Congress Decree: Only Two North Carolina Tribes Can Have Gaming
While many officials have fully embraced the job-creating gaming operations of the Eastern Band of Cherokee Indians, some other officials have expressed opposition to the Catawba Indian Nation’s proposal to create another 4,000 gaming-related jobs in Cleveland County. These officials cite a totally unfounded fear that the establishment of a Catawba gaming operation would lead to a dramatic expansion of Indian gaming across the state. To the contrary, Federal law imposes such severe limits on the expansion of Indian gaming that no tribes, other than the Eastern Band of Cherokee Indians and the Catawba Indian Nation, are eligible to do so in North Carolina.
In 1988, Congress passed the Indian Gaming Regulatory Act, which regulates the gaming operations of virtually every tribe in the country (with the Catawba’s being perhaps the lone exception). This act imposes sharp limits on where Indian gaming operations can be established, essentially making it impossible for any tribe, other than the Eastern Band and the Catawbas, to establish gaming operations in North Carolina.
First, this act provides that only federally recognized tribes can establish gaming operations on their lands. This means that none of North Carolina’s state recognized tribes can do so.
Second, with certain limited exceptions discussed below, this act limits tribal gaming to lands that were in federal trust status as of October 1988. This means that even if a federally recognized tribe outside of North Carolina came along and succeeded at putting lands into trust in North Carolina that land would not be eligible for Indian gaming. It should be noted that the federal government has an elaborate process for taking land into trust which in nearly all cases confines tribes to adding lands that are in relatively close proximity to their existing landholdings; the farther away the proposed lands are located from those holdings, the less likely that the federal government will take that land into trust for a tribe.
What about the exceptions to the October 1988 deadline? They are very limited. There is an exception for land that is taken into trust as part of a settlement of a land claim, but there are no federally recognized tribes asserting land claims in North Carolina. Another exception is for the initial reservation of a newly federally recognized tribe, but there are no newly federally recognized tribes in North Carolina and the one with the best chance of recognition – the Lumbee Tribe – has agreed to language in its recognition legislation that would prohibit it from gaming. Finally, the act provides that land taken into trust after 1988 can be used for Indian gaming if both the Governor of the State and the Secretary of the Interior agree that such use would be beneficial. Obviously, this exception grants a state official veto power over the process, effectively requiring state consent before such an acquisition could take place.
As for the Catawbas, their federal settlement act exempts them from the Indian Gaming Regulatory Act and so they operate free of its restrictions. However, it should be noted that the Catawba’s proposed site is only about 30 miles from its current reservation and is both within the Tribe’s congressionally established service area and its ancestral lands, and would be acquired pursuant to its land settlement, and so would be eligible for gaming if the federal gaming act did apply.
The bottom line is that the Eastern Band and the Catawbas are the only tribes in the United States that can establish gaming operations in North Carolina. All assertions to the contrary are based on a misunderstanding or misstatement of law.
Tim Moore is and attorney.
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