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June 7, 2014 12:00 pm
In Part 2 of this two-part series, NC Family president John Rustin continues a discussion with attorney Chris Derrick, author of an article in the Spring 2014 issue of Family North Carolina magazine entitled, “Going Off the Reservation,” which explains why the South Carolina-based Catawba Indian Nation has no legal authority to open a Las-Vegas style gambling casino in North Carolina.
This is family policy matter program is produced by the North Carolina family policy Council of profamily research and education organization dedicated to strengthening and preserving the family and here's John Rushton, president of the North Carolina family policy Council, thank you for doing this week. Profamily policy matters a pleasure to have Derek back on the program with this week. Chris is an attorney based in Asheville, North Carolina, who specializes in the areas of promotion and marketing, law, corporate law, and business transactions. He formerly served for two years as special counsel to Commissioner James Dobson on the 1999 National gambling Impact study commission and of course Dr. Dobson was the head of Focus on the Family, our national counterpart organization also provides legal and legislative assistance to the North Carolina family policy Council and we greatly appreciate all the wonderful work that Chris does. Chris is the author of an exclusive article featured in the spring 2014 issue of family North Carolina magazine entitled going off the reservation the Catawba Indians have no legal authority to open a casino in North Carolina this week were going to pick back up with a discussion that we began last time with Chris about why the South Carolina based Indian tribe lacks the right and authority to open a casino in North Carolina. Chris, thanks so much for being back with us on the program. Thank you. It's good to be with you again focus on now to North Carolina in the tribe's efforts here as I understand it from looking at the documentation that we have seen through a freedom of information act request to get the tribes application to have the Bureau of Indian affairs of the US government essentially to take land into trust on the tribes but have we became aware that his early as an and probably before even March 2013 that there had been efforts underway by the tribe to have discussions with local officials and state officials and even officials within the governor's office to test the waters so to speak to pursue the potential for a gambling operation in North Carolina talk about that a little bit unsure what the status of that is right now will you. You're absolutely right. I mean it was efforts of the family policy Council that uncovered a lot of of this of this information, but as it turns out, in and in and what the family policy Council found out was at the same time the tribe was litigating this case in South Carolina that we've been discussing. I was also attempting to negotiate a deal with North Carolina to allow the tribe to open a casino there on the Kings mountainside and, according to media reports, someone on the tribes that have actually presented government quarries office with a draft of an English style compact containing a revenue sharing arrangement for the proposed Kings Mountain casino similar to the one found in the Cherokees gambling, signed by Gov. Bev Perdue back in 2012. The most recent version. There, but thanks to your efforts and the efforts of the North Carolina family policy Council always casino compact effort went nowhere in the inside leading lawmakers, including North Carolina Atty. Gen. Willie Cooper leaders in the North Carolina Senate and over 100 members of the North Carolina House of Representatives either wrote letters or or sent statements indicating their formal opposition to the Catawba casino and on September 9 governor Cory issued a definitive statement.
Really, I put the nail in the coffin on any sort of negotiated contact with the Catawba tribe and in that statement. He said he remained unconvinced that any new casino proposal was in the best interest of North Carolina point out that the reason the state policy leaders took efforts to make public statements also contact the US Department of the Interior is because the tribe filed an application with the Bureau of Indian affairs, a part of the federal government, essentially asking the US government to take about 16 acres of land in Kings Mountain, North Carolina into trust on the tribe's behalf so that they could begin the process of establishing a casino there. Now they would purchase this land. Presumably, and if they were are able to get the US government to hold this land into trust on their behalf.
That is really the beginning step or stage that is necessary for them to officially pursue the siding and operation of a gambling casino in North Carolina talk little bit about application and what it means for the US government to take land into trust only tribes behalf will point out under certain circumstances, Indian tribes, Indian tribes can purchase all reservation property in place that land into trust with the secretary of interior service as tribal land. In other words gain more tribal territory.
That way through this. This trust process and tribes and sometimes even attempted to put land located outside the their travel reservations into trust for the specific purposes of operating casino and this is something that at least in the article, we refer to it as reservation shopping and reservation shopping tribes of typically selected land for trust on the basis whether it as we've already mentioned, provides easy access to large numbers of potential gamblers rose on the basis of whether there's really a historical connection to that land.
So, with its proposed casino site thereon by 85 Catawba selection of all reservation properties very much in line with what other reservation trout shopping tribes at Donner seek to do and getting new land for trust to use for gambling on that.
That said that the Catawba's reservation shopping initiative is completely unprecedented and that is because all prior trust applications by Indian tribes seeking to have the sector interior placed new land into trust for gambling have been governed by the terms of their group is a group does not apply to the tribe and consequently will not and does not apply to this trust application that the tribes filed with the secretary of interior so that means then that the Sec. of Interior's decision on whether the Kings mountainside may be taken into trust by the tribe and must be determined solely on the basis of the terms of the Catawba settlement agreement and not anything having to do with with Deirdre and that's what makes this all but trust application really a case of first impression for the sector interior and one of the most important point to make in your article, is that the settlement agreement of the Catawba tribe made with Congress and the state of South Carolina essentially requires or stage that the only land a tribe can take into trust is in South Carolina not in North Carolina. Frankly, in any other state because his vision mentioned early on in our discussion that there is a provision in the congressional act regarding essentially when the tribe entered into this agreement that they agreed to the extinguishment of all future land claims to land outside of the state of South Carolina led that's exactly right in the article goes into some of the tedious details of the Catawba settlement. But as tedious as they are. You once you look at the terms of the settlement closely. It becomes very clear that the terms of the settlement.
Don't permit the tribe to take North Carolina land in the trust and, in fact, they make clear that the only land that the Catawba tribe have put into trust for their benefit is land within the state of South Carolina and just to give you a couple of examples of how that it is clear from the terms of the settlement all the settlement documents define the words state and the capital letter state starting with a capital letter state only demeaned the state of South Carolina works North Carolina are mentioned only one time in the and that's in the federal act. And that's within the definition of the term service area and service area simply relates to the service area for the healthcare services provided by the federal government that the members of the tribe will receive, so, so that North Carolina is not even implied that North Carolina land would somehow be billed to be put into trust for the benefit of the tribe. The legislative history of the Catawba settlement also indicates that all the land acquired and taken into trust for the benefit of tribe must be land and wanted to counties in South Carolina at York County in Lancaster County so what you County get down to running through the weeds on this on this Catawba settlement it very clear that the tribe does not have the right to go outside of South Carolina to acquire anyway and for any purposes whatsoever that would be placed in a trust with the sector interior provision relates to daily activities as well. Not only does the settlement agreement restrict the tribes ability with respect to land, but also to gambling activities talk about that. If you would for a minute and explain why the settlement agreement really only allows the tribe to operate the types of gambling that are legal in South Carolina and how illogical the tribes assumption is with this proposal that if in fact the tribe were to be able to have the federal government take land in the trust on their behalf in the state of North Carolina and operate a gambling casino.
That operation would actually fall under the jurisdiction of the state of South Carolina. The Gen. assembly of South Carolina in the governor of South Carolina and that the legislature North Carolina and the governor of North Carolina would have no authority really to oversee or have any impact on each of the three settlement documents on we've been talking about the federal estate of the income from and codify the settlement agreement itself. All those documents plainly state that the laws, ordinances and regulations of the state of South Carolina government regulation and conduct of any and all gambling activities by the tribe anywhere.
Again, the specific language says that that gambling activities it governs South Carolina golf law governs gambling activities of the tribe own and off the reservation in a course regarding discussed the fact that South Carolina law prohibits all forms of video in Las Vegas style casino gambling, which is why the tribe is looking to cross the border in North Carolina but so even assuming if the settlement agreement documents could be read somehow allow the tribe acquire land in North Carolina and putting in trust South Carolina law would still have to govern that land and it would govern the activities of the tribal amount land so this creates us scenario where even if somehow the tribe could come across the state line and get property in North Carolina have placed in the trust, it would still have to operate under the laws of South Carolina and that leads to just kind of a certain result if that really could be said to happen, some by saying that essentially just looking at the big picture aspect of this whole effort that it really is a constitutional dead-end. Talk about that. If you would for a minute if you had to just essentially explain this in in 30 seconds or less.
How much you do that well I guess reduce very quickly. According to the terms of the settlement documents what we talked about any property placed in trust for the benefit of the tribes necessarily subject to the laws of South Carolina that includes everything from the state civil and criminal laws gambling laws to his tax laws and even local building codes would apply to the tribe under the terms of the settlement of the document so the Kings mountainside were somehow placed in the trust tribe argues it should be such North Carolina land would correspondingly fall under the jurisdiction of another state. The state of South Carolina and bad root result in a clear violation of the of the U.S. Constitution and could really create some unintended consequences for the tribe of as well because he that situation could could nullify the terms of their other settlement agreement. Unfortunately, we are out of time for this week. Just a reminder to our listeners with a copy of Chris's article off the reservation is in the spring 2014 issue of family North Carolina magazine and that article is also available in a PDF format that you can download from the North Carolina family policy Council's website at www.mcfamily.org again. That website is MC family.org Chris Derek thank you so much for your hard work on this important article for the North Carolina family policy Council and for being with us on the show. These past two weeks. We greatly appreciate it. Thanks John them are appreciated. Family policy matters. Information and analysis, future North Carolina family policy Council join us weekly for discussion on policy issues affecting the family. If you have questions or comments. 91 907-0800 or visit our website and see family.org