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Catawba leaders break ground on the Kings Mountain site during a July 2020 event. Brittany Randolph/Shelby Star photo
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Federal court rules for Catawba casino Cherokee leaders: ‘considering all of our options’ BY HOLLY KAYS STAFF WRITER n a 55-page opinion filed Friday, April 16, U.S. District Court Judge James A. Boasberg gave a green light in the Catawba Indian Nation’s quest to build a casino in Cleveland County and struck a heavy blow to the Eastern Band of Cherokee Indians’ yearslong effort to keep the facility from existing. “Plaintiffs (EBCI) raise several close and complex questions of statutory and regulatory construction, and the Court certainly cannot fault them for rolling the dice here,” Boasberg wrote in the gambling metaphor-riddled opinion. “In the end, though, they come up with snake eyes, as on each claim they either lack standing or lose on the merits.” The ruling came more than a year after the EBCI first filed its lawsuit against the U.S. Department of Interior on March 17, 2020. They filed the suit five days after Interior approved the Catawba’s application to take 16.5 acres in Kings Mountain into trust as tribal land. The Cherokee Nation of Oklahoma joined the EBCI in its suit as an intervenor on the plaintiff side, while the Catawba joined as an intervenor on the defendant’s side. Having the land taken into trust was perhaps the highest hurdle the Catawba had to clear to make their planned casino a reality. However, the EBCI denounced the decision as “rushed,” “flawed,” and in violation of “the plain language of federal law.” Allowing the decision to stand, they said, would set unintended and dangerous precedent. Specifically, the EBCI argued that the land-to-trust decision should be reversed based on six different claims. The first three assert that DOI’s decision violated the
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Administrative Procedure Act. According to the EBCI, the 1993 Settlement Act — a congressionally approved agreement between South Carolina and the Catawba setting the framework for the Catawba’s status as a federally recognized tribe — bars the Catawba from operating a casino under the Indian Gaming Regulatory Act; the Settlement Act prevents the Catawba from having land taken into trust under the Indian Reorganization Act; and the Kings Mountain site is not eligible for gaming under IGRA regulations. Additionally, the EBCI claimed that the DOI arbitrarily ignored the allegedly suspect background of the Catawba’s business partner Wallace Cheves, and that the DOI violated both the National Environmental Protection Act and the National Historic Preservation Act.
INTERPRETING THE SETTLEMENT ACT The first three claims all hinged on a legal interpretation of the 1993 Settlement Act. Section 14 of that act states that IGRA “shall not apply to the (Catawba) Tribe” and that “except as set forth in the Settlement Agreement and the (South Carolina) Act,” South Carolina law “shall govern the regulation of gambling devices and the conduct of gambling or wagering by the Tribe on and off the Reservation.” The EBCI contends that this section plainly states that the Catawba may game only in South Carolina as allowed by South Carolina’s government. Similarly, the EBCI argued that because the Settlement Act spells out an alternative process for land acquisition to the one outlined in the IRA, the Catawba must follow this alternative process and are not eligible to take land into trust under the IRA, as Interior said it could do in last year’s decision. To both arguments, Boasberg responded that context makes it clear that Settlement
Act provisions were intended to displace federal law only within the boundaries of South Carolina. Outside of South Carolina, federal law should apply. “At a minimum,” he wrote, the language is ambiguous, and where ambiguity exists precedent says the court must rule in favor of the tribe — the Catawba. “The intent of the Settlement Agreement seems to have been to establish a specific regime for Catawba gambling in South Carolina that would supersede IGRA’s more Tribe-friendly framework — hence the need to clarify that an otherwise preemptive federal law, IGRA, would not apply,” Boasberg wrote. “Put differently, the Settlement Agreement made clear that IGRA would not apply to the Tribe because tribal gambling would instead be covered by specific rules set out in the Settlement Agreement and/or state law. Under that reading, the Agreement has nothing to say about whether the Tribe would be permitted to game under IGRA outside of South Carolina. That is unsurprising, as the Agreement is exclusively between South Carolina and the Tribe.” In response to the EBCI’s argument that the Kings Mountain site is not eligible for IGRA gaming — even if IGRA applies to the Catawba and Interior may use the IRA to take land into trust for them — Boasberg wrote that, “although Plaintiffs play their hand well, Defendants hold the high card.” IGRA states that tribes may not conduct gaming on lands taken into trust after Oct. 17, 1988 — unless those lands meet one of several exceptions. Interior concluded that the Kings Mountain site fits the “restored lands” exception, which applies when a tribe’s lands are restored to federal recognition. Boasberg summarized the EBCI’s interpretation of that exception to mean that only land identified under a restoration act could be taken into trust as restored land and said that he did not believe Interior would have adopted that “crabbed view” of the restored lands exception, especially because numerous courts rebuffed that “narrow approach” following lawsuits regarding past Interior decisions. Boasberg characterized the EBCI’s claim regarding Cheves’ background as “something of a wild card,” noting that Cheves has never been convicted of a crime and that his involvement is not reflected in any agency records.
