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North Carolina's proposed new compact to allow table games with live dealers atcasinos in Cherokee may violate the state constitution, Jeanette Doran of the N.C. Institute for Constitutional Law writes in arecent memo.
The potentially offending provision grants the Eastern Band of Cherokee Indians exclusive rights to operate live table games west of Interstate 26.
My reaction to the exclusivity clause was twofold.
First: West of I-26? Are you kidding? That's really hemming the Cherokees in. It means, theoretically, that someone else someday could put a casino in Asheville, most of which is east of I-26. And that would be a real kick in the knee to the Cherokees.
Second: So, who might be allowed to operate other casinos to the east of I-26? Clearly, this seems to leave a door open for another Indian tribe -- perhaps the Lumbees, if they could ever gain official federal recognition.
But Doran (below) doesn't address those questions. She's looking at the state constitution which, she writes, "specifically prohibits both exclusive and hereditary emoluments, with the exception of exclusive emoluments awarded in connection with public service."
An emolument in this case would be a benefit or privilege granted either exclusively to a particular party or on the basis of heredity. An example would be a land grant to a family, which was something royal governors might have done in colonial days but isn't the American way of doing things. Looked at in that vein, ceding territorial exclusivity for casino operations to an Indian tribe, especially one that covers areas not owned or controlled by the tribe, appears contrary to the constitutional intent.
Doran, of course, explains it all in legal language with various pertinent citations. All well reasoned, as best I can tell from my layman's perspective.
But I had to call her to ask why the same principle doesn't extend to the current compact, which basically affords the tribe the exclusive right to operate the only casino anywhere in North Carolina, albeit one offering only video games. She conceded that possibly that was problematic, too -- although the new deal raises the stakes by granting specific geographic exlusivity for the first time.
Maybe so, in that the state could decide in the future to allow casino gambling anywhere and everywhere -- except that it couldn't do so anywhere west of I-26 if it awards exclusivity to the Cherokees and their descendents. That is a hereditary emolument.
Doran's paper was distributed to House members, but they voted yesterday to approve the compact anyway. It goes to the Senate next, where perhaps the issue should draw more consideration. After all, legislators wouldn't want to provoke several years' worth of litigation over this point. And we know that gambling interests -- i.e., the video poker/sweepstakes people -- are a litigious bunch.
This casino deal already has earned legislative Republicans a hiding from NC Policy Watch's Rob Schofield, who I now acknowledge to be the fiercest foe of legalized gambling (including the lottery) in North Carolina.
When Democrats were foisting the lottery on the state a few years ago, Republicans stuck with the Christian conservative wing of their party and opposed it. But now, says Schofield, noting the support big gambling interests give Republicans, they've sold out.
"The Christian conservative movement may play a big role in the modern Republican Party, but ultimately its influence only goes so far. When it bumps up against the real controlling force – big money provided by corporations and the wealthy – it must play second fiddle."
I don't know if that's entirely fair. After all, it was Democratic Gov. Bev Perdue whose administration worked out the deal to expand casino gambling in Cherokee. Legislators seem to be going along with it, but it sure hasn't been high on their agenda.
Nevertheless, they might want to take a closer look. Not only could the exclusivity deal violate the constitution, as Doran adds, the state isn't getting much of a cut.
If you're going to sell out, better to sell out for a lot than for a little.