Ground breaks in casino project
While the initial complaint had featured the EBCI as the sole plaintiff, the amended document also includes 12 tribal members who live near the Kings Mountain site. The Cherokee Nation of Oklahoma, which has intervened on behalf of the EBCI, submitted an amended complaint as well.
“We welcome the growing coalition that is fighting against the DOI’s decision,” said Principal Chief Richard Sneed. “The decision is an egregious violation of federal law, and our amended complaint will establish for the court that there is no legitimate, legal basis for the decision.”
Meanwhile, Catawba Chief Bill Harris has extolled the DOI’s “very rigorous process” for reviewing trust applications.
“We are very thankful for the hard work of the Department’s solicitors and staff on our application, who carefully reviewed our history, including our historic land settlement, ensuring that it is consistent with the Supreme Court’s Carcieri decision,” he said in a March 12 press release.
On March 12, the DOI approved the Catawba’s September 2018 application to take 16.57 acres at Kings Mountain into federal trust for the purpose of conducting gaming activities, a decision that was the culmination of years of effort on the part of the Catawba. The tribe, based in Rock Hill, South Carolina, is governed by the Settlement Act of 1993, which states that the federal Indian Gaming Regulatory Act does not apply to the Catawba and that the tribe must instead abide by South Carolina gaming laws.
However, South Carolina does not allow gaming, meaning that the tribe cannot have a casino on its existing reservation. So, the tribe has made various efforts to gain approval for a casino over the state line in Cleveland County, North Carolina.
The Catawba first applied for the land to be taken into trust in August 2013, but that mandatory acquisition application was denied in March 2018. That September, the tribe submitted a new application under the discretionary process and also attempted a legislative route. S.790 — introduced by South Carolina Sen. Lindsay Graham with support from North Carolina Senators Thom Tillis and Richard Burr — would have authorized the DOI to take the land into trust for gaming, but the bill died in committee.
However, in March the Catawba received word that its 2018 discretionary application had been successful.
Along with its initial suit March 17, the EBCI filed a motion asking that the judge issue a preliminary injunction preventing the DOI from moving forward with taking the land into trust until the lawsuit resolved. However, U.S. District Judge James E. Boasberg issued an order April 30 denying that request, stating that the record is “thin” as to whether any Cherokee resources are located on the proposed site and that “even a liberal reading” of the complaint shows that “the injuries fall short of irreparable.”
According to a July 11 post on the Catawba Nation Facebook page, the deed transferring the land into federal trust for the tribe was signed July 10. The tribe will hold a groundbreaking ceremony at the project site Wednesday, July 22, with a drive-in celebration event planned for Friday, July 24, on the reservation.
“This is a historic moment for the Catawba Nation and we are excited to share it with all of our people,” said a statement announcing the groundbreaking.
The amended complaint
While the six counts of alleged misconduct in the amended complaint have some differences from the five contained in the original document, they make many of the same arguments as to why the decision should be overturned, focusing on alleged violations of the Administrative Procedure Act, the 1993 Settlement Act, the Indian Reorganizing Act, the Indian Gaming Regulatory Act, the National Historic Preservation Act and the National Environmental Policy Act.
However, the amended complaint includes a much-heightened focus on the role of casino developer Wallace Cheves, characterizing him as “a casino operative with a history of criminal and civil enforcement actions against him and his companies for illegal gambling.”
According to the complaint, the politically connected Cheves convinced the Catawba Nation to lend its name to his casino “scheme” and then used his influence to get the DOI to reverse its long-held position that such land-into-trust acquisitions are illegal. Cheves’ proposal came on the heels of a 2007 incident in which two “Catawba-connected” businessmen pleaded guilty to a scheme that would illegally funnel tribal funds to political candidates who would reverse South Carolina’s ban on gaming, the complaint said. Following those convictions, Cheves “prevailed on the Catawba to try its luck in North Carolina,” the complaint said.
A 2019 investigation by The Smoky Mountain News found that Cheves donated nearly $50,000 to the campaigns of Republican Senators Burr, Tillis and Graham between 2015 and 2018, giving an additional $152,000 combined to the N.C. Republican Party, the National Republican Committee and the National Republican Senate Committee. Burr, Tillis and Graham are the same senators who sponsored the now-defunct 2019 bill seeking to approve gaming on the Kings Mountain site.
In a congressional hearing on the bill, the DOI testified that it could not take the land into trust without the legislative changes proscribed in the bill.
“But after Congress chose to leave the 1993 Settlement Act and the IRA unchanged, Cheves leveraged his political connections to pressure the Department to proceed without the legislation it had previously recognized was necessary,” reads the EBCI’s amended complaint.
Cheves did not return a request for comment.
The amended complaint accuses the Catawba of illegal “reservation shopping,” an allegation that stems from the fact that prior to the Kings Mountain acquisition the Catawba’s trust lands were located exclusively in South Carolina. While the land in question is 34 miles from the existing reservation, it is not contiguous, and both the Catawba and the Cherokee have made vigorous arguments claiming that the area is part of their aboriginal territory.
In a press release, the EBCI said that the controlling statutes “require that a specific process be used for acquiring trust land for the Catawba Indian Nation and that trust land has to be in South Carolina,” making the DOI decision “null and void.”
“The DOI clearly violated other legal requirements, including early consultation with the EBCI to identify and protect Cherokee cultural resources located at the Kings Mountain site, and producing a ‘hard look’ environmental impact statement, which was never conducted,” the release continued. “All told, the DOI unequivocally violated the law in their hastily rendered decision to take this land into trust for the Catawba casino project in Kings Mountain, North Carolina.”
The Catawba, meanwhile, say that they’re confident their view will prevail.
“Based on their original complaint, EBCI sought a preliminary injunction asking the court to block our project, and the court denied that motion on April 30th because of the weakness of their case,” the tribe said in a statement published to its Facebook page. “The EBCI has now amended the complaint, which reiterates the same claims they made in the original. After the amendment, they released a press release to local papers slandering the project and our connection to the Kings Mountain area. We remain confident that the judge will find that the U.S. Department of Interior followed all federal laws and made the proper decision regarding our application.”
While the legal case is full of arguments concerning various administrative procedures and how well certain statutes were followed in the process, economics lie close to the heart of the issue as well.
The Catawba bring up this factor in page two of their 11-page motion to intervene, stating that unemployment among tribal members is at 13.8 percent, more than triple the rates in North and South Carolina, with a median household income of $33,029 — that figure is more than 40 percent higher in North and South Carolina. While the Catawba Nation has tried various business ventures to secure revenue to fund services to its 2,800 members, none have succeeded, leading to a reduction in after-school youth programs, the need to transfer “significant portions of fee land” to the local school district to compensate it for educating Catawba children and a lack of funding for the tribal justice system, the motion says. The casino project would directly address those issues, generating $150 million in annual income by its fifth year, employing 2,600 people and providing a location to showcase and sell native crafts and artwork.
Meanwhile, the EBCI fears that a new casino just outside of Charlotte would deal a massive blow to its own establishments, which aside from producing revenues that directly benefit tribal members and tribal services are the rural mountain region’s largest employer. About 5 percent of workers in North Carolina’s six westernmost counties — which themselves struggle with high poverty rates — work for the casinos in Cherokee and Murphy. Prior to the casinos’ establishment, seasonal fluctuations in unemployment sometimes peaked at 17 percent, but now fluctuations range from 2 to 4 percent.
About 30 percent of the customers who now frequent the tribe’s casinos in Cherokee and Murphy live closer to the Kings Mountain site, and the Virginia Lottery Board has approved plans for a new casino in Bristol as well — the EBCI fears these new casinos, if developed, could deal a significant blow to its own revenues. The tribe is not alone in this fear, with at least 16 counties and municipalities in the western region passing resolutions opposing the 2019 congressional bill. This time around, Swain County has passed a resolution supporting the EBCI’s position in the lawsuit, and Jackson County is considering a similar statement.
Neither the DOI nor the Catawba — which has intervened on behalf of the defense — has filed a response to the complaint yet. Those complaints are due in the District of Columbia U.S. District Court by July 30.