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Law
Settlement act proves helpful for Catawba Nation


A judge in South Carolina upheld the governmental gaming rights of the Catawba Nation on Tuesday, the latest in a series of court cases dealing with special acts of Congress that give states control over certain tribal matters.

Unlike the other decisions involving tribes in New England and Texas, though, this case was positive for the Catawbas. Special Circuit Judge Joseph M. Strickland said a settlement act passed by Congress in 1993 allows the tribe to operate video poker on the reservation even though the game has since been outlawed by the state constitution.

"Looking at the words of the statute and assigning to them their ordinary meaning, the settlement allowed the tribe to permit video poker or similar electronic play devices on the reservation so long as those devices were allowed by state law," Strickland wrote in the 13-page opinion.

But Strickland noted that the act contains another sentence that allows the tribe to operate video poker "if the governing body of the tribe so authorizes" the game. "This second sentence recognizes the governmental status of the tribe and its authority over its reservation," he wrote.

The decision means the tribe can bring back video poker to the reservation although the tribe's real plan is to expand its bingo operation off the reservation in hopes of generating more revenues. The tribe has been hit with hard times over the past year, a situation that officials blame on the state's decision to start a lottery.

But state officials, including Gov. Mark Sanford (R), have been fighting the proposal for a high-stakes bingo hall. After learning of the ruling yesterday, state attorney general Henry McMaster said he would appeal.

The case comes amid a number of legal battles between states and tribes who fall under special acts of Congress. In every case, the state has sought to stop the tribes from engaging in gaming or other economic development activities, citing language in the laws that give the state certain authority over tribal matters.

The outcome of those battles has varied widely due to different language employed in the special acts. In passing the laws, Congress has not always been consistent in explaining where tribal sovereignty ends and where state sovereignty begins.

The ambiguities have mostly hurt the tribes. In Texas, two tribes were forced to close their casinos because Congress placed them under state law and included specific language against gaming.

In Maine, two tribes have been forced to comply with the state's freedom of information act due to language that treats them like municipal arms of the state. In Rhode Island, the Narragansett Tribe has been blocked from opening a casino and was forced to close a smokeshop in a case that was heard by a federal appeals court last week.

The disparities have not gone unnoticed. At the hearing, Judge Juan R. Torruella of the 1st Circuit Court of Appeals noted that the addition of a few words or a sentence can make a world of difference when it comes to determining state authority over tribes.

For example, he noted that Congress placed the governments of the Penobscot Nation and the Passamaquoddy Tribe under state law in 1980. But two years earlier, Congress placed no such restriction on the Narragansett Tribe. And a decade later, Congress kept its hands off the Aroostook Band of Micmac Indians in 1991.

"It's different language, so it leads to different import," Torruella said at the hearing in Boston, Massachusetts.

The New England and Texas acts were passed in the late 1970s and in the 1980s, just as self-determination was taking hold. In contrast, the Catawba and Aroostook acts were passed in the 1990s, after the passage of the Indian Gaming Regulatory Act.

The passage of time appears to have played a difference. In the pre-IGRA acts, Congress included provisions in the tribal acts spoke more of termination-era laws like Public Law 280, which granted certain states jurisdiction over criminal and civil matters in Indian Country.

Two decades later, the courts haven't fully sorted out the matter. In 2003, the U.S. Supreme Court was asked to rule on the legality of a county's raid of a California tribe's casino but the justices bypassed the question of whether Public Law 280 gives the state authority over the actions of the tribal government.

In the Narragansett case, lawyers for the tribe argue that the state only has authority over individual Indians not the tribe itself, comparing the situation to tribes in California who fall under Public Law 280 but whose governmental rights has been preserved. The judges on the 1st Circuit said they will be answering that question when they finally issue a ruling.

For the Catawbas, their position is unique. Their act of Congress places all of the tribe's gaming activities under state law. The tribe does not fall under the IGRA, which was passed in 1988.

The act also includes language that allows the state courts to rule on internal tribal members, such as elections, that would normally be off limits. This provision, recently invoked in a leadership dispute, is valid only because the tribe has yet to establish its own court.

Get the Decision:
Catawba Nation v. South Carolina (December 13, 2005)

Catawba Indian Tribe of South Carolina Land Claims Settlement Act:
Public Law No: 103-116

Relevant Links:
Catawba Cultural Preservation Project - http://www.ccppcrafts.com