“Instead of abiding their trust duties and obligations under federal law to consult with the EBCI concerning the issues and concerns the EBCI raised with regards to Defendants’ proposed final agency action, Defendants ran roughshod over the Administrative Procedures Act, National Environmental Protection Act and the National Historic Preservation Act and took final agency action on March 12, 2020, without issuing a Final Environmental Assessment or Finding of No Significant Impact, in direction violation of the APA and NEPA,” the lawsuit reads.
The tribe filed the suit in U.S. District Court in the District of Columbia on March 17, just five days after the U.S. Department of the Interior approved an application that the Catawba had submitted in September 2018 requesting that 16.57 acres in Kings Mountain be taken into federal trust for the purpose of conducting gaming activities. The suit names the U.S. Department of the Interior, the U.S. Bureau of Indian Affairs, Secretary of the Interior David Bernhardt, Assistant Secretary for Indian Affairs Tara Katuk Mac Lean Sweeney and Acting Regional Director for the BIA Eastern Regional Office R. Glen Melville as defendants.
In addition, the Catawba filed a motion to intervene to join the defendants in resisting the Eastern Band’s claims, while the Cherokee Nation of Oklahoma filed a motion to intervene in support of the EBCI. Both motions were approved.
Meanwile, the EBCI's motion for a preliminary injunction preventing the federal government from taking the land into trust was denied in an order signed by U.S. District Judge James E. Boasberg on April 30.
Quest for approval
The Catawba, a federally recognized tribe with a reservation in Rock Hill, South Carolina, have been trying for years to gain approval for a casino in Kings Mountain. The tribe is governed by the congressionally approved 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 Rock Hill reservation.
So, the tribe has tried various strategies to gain approval for a casino over the state line in Cleveland County, North Carolina. The Kings Mountain site is just 34 miles away from the existing reservation, according to the DOI’s March 12 decision document.
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.
Grounds for objection
In the lawsuit, the EBCI argues that this decision was “rushed,” “flawed” and “violates the plain language of federal law.” If not overturned, the tribe said, it would result in irreparable harm to tribal sovereignty and cultural preservation.
According to the EBCI’s filed complaint, both the Cherokee Treaty of 1777 and the 1884 Royce Map of Cherokee Land Sessions showed present-day Cleveland County as being located within Cherokee historical territory. The Catawba, meanwhile, claimed in a court document that its members “have resided on the land that is currently North and South Carolina since before English settlement.”
Despite the Cherokee’s historical ties to the land, the lawsuit charges, the EBCI was not consulted at any point during creation of the draft Environmental Assessment that led to approval of the Catawba’s application. In a declaration attached to the lawsuit, EBCI Tribal Historic Preservation Officer Russell Townsend said that he first heard about the EA on Dec. 23, 2019, when Principal Chief Richard Sneed received an email inviting the tribe to review and comment on the published Draft EA.
“I was surprised to learn of this Draft EA because the BIA would typically consult me and other Cherokee Tribal Historic Preservation Officers prior to the release of a draft EA for lands within Cherokee treaty and historical territory,” Townsend wrote. “As a part of government-to-government consultation, the BIA consults with the EBCI THPO multiple times per week on various projects in the Cherokee traditional aboriginal territory. The BIA typically reaches out to us early in the process so we can participate in the development of research design and scopes of work, not simply review completed documents.”
Unsurprisingly, the suit said, the Cherokee’s lack of involvement in the process led to a flawed EA. A total of 14 alleged deficiencies are identified within the lawsuit, including a failure to protect Cherokee cultural resources, to consider alternative land acquisitions in South Carolina, to properly assess biological impacts and disclose who was consulted in developing the document, among others.
In addition, Townsend noted that, “contrary to information in the Draft EA, State of North Carolina site files show that there is evidence of an archeological investigation on the Kings Mountain Site.”
A 2005 N.C. Department of Transportation project led to discovery of a historic pottery kiln and human-made stone tools on the site, and this information should have triggered an archeological survey to determine whether the site contains other materials as well, Townsend wrote. Concerns such as these, he said, would typically trigger a collaborative process to determine whether religious or cultural items were present on the site. However, he said, in correspondence with the BIA none of his concerns were acknowledged or addressed.
In the suit, the EBCI asks the court to issue a preliminary injunction barring the DOI from taking the land into trust, arguing that failure to do so would cause irreparable harm to the Cherokee people.
“If the Kings Mountain site is taken into trust for the Catawba Nation, the land will fall under the sovereign governance of the Catawba Nation, and the EBCI THPO will lose the right to consultation on and protection of Cherokee religious and cultural sites,” Townsend wrote.
The suit also asks that the court declare that defendants violated the APA, NEPA, NHPA and 1993 Settlement Act. In addition, it asks the court to order defendants to engage in good faith consultation with the EBCI, complete an Environmental Impact Statement and pay all court and attorney costs.
On April 30 Judge Boasberg issued an order denying the motion for a preliminary injunction. In a 13-page opinion issued along with the order, Boasberg stated that "even a liberal reading of Plaintiff's (EBCI's) pleadings nonetheless manifests that the injuries fall short of irreparable." The injuries alleged are mainly procedural — lack of future consultation rights on the site — and those alone are not enough to merit a preliminary injunction, Boasberg wrote. The record is "thin" as to whether any Cherokee resources are actually located on the proposed site, and while the NCDOT did find such artifacts in Kings Mountain while working on an earlier project,"nothing in his (Townsend's) declaration, however, places the cultural relics on the proposed gaming site itself," Boasberg wrote. Additionally, he said, a survey of the site would "not likely bear the EBCI any fruit," as the area is highly disturbed and has previously been graded, prospected for tin and used as a soil borrow pit.
Additionally, Boasberg wrote, the DOI's environmental assessment identifies specific procedures that would be implemented during casino construction to protect any historic objects turned up in the process.
"These steps assure the EBCI that any significant resources will be preserved if they are discovered during the construction procsss," Boasberg wrote. "The Court is not holding that any mitigation plan would always suffice to vitiate irreparable harm, but in the context of this case, where there is no evidence of Cherokee artifacts and the land has already been substantially disturbed by state construction activities, the plan suffices to greatly reduce the imminence of injury."
Political motivations alleged
Throughout the complaint, the EBCI maintains that political motivations were largely responsible for the DOI’s alleged missteps in this process.
“Upon information and belief, Senator Graham and other elected and appointed officials supportive of the casino developer — former member of Graham’s campaign finance committee Wallace Cheves — brought undue political influence on DOI and other federal officials in their quest to obtain BIA approval of a casino in North Carolina,” the suit reads.
A Smoky Mountain News investigation published in June 2019 found that Cheves donated nearly $50,000 between 2015 and 2018 to the campaigns of Republican Senators Graham, Burr and Tillis, with an additional $152,000 to three Republican organizations — the N.C. Republican Party, Republican National Committee and National Republican Senate Committee.
In an email statement given at the time, Cheves said that he has donated to many campaigns and individuals from several states who “share my vision for economic growth and job creation” and that “it’s unfortunate that those profiting off the Eastern Band of Cherokee … continue to actively oppose the very same opportunities for other less fortunate tribes.”
Sneed, meanwhile, said that it’s not about opposing an opportunity for the Catawba but rather about preventing an allegedly illegal action that, if allowed, “would turn Indian gaming on its head.”
The EBCI is doubling down on its efforts to win the case, with Tribal Council voting during a special session May 12 to engage the firm Jenner & Block LLC to join with its existing representation Pipestem Law to represent the EBCI. The vote also included approval of the firm’s $50,000 retainer fee.
On May 14, Sneed appeared before the Swain County Board of Commissioners to ask for their support. The board voted unanimously to approve a resolution that calls on Gov. Roy Cooper, Attorney General Josh Stein and “other elected and appointed officials” to “protect the interests of North Carolinians from the harmful decision of the U.S. Department of the Interior officials and those who politically influence them.”
“We feel very confident based on the merits of our case that we’ll be successful,” Sneed told commissioners.
The Catawba did not return a request for comment, but Chief Bill Harris issued a statement March 13, after the Eastern Band had declared its intention to file suit but before it actually did so.
“It is unfortunate that the Eastern Band of Cherokee Indians continues to perpetuate this narrative of tribe versus tribe,” Harris said. “The Catawba Nation has reached out many times to the leadership of EBCI to try to work together. In the past Chief Sneed has asserted that he isn’t against federally recognized tribes going into the gaming industry, but he wants all tribes to follow the DOI established regulations. In Catawba’s decision letter from the Department of Interior it clearly outlines that Catawba followed the process from beginning to end, and the decision also demonstrates our cultural and historical ties to this area. Eastern Band has the right to react however they want to the decision from DOI, but we have done and will continue to do all we can for the betterment of our nation as well as extend the hand of friendship and cooperation to other native nations.”
Success will be important for the Eastern Band and for the region as a whole, Sneed said in the Swain County meeting, because the potential economic impact of a casino in Charlotte can’t be overlooked. About one-third of the casino’s customers base comes from the Charlotte area, and Harrah’s would lose an estimated $100 million-plus in annual revenue should the casino be built. Such a loss would have massive impacts not just for the tribe but for the entire region. The casinos in Cherokee and Murphy employ more than 4,000 people and draw customers who also spend money at various local businesses, indirectly supporting many more jobs.
“What the region needs to understand is what happens to the Eastern Band happens to Western North Carolina,” Sneed said. “Our economies are inextricably connected.”
An earlier version of this story did not report U.S. District Judge James E. Boasberg's April 30 order striking down the EBCI's motion for preliminary injunction. The Smoky Mountain News regrets the error.