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Attorney warns of freeing video poker 'beast' at hearing
By Rick Brundrett · The (Columbia) State - Updated 01/18/07 - 12:53 AM
COLUMBIA --Video poker would return to South Carolina "unrestricted, uncontrolled and unregulated" if a lower court ruling involving the Catawba Indian Nation is upheld, a state lawyer warned Wednesday.

"This beast -- this video poker -- has been locked away," Senior Assistant Attorney General Sonny Jones told the S.C. Supreme Court during a hearing on the case. "To allow this beast out again ... is not for the benefit of the state of South Carolina."

The Catawbas want the Supreme Court to uphold a 2005 circuit court ruling that said a 1993 settlement allows them to operate video poker on its reservation near Rock Hill, even though the popular games were banned statewide in 2000.

"Our case is nothing more complicated than this: A deal is a deal," Columbia attorney Dwight Drake, an attorney for the tribe, told the high court.

The five-member court is expected to take at least several months before issuing a ruling. Any decision likely will be appealed to federal court.

The Catawbas, the state's only federally recognized tribe, has threatened to open the video poker operation if it can't open a high-stakes bingo hall on Interstate 95 in Santee. They contend the Santee operation is needed because the state-run lottery, which began in 2002, sucked millions of dollars from its off-reservation Rock Hill bingo hall, now closed.

Some state lawmakers have said they won't consider any bill authorizing the Santee operation until the S.C. Supreme Court rules.

The tribe sued the state in federal court in 1980, claiming the state, without necessary congressional approval, cheated it out of nearly 144,000 acres that had been its reservation created by treaties of 1760 and 1763.

After more than a decade of negotiations, a settlement was reached in 1993 during Gov. Carroll Campbell's administration. Under the agreement, the tribe gave up its federal right to pursue casino-style gambling in exchange for the opportunity to open a video poker operation on its reservation, along with two off-reservation bingo halls.

The Catawbas sued the state again in May 2004 to pursue video poker, contending the lottery severely hurt its bingo operation. In December 2005, Richland County Master-in-Equity Joseph Strickland, acting as a special circuit judge, ruled in the tribe's favor; the state appealed to the S.C. Supreme Court.

At issue is the interpretation of a section of state law. The state relies on a sentence that says video poker is permitted on the Catawba's reservation "to the same extent that the devices are authorized by state law."

After the state banned the $3 billion industry in 2000, the tribe was not allowed to open a video poker operation under the settlement, Jones told the justices.

"They wanted to be treated, in our opinion ... as a South Carolinian before the agreement and a South Carolinian after the agreement with respect to video poker," he said.

The tribe's claim focuses on another sentence in the state law that says if the reservation is "located in a county or counties which prohibit the devices pursuant to state law," the tribe "nonetheless must be permitted to operate the devices" on the reservation.

"The state recognizes and the federal government recognizes that there is a special status for Indians," Columbia lawyer Jay Bender, the tribe's long-time attorney, told the justices.

Bender and Drake pointed out the settlement and related state law have the force of federal law because it was ratified by Congress and can be changed only by Congress or with the tribe's consent.

"It is perhaps the most unique statute you'll ever have to deal with because it's in the state code, but it is federal law," Drake said.

Drake also said that under a U.S. Supreme Court ruling, any ambiguity about Indian law must be decided in favor of the tribe, noting, "A jump ball goes to the Indians."

Drake disputed Jones' contention that a favorable ruling would allow video poker to extend beyond the reservation. Justice Costa Pleicones of Columbia suggested that concern wasn't the court's business.

"I don't know if we could decide something (based upon) if it's a bad result for the state," he said. "If (the law) is clear and unambiguous, then the chips fall where they may."

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