Nation v. State

• Decision Date: 02 April 2014
• Docket Number: Appellate Case No. 2012–212118.,No. 27374.,27374.
• Citation: 756 S.E.2d 900,407 S.C. 526
• Court: South Carolina Supreme Court
• Parties: CATAWBA INDIAN NATION, a/k/a The Catawba Indian Nation of South Carolina, a/k/a The Catawba Indian Tribe of South Carolina, Appellant, v. State of South Carolina and Mark Keel, in his official capacity as Chief of the South Carolina Law Enforcement Division, Respondents.

407 S.C. 526

756 S.E.2d 900

CATAWBA INDIAN NATION, a/k/a The Catawba Indian Nation of South Carolina, a/k/a The Catawba Indian Tribe of South Carolina, Appellant,

v.State of South Carolina and Mark Keel, in his official capacity as Chief of the South Carolina Law Enforcement Division, Respondents.

Appellate Case No. 2012–212118.

No. 27374.

Supreme Court of South Carolina.

Heard Jan. 22, 2014.

Decided April 2, 2014.

William W. Wilkins, of Nexsen Pruet, of Greenville; Gregory Poole Harris, of Harris & Gasser, LLC, of Columbia; James Walter Fayssoux, Jr. and Paul S. Landis, both of Fayssoux Law Firm, of Greenville, for Appellant.

Attorney General Alan McCrory Wilson, Assistant Deputy Attorney General Clyde H. Jones, Jr., and Solicitor General Robert D. Cook, all of Columbia, for Respondents.

Justice BEATTY.

The Catawba Indian Nation (the “Tribe”) brought this declaratory judgment action against the State of South Carolina and Mark Keel (collectively, the “State”) to determine the effect of the Gambling Cruise Act, S.C.Code Ann. §§ 3–11–100 to –500 (Supp.2013), on its gambling rights. The circuit court granted summary judgment to the State, finding: (1) the Tribe's action was precluded by collateral estoppel and/or res judicata, and (2) the Gambling Cruise Act does not confer upon the Tribe the right to offer video poker and similar electronic play devices on its Reservation as the Act does not alter the statewide ban on video poker. The Tribe appealed, and this Court certified the case for review pursuant to Rule 204(b), SCACR. We affirm in part and reverse in part.

I. FACTS

Because the Tribe's litigation has a long and complex history, we begin with (1) a brief historical background, (2) a review of events leading to a 1993 Settlement Agreement, (3) a discussion of the Tribe's 2005 declaratory judgment action and this Court's opinion thereon in 2007, (4) an outline of the events culminating in the enactment of the Gambling Cruise Act of 2005, and (5) an examination of the 2012 declaratory judgment action that is now before this Court.

(1) Historical Background

In the 1760 Treaty of Pine Hill, as confirmed by the 1763 Treaty of Augusta, the King of England and the Catawba Head Men and Warriors entered into an agreement in which the Catawba surrendered certain aboriginal territory in North Carolina and South Carolina to Great Britain in return for the right to settle on land located in South Carolina described as a “Tract of Land of Fifteen Miles square,” comprised of 144,000 acres or 225 square miles. South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 499–500, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986); see also25 U.S.C.A. § 941a(1) (2013) (describing treaties).

By 1840, the Catawba had leased most of this land to others. South Carolina, 476 U.S. at 501, 106 S.Ct. 2039. In 1840, the Catawba entered into the Treaty of Nation Ford, in which the Catawba conveyed its interest in this tract of land to the State in exchange for the establishment of a new reservation and scheduled monetary payments. Id. In 1842, the State purchased a 630–acre tract as a new reservation for the Tribe, which then had a membership of about 450 persons, and the State held the land in trust for the Tribe. Id.

The Catawba subsequently maintained that the State did not perform all of its obligations under the agreement and, further, that the State did not have the authority to enter into the 1840 treaty based on federal provisions that prohibited the conveyance of tribal land without the consent of the United States. Id.

State officials and the Federal Government became involved in the situation, and in 1943, the Tribe, the State, and the Office of Indian Affairs of the Department of the Interior entered into a Memorandum of Understanding, by which the State purchased 3,434 acres of land and conveyed it to the United States to be held in trust for the Tribe; the State and the Federal Government agreed to make certain contributions to the Tribe; and the Tribe agreed to conduct its affairs based on the Federal Government's recommendations, but was not required to release its claims against the State. Id. at 501–02, 106 S.Ct. 2039.

During the ensuing years, Congress maintained some oversight of Indian affairs, but by 1953, it decided to make a change in its basic policy and to terminate its supervisory responsibilities for Indian tribes, marking the beginning of a “termination era” that lasted until the 1960s.¹Id. at 503, 106 S.Ct. 2039. During this time, after consultation with the Catawba, it was decided that an end to federal control was desired by all parties. Id. at 503–04, 106 S.Ct. 2039.

In 1959 Congress enacted the Catawba Indian Tribe Division of Assets Act (“CITDA Act”), 25 U.S.C.A. §§ 931–938, which distributed to the enrolled members of the Tribe the 3,434–acre reservation acquired in 1943. Id. at 504, 106 S.Ct. 2039. Among other things, the CITDA Act provided “that state laws shall apply to members of the Tribe in the same manner that they apply to non-Indians.” Id. (citing § 935 of the CITDA Act).

(2) Events Resulting in 1993 Settlement Agreement

In 1980, the Catawba brought an action seeking possession of the 225–square–mile tract of land in South Carolina and trespass damages for the period of its dispossession. Id. at 505, 106 S.Ct. 2039. By that time, some 27,000 persons claimed title to different parcels within the tract. Id. at 499, 106 S.Ct. 2039. The United States Supreme Court issued an opinion in 1986 finding the statute of limitations applied to the Tribe's claim, but it did not reach the question whether it barred the claim. Id. at 499–500, 106 S.Ct. 2039.

In 1993, after many years of litigation and extensive negotiations, the Catawba, the State, and the United States entered into a settlement that ended the dispute over the right to possession of the 144,000 acres of land located in York, Lancaster, and Chester counties. Catawba Indian Tribe of S.C. v. State, 372 S.C. 519, 522, 642 S.E.2d 751, 752 (2007). This 1993 Settlement Agreement has been codified in both federal legislation ² and state legislation (the “State Act”) ³ that implements the agreement. Id. at 522–23, 642 S.E.2d at 752–53. The federal legislation requires the Settlement Agreement and the State Act to be complied with as if they had been implemented by federal law. Id. at 523, 642 S.E.2d at 753 (citing 25 U.S.C.A. § 941b(a)(2) (2001)).

Under the terms of the settlement, the Catawba waived its right to be governed by the Indian Gaming Regulatory Act (“IGRA”).⁴Id.; see25 U.S.C.A. § 941 l (a) (2013) (“The [IGRA] shall not apply to the Tribe.”). Instead, the Catawba agreed to be governed by the terms of the Settlement Agreement and the State Act as pertains to games of chance. Catawba Indian Tribe, 372 S.C. at 523, 642 S.E.2d at 753.

As is relevant here, the State Act and the Settlement Agreement both provide: “The Tribe may permit on its Reservation video poker or similar electronic play devices to the same extent that the devices are authorized by state law.” S.C.Code Ann. § 27–16–110(G) (2007); Settlement Agreement § 16.8. At the time the Settlement Agreement was executed in 1993, video poker was legal in South Carolina. Thereafter, in 1999, the South Carolina General Assembly passed a statewide ban on the possession and operation of video poker devices. S.C.Code Ann. § 12–21–2710 (2000); Act No. 125, 1999 S.C. Acts 1319 (effective July 1, 2000).

(3) First Declaratory Judgment Action in 2005

In 2005, the Tribe brought a declaratory judgment action against the State and the Attorney General seeking, inter alia, a declaration that, despite the enactment of the statewide ban in section 12–21–2710, it had a present and continuing right to utilize video poker or similar electronic play devices on its Reservation. Catawba Indian Tribe, 372 S.C. at 523, 642 S.E.2d at 753. The Tribe contended the terms of the Settlement Agreement (§ 16.8) and the State Act (S.C.Code Ann. § 27–16–110(G)) authorized video poker to the same extent allowed by state law, and video poker was legal at the time the parties executed the Settlement Agreement. Id.

In 2007, this Court issued its opinion holding the Tribe's right to video poker under the Settlement Agreement is subject to future changes in state law, as contemplated in the language of the cited provisions. Id. at 529n. 8, 642 S.E.2d at 592 n. 8. Using the plain and ordinary meaning of the terms, the Court determined the legislative intent was for the Tribe to be allowed to have video poker on its Reservation “to the same extent state law authorizes the devices,” and we specifically found “[t]he language of § 27–16–110(G) is unambiguous.” Id. at 525–26, 642 S.E.2d at 754–55. The Court concluded the Tribe could no longer permit video poker on its Reservation because the possession and operation of video poker devices was presently banned by section 12–21–2710. Id. at 527 n. 7 & 530, 642 S.E.2d at 755 n. 7 & 757.

(4) Events Culminating in S.C.'s Gambling Cruise Act of 2005

The Tribe has now brought a second declaratory judgment action that involves interpretation of the Gambling Cruise Act. This legislation was enacted approximately two months before the Tribe's first declaratory action was initiated in 2005, but no question was raised regarding the Gambling Cruise Act in that first action. An overview of the events culminating in the passage of this legislation will be helpful before considering the Tribe's current declaratory judgment action.

In 1951, Congress enacted what has become known as the Johnson Act, now found at 15 U.S.C.A. §§ 1171 to 1178, to prohibit the use and possession of gambling devices in interstate and foreign commerce, as well as in specified jurisdictions. Brizill v. Dist. of Columbia Bd. of Elections & Ethics, 911 A.2d 1212, 1214 (D.C.2006). Until 1992, federal law prohibited gambling on any ship operating under the United States flag. Stardancer Casino, Inc. v. Stewart, 347 S.C....