by Michael Lowrey
My JLF colleague Dan Way offers up the latest on the Catawbas attempt to build a casino. Or, as Dan reports, two, one on each side of the state border. Because of the local interest, here’s the article in full:
RALEIGH — While the Catawba Indian Nation awaits a ruling from the U.S. Department of the Interior on acquiring land in Cleveland County to build a $340 million resort/casino, it is battling in South Carolina courts to create a similar gambling property on its border reservation in Rock Hill.
“If the tribe does have a positive ruling from the South Carolina Supreme Court, there are no plans to abandon our project in the state of North Carolina,” said tribal spokeswoman Elizabeth Harris.
“The tribe maintains its right to take land into trust in North Carolina, and will continue on the path of a world class resort in Cleveland County,” Harris said.
Attorneys for the tribe appeared in Columbia Jan. 22 before the South Carolina Supreme Court.
“The basis of the lawsuit is a 2005 law passed by the state called the Gambling Cruises Act,” Harris said.
The act authorizes “any game of chance and includes, but is not limited to, slot machines, punchboards, video poker or blackjack machines, keno, roulette, craps, or any other gaming table type gambling or poker, blackjack, or any other card gambling game,” Harris said.
In 1993 the tribe entered into a settlement agreement with South Carolina and the federal government. In exchange for relinquishing historic claims to 144,000 acres of aboriginal lands lost through a broken treaty, the Catawbas, among other things, were granted an exclusive right “to have the same gaming as authorized within the state,” Harris said.
“Therefore, the tribe feels that we have the right to do the same on tribal lands” as is authorized by the state for gaming cruises from South Carolina ports, Harris said. “We felt that the tribe’s lawyers did a wonderful job explaining these points to the Supreme Court.”
Billy Wilkins, former chief judge of the U.S. Court of Appeals for the 4th District who argued the case for the Catawbas before the Supreme Court, declined a request to comment on the case, though a spokesman said it was unclear when the justices would issue an opinion.
“Because the case is pending in the court, it would be inappropriate for us to comment at this time,” said Mark Powell, communications director for the South Carolina Attorney General’s Office, which argued the case for the state against the Catawba suit.
The 1993 federal agreement also allows the tribe to expand its 1,006-acre reservation in Rock Hill to between 3,600 and 4,200 acres in a designated federal service area that includes Cleveland and five other North Carolina border counties.
Land acquired under the agreement must be placed in federal trust. That is the process the Catawbas are pursuing with a 16-acre purchase in Kings Mountain on which the 220,000–square-foot casino, two hotels, retail, and entertainment outlets would be located.
“The Catawba Tribe’s gaming application is still under review,” said Nedra Darling, a spokeswoman in the Office of Assistant Secretary of Indian Affairs in the Interior Department.
State Rep. Tim Moore, R-Cleveland, an attorney, is representing the Kings Mountain landowners who are in partnership with developers. He said his clients are not gambling companies.
“Nothing can be purchased formally until the Bureau of Indian Affairs approves … the transfer of the land” into federal trust, Moore said. “Our clients are working through that process with the Department of Interior.”
The landowners are “very encouraged” about the federal process, Moore said. “Everything has proceeded according to schedule, and the comments I’ve heard thus far have been very receptive.” He has been doing title searches, and preparing the deeds for the land transfer.
Much of what the Bureau of Indian Affairs is sorting out is whether placing the land in federal trust is mandatory or discretionary.
“Our argument is that it’s mandatory because it meets all of the criteria,” is properly done, approved by the tribe, is within the defined service area, and the property is free and clear, Moore said. “That is what I am in the process of arguing for my clients, not the policy or political arguments.”
Despite opposition to the project from Gov. Pat McCrory, Attorney General Roy Cooper, Insurance Commissioner Wayne Goodwin, House Speaker Thom Tillis, Senate leader Phil Berger, and more than 100 lawmakers, Moore said his understanding is that such objections have little to do with Interior Department decision-making.
Conversely, he said, “There’s been very much locally a great deal of support for this project” among local governments and residents who view it as an economic development bonanza for a financially struggling area.
Harris said the Catawbas estimate the casino complex would create up to 4,000 permanent jobs and generate sorely needed revenue for a 2,900-member tribe whose average annual household income is about $11,000 and who endure an unemployment rate of about 22 percent.
“My thoughts are that as more folks find out about the project there’s less resistance and, in fact, support,” Moore said. “The way that it’s been spun up at times is that it’s a South Carolina tribe coming in to take North Carolina money or something. [The Catawbas] have tribal members in both North and South Carolina, … They were here long before a lot of our ancestors were.”
Moore also finds those who think they can end Indian gambling in North Carolina are destined to be disappointed.
“The horse is out of the barn on that,” he said. “We have a casino already in North Carolina. In fact, the Cherokee are getting ready to build a second. … The question is why would one federally recognized tribe be treated differently than another?”
John Rustin, president and executive director of the North Carolina Family Policy Council, said his organization opposes the casino project on social and economic grounds.
“While it may generate some revenue for the tribe, casinos, especially regional casinos like this, have been shown over and over again to cannibalize the local economy,” Rustin said.
There are “substantial increases” in gambling addiction, bankruptcy, crime, domestic violence, child abuse, divorce, and suicide when there is a casino within that community, he said.
“We respect their opinion, but we would just hope they also would respect ours, and be open-minded about it, and look more at the economic impact than their personal feelings about gambling,” Harris said.
An entertainment establishment “can’t be the ones that police everything for everybody” who may have a variety of personal weaknesses and social problems.
Rustin’s opposition echoes South Carolina’s position that the Catawbas’ claim of a right to open a casino in that state due to the Gambling Cruises Act is specious because the gambling boats only anchor in South Carolina ports.
They go on so-called “cruises to nowhere” outside of state territorial waters before the games of chance begin, “therefore that casino-style gambling is not taking place within the state of South Carolina,” Rustin said.
However, in their final petition to the Supreme Court, the Catawbas counter that the federal Johnson Act empowers the state of South Carolina “to regulate gambling within the federal territorial waters that lie beyond the state waters [the three-mile limit] just as the state has certain regulatory authority on the federal trust lands that constitute the Catawba Nation’s reservation.”
The state uses its power to regulate the use of certain gambling devices on the boats, and has a tax scheme “which permeates the gambling operations both during the cruise and on shore,” the brief states.
Private citizens, corporations, and local governments are profiting from the state’s authorization of video poker and other electronic devices while denying parity to the Catawbas “in direct contravention” of the state and federal settlement agreement granting the tribe gaming rights “to the same extent” others are given, the brief states.