SARATOGA COUNTY CHAMBER OF COMMERCE, INC., et al., Respondents, v. George PATAKI, as Governor of the State of New York, et al., Appellants.  (Action No. 1.)
Keith L. Wright, as Member of the New York State Assembly, et al., Respondents, v. George E. Pataki, as Governor of the State of New York, et al., Appellants.  (Action No. 2.)
Decided: June 12, 2003

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 an 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 baccarat, blackjack, craps and roulette, on the Akwesasne Reservation in Franklin County.
In 1987, Congress passed IGRA, which declares that “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” (25 USC § 2701[5] ).   IGRA provides statutory  authorization for the establishment of Indian casinos, attempts to regulate the gaming so as to avoid “corrupting influences” and seeks to ensure that the Indian tribes are the primary beneficiaries of the gaming (see 25 USC § 2702).
The Tribe opened its casino on April 10, 1999.   On May 27, 1999, Governor Pataki 3 and the Tribe executed an amendment to the 1993 compact. 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 asserting that the 1993 compact and the 1999 amendment violated the separation of powers and the constitutional gambling prohibition.
By judgment entered 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, noting that a contrary ruling would put Indian gaming compacts beyond constitutional challenge or review. On remand, by order entered 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 Appellate Division affirmed, holding that the Governor’s unilateral action deprived the Legislature of its policymaking authority in such areas as “the location of the casino, the gaming that could be carried on there, the extent of state involvement in providing regulation * * *

WON the Indian Tribe is an indispensable party and to be under the court’s jurisdiction.

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.
As a result, New York courts cannot force the Tribe to participate in this lawsuit.   The State claims that the Tribe’s absence requires us to dismiss this action.   We disagree.
Civil Practice Law and Rules (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 paragraph (2), and argues that the prejudice to the Tribe caused by a judgment eviscerating the authority under which it operates the casino should be sufficient to dismiss the action.   In contrast, plaintiffs rely on paragraph (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 parties who would be “embarrassed by judgments purporting to bind their rights or interests where they have had no opportunity to be heard”
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.  
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 F.3d 1249, 1252 [8th Cir.1998] ).   The Tribe’s nonjoinder is therefore excused, and we proceed to discuss the merits.

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