article
This is not to say that the functions of government can be neatly boxed into judicial, executive and legislative categories. The distinctions are often elusive, and the fluid functioning of government requires that the interactions among the three branches be allowed some "play in the joints" ( Bain Peanut Co. v Pinson, 282 US 499, 501 ; see also Youngstown Sheet & Tube Co. v Sawyer, 343 US 579, 635  [Jackson, J., concurring]; Matter of Richardson, 247 NY 401, 410 ).
It thus falls to the courts, and ultimately to this Court, to determine whether a challenged gubernatorial action is "legislative" and therefore ultra vires. In this case we have no difficulty determining that the Governor's actions were policymaking, and thus legislative in character.
Initially, we hold that IGRA does not preempt State law
IGRA itself contemplates that States will confront several policy choices when negotiating gaming compacts ( see Yavapai-Prescott Indian Tribe v Arizona, 796 F Supp 1292, 1296- 1297 [D Ariz 1992]). Congress provided that potential conflicts may be resolved in the compact itself, explicitly noting the many policies affected by tribal gaming compacts. Indeed, gaming compacts are laden with policy choices, as Congress well recognized.
"Any Tribal-State compact negotiated under subparagraph (A) may include provisions relating to-- "(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity; "(ii) the allocation of criminal and civil
jurisdiction between the State and the Indian tribe necessary for the enforcement of such laws and regulations; "(iii) the assessment by the State of such activities in such amounts as are necessary to defray the costs of regulating such activity; "(iv) taxation by the Indian tribe of such activity in amounts comparable to amounts assessed by the State for comparable activities; "(v) remedies for breach of contract; "(vi) standards for the operation of such activity and maintenance of the gaming facility, including licensing; and "(vii) any other subjects that are directly related to the operation of gaming activities" (25 USC § 2710 [d]  [C]).
Compacts addressing these issues necessarily make fundamental policy choices that epitomize "legislative power." Decisions involving licensing, taxation and criminal and civil jurisdiction require a balancing of differing interests, a task the multi- member, representative Legislature is entrusted to perform under our constitutional structure.
Additionally, as noted by Governor's counsel in 1993,
the compacts require the State Racing and Wagering Board to adopt
new regulations for carrying out its casino oversight
responsibilities. The choice of which agency shall regulate an
activity can be as fundamental a policy decision as choosing the
substance of those regulations. For that reason, and because
agencies are creatures of the Legislature, the Constitution
The State argues that by passing certain appropriation bills, the Legislature has signaled its approval of the compact. We disagree. Those enactments are no substitute for approval or total ratification. The Legislature has been free to ratify the compact but, as yet, has not done so. Indeed, the State Assembly in a resolution expressly opposed the Governor's unilateral action in negotiating and signing the compact. The resolution asked the Secretary of the Interior not to approve any compact unless approved by the Legislature. The Assembly stated that "[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 ). This expression does not square with the State's claim that the Legislature has impliedly approved the compact.
Unsurprisingly, every State high court to consider the issue has concluded that the State Executive lacks the power unilaterally to negotiate and execute tribal gaming compacts under IGRA. New Mexico, Kansas and Rhode Island have each concluded that gaming compacts incorporate policy choices reserved for the Legislature ( see 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]; see also McCartney v Attorney General, 587 NW2d 824, 827 [Mich App 1998], appeal denied 601 NW2d 101 [Mich 1999] ["[T]he Governor has the ability to enter into compacts with Indian tribes, subject to the approval of the Legislature"]). Today we join those states in a commitment to the separation of powers and constitutional government.
The parties have argued the applicability of the State
Constitution's anti-gambling provision (NY Const art I, § 9). In
light of our disposition of the separation of powers question, it
Neither the trial court nor the Appellate Division addressed the anti-gambling provision, and it is unwise for us -- as a court of last resort -- to initiate the discussion. Supreme Court did not discuss the article I, section 9 constitutional issue at all, and the Appellate Division made only a reference to it. Clearly, it is better for this Court not to resolve constitutional questions unaddressed by the lower courts ( see Bernstein v Bodean, , 53 NY2d 520, 529-530 ; Comiskey v Arlen, , 43 NY2d 696, 698 ; see also Schiavone v City of New York, , 92 NY2d 308, 317 ).
Judge Read's arguments in favor of the compact's
compatibility with article I, section 9, and the contrary views
of Judge Smith, strengthen our belief that further development of
the issue by the courts below is desirable, if not necessary.
Judge Read and Judge Smith debate the applicability of Cabazon to
the article I, section 9 issue. While their insights are
illuminating, we note that the lower courts did not cite, let
alone address, Cabazon or other possibly relevant cases. They
Accordingly, the order of the Appellate Division should be modified, with costs to plaintiffs, by vacating on the ground of mootness so much of the order as declared the May 27, 1999 amendment to the 1993 Tribal-State Gaming Compact void and unenforceable and, as so modified, affirmed.
I agree with the Majority that the 1993 Compact
violates the New York State Constitution in that the Legislature
and not the Governor is given policy making authority. In
addition, because article I, § 9 of the New York State
Constitution clearly forbids the gambling permitted by the 1993
As noted by the Court's opinion, the New York State Constitution authorizes the Legislature and not the Governor to set policy. It reads:
The legislative power of this state shall be vested in the senate and the assembly (NY Const art III, § 1). The executive power shall be vested in the governor ***. (NY Const art IV, § 1).
The Governor shall communicate by message to the legislature at every session the condition of the state, and recommend such matters to it as he or she shall judge expedient. The Governor shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws are faithfully executed (NY Const art IV, § 3).
It is equally true, however, that the Constitution
forbids gambling, except for limited exceptions, and prohibits
commercialized gambling. It reads:
[E]xcept as hereinafter provided, no lottery or the sale of lottery tickets, pool-selling, bookmaking, or any other kind of gambling, except lotteries operated by the state and the sale of lottery tickets in connection therewith as may be authorized and prescribed by the legislature, the net proceeds of which shall be applied exclusively to or in aid or support of education in this state as the legislature may prescribe, and except pari-mutuel betting on horse races as may be prescribed by the legislature and from which the state shall derive a reasonable revenue for the support of government, shall hereafter be authorized or allowed within this state; and the legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section (NY Const art I, § 9 ).
Before the first New York State Constitution was written in 1777, gambling in New York was forbidden. Colonial Governor Tryon was appointed by the King of England in February 1771. He served as Governor until after the Revolution began, leaving office on March 23, 1780. The commission and instructions issued to Tryon upon his appointment prohibited gambling, referred to as "lotteries:"
"Whereas, a practice hath of late years prevailed in several of our colonies and plantations in America of passing laws for raising money by constituting public lotteries,
and whereas, it hath been represented unto us that such practice doth tend to disengage those who become adventurers therein from that spirit of industry and attention to their proper callings and occupations on which the public welfare so greatly depends, and whereas, it further appears that this practice of authorizing lotteries by acts of legislature hath been also extended to the enabling private persons to set up such lotteries, by means whereof great frauds and abuses have been committed, it is therefore our will and pleasure that you do not give your assent to any act or acts for raising money by the institution of any public or private lotteries whatever until you shall have first transmitted unto us by one of our principal secretaries of state a draught or draughts of such act or acts, and shall have received our direction thereupon."
The original Constitution of 1777 does not mention gambling or lotteries. Lotteries were again specifically prohibited in the Second Constitution, approved in 1821. Article 7 § 11 provided: "No lottery shall hereafter be authorized in this state; and the legislature shall pass laws to prevent the sale of all lottery tickets within this state, except in lotteries already provided for by law."
In the Third Constitution, approved in 1846, Article 1
§ 10 prohibited gambling in almost identical language to the
previous Constitution: "nor shall any lottery hereafter be
authorized, or any sale of lottery tickets allowed within this
The Fourth Constitution, approved in 1894, specifically prohibited gambling in Article 1 § 9. In addition to prohibiting lotteries and gambling in general, this section singled out pool- selling and bookmaking as well. It read: "nor shall any lottery or the sale of lottery tickets, pool-selling, book making, or any other kind of gambling hereafter be authorized or allowed within this state."
In 1938 the Fifth and current Constitution was approved. This Constitution maintained the general prohibition against gambling but did authorize a limited range of gambling. Article 1 § 9 (1) provides:
"except as hereinafter provided, no lottery or the sale of lottery tickets, pool-selling, bookmaking, or any other kind of gambling, except lotteries operated by the state * * * may be authorized and prescribed by the legislature."
Art. 1 § 9 (2) provides:
"any city, town or village within the state may by an approving vote of the majority of the qualified electors * * * voting on a proposition * * * at a general or special election * * *, subject to state legislative supervision and control, * * * conduct * * * the following categories of games of chance"
(a) bingo or lotto, in which prizes are awarded on the basis of designated numbers or symbols on a card conforming to numbers or symbols selected at random."
(b) games in which prizes are awarded on the basis of a winning number or numbers, color or colors, or symbol or symbols determined by chance from among those previously selected or played, whether determined as the result of the spinning of a wheel, a drawing or otherwise by chance."
Subdivision two goes on to provide that "only bona fide religious, charitable or non-profit organizations of veterans, volunteer firefighters and similar non-profit organizations shall be permitted to conduct such games."
Additionally, subdivision two provides that "[t]he legislature shall pass appropriate laws to effectuate the purposes of this subdivision, [and] ensure that such games are rigidly regulated to prevent commercialized gambling" (emphasis added).
Consistent with this latter provision, the Legislature has outlawed most forms of gambling ( see Penal Law article 225). As noted in the Practice Commentary to article 225, With certain exceptions, gambling is prohibited by the New York State Constitution [article I, § 9].
"Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does
not, as a matter of criminal law and public policy, prohibit such gaming activity" (emphasis added).
The Indian Gaming Regulatory Act defines three classes of gaming. Class I gaming means "social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations" (25 USC § 2703 ). Class II gaming is defined in 25 USC § 2703 (7)(A) which provides:
"the term 'class II gaming' means
(i) the game of chance commonly known as bingo * * * --
(I) which is played for prizes, including monetary prizes, with cards bearing numbers or other designations,
(II) in which the holder of the card covers such numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined, and
(III) in which the game is won by the first person covering a previously designated arrangement of numbers or designations on such cards, including * * * pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to bingo, and
(ii) card games that --
(I) are explicitly authorized by the laws of the State, or
(II) are not explicitly prohibited by the laws of the State and are played at any location in the State."
The statute further defines what class II gaming does not include. 25 USC § 2703 (7)(B) provides:
"The term 'class II gaming' does not include --
(i) any banking card games, including baccarat, chemin de fer, or blackjack (21), or
(ii) electronic or electromechanical facsimiles of any game of chance or slot machines of any kind."
The term Class III gaming is defined in 25 USC § 2703 (8) and provides:
"The term 'class III gaming' means all forms of gaming that are not class I gaming or class II gaming."
In violation of article 9, § 1, the 1993 Compact
authorizes Type III commercial gambling. The preamble to the
1993 Compact, entitled "Tribal-State Compact between the St.
Regis Mohawk Tribe and the State of New York" refers to Class III
gambling and states "WHEREAS, the St. Regis Mohawk Tribe and the
State of New York have mutually agreed, * * * to the following
provisions governing the conduct of Class III gaming activities
on the lands of the Tribe * * * [to] (b) develop and implement a
means of regulation for the conduct of Class III gaming on Indian
lands * * *." Section 3 (a) of the Compact refers to Appendix A
for a list of games to be conducted under the Compact. Included
The 1999 Amendment to the Compact was equally violative of the New York State Constitution in that it sought to allow computerized versions of class III gaming. The record indicates that despite the expiration of this amendment and the fact that its validity is a moot issue, the gambling authorized by that amendment continues today and is an issue before this Court.
Type III gaming is against public policy and has been since before this State's first Constitution. Moreover, Penal Law § 225.05 provides, A person is guilty of promoting gambling in the second degree when he knowingly advances or profits from unlawful gambling activity. The Penal Law further defines what constitutes advancing gambling activity:
"A person 'advances gambling activity' when, acting other than as a player, he engages in conduct which materially aids any form of gambling activity. Such conduct includes but is not limited to conduct directed toward the creation or establishment of the particular game, contest, scheme, device or activity involved, toward the acquisition or maintenance of premises, paraphernalia, equipment or apparatus thereof, toward the solicitation or inducement of
persons to participate therein, toward the actual conduct of the playing phases thereof, toward the arrangement of any of its financial or recording phases, or toward any other phase of its operation" (PL § 225.00).
California v Cabazon Band of Mission Indians (480 US 202 ) does not negate the more than 200-year-old New York anti-gambling policy. First, the case did not involve a State like New York with a clear anti-gambling policy. In the course of the Cabazon opinion, the Supreme Court stated, In light of the fact that California permits a substantial amount of gambling activity, including bingo, and actually promotes gambling through its state lottery, we must conclude that California regulates rather than prohibits gambling in general and bingo in particular (480 US, at 211). Second, no Compact between a state and an Indian tribe was involved. The issue was not, as here, whether a Compact violated the State Constitution but whether a California statute and county ordinances dealing with bingo and other forms of gambling were criminal or civil for purposes of Pub L 280.
A review of the facts in Cabazon makes clear that it is
distinguishable from the case before us. The Cabazon and Morongo
Bands of Mission Indians occupy reservations in Riverside County,
Cal. Each Band conducts bingo games, open to the general public,
on their reservations. The Cabazon Band also operates a card
California, which permits only charitable organizations to play bingo, sought to enforce an anti-bingo statute (Cal. Penal Code Ann. § 326.5 [West Supp. 1987]). Riverside County sought to enforce an anti-bingo ordinance and ordinances prohibiting draw poker and other card games (Ordinance No. 558 and Ordinance No. 331). The actions of the State and County were taken pursuant to Pub L 280.
The Tribes sued the County in Federal District Court seeking a declaratory judgment that the defendants had no authority to apply its laws inside the reservations and an injunction against their enforcement. The State intervened. The District Court granted the Tribes' motion for summary judgment, holding that neither the State nor the County had any authority to enforce its gambling laws within the reservations. The Court of Appeals affirmed, stating that State laws may be applied to tribal Indians on their reservations if Congress has expressly consented.
Pub L 280 gave California and five other states
jurisdiction over specified areas of Indian lands. California
was given broad authority to enforce its criminal laws on Indian
The Court of Appeals distinguished a state's "criminal/prohibitory" laws and state "civil/regulatory" laws as follows: "if the intent of a state law is generally to prohibit certain conduct, it falls within Pub. L. 280's grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub. L. 280 does not authorize its enforcement on an Indian reservation" (480 US, at 209).
In affirming, the U.S. Supreme Court agreed with this distinction while noting this "is not a bright-line rule" and left room for the argument that the bingo statute is prohibitory rather than regulatory ( Id. at 210). Thus, the Supreme court concluded that the California statutes and ordinances regulating gambling were regulatory and civil, and not criminal and prohibitory, for purposes of Pub L 280.
Finally, I agree with the Appellate Division that the
commercialized gambling authorized by the 1993 Compact is a clear
violation of the Constitution.
That court stated:
Under the circumstances, we conclude that the commercialized Las Vegas style gambling authorized by the compact is the antithesis of the highly restricted and 'rigidly regulated' (NY Const, art I, § 9) forms of gambling permitted by the NY Constitution * * * disfavoring gambling. ( Saratoga County Chamber of Commerce Inc. v Pataki, 293 AD2d 20, 24 ).
The People of the State of New York have decided in New York's Constitution to prohibit commercial gambling. If the elected representatives of the People want to change that policy, they should begin the process of amending the Constitution.
In late 1993, then Governor Mario M. Cuomo signed a
tribal-State compact with the St. Regis Mohawk Tribe to regulate
Indian gaming at a casino on Indian lands, an activity sanctioned
by a unique interaction between federal sovereignty over Indian
affairs and our State's Constitution and laws. Six years and
millions of dollars later, plaintiffs in effect seek to shut down
the casino. Under these circumstances, the claims should have
been dismissed because the Tribe is an indispensable party.
Disregarding the severe prejudice to the Tribe, our colleagues
The question of whether an Indian tribe is an indispensable
party in a State court suit involving a compact entered into
pursuant to the federal Indian Gaming Regulatory Act (IGRA) (25 USC § 2701, et seq.) is a matter of first impression for this
Other states' appellate courts have considered this
issue with mixed results.
No other state or federal court,
A declaratory judgment does not require the Tribe's presence in order to afford complete relief (see Klostermann v Cuomo, , 61 NY2d 525, 538-39 ); however, as a practical matter, an adverse declaratory judgment will "inequitably affect" the absent Tribe. Thus, under the facts of this case, the Tribe is a necessary party under CPLR § 1001(a), as the majority agrees.
Because the Tribe is a necessary party whose sovereign
immunity prevents joinder, the statutory factors in CPLR 1001(b)
must be weighed to determine whether the litigation should
continue without the Tribe. The second factor (the prejudice to
the Tribe if the claims proceed in its absence) and the third
factor (whether and by whom this prejudice might have been or may
be avoided in the future) are related and, in our view,
dispositive. After all, the Appellate Division acknowledged that
the Tribe would have a viable claim for dismissal on the basis of
"Laches is defined as 'such neglect or omission to assert a right as, taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity.' * * * The essential element of this equitable defense is delay prejudicial to the opposing party" ( Schulz v State of New York, , 81 NY2d 336, 348  quoting Matter of Barabash, , 31 NY2d 76, 81 1972]). The 1993 Compact between the Tribe and the State was approved by the Tribe's chiefs on June 9, 1993 and by Governor Cuomo on October 15, 1993. The Assistant Secretary of the Interior, Indian Affairs, approved the 1993 Compact under IGRA on December 4, 1993. The Tribe opened its $30 million casino on April 10, 1999, five years later.
These lawsuits, however, were not commenced until September 1999, nearly six years after the 1993 Compact became final. Plaintiffs have never offered an explanation for their neglect to sue immediately after the Governor signed the 1993 Compact or the federal government approved it. If plaintiffs had sued even reasonably promptly, the Tribe could have avoided or delayed substantial investments of time and money to develop the casino. At the very least, the Tribe would have been put on notice of plaintiffs' separation-of-powers allegations.
Moreover, the majority focuses its discussion of prejudice
solely on whether or not "investors" (whoever they may be) have
Nor did the Tribe execute the Compact or develop the casino in disregard of a known substantial separation-of-powers vulnerability. Rather, any such litigation risk that the Tribe might arguably have been aware of early on in 1993 was eclipsed by the Legislature's prompt and consistent support of the 1993 Compact.
Specifically, on July 7, 1993, both houses of the
Legislature passed the bill that became Chapter 264 of the Laws
of 1993 upon the Governor's approval of it on July 13, 1993.
This legislation granted the State Police and the Division of
"In the event it is established that activity
authorized under Public Law 100-497 [IGRA] shall be
conducted in this state, notwithstanding any inconsistent
provision of law, the New York state division of state
police, on behalf of the New York state racing and wagering
board, shall be granted access to the criminal history
records of the division of criminal justice services,
pursuant to subdivision 8-a of section 837 of the executive
law, in connection with executing the responsibilities of
the New York state racing and wagering board and the
division of state police in regard to the regulation,
oversight, licensing, or certification, including
fingerprinting, criminal history record checks and
background investigations of persons applying to engage in
such activities. The division of criminal justice services
shall submit a fingerprint card, along with the subject's
processing fee, to the federal bureau of investigation for
the purpose of conducting a criminal history search and
returning a report thereon."
In addition, the Legislature for six consecutive years
appropriated monies annually for the specific purpose of
supporting oversight and regulatory activities assigned in the
1993 Compact to the Racing and Wagering Board and the State
Police. These appropriations were made in anticipation of the
opening of the Tribe's casino and were enacted by the Legislature
even though the opening was delayed.
Moreover, these appropriations were not opaque or tucked away in some obscure corner of the budget: they were included with appropriations for programs managed by the Racing and Wagering Board and the State Police and were separately denominated as "Special Revenue Funds-Other, Miscellaneous Special Revenue Fund-339, Regulation of Indian Gaming Account." Indeed, on July 12, 1993 -- five days after both houses of the Legislature passed the bill that became Chapter 264 of the Laws of 1993 -- the Director of the Division of the Budget wrote to both the Speaker of the Assembly and the Senate Majority Leader. He informed them, as required by law, of his intention to transfer monies from the special emergency appropriation in the already enacted Fiscal Year (FY) 1993-94 budget to the Board and the State Police "to enable [these agencies] to engage in certain oversight and regulatory activities in relation to Class III gaming operations as set forth in gaming compacts between the [Mohawk and Oneida] Indian tribes and the State. These transfers are being made to the State Miscellaneous Special Revenue Fund, a Special Revenue Funds-Other and will be reimbursed by the Indian tribes."
The majority downplays these appropriations. They might
have had a point if the Racing and Wagering Board and the State
Police had funded responsibilities assigned to them by the 1993
Compact under the authority of a more generic appropriation for
agency operations. We wonder, however, how the Executive may
ever be said to have acted without proper legislative
The majority also relies heavily on a memorandum from Governor Cuomo's Counsel to establish that the Tribe had fair warning of the 1993 Compact's potential vulnerability. First, there is no reason to suppose (or, at least, no reason from the record) that the Tribe was contemporaneously aware of this memorandum, which is dated six days after the Tribe's chiefs approved the 1993 Compact. Second, the Governor's Counsel stated that while "the Governor has the legal authority under IGRA and state law to negotiate and sign an Indian Gaming Compact on the State's behalf," implementing legislation was needed for the Racing and Wagering Board to regulate Indian games; the State Police and the Division of Criminal Justice Services to conduct background investigations of casino employees and contractors; and the necessary appropriations.
The Legislature, in fact, enacted the kind of criminal
justice legislation referred to by Governor's Counsel (i.e.,
Chapter 264 of the Laws of 1993) and made the requisite
appropriations. The Legislature has never deemed it necessary to
adopt legislation to state specifically that the Racing and
Wagering Board may regulate games of chance on Indian lands just
as it already regulates charitable games of chance throughout the
State ( see e.g. L 2001, ch 383). Even if we suppose (again, we
have no reason to know from the record) that the Tribe was told
during negotiations that specific legislative approval or
Finally, IGRA provides that tribes can only conduct class
III gaming activities pursuant to a valid compact negotiated with
the state in which the tribe is located (25 USC § 2710[d][B]).
Since the majority has declared the 1993 Compact void and
unenforceable, the Tribe must either shut down the casino
or conduct class III gaming in violation of IGRA and
without any State regulatory oversight. The National Indian
Gaming Commission has enforcement authority for IGRA, and can
A finding that the Tribe is an indispensable party in these cases does not establish a per se rule that Indian tribes are indispensable parties whenever a claim is brought in State court involving Indian gaming. For instance, since only four months elapsed between the execution of the 1999 Amendment and the filing of plaintiffs' complaints, the same analysis might have yielded a different result had the 1999 Amendment presented a live controversy.
The Appellate Division concluded in Saratoga I that the
constitutional nature of plaintiffs' claims outweighed any
prejudice to the Tribe, and therefore the Tribe was not
Our analysis of the merits starts with the Constitution's implied separation-of-powers doctrine which "requires that the Legislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies" ( Bourquin v Cuomo, , 85 NY2d 781, 784 ). The distinction between legislative (policy making) and executive (policy implementing) functions is not black and white. Rather, "[i]t is only when the Executive acts inconsistently with the Legislature, or usurps its prerogatives, that the doctrine of separation is violated" ( Clark v Cuomo, , 66 NY2d 185, 189 ; Broidrick v Lindsay, , 39 NY2d 641 ). While the majority labels as critical policy choices various subjects related to the operation of gaming activities and includible in a tribal-State compact, what plaintiffs challenge in these cases is more fundamental; namely, the decision to authorize on-reservation class III Indian gaming.
Any discussion of what critical policy choices were available to the Legislature on this score starts with the recognition that Indian commerce is an area under the exclusive control of the Federal Government ( Seminole Tribe of Florida v Florida, 517 US 44, 72 ). The traditional notions of Indian sovereignty provide a crucial 'backdrop' against which any assertion of state authority must be assessed ( Gaming Corp. of America v Dorsey & Whitney, 88 F3d 536, 547 [8th Cir 1996], citing White Mountain Apache Tribe v Bracker, 448 US 136, 143 ).
Faced with the question of whether a state could enforce its gambling laws on an Indian reservation, the United States Supreme Court in California v Cabazon Band of Mission Indians (480 US 202 ) reiterated the long-established rule that "Indian tribes retain attributes of sovereignty over both their members and their territory, and that tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States" ( id. at 207) (internal citations omitted). Moreover, "state laws may be applied to tribal Indians on their reservations [only] if Congress has expressly so provided" ( id.).
In interpreting pre-IGRA law, the Supreme Court held that if a state merely "regulates" gambling ( i.e., through its civil laws), tribes must be allowed to conduct gambling on their reservations free from the state's gambling regulations. If, however, a state "prohibits" gambling ( i.e., through its criminal laws), tribes are forbidden from gambling and the state may enforce its laws.
The most controversial aspects of IGRA, which codified Cabazon with important modifications and expressly preempt[ed] the field in the governance of gaming activities on Indian lands (S Rep No. 446, 100th Cong, 2d Sess, at 6, reprinted in 1988 US Code Cong & Admin News, at 3071, 3076; see Gaming Corp., 88 F3d at 544-549), cover class III gaming activities. These include pari-mutuel horse race wagering, lotteries, banking card games such as baccarat, chemin de fer and blackjack, electronic or electromechanical facsimiles of any game of chance, and slot machines (25 USC § 2703[B]; 25 CFR 502.4[d]).
IGRA continues the pro-Indian Cabazon holding by providing that class III gaming could be conducted in a "State that permits such gaming for any purpose by any person, organization, or entity" (25 USC § 2710[d][B]) (emphasis added). IGRA also, however, pays heed to states' apprehensions over unregulated Indian gaming by directing that a tribe can conduct class III gaming only pursuant to a "Tribal-State compact entered into by the Indian tribe and the State * * * that is in effect" (25 USC § 2710[d][C]).
IGRA also contains enforcement provisions to require that
where a state permits class III gaming, it must negotiate in good
faith with a tribe for a compact upon the tribe's request (see
Mashantucket Pequot Tribe v Connecticut, 913 F2d 1024 [2d Cir
1990], cert denied 499 US 975). If negotiations prove fruitless,
the tribe can sue the State in federal court. If the state
In summary, IGRA mandates that, if a state allows any class III gaming by any person, a tribe may seek to conduct the same games on their lands. Moreover, the Second Circuit has firmly rejected the notion (unsuccessfully advanced by the State of Connecticut) that a state that allows only charities to engage in regulated casino-type gambling prohibits class III gaming activities for purposes of IGRA ( id. at 1031-1032). States that allow charities to conduct class III gaming must negotiate in good faith with a Tribe wishing to do the same.
New York has not outlawed all gambling for more than six
decades. For better or worse, New Yorkers have adopted a public
policy that permits considerable gambling, although regulated.
This public policy is embodied in Article I, Section 9 of the
Constitution, which contains statements purporting to ban
gambling, but -- significantly, for purposes of IGRA --
explicitly authorizes four exceptions: 1) pari-mutuel horse
racing; 2) a State-operated lottery for education; 3) bingo for
certain non-profit organizations; and 4) "games of chance" for
these same organizations. Games of chance are defined in the
Constitution as follows:
The Games of Chance Licensing Law (article 9-A of the General Municipal Law) empowers the Racing and Wagering Board to "[s]upervise the administration of the games of chance licensing law and to adopt, amend and repeal rules and regulations governing the issuance and amendment of licenses thereunder and the conducting of games under such licenses" (General Municipal Law § 188-a). Section 186 (3) of the General Municipal Law defines games of chance to include and exclude specific types of games; and delegates to the Board the authority to add such "other specific games" to the list of approved games of chance as fall within the confines of what is allowed in the Constitution ( i.e. games "in which prizes are awarded on the basis of a winning number or numbers, color or colors, symbol or symbols determined by chance"). To similar effect, 9 NYCRR Part 5620.1 lists Board-approved games, but also authorizes any other game of chance which has been approved in writing by the board. Finally, article 16 of the Tax Law (the New York State Lottery for Education Law) authorizes the Division of the Lottery, among other things, to determine the type of lottery to be conducted (Tax Law § ).
Plaintiffs do not challenge the constitutionality of any of the 26 specific games of chance listed in the 1993 Compact. Plaintiffs do not contend that any of the games listed in the 1993 Compact are not among the numerous class III games that are already being conducted by non-profit organizations and others in the State. Nor do they dispute the State's evidence that, as of January 12, 2001, the Racing and Wagering Board had issued games- of-chance identification numbers to 6,840 organizations. According to the Board's records for calendar year 1999, 2,125 authorized organizations were licensed to conduct bell jar games of chance. These organizations had a total handle of $298,598,154 from which a net profit of $51,646,037 resulted. With respect to other types of games of chance, $1,443,957 in net profits were raised by casino-style gaming from a handle of $3,011,913. According to the Division of the Lottery's Annual Report, in FY 2002-2003 the Division awarded $3.1 billion in prizes. In short, while regulated by the Racing and Wagering Board and the Division of the Lottery, gambling is commonplace in New York notwithstanding Article I, Section 9's general condemnation of it.
When Congress enacted IGRA pursuant to its plenary authority
over Indian affairs, it legislated for all 50 states to allow
Whatever the case may be in other states, in New York, the
Governor enjoys broad powers to enforce legislation and great
flexibility in determining the methods of enforcement. For
example, we have in recent years affirmed the Governor's
authority to create entire new agencies with new duties for
consumer advocacy based principally on a legislative policy as
general as article 20 of the Executive Law, which empowers the
Consumer Protection Board to promote and encourage the
protection of the legitimate interests of consumers within the
state ( Borquin, 85 NY2d at 785-786; see also Clark, 66 NY2d at
190 [statute providing that State Board of Elections shall have
the power and duty * * * to encourage the broadest possible voter
participation in elections sufficiently articulated legislative
policy to support Governor's creation of multi-agency voter-
registration program]). The underlying legislative policy
The majority portrays the issues on this appeal as fundamental and of immense public significance, which demand resolution despite the prejudice to the absent Tribe. The majority then stops short, leaving for another day the question of the applicability of the State Constitution's anti-gambling provision. Thus, our colleagues prolong constitutional uncertainty and create substantial hardships for the Tribe, not to mention for the casino's employees and the surrounding communities. Moreover, because of the nature of plaintiffs' claims, we do not see how the majority can sidestep deciding whether Article I, Section 9 prohibits class III gaming on Indian lands once the merits are reached.
In their briefs, during the course of two oral arguments and in several post-argument submittals, plaintiffs continuously pressed their position that the class III gaming conducted at the casino under the 1993 Compact is prohibited by Article I, Section 9 of the New York State Constitution. Simply put, plaintiffs argue (and Judge Smith in his dissent agrees) that in light of Article I, Section 9's ban of "commercialized gambling," the Governor lacks any power to enter into a compact authorizing the Tribe to conduct Las Vegas-style gaming on Indian lands -- with or without the Legislature's approval or ratification. The State takes the opposite view.
The majority opines that, assuming the Legislature may constitutionally authorize the Governor to enter into a tribal- State compact for on-reservation class III gaming, the Legislature did not do so on the facts presented. In our view, the underlying constitutional issue is ripe for decision in this case once the merits have been reached. Further delay benefits no one -- not those who may now seek legislative ratification of existing tribal-State compacts; not those who oppose Indian gaming.
For all the reasons given, we would reverse the order of the Appellate Division and dismiss both complaints.
1 Plaintiffs additionally argue that allowing Las Vegas-style gaming violates the State constitutional prohibition against gambling ( see NY Const art I, § 9). For reasons that follow, we need not address that argument at this time.
2 IGRA creates three classes of wagering games. Class I games are those "social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations" (25 USC § 2703 ). Class II gaming includes bingo and card games (excluding banking card games) that are operated in accordance with state law limits on the amount of wagers and hours of operation ( see 25 USC § 2703 ). Class III gaming includes all other forms of gambling ( see 25 USC § 2703 ).
3 Deputy Counsel Judith Hard signed the amendment on behalf of the Governor.
4 See 25 USC § 2710 [d]  [C] [authorizing casino gambling on reservations where there is a Tribal-State compact "that is in effect"]; Seminole Tribe v Florida, 517 US 44, 47 ).
5 See e.g. Society of Plastics (77 2 at 772 [citing Schieffelin v Komfort, 212 NY 520, 530 (1914); Doolittle v Supervisors of Broome County, 18 NY 155 (1858)]); see also Wein v Comptroller (46 2 394 ); Wein v Carey (, 41 NY2d 498 ).
6 In contrast to our approach, standing in Federal courts rests on both constitutional ( see US Const art III, § 2, cl 1) and prudential grounds. For a comprehensive treatment of standing in Federal courts, see Erwin Chemerinsky, Federal Jurisdiction 56-114 (3d ed 1991).
7 See Krieger v Krieger (, 25 NY2d 364 ); Calhoun v
Millard, 121 NY 69 ; Guibord v Guibord (2 AD2d 34, 36 [1st
Dept 1956]); Weinstein-Korn-Miller,
8 In pertinent part, the memorandum reads as follows:
"The compacts assign largely to one existing State agency -- the Racing and Wagering Board -- the State's 'regulatory and oversight' power. The Board would (1) have access to all gaming facilities and business and accounting records; (2) receive daily inspection reports and patron complaints; (3) certify the Nation's gaming employees; (4) register all enterprises that will provide gaming services, supplies and equipment to the Nation; (5) meet four times a year with the Nation to discuss the regulatory enforcement program; and (6) decide whether to allow new games or activities not included [ sic] a compact. In order to carry out its new duties, the Board must adopt new rules and regulations.
"Only the legislature, however, can direct the Board to undertake the new Indian gaming regulatory duties required by the compacts. Equine Practitioners Ass'n, Inc. v. New York State Racing and Wagering Board, 105 A.D. 2d 215, 219 (1984), aff'd as modified on other grounds, 66 N.Y.2d 786 (1985) ("an administrative agency, as a creature of the legislature, is clothed with those powers expressly conferred by its authorizing statute, as well as those required by necessary implication.") And, only the legislature can empower the Board to adopt the new rules and regulations that will be required in order for the Board to supervise Indian gaming. See, Beer Garden, Inc. v. New York State Liquor Authority, 79 N.Y. 2d 266, 276 (1992) (a State agency's rule-making authority must be granted to it by the Legislature).
"Nothing in existing law confers on the Board -- expressly or by necessary implication -- the authority to supervise Indian gaming, including the authority to adopt new rules and regulations to be required.
* * *
"We have long recognized the need for legislative action to implement the compacts. The Governor has consistently taken the position that the legislature would have to authorize the State to implement compacts that require the State to regulate and oversee Indian gaming. That is why the Governor submitted a program bill in 1990 and 1991, seeking authority from the legislature to negotiate and enter into compacts with any Indian tribe or nation. And, that is why, from the outset of negotiations with the St. Regis-Mohawk Tribe in 1990, and with the Nation last summer, the State's negotiators told their Indian counterparts that legislative approval would be required before the State could enter into effective compacts.
* * *
"The State cannot fulfill its regulatory responsibilities under the compacts without clear legislative authorization for the State agencies that must implement them. Absent such authorization, there is a substantial likelihood that the State's regulatory authority would be challenged * * *" (emphasis added).
9 We recognize that other courts have held that dismissal is proper when an affected Tribe declines to waive sovereign immunity ( see e.g. Am. Greyhound Racing, Inc. v Hull, 305 F3d 1015, 1025 [9th Cir 2002]; Dawavendewa v Salt River Project, 276 F3d 1150, 1162 [9th Cir 2002]; Manybeads v United States, 209 F3d 1164, 1166 [9th Cir 2000]; Enterprise Mgmt. Consultants, Inc. v United States ex rel. Hodel, 883 F2d 890, 894 [10th Cir 1989]). Our review of the CPLR 1001 factors, informed by New York's policy disfavoring dismissal, convinces us that we should not follow those cases.
10 For cases holding that an Indian Tribe's absence due to sovereign immunity should not result in dismissal, see e.g. Kansas v United States (249 F3d 1213 [10th Cir 2001]); Sac and Fox Nation v Norton (240 F3d 1250 [10th Cir 2001]); Artichoke Joe's v Norton (216 F Supp 2d 1084, 1090-1091 [CD Cal 2002]); Dairyland Greyhound Park, Inc. v McCallum (655 NW2d 474, 487 [Wis Ct App 2002]).
11 Mississippi allows its Governor the unilateral authority to negotiate and sign compacts ( see Willis v Fordice, 850 F Supp 523 [SD Miss 1994], affd without opn 55 F3d 633 [5th Cir 1995]). The Mississippi Constitution, however, vests residual powers with the Governor. By contrast, New York places residual policymaking responsibility with the Legislature.
12 I agree with the Majority that the plaintiffs have standing under State Finance Law § 123-b. I agree with the Appellate Division that several organizations, having alleged cognizable harm to their members, also have standing. As stated by the Appellate Division in its August 24, 2000 opinion: New Yorkers for Constitutional Freedoms is a not-for-profit corporation representing approximately 1,650 churches and groups throughout the State whose individual members are opposed to casino gambling and support the constitutional operation of government. The Coalition Against Casino Gambling is a not-for- profit association whose individual members reside primarily in the Catskills and are opposed to casino gambling in that region. Similarly, the Western New York Coalition Against Casino Gambling is an unincorporated association representing religious organizations and grassroots citizens who oppose casino gambling in this State (275 2 145, 155-156).
13 Governor William Tryon took his oath of office on July 9, 1771.
14 While the dissent cites Connecticut as support for its position that Type III gambling should be permitted here, the Connecticut Constitution does not have anti-gambling provisions similar to those in the New York Constitution.
15 Nothing requires this Court to await a lower court's view of a case before addressing that case.
16 Under 18 USC 1162 and 28 USC 1360, Congress expressly granted six States the right to enforce their laws (both civil and criminal) over Indian tribes: Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin.
17 The petitioners in both cases have addressed article I, § 9, arguing that it prohibits the gambling authorized by the 1993 Compact.
18 All of those who negotiated the 1993 compact, as well as those who passed budgetary provisions in its support, were well aware of the anti-gambling provisions of the New York State Constitution. The specific gambling permitted in article I, § 9 is in no way authority to permit commercial gambling.
19 Following oral argument in this case, the Attorney General submitted to this Court a Memorandum of Understanding between the State of New York and the Saint Regis Mohawk Tribe. Among the provisions of the Memorandum are (1) a casino to be built in Sullivan County for Class III gambling, (2) the prohibition of any slot machines by entities other than Indian tribes acting pursuant to IGRA in the geographic areas of Bronx, Delaware, Greene, Kings, New York, Orange, Queens, Richmond, Rockland, Sullivan and Ulster counties and (3) payments to New York State of twenty per cent of the proceeds from slot machines for the first four years of a Compact and twenty-five per cent for the period after four years.
20 In cases involving public utilities on tribal lands, the Appellate Division has concluded that sovereign immunity requires dismissal if the underlying dispute implicates "the rights and powers" of the tribe ( see Niagara Mohawk Power Corp. v Anderson, 258 AD2d 958 [4th Dep't 1999] [affirming dismissal of complaint because dispute involving electrical service on reservation implicates rights and powers of tribe, and any judgment in its absence would be incomplete], appeal dismissed , 93 NY2d 958; Anderson v Town of Lewiston, 244 AD2d 965 [4th Dep't 1997] [affirming dismissal of counterclaim and denial of motion to intervene because dispute involving water service on reservation implicates rights and powers of tribe, and any judgment in its absence would be incomplete], appeal dismissed , 91 NY2d 920; see also Seneca v Seneca, 293 AD2d 56 [4th Dep't 2002] [affirming denial of dismissal of complaint because dispute over agreement between purchaser and seller for sale of gas station situated on reservation does not implicate rights and powers of tribe]).
21 Compare State ex rel. Clark v Johnson (904 P2d 11 [NM 1995] [tribe not indispensable under New Mexico law where writ of mandamus sought because performance of act to be compelled not dependent on tribe's will]) and Dairyland Greyhound Park, Inc. v McCallum (655 NW2d 474, 487 [Wis Ct App] 2002 [tribe not indispensable because otherwise "an important legal issue having significant public policy implications will evade resolution"], rev denied 655 NW2d 129 [Wis 2002]) with State ex rel. Coll v Johnson (990 P2d 1277 [NM 1999] [tribe indispensable in non-mandamus action seeking to halt Indian gaming in New Mexico subsequent to passage of legislation authorizing gaming compacts]); see also Am. Greyhound Racing, Inc. v Hull (305 F3d 1015 [9th Cir 2002] [tribe indispensable within meaning of federal rules where district court was asked to decide if Arizona law permits Indian gaming]).
22 See e.g. State ex rel Clark v Johnson (petition filed less than two months after earliest compact executed); Connecticut ex rel. Blumenthal v Babbitt (899 F Supp 80 [D Conn 1995] [action to enjoin Secretary of Interior from accepting land into trust filed within days after Secretary's announcement of his intention to do so]); State ex rel. Coll v Johnson (by 1999 State's highest court considers challenge based on state gaming legislation enacted in 1997); Sac & Fox Nation of Missouri v Norton (240 F3d 1250 [10th Cir 2001] [action filed within 30 days to challenge Secretary of Interior's decision to acquire land in trust for tribe and to approve gaming activities on land]); Dairyland Greyhound Park, Inc v McCallum (injunction sought to prevent governor from renewing compacts expiring in 2003 and 2004); Am. Greyhound Racing, Inc. v Hull (injunction sought to prevent governor from renegotiating or renewing compacts expiring in 2003).
23 As of April 12, 2002, the Tribe employed 418 people at the casino ( see www.mohawkcasino.com). The 1993 gaming compact between the State and amicus curiae Oneida Indian Nation has been challenged on grounds essentially identical to those here, and the State lost at the trial court for essentially the same reasons ( Peterman v Pataki, Sup Ct, Oneida County, July 17, 2002, McCarthy, J., Index No. 99-533 [time to perfect appeal extended until July 16, 2003]). The Oneida opened the Turning Stone Casino near Utica, New York on July 20, 1993. By April 2002, the Turning Stone Casino was reported to employ 3,300 people and to have an annual payroll of $70 million (George Keller, Gaming "Transformed" Oneida Nation, Post-Standard [Syracuse] April 18, 2002, Neighbors West at 7).
24 Three of the four legislator-plaintiffs voted in favor of Chapter 264. None of the legislator-plaintiffs voted against budget bills including the specific appropriations for the Racing and Wagering Board for fiscal years 1994-95, 1995-96, 1996-97 and 1999-00. Only one of the legislator-plaintiffs voted against these budget bills in the remaining fiscal years.
25 Contemporaneous newspaper accounts -- of which the Tribe might have been aware -- indicate that Governor Cuomo wanted the Legislature's "response" to the compact that he was negotiating in 1993 with the Oneida Indian Nation before signing it, but that "[s]ome legislators said that [this was] an attempt to shift responsibility for a decision that could spark opposition"; and "[t]here are also questions as to whether the Legislature has any power to veto the compact" (James Dao, Accord for a Casino in New York State, NY Times, Mar 10, 1993, at B1). When Governor Cuomo subsequently signed a tribal-state compact with the Oneida, it was reported as "something of a reversal by Mr. Cuomo, who said that the Legislature needed to authorize state regulation of the casino before he could sign a compact," but that "Republican leaders had said Mr. Cuomo was trying to spread political responsibility for gambling, and they refused to debate the issue until Mr. Cuomo signed the compact." It was further noted that "Mr. Cuomo plans to introduce legislation giving him the authority to spend $2.5 million for state police officers and inspectors for Indian casinos." The spokesperson for the Senate majority leader was quoted as having said that "'We'll look at any legislation that he sends'" (James Dao, Cuomo Signs Pact with Indians for Casino in Upstate New York, NY Times, Apr. 16, 1993, at A1). In fact, as noted in the text, the Legislature passed just such legislation.
26 The Appellate Division did not anticipate this result: "It is important to note that plaintiffs do not seek to shut down the Tribe's casino located on the Akwesane [sic] reservation insofar as it is operated in accordance with the original compact" ( County of Saratoga Chamber of Commerce, Inc. v Pataki, 293 AD2d 20,22  [Saratoga II].
27 We note that neither the 1993 Compact nor the 1999 Amendment authorized the Tribe to possess or operate slot machines at the casino.
28 See 25 USC § 2710(d)(7) (authorizing tribe to sue state in federal court where state fails to negotiate in good faith); Seminole Tribe v Florida, 517 US 44  (invalidating IGRA, on Eleventh Amendment grounds, to the extent it allows tribes to sue states in federal court for a failure to negotiate in good faith); and 25 CFR Part 291 (authorizing Secretary of the Interior to mediate and impose compacts if state invokes sovereign immunity); but see Florida v United States, Docket No. 4:99CV137-RH, ND Fla, filed April 12, 1999 [challenging Part 291]).
29 We express no opinion as to the constitutionality of any of the games included in the 1993 Compact. We note, however, that the question is not whether these games may be characterized as Las Vegas-style or commercialized gambling, but whether a particular game is a game of chance or lottery within the meanings of those terms in our Constitution and laws, and requires a detailed analysis of how each game is played ( see e.g. Trump v Perlee, 228 AD2d 367 [1st Dep't 1996][electronic game, Quick Draw, offered in the State Lottery, contains all essential features of lottery and does not go beyond type of lottery contemplated by Constitution]).<& /nyctap/inclusions/footer.htm &>