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Wednesday, 05 September 2012 02:00

Satellite land dispute throws wrench in plans for smaller casino

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A Cherokee judge ruled last week in a case that could affect a long-range plan of the Eastern Band of Cherokee Indians to build a low-level casino on a satellite tract of the reservation outside Andrews.

The case also has implications for how the tribe handles property willed by tribal members to heirs who are not Cherokee.

The case centers on a 200-acre tract of land eyed by the tribe as an ideal location to build a secondary casino, something more than a bingo hall but not quite a full-scale casino either.

The landowner died in 2009 and left the tract to her four children. But the tribe contested the validity of that will. It had only one signature rather than the two required under state law, which means the land would revert to tribal ownership — and pave the way for a casino in the future.

A court ruling over the will last week, however, found the will is indeed valid, potentially posing a setback for the tribe’s casino plans.

Complicating matters, the four siblings at odds with the tribe over the tract aren’t technically Cherokee. While their mother was, they don’t meet the required one-eighth blood degree that’s required to be an enrolled member.

Under Cherokee’s unique land ownership rules, only enrolled members of the tribe are allowed to own land that is part of the reservation, known as the Qualla Boundary.

While Wright could not leave her land to her children outright, she could grant her children a life estate, meaning they could use the land for their lifetime only, after which it would revert back to the tribe.

In this case, the tribe claimed Wright’s will granting her children a life estate wasn’t properly executed — namely because the will had only one signature — and it was within its rights to take back the land now.

Wright’s four children contested the decision by tribal council to take back ownership of the land, however. They pointed to an earlier will drafted by their mother in 2003 that states she wanted to leave “all my property” to her children. That will did have two signatures.

It did not mention the 200-acre tract of land in Cherokee County specifically. However, the two wills taken in concert — one that lacked a specific reference to the Cherokee County tract yet had two signatures, and the other that specifically referenced the Cherokee County tract yet had only one signature — clearly show Wright’s intentions, the children argued.

Tribal council decided to defer their decision pending a court ruling on the matter.

Last week, Cherokee Judge Matthew Martin ruled in favor of Wright’s children.

The matter will now presumably come back to tribal council. The attorney for Wright’s children, Scott Jones of Asheville, hopes the court’s opinion will sway tribal council to reverse their earlier decision.

“This is the ruling we were hoping for,” Jones said. “I hope now that we have done what they asked us to do, I hope and believe the tribal council should say the possessory holdings will pass.”

 

Secondary casino

The coveted 200-acre tract is part of a satellite patchwork of tribal land in Cherokee County. It has long been part of the Cherokee reservation, known as the Qualla Boundary, although it is not connected to the main reservation itself, which lies roughly an hour away in Swain and Jackson counties.

A long-range plan to build a secondary casino on reservation land in Cherokee County could give the tribe easier access to nearby markets of North Georgia and Eastern Tennessee.

A few years ago, the tribe purchased a 790-acre tract next to Wright’s 200-acre tract to begin laying the groundwork for a possible casino site.

The 790-acre tract is not actually part of the Qualla Boundary patchwork, however. And since gambling operations can only be built on land that was part of the original Qualla Boundary — not on land that the tribe purchased at some later date — Wright’s 200-acre tract appears to be the lynchpin in the plans to build a secondary casino in Cherokee County.

It is not clear whether Wright’s children would be willing to sell their tract. Their attorney said he doesn’t know their stance, but from his experience everything is for sale “subject to somebody offering them a fair price,” Jones said.

None of them currently live on the tract. One of the four heirs, Elizabeth Poscich, had been living there until recently. Poscich had been serving as a family spokesperson on the matter, but declined to comment for now through her attorney.

Another option for the tribe could be taking the land using the power of eminent domain. In that case, the tribe would have to pay the descendents fair market value. Determining fair market value would likely have to take into account the fact that the children don’t own the land outright, but are only entitled to lifetime use of the property.

“I think the question of what fair market value of this property would be has a lot of complicated issues,” Jones said.

The dispute over the Wright’s land could have implications for similar cases in the future: how the tribe handles less-than-perfect wills of enrolled members who leave property to descendents who aren’t members themselves. The tribe is likely to see an increasing number of these as enrolled members intermarry with non-Indians, watering down the blood degree of each subsequent generation.

Jones said the Wright property matter is part of a bigger picture.

“There are lots of other first generation heirs out there that this could affect,” Jones said.

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