What's the Big Deal with the Catskills Casino?
By Kathryn R.L. Rand and Steven Andrew Light

Any political issue with a lot of money at stake is bound to be controversial; that's a truism. A corollary is that some reasons for disagreement are bound to be better than others.

Off-reservation gaming is a prime example, serving as a poster child for those who assert that Indian Gaming is producing unintended consequences or even is out of control.

Standard political spin reduces complex issues to pithy sound bites, removing nuance and complexity, and - most importantly - context. De-contextualization is particularly misleading in the rapidly expanding and hugely lucrative Indian Gaming industry. It's all too easy to stake out a position that's either black or white. Unfortunately, in life, the realities are usually gray.

Take the Saint Regis Mohawk Tribe's proposed off-reservation Catskills casino in New York. The idea of tribal casinos in the Borscht Belt is nothing new; former New York Gov. George Pataki had pushed such development for some time, entertaining the possibility of revitalizing a near-dead region by creating hundreds or thousands of jobs and pumping millions of dollars of shared revenue into the state's coffer. But since Gov. Pataki's recently elected successor, Eliot Spitzer, gave his blessing to the Mohawks' Las Vegas-style casino in February, tongues haven't stopped wagging.

What's the big deal?

First, it's a whopper of a proposal. The $600 million facility at the Monticello Raceway in Sullivan County would have 3,500 slot machines and 150 gaming tables. It would feature a 600-seat theater and parking for 4,800 cars and buses. Its prime location would draw an estimated six million patrons per year, presumably siphoning off business from commercial casinos in Atlantic City, as well as the highly lucrative Foxwoods and Mohegan Sun tribal casinos in Connecticut.

Second, it would transform the region - in more ways than one. The Natural Resources Defense Council is one of four plaintiffs in a federal lawsuit challenging the adequacy of the U.S. Department of the Interior's environmental impact review of the Mohawk casino on surrounding communities. The department would have to take the proposed casino's 29 acres into trust on behalf of the tribe before the project could move forward, but it presumably would not do so if the impacts on farmland, air quality and traffic congestion are large and negative.

Third, there's the tribe's management partner, Empire Resorts. Empire owns the land and, in return for successfully shepherding the casino project to completion, stands to receive 30 percent of annual net revenues, plus other fees. The Village Voice investigative reporter Tom Robbins recently detailed Empire's history of financial scandals, alleged maltreatment of other tribes and political cronyism in its ties to various New York state officials.

Aside from these legitimate points of contention, which largely pit job creation and economic development against crime, corruption or other negative impacts, what deserves to be included in the public debate over the Catskills casino is the context that's unique to Indian Gaming. A key element that makes Gov. Spitzer's announcement of support remarkable is that it represents a so-far successful tribal-state partnership in clearing enormous legal and political obstacles to off-reservation gaming.

The federal Indian Gaming Regulatory Act (IGRA) generally prohibits tribes from opening a casino on newly acquired trust lands. That's why Indian casinos are almost exclusively located on reservations, where they're powerful engines for economic development - as Congress expressly intended when it passed IGRA in 1988.

Yet, under IGRA, tribes may open an off-reservation casino if the U.S. Secretary of the Interior determines it is "in the best interest of the tribe and its members, and would not be detrimental to the surrounding community," after consulting with the tribe, the state, local officials and officials of nearby tribes. Moreover, IGRA gives the state governor veto power over the whole shebang. That's a lot of political support to wrangle.

That's not all. Not only must a tribe jump IGRA's hurdles, but it must also satisfy the separate federal requirements of taking the land into trust in the first place, which allow for both local input and an appeals process. Down the road, casino-style gaming also is subject to the negotiated provisions of a required tribal-state compact, which will mandate compliance with stringent federal, state and tribal regulations.

Whew.

In the last two decades only three tribes have cleared these high legal and political obstacles, while numerous governors have stopped off-reservation casinos dead in their tracks.

That's why Gov. Spitzer's announcement was such a big deal. IGRA's single biggest hurdle has been jumped - although federal court battles, mixed public opinion and Interior Secretary Dirk Kempthorne's indicated reluctance to approve an off-reservation casino on "far flung" lands still lie ahead.

Although accounts of alleged "blackmail" by tribes seeking off-reservation casinos frequently get play in the press, off-reservation gaming presents an opportunity for cooperative and mutually beneficial policymaking among states and tribes. With the proposed Mohawk casino, the state and surrounding communities will reap some 3,000 jobs and an estimated $100 million in slot revenue sharing, while the tribe will have access to arguably the most lucrative casino market in the country.

The Catskills casino represents a political partnership between the tribe, the state and local communities. That's what we believe is the bigger deal in New York, even if the proposed casino never gets built.

Do casino opponents have a leg to stand on? Sure. Setting aside moral opposition to gambling, major tourist destinations like the proposed Catskills casino inevitably change the landscape on which they're located, generating environmental impacts, additional law enforcement challenges and the possibility of increased problem gambling. Casinos also may create rifts over tribal membership or tribal traditions and culture, while concessions to states - like a share of slot revenue - may compromise tribal sovereignty.

Our angle, of course, is far from the whole story in upstate New York; however, it is part of an often-overlooked perspective that places Indian Gaming issues, even highly controversial ones, in the context of tribal sovereignty. In 2005, Sen. John McCain, one of IGRA's architects, warned that a tribal casino in the Catskills "was not the intent of the law." But intergovernmental partnerships forged out of broad mutual respect for tribal, as well as state, sovereignty create a potential "win-win," which is exactly what Congress intended.

If that's the ultimate outcome in Catskills country, it will be a pretty big deal indeed.

Kathryn R. L. Rand (Professor of Law) and Steven Andrew Light (Professor of Political Science and Public Administration) are Co-Directors of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota. They are the authors of Indian Gaming and Tribal Sovereignty: The Casino Compromise; Indian Gaming Law and Policy; and a blog on Indian gaming at www.indiangamingtoday.com.