The majority's conclusion, that part B is constitutional, fails to adequately consider the plain language of article I, § 9, New York's statutory scheme (e.g., the General Municipal Law and Penal Law) which prohibits commercialized gambling, and New York's strong, long-standing public policy against such gambling as reflected in making article I, § 9 a part of the Bill of Rights of the New York State Constitution. Most importantly, the majority's conclusion bypasses the citizens of New York State who have expressed their opposition to commercial gambling and who have not had their say, one way or the other, via the amendment process, as to whether the Legislature should be given the authority to enact legislation allowing for the type of commercialized, casino gambling contemplated under part B. I, therefore, dissent and would hold that: (1) part B of chapter 383 is unconstitutional; (2) any compact(s), entered into pursuant to part B of chapter 383, are void and unenforceable; (3) casinos opened and now operating pursuant to such a compact should be declared illegal;¹ and (4) the Governor and other New York State officials should be declared unauthorized to enter into *274 activities in furtherance of part B of chapter 383 (e.g., any compact negotiations should cease immediately) unless and until the New York State Constitution is amended.

The case at bar has its origins in Saratoga County Chamber of Commerce v Pataki (supra). In 1993, then Governor Mario Cuomo, under the auspices of IGRA but without legislative authorization, entered into a tribal-state compact with the St. Regis Mohawk Tribe allowing the Tribe to establish a class III commercialized gambling casino at its Akwesasne reservation in upstate New York. This Court initially held that “IGRA does not preempt state *21 law governing which state actors are competent to negotiate and agree to gaming compacts” (Saratoga County, 100 NY2d at 822).² Additionally, this Court (1) concluded that the negotiation of tribal-state compacts involves issues affecting the health and welfare of state residents, implicating policy choices within the power of the Legislature; (2) ruled that the Governor, by acting without legislative authorization, had violated the separation-of-powers doctrine; and (3) declared the 1993 compact void and unenforceable. Saratoga County specifically left open the following question: would such a compact, assuming that the Governor had authorization to enter into it, violate article I, § 9 of the New York State Constitution (see Saratoga County, 100 NY2d at 824-825). However, the first question that must be answered is whether the Legislature, in light of the limitations on legislative power set forth in article I, § 9 of the New York State Constitution, has the authority to pass a law (e.g., part B of chapter 383) empowering the Governor to negotiate and enter into compacts for the establishment of gaming prohibited under the State Constitution.³ As indicated above, that question must be answered in the negative.

In October 2001, the State Legislature met in an emergency session to consider measures to assist those devastated by the September 11, 2001 World Trade Center disaster, promote economic development in the state and generate revenue. Late in the session, each branch of the Legislature considered an omnibus, 81-page bill containing 27 distinct parts, including three parts relating to gambling (2001 NY Senate-Assembly Bill S 5828, A 9459).⁴ During the Senate and Assembly debates on these bills, legislators discussed a number of items, including, but not limited to, (1) the process by which the bills came before them (each bill was accompanied by a message of necessity and an immediate vote was required after the debate), (2) the relatively short time that they had to consider the important and wide-sweeping bills, the proposed gambling provisions, especially part B, which were touted as a means of generating *22 revenue and criticized both generally as a drastic departure from New York's policy against commercial gambling and specifically regarding the evils associated with such gambling,⁵ (3) the fact that many rank and file legislators were left in the dark regarding the decision-making process on these provisions (e.g., some legislators commented that there were no public hearings or conference committees for the proposed gambling measures), and (4) the fact that a number of legislators indicated that they would vote to pass the bills because, although they did not necessarily agree with the proposed gambling measures, they fully supported other proposed measures, including those which provided for low cost electricity to businesses dislocated as a result of the destruction of the World Trade Center, an expansion of the Child Health Plus system, Urban Development Corporation loan guarantees, and the creation of liberty zones for the World Trade Center Disaster Area.

On October 24 and 25, 2001, the Legislature passed these bills, which became chapter 383 of the Laws of 2001. This case *276 involves a challenge to the constitutionality of parts B, C and D of chapter 383. However, for purposes of this opinion, I focus on part B of chapter 383 of the Laws of 2001 which: (1) provides that the Governor “may execute a tribal-state compact with the Seneca Nation of Indians pursuant to [IGRA] consistent with a memorandum of understanding [MOU] between the governor and the president of the Seneca Nation of Indians executed on June [20, 2001]” (Executive Law § 12 [a]);⁶ (2) permits the Governor to execute tribal-state gaming compacts “authorizing up to three class III gaming facilities in the counties of Sullivan and Ulster” (Executive Law § 12 [b]);⁷ and (3) provides that, “[p]ossession of a slot machine shall not be unlawful where such possession and use is pursuant to a gaming compact, duly executed by the governor and an Indian tribe or Nation, under [IGRA] . . .” (Penal Law § 225.30 [b]).

On August 18, 2002, the Seneca Nation of Indians entered into a compact with *23 New York State.⁸ To date, two casinos have been built pursuant to this compact. On or about December 31, 2002, the Seneca Niagara Casino in Niagara Falls, New York opened for business (see Brief for Park Place Entertainment Corporation, at 24; Seneca Gaming Corporation Company Overview, < http://www.senecagamingcorporation.com/companyoverview.html>, cached at < http://www.courts.state.ny.us//reporter/webdocs/SenecaGamingCorpCoOverview.htm>). On or about May 1, 2004, the Seneca Allegany Casino in Salamanca, New York opened for business (see Seneca *277 Gaming Corporation Company Overview). Both casinos are currently operating.

On January 29, 2002, the instant declaratory judgment actions were filed in Supreme Court, Albany County.⁹ Plaintiffs *24 in both actions allege that: (1) parts B, C and D of chapter 383 violate article I, § 9, which basically provides that the only permissible forms of gambling in New York are state-operated lotteries to raise funds for education, pari-mutuel betting on horse races, and certain games of chance operated by religious, charitable or nonprofit organizations; and (2) chapter 383 was enacted in violation of article III, § 14 of the New York State Constitution. Plaintiffs seek a declaration that parts B, C and D of chapter 383 of the Laws of 2001 are illegal, unconstitutional, and null and void, and a permanent injunction enjoining state officials and others from implementing this legislation.

After the actions were commenced, Park Place Entertainment Corporation (now known as Caesars Entertainment, Inc.) (Park Place) sought to intervene as a defendant in Action No. 1. Park Place, which described itself as “one of the world's largest gaming companies,” argued that it has a substantial interest in ensuring that part B is upheld as constitutional, and that it would be adversely affected and bound by any judgment invalidating part B of chapter 383.¹⁰ Regarding its substantial interest, Park Place asserted that in April 2000, it entered into *278 an agreement with the St. Regis Mohawk Tribe under which Park Place secured exclusive development and management rights for the Tribe's future casinos in New York State. Further, Park Place asserted that it entered into an agreement for an option to acquire property (i.e., Kutsher's Resort Hotel and Country Club) in Sullivan County, New York in order to build a casino at that location.¹¹ Finally, Park Place claims to have “expended millions of *25 dollars in preparation for the construction and operation of this project that it expects to manage on behalf of the [Tribe].”¹² By stipulation and order dated February 15, 2002, the parties to Action No. 1 and the attorneys of Park Place agreed that Park Place may intervene in this action and shall serve a pleading answering or responding to the complaint.

In April 2002, the state defendants and Park Place each brought preanswer motions to dismiss pursuant to CPLR 3211. The state defendants moved to dismiss the complaint in its entirety and Park Place moved to dismiss the first three causes of action relating to part B of chapter 383 of the Laws of 2001. By order dated October 30, 2002, Supreme Court dismissed the motions in their entirety as premature. Further, on that date, Action Nos. 1 and 2 were consolidated and the parties were permitted to cross-move for summary judgment.

On July 17, 2003, Supreme Court granted summary judgment in defendants' favor. The court upheld the constitutionality of parts B, C and D of chapter 383, and dismissed the complaints in their entirety. The court held that the State Constitution poses *279 no bar to Indian casino gaming in New York because “New Yorkers have adopted a public policy that permits considerable gambling, although regulated.” In so holding, the court adopted the Second Circuit's holding in Mashantucket Pequot Tribe v State of Conn. (913 F2d 1024 [2d Cir 1990] [ruling that states that allow charities to conduct class III gaming must negotiate in good faith with a tribe wishing to do the same]) and the analysis from Judge Read's dissent in Saratoga County.¹³

On July 7, 2004, the Appellate Division, Third Department modified the Supreme Court's order. The Court affirmed the Supreme Court's ruling regarding the constitutionality of parts B and D of chapter 383 of the Laws of 2001; however, it declared that part C was unconstitutional. Regarding part B, the Court determined that,

Plaintiffs and defendants appeal and cross-appeal, respectively, pursuant to CPLR 5601 (b) (1).

By holding that part B of chapter 383 of the Laws of 2001 is constitutional, the majority of this Court and the lower courts *280 have basically held that Congress can require the New York State Legislature to pass a law it ordinarily could not, i.e., a law empowering the Governor to enter an agreement for the establishment of gambling activity that does not comport with this State's Constitution. Since the gambling activity at issue here has not been put before and approved by the citizens of New York as an exception to the general prohibition against gambling set forth in article I, § 9 of the New York State Constitution, the Legislature cannot pass legislation authorizing the Governor to enter into agreements for the establishment of commercial gambling facilities. Therefore, part B of chapter 383 must be set aside as unconstitutional.¹⁴

Congress passed IGRA on October 17, 1988, pursuant to its power to regulate commerce “with the Indian Tribes” (US Const, art I, § 8 [3]) and in response to the United States Supreme Court's decision in California v Cabazon Band of Mission Indians (480 US 202 [1987]). In Cabazon, which was decided about a year before IGRA was enacted, the Supreme Court held that a state which regulates rather than prohibits gambling must permit Indian tribes to conduct gambling on their lands (see, Cabazon, 480 US at 209). The Court further held that Indian tribes would be forbidden from conducting gambling if a particular state prohibits such gambling altogether (id.). To deal with this regulatory/prohibitory distinction, the Cabazon court stated: “The shorthand test is whether the conduct at issue violates the State's public policy.” (Cabazon, 480 US at 209.) The primary purpose of IGRA is “to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic *27 development, self-sufficiency, and strong tribal governments” (25 USC § 2702 [1]).¹⁵

IGRA divides gaming on Indian lands into three classes.¹⁶ Class I games, defined as social games for minimal prizes and *281 traditional Indian or ceremonial games, are within the exclusive jurisdiction of the Indian tribes and shall not be subject to the provisions of IGRA (see 25 USC § 2703 [6]; § 2710 [a] [1]). Class II games, such as bingo, lotto, pull tabs, tip jars, punch boards and card games, but not banking card games (e.g., chemin de fer, baccarat and blackjack), fall within tribal jurisdiction but are subject to the provisions of IGRA (see 25 USC § 2703 [7]; § 2710 [a] [2]). Class III gaming, which is defined as “all forms of gaming that are not class I or class II gaming” (25 USC § 2703 [8]) and includes banking cards, horse racing, slot machines and the commercialized, casino gambling at issue here, is subject to the terms and conditions of tribal-state compacts.

IGRA provides,

In determining whether class III gaming will be allowable on Indian lands, the tribal-state compacting requirement is of primary importance under IGRA. However, before discussing this requirement, it is necessary to examine IGRA's legislative history regarding compacts because this history makes clear that Congress: (1) considers a state and Indian tribe engaged in compact negotiations to be equal sovereigns; (2) considers the state's interest, in ensuring that its law and public policy are adhered to, important to the compacting process; and (3) does not require a state to abandon its own constitution or laws in order to have or regulate class III gaming. The Senate Report, which accompanied the bill (US Senate Bill S 555) that eventually became IGRA and sets forth IGRA's legislative history, provides, in pertinent part:

*284 With respect to the tribal-state compact requirement, IGRA provides that an Indian tribe, seeking to conduct class III gaming on its land, may initiate the compacting process by asking the state in which the proposed activity is to take place to engage in negotiations for the purpose of entering a tribal-state compact (see 25 USC § 2710 [d] [3] [A]). When the tribe requests a state to enter into compact negotiations, both the tribe and the state shall negotiate in good faith (id.).¹⁸ However, IGRA does not require that a state accept or enter into a compact. *31 Moreover, class III gaming shall not be imposed on states where such gaming is forbidden. 25 USC § 2701 (5) provides:

Based on the foregoing, as long as the proposed class III gaming activity is not prohibited by a state's criminal law and public policy, an Indian tribe can initiate the tribal-state compacting process under which a state is obligated to negotiate in good faith, subject to 25 USC § 2710 (d) (7). However, in the instant case, the commercialized casino gaming contemplated is prohibited under New York law and public policy.¹⁹

Because the proposed casino gaming is prohibited under the New York State Constitution and Penal Law, and such gaming conflicts with New York State's strong public policy against commercialized gambling, the Legislature did not have the power to enact the instant legislation authorizing the Governor to negotiate and enter into compacts with Indian tribes for the establishment of “for-profit” casino gaming in New York State. Moreover, IGRA does not and cannot force or require the Legislature to pass a law authorizing the Governor to execute agreements for the establishment of activity that is violative of New York State's laws and public policy. As indicated above, without valid legislative approval, the Governor can *32 neither negotiate nor bind the State by entering into a compact.

New York prohibits commercialized gambling, including the for-profit, casino gaming contemplated herein. This prohibition is set forth in the “Bill of Rights” of the New York State Constitution (see NY Const, art I, § 9). Article I, § 9 was adopted to “protect[ ] . . . the family man of meager resources from his own imprudence at the gaming tables” (see International Hotels Corp. [Puerto Rico] v Golden, 15 NY2d 9, 15 [1964], citing Carter and Stone, Reports of Proceedings and Debates of the Convention of 1821, at 567 [Hosford 1821]). Article I, § 9 (1) of the New York State Constitution reads, in pertinent part:

In order to give effect to article I, § 9 of the New York State Constitution, the Legislature enacted article 9-A of the General Municipal Law, New York's “Games of Chance Licensing Law” (see General Municipal Law § 185 et seq.). The stated purpose of article 9-A is consistent with New York's legal prohibition and strong public policy against commercialized gambling. General Municipal Law § 185, which sets forth the purpose of article 9-A, provides, in pertinent part:

It has been argued that the State Legislature had authority to enact part B of chapter 383 of the Laws of 2001 because: (1) since New York allows what is ostensibly class III gaming for charitable and other purposes, New York must allow the commercialized, for-profit casino gaming at issue here; and (2) the citizens of New York State, by approving gambling for charitable and other purposes, have *36 thereby approved class III commercialized casino gaming. This argument is unavailing because instead of focusing on whether the New York State Constitution authorizes the Legislature to pass a law authorizing the Governor to agree to bring about unconstitutional, commercialized gambling, this argument incorrectly focuses on the noncommercial gambling New York State permits as justification for the contention that New York State can enter compacts for the establishment of commercialized gambling facilities on Indian lands. Put another way, this argument fails to consider the plain *290 language of article I, § 9 of the State Constitution²¹ and how this constitutional provision affects the Legislature's authority, or lack thereof, to enact legislation related to commercialized gambling.

As noted above, article I, § 9 generally proscribes gambling except for lotteries where the net proceeds are applied towards education, pari-mutuel betting on horse races,²² and *37 games of chance to be engaged in by certain types of organizations (e.g., nonprofit organizations) and conducted for specific, limited purposes (e.g., charitable). Under article I, § 9, these games of chance are strictly regulated to ensure that they are not commercialized. For example, article I, § 9 dictates where net proceeds go, who manages or operates the game, that no person shall be paid for participating in the management or operation of the game, and prize amounts. Further, article I, § 9 (2) provides that, “The legislature shall pass appropriate laws to effectuate the purposes of this subdivision [and] ensure that such games are rigidly regulated to prevent commercialized gambling.” The legislation passed, pursuant to this constitutional directive, i.e., the Games of Chance Licensing Law, similarly seeks to “discourage commercialization of gambling in all its forms, including the rental of commercial premises for games of chance, and to ensure a maximum availability of the net proceeds of games of chance exclusively for application to [ ] *291 worthy causes and undertakings” (General Municipal Law § 185). Based on the foregoing, article I, § 9 of the New York State Constitution clearly prohibits gaming for commercialized purposes and commercialized games of chance, and further, acts as a limitation on the power of the Legislature to enact laws pertaining to such gaming and games of chance.²³

Here, the Legislature, by enacting part B of chapter 383, authorized the Governor to execute tribal-state compacts for the establishment of up to six class III, for-profit casino gaming facilities on Indian lands and “after-acquired” lands pursuant to 25 USC § 2719 (b) (1) (A). There is no dispute, and the majority agrees, that the gaming facilities contemplated under this legislation (and the gaming and games to be engaged in at these facilities) are commercial in nature and fall squarely within the type of commercial gambling activity prohibited under article I, § 9.²⁴ Moreover, the provisions authorizing the execution of tribal-state compacts for the *38 establishment of the above-mentioned prohibited facilities do not comport with article I, § 9.²⁵ Thus, in view of the limitation on the Legislature's power set forth in article I, § 9, and the axiom that where a constitutional *292 limitation on the Legislature's power exists, a legislative enactment that seeks to exercise such power in spite of the limitation has no effect, the Legislature did not have the authority to enact part B of chapter 383 of the Laws of 2001.

In light of this conclusion, that the Legislature had no power to enact the legislation, the next question that must be answered is whether IGRA somehow grants the Legislature the authority to enact part B of chapter 383. Respondents' main argument that the Legislature had the authority to enact part B of chapter 383 is that because the New York State Constitution permits charitable and other organizations to conduct noncommercial casino-style gaming in New York State, IGRA requires that New York must negotiate with Indian tribes to give them the opportunity to conduct commercial casino-style gaming. In support of this argument, respondents rely primarily on IGRA's legislative history regarding the “for any purpose by any person” provision relating to class II gaming (S Rep No. 100-446, 100th Cong, 2d Sess, Explanation of Major Provisions, at 12),²⁶ and United States v Sisseton-Wahpeton Sioux Tribe (897 F2d 358, 365 [8th Cir 1990] [cited for the proposition that IGRA's “legislative history reveals that Congress intended to permit a particular gaming activity, even if conducted in a manner inconsistent with state law, if the state merely regulated, as opposed to completely barred, that particular gaming activity”]). Based on the foregoing, respondents concluded that “a State may not invoke state law prohibiting commercialized Class III gaming outside Indian lands to justify a refusal to undertake compact negotiations under IGRA. To the contrary, as long as a State permits class III gaming ‘for any purpose by any person,’ IGRA expressly requires States to ‘negotiate . . . in good faith to enter into . . . a compact’ and provides specific remedies where they fail to do so” (see Brief for State Respondents, at 44; regarding the remedies, see 25 USC § 2710 [d]).²⁷

*293 The IGRA provisions and case law cited by respondents do not provide authorization for this State's Legislature to enact laws like part B of chapter 383. IGRA *40 presupposes that the New York State Legislature has the authority to enact such laws.²⁸ However, nothing in IGRA, not the fact that IGRA preempts the field in the area of gaming on Indian lands, not the IGRA-defined role of states in the regulation of gaming on Indian lands,²⁹ not the requirement that states negotiate compacts in good faith, not the fact that the compact requirement is meant to take into account the interests of the tribe and state, not the fact that the Secretary of the Interior has the power to impose commercialized casino gambling if a compact is not entered into, counters the article I, § 9 limitation to the Legislature's power to enact legislation authorizing the State, through the Governor, to execute an agreement for the establishment of unconstitutional, illegal commercialized gambling. Put another *294 way, state law, not federal law, necessarily governs the exercise of the Legislature's power to enact legislation.³⁰

IGRA states that “Class III gaming activities shall be lawful on Indian lands only if such activities are . . . located in a State that permits such gaming for any purpose by any person, organization, or entity” (25 USC § 2710 [d] [1] [B]). Applying Justice Stevens' reasoning to the instant case, it does not follow that if a state permits class III gaming for charitable purposes, it must permit commercial gambling on Indian lands by way of a compact in violation of a state's own constitutional provision (Cabazon, 480 US at 222-227 [Stevens, J., dissenting]). At most, the state would be required to permit class III gaming on Indian lands for charitable purposes. Such an interpretation would not violate the New York State Constitution. Nothing in IGRA requires the contrary. Moreover, the Constitution can be amended by the People of the State of New York.

Mashantucket Pequot Tribe v State of Conn. (737 F Supp 169 [1990], affd 913 F2d 1024 [1990]) and California v Cabazon Band of Mission Indians (480 US 202 [1987]), two cases heavily relied on by respondents, do not change this conclusion because these cases are neither *41 controlling nor applicable. In Mashantucket, the Pequot Tribe sought to enter into negotiations with the State of Connecticut to conduct casino-type games of chance on its reservation. Connecticut's statutory scheme generally prohibited commercial gambling but permitted nonprofit organizations to conduct “Las Vegas nights” and games of chance to raise funds for the organizations. At the heart of the Mashantucket decision was the conclusion of both the District Court and the Second Circuit that Connecticut regulated rather than prohibited gambling and thus Connecticut was required to negotiate a compact with the Pequot Tribe. On the other hand, the instant case involves article I, § 9 of the New York State Constitution, a provision which reflects New York's long-standing policy against the type of commercialized gambling sought to be permitted here and acts as a limitation on the Legislature's authority to enact legislation like part B of chapter 383. (See discussion of New York's long constitutional history of prohibiting gambling in Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 826-828 [2003] [G.B. Smith, J., concurring in part and dissenting in part].) The antigambling provision is part of the supreme law of the State and can only be repealed by the People of New York State by amending the constitution (see NY Const, art XIX, § 1). The New York State Constitution should be accorded significantly more deference than the statutes at issue in Mashantucket, statutes which did not reflect as strong an antigambling policy as New York's and have since been repealed.

With respect to Cabazon, it should be noted that while IGRA has adopted Cabazon language pertaining to class II and class III gaming, on the facts and primary issue to be resolved, Cabazon can be distinguished from the instant case. First, unlike the instant case, Cabazon involved a state (i.e., California) that did not have as clear an antigambling policy as New York. Second, Cabazon involved an Indian tribe's attempt to operate bingo parlors which, under IGRA, falls under class II gaming and within tribal jurisdiction with oversight regulation by the National Indian Gaming Commission. Moreover, the Senate Report which accompanied the bill that eventually became IGRA (i.e., IGRA's legislative history) links language from Cabazon, i.e., the regulatory/prohibitory distinction, to class II gaming while remaining silent as to class III gaming, the gambling activity at issue here. Given this and the fact that class II and class III gaming are regulated in very different ways, Congress contemplated different treatment for class II and class III gaming. Third, Cabazon involved an analysis of: (1) whether a statute and county ordinances addressing gambling were criminal (i.e., prohibitory) or civil (i.e., regulatory); and (2) whether California could enforce its gambling laws on Indian land. The instant case considers whether the Legislature has the authority to enact legislation that is in direct contravention to the New York State Constitution.

Thus, in view of the plain and unambiguous limitation on legislative authority set forth in article I, § 9 of the New York State Constitution, the State Legislature did not have the authority to enact part B of chapter 383 of the Laws of 2001. Further, neither IGRA nor any reading of Mashantucket and Cabazon could grant the Legislature such authority. Accordingly, part B of chapter 383 must be set aside as void and unconstitutional, including Executive Law § 12 (regarding Governor's authority to enter into tribal-state compacts) and the amendments to *42 Penal Law § 225.30 (a) (1) and (b) (regarding *296 the legalization of slot machines for class III gaming purposes).

In affirming the lower court's holding regarding part B of chapter 383, and thereby disregarding the article I, § 9 limitation on the Legislature, the majority has essentially concluded that IGRA provides a means for the Legislature to circumvent this State's constitutional limitations and pass legislation that it normally could not. This conclusion suggests, at least with regard to gaming on Indian lands, that IGRA exerts control over how legislation is passed and even supplants this State's Constitution. In view of New York State's status as a sovereign state and the fact that New York State's Constitution is the supreme law of the State, this notion is incorrect.

Moreover, effectively extending power to IGRA, with regard to the State's Constitution, is improper because the people of New York State, not Congress or the Secretary of the Interior or the State Legislature, approve the State Constitution and any amendments thereto (see NY Const, art XIX, § 1). Thus, if the people are not permitted to consider and vote on a subject covered under the State Constitution, their constitutional rights have been violated.

For example, the people have approved certain exceptions to the State's general ban on gambling, as well as highly regulated, noncommercial games of chance authorized under article I, § 9 of the New York State Constitution and article 9-A of the General Municipal Law.³¹ However, the high-stakes commercialized gaming and games contemplated under part B *43 of chapter 383 *297 were not approved by the people.³² In other words, the Legislature, by purporting to make a policy decision within its power, i.e., enacting part B, delegated to the Governor the authority to execute tribal-state compacts, authority that, pursuant to the limitation on legislative power set forth in article I, § 9, the Legislature does not have. Accordingly, part B is not an improper delegation of legislative authority as plaintiffs contend. This implies that the Legislature had the authority to enact part B. Instead, because the Legislature does not have the authority to empower a state official to enter into an agreement for the establishment of commercialized gambling, the Legislature's “delegation” was an action without consequence.

Although under General Municipal Law § 186 (3), other games of chance may be authorized by the Board, the following games, included in the instant Tribal-State Compact, have not been authorized as “games of chance” under New York law: (1) baccarat; (2) carribean stud poker; (3) keno; (4) let it ride poker; (5) minibaccarat; (6) pai gow poker; (7) pai gow tiles; (8) red dog; (9) sic bo; (10) super pan; (11) casino war; (12) spanish blackjack; (13) multiple action blackjack; and (14) three card poker. These games are not permitted to be engaged in for any purpose by any person, organization or entity (see 25 USC § 2710 [d] [1] [B]). Accordingly, even if New York State could legally enter into a tribal-state compact, it could refuse to negotiate with the Seneca Nation of Indians regarding the tribe's operation of these unauthorized games (see e.g., Cheyenne Riv. Sioux Tribe v State of S.D., 3 F3d 273 [8th Cir 1993]). Note also that New York State can refuse to negotiate if the Seneca Nation of Indians wants to operate a game that is a variation of the authorized game (id.). Moreover, in light of the article I, § 9 limitation to the Legislature's power, the subject matter of part B of chapter 383 clearly falls within the ban on commercialized gaming.

This legislation, specifically the portions authorizing the execution of compacts, should first have been put through the *298 amendment process so that the people of New York State could decide whether such compacts for the establishment of high-stakes games or gaming should become permissible under the State Constitution and whether the Legislature can enact legislation authorizing the execution of such compacts. Because the high-stakes commercialized *44 gaming and games, and the provisions regarding the compacts were not put before the people through the amendment process, the rights of New York's citizens have been violated.

Affirming part B presents another problem regarding the ability of the people to exercise their collective voice. During oral argument, state respondent conceded that theoretically, there would be no legal impediment to having casinos placed in New York City and Albany as long as the requirements regarding after-acquired Indian lands held in trust for an Indian tribe (25 USC § 2719 [b] [1] [A]) are met. Specifically, if the Secretary of the Interior: (1) purchases land in, for example, New York City and Albany and holds it in trust for Indian tribes; and (2) determines that a gaming establishment(s) on the newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community; and (3) the Governor concurs, there could be commercialized Indian gaming in New York City and Albany without the required approval, via the amendment process, of the people of the State of New York.

Contrary to the majority's position, part B of chapter 383 is not a duly enacted statute because, given the article I, § 9 limitation on the Legislature's ability to enact legislation empowering the Governor to enter an agreement for the establishment of commercialized gambling, the Legislature did not have the authority to enact part B. Put another way, since New York's Legislature does not have the constitutional or statutory authority to enact legislation to establish commercialized gambling, it certainly cannot enact legislation empowering the Governor to execute compacts for the sole purpose of establishing casinos where commercialized gambling will take place.

The majority made a number of points pertaining to the control a state can exert on Indian lands and the validity of games under a gaming compact, i.e., it noted that, under IGRA, state laws prohibiting commercialized gambling do not apply on Indian lands, that a state enjoys more regulatory control over *299 Indian casino gaming than it would ordinarily, and further, that regarding such gaming, “state involvement and regulation is to be favored.” (Majority op at 261.) However, these points do not consider the step that necessarily precedes the Governor's negotiation and entering of Indian gaming compacts, i.e., the legislative authorization held to be necessary under Saratoga County. Regarding this step, the majority states that under Saratoga County, negotiating and entering compacts involve policy decisions within the power of the Legislature (see majority op at 262; Saratoga County, 100 NY2d at 823). However, this decision did not consider that the Legislature is subject to a constitutional limitation that prohibits it from enacting the type of legislation at issue here. In other words, it is clear, given the constitutional and statutory limitations on the Legislature's power to enact laws in furtherance of commercial gambling, that passing laws in that area cannot be considered an example of a policy decision within the power of the Legislature. Since passing laws establishing commercialized gambling is not a policy decision within the power of the Legislature, the Legislature's enactment of part B of chapter 383 cannot stand.³³ Also, as New York State is sovereign in its own right, Congress, through IGRA, cannot dictate what areas the Legislature can legislate in or direct the Legislature to take action that it could not ordinarily take, especially when the legislation that results from such dictation or direction would be in direct contravention with a constitutional limitation on the Legislature's authority to act in a given area. Moreover, article I, § 9 was approved by the people of the State of New York as a general prohibition against gambling, with certain exceptions, and as a limitation on the Legislature's general right to legislate. IGRA cannot supplant that constitutional provision because that would necessarily mean the rights and interests that IGRA is most concerned with protecting, i.e., those of the Indian tribes, outweigh the will of the people of New York State.

Finally, in Alden v Maine (527 US 706, 748, 758 [1999]), a case which held that Congress could not require that a state be sued in a state court, the Supreme Court stated:

Based on the foregoing, part B of chapter 383 should be held as void, illegal and unconstitutional, any compact(s), entered into pursuant to part B of chapter 383, should be held as void and unenforceable, any casinos opened and operating pursuant to such a compact should be declared unable to continue operations and the Governor and other New York State officials *46 should be declared unable to engage in activities in furtherance of part B of chapter 383. Further, I would reverse the lower court decision granting summary judgment on that portion of appellants' complaints pertaining to part B of chapter 383 and reinstate those causes of action.

In this case, the Governor and the Attorney General, as is their right, have seen their duty as requiring them to forgo the New York State Constitution and apply a federal statute. Normally they would be advocates for the State Constitution. The result is to leave the people of the State of New York without a state advocate for a provision in its Bill of Rights. Perhaps, this Court or the Attorney General should have appointed one. In any case, while it is clear that the federal government has preempted the field in how gaming is to be conducted on Indian lands, it does not follow that preemption forces New *301 York to have its Governor and Legislature approve commercial gambling in spite of the New York State Constitution. Nothing in IGRA requires New York to set up commercial gambling on Indian lands or on lands acquired by Indians.

Because I do not agree with the majority's holding regarding part B of chapter 383 of the Laws of 2001, I dissent.

The statute as originally enacted provided for a “vendor's fee” to racetracks of between 12% and 25% of the revenue remaining after payment of prizes, and required the vendors to “reinvest” between 35% and 45% of that fee in enhanced purses and a breeding fund. In other words, the Legislature required that between 4.2% and 11.25% of after-prize revenue be devoted to increasing racetrack prizes and breeding horses--not to the “aid or support of education.” The Legislature could not have appropriated lottery funds for racetrack purses or horse breeding, and should not be allowed to accomplish the same end by directing vendors to “reinvest.”

To me, the issue is that simple. It is not relevant that, as the majority notes, other *47 statutes direct racetracks to divert some of their income to purses and breeding funds (majority op at 267-268); the income to which those statutes apply is not lottery income and is not subject to the “exclusively to . . . education” restriction of article I, § 9. Nor is it relevant that the maximum vendor's fee under part C was increased from 25% to 29% of revenue remaining after prizes (majority op at 269); the reinvestment was included in both fee levels, so the increase proves nothing about whether the reinvestment had the effect of inflating the fee.

The essence of the majority's position is that plaintiffs have not proved that the reinvestment is a device to thwart the constitutional limitation. The majority suggests that the vendor's fee called for by the statute is not inflated by the required reinvestments--that the fee may be the lowest a *302 vendor would take in any event, and that the reinvestments may be expenditures the racetracks would make anyway. The majority also says that “[t]he Legislature was entitled to determine” that the reinvestment expenditures are a reasonable way to enhance racetrack attendance, and that increased attendance will in turn increase lottery revenues (majority op at 268).

I agree that plaintiffs have not proved that the reinvestment provisions of part C were designed to evade the constitutional requirement; it is very hard to prove such evasion, or to disprove it. I also agree with the majority that “[i]t is generally not for the courts to determine whether a particular vendor's fee . . . is reasonable” (majority op at 269); indeed, it will usually be impossible for courts to do so. That is precisely why a “reinvestment” requirement offers a temptation to a Legislature that wants to escape the constitutional restriction. Indeed, in saying that it “can perhaps imagine” a case where a “flagrant end run” around the constitutional requirement would be invalidated (majority op at 269), the majority seems to sanction in advance any end run that falls short of being flagrant. I find this too lax an approach to the enforcement of article I, § 9, and I think we should hold simply that no legislatively-directed diversions of funds from lottery vendor's fees to noneducational purposes are allowed.

Chief Judge Kaye and Judges Rosenblatt, Graffeo and Read concur with Judge Ciparick; Judge G.B. Smith dissents in part and votes to modify by declaring part B of chapter 383 of the Laws of 2001 unconstitutional in a separate opinion; Judge R.S. Smith dissents in part and votes to affirm in another opinion in which Judge G.B. Smith concurs in so much thereof as pertains to part C of chapter 383 of the Laws of 2001.

Order modified, etc. *48