By L.A. Williams, Correspondent
Christian Action League
CHEROKEE — Does the governor have the authority to negotiate a gambling compact with an Indian tribe? If that power belongs instead to the Legislature, can lawmakers vote to give it away? And if the governor doesn’t have that authority, what does that mean for North Carolina’s agreement with the Cherokee and the future of the tribe’s casino?
These questions and more may be answered in court as a former video poker business has filed a lawsuit challenging the governor’s authority and a 2001 vote by lawmakers to bestow their blessing on the compact with the Eastern Band signed in 1994. The state Attorney General filed a motion asking that the case be dismissed and the governor’s office has said the suit filed in Wake County by New Vemco Music has no merit. Nonetheless the filing has put a hold on talks between Gov. Bev Perdue and Principal Chief Michell Hicks, who had hoped to persuade the state to allow Las Vegas-style card dealers at Harrah’s, where a $600 million expansion, including a room reserved for poker, is under way. Perdue had announced late last summer she was open to talks about gaming expansion at Cherokee, but she and Hicks have told the media that there will be no negotiations until legal challenges are cleared up.
“The fact that it delays consideration of adding more gambling at Cherokee could be a positive aspect about this case,” said the Rev. Mark Creech, executive director of the Christian Action League, who has suggested the governor count the social costs before entertaining the idea of adding table games. “However, this could also bring a very negative result if fallout from the case opens the door to statewide video poker or other gambling expansion. We intend to watch this case closely and prayerfully.”
This is the second challenge to the state’s gambling laws from the Fayetteville-based company which has been pushing for legalized video poker ever since it was banned in 2006. Vemco lost its earlier suit, which claimed that the Indian Gaming Regulatory Act (IGRA) did not allow the state to ban video gambling elsewhere but allow it at Cherokee. The state Court of Appeals overturned a District Court ruling on the case in December 2009.
Now Vemco is again on the attack, claiming that the Legislature, not the governor, is authorized to agree on a gambling compact and that lawmakers’ action in 2001 to retroactively hand over that authority to former Gov. Jim Hunt and then Gov. Mike Easley was unconstitutional. The video poker promoters had raised the same issue in their earlier suit, asserting a “separation of powers” violation in that “the authority to negotiate, approve and execute tribal-state compacts or amendment to the existing Compact is reserved to the General Assembly.” But Vemco agreed to voluntarily dismiss that portion of its claim and the trial court ruled only on the part relating to the IGRA.
This time, the case will likely hinge on North Carolina’s Constitution.
“The power of the governor to negotiate compacts, and the ensuing disputes between governors and state legislatures, are issues that crop up across the country. The legality turns almost entirely on state law, and often on state constitutional law setting out the powers of the governor and the legislature,” said Kathryn Rand, co-director of the Institute for the Study of Tribal Gaming Law and Policy. “Even where the state legislature has passed legislation delegating authority to the governor, the state constitution may limit the legislature’s ability to delegate its own power.”
Although the compacts themselves are governed by the IGRA, the federal law addresses agreements between federally recognized tribes and “the state” where they are located without specifying who in “the state” is authorized to negotiate.
State courts in Wisconsin have dealt with the issue in at least two separate cases. Similarly, lawmakers and anti-gaming organizations in New York challenged a tribal-state compact negotiated by Gov. Mario Cuomo.
“After noting that IGRA’s reference to “the State” does not identify which state actor may negotiate compacts and that its list of allowable compact terms necessarily includes state policy choices, the court easily found that the governor’s negotiation of the 1993 compact ‘usurped the Legislature’s power,'” Rand wrote of the N.Y. case. She further noted similar suits in Kansas, where the State Supreme Court ruled that the governor lacked authority to bind the state through a compact with the Kickapoo Nation, and in New Mexico, where compacts in which the governor allowed types of gambling prohibited by the legislator were ruled invalid.
Rand said her take on these kinds of cases is that “tribes lose out in this scenario, because they rely on compacts that have been duly negotiated and approved, only to have them challenged in a state court action in which the tribes aren’t even a party.”
It is unclear what Vemco specifically hopes to gain by challenging the Cherokee compact as it has no direct connection to the video poker ban.
“It may be that the video poker industry believes that if the Cherokee compact were struck down that would put all aspects of gambling back on the table and they would have a chance to get legislative approval to operate. They may argue, as they have already, that it is not fair for the Indian tribe to have the right to gamble and them not to have it,” said the Rev. Creech. “This could shed light on the degree to which the video gambling industry will go to get its hooks back into North Carolina.”
With support from the State Employees Association and the Black Legislative Caucus, video poker businesses have already been pressing for the state to lift its ban and instead tax and promote video gambling to bring funds to the state. The push gained momentum after North Carolina approved the state lottery and after video sweepstakes machines began operating via a loophole in the video poker ban.
“The bottom line is that the gambling industry will go to any length that they can to gain ground in North Carolina and to try to get money from the people’s pockets into their pockets,” Creech said. “That’s why we must keep an eye on this issue as it heads to the courtroom.”