1. Indians--jurisdiction_Eastern Band of Cherokees--casino gambling dispute
The trial court correctly concluded that it did not have subject-matter jurisdiction over a
dispute concerning the payment of a prize won at a casino owned by the Eastern Band of the
Cherokee Indians. While the trial court erred by concluding that it lacked jurisdiction because
gambling violated North Carolina public policy, the Cherokees have a greater interest than the
State in resolving patron disputes with the casino, have policies and procedures for resolving
such disputes, and the exercise of state court jurisdiction would unduly infringe on the self-
goverance of the Cherokees.
2. Indians--jurisdiction_Eastern Band of Cherokees_casino gambling_civil actions
The North Carolina State Courts did not have jurisdiction over an unfair trade practices
claim arising from a disputed prize at a casino owned by the Eastern Band of the Cherokee
Indians. The provision of the Compact between the Eastern Band of Cherokee Indians and the
State of North Carolina allowing State courts to apply and enforce criminal and regulatory laws
does not grant jurisdiction over civil actions of this sort.
3. Appeal and Error_failure to cite authority_dismissal of argument
The failure to cite authority resulted in the dismissal of an appellate argument
concerning jurisdiction of a dispute arising in a casino owned by the Eastern Band of the
Cherokee Indians.
McLEAN LAW FIRM, P.A., by Russell L. McLean, III, for the
plaintiff.
BRIDGERS & RIDENOUR, PLLC, by Ben Oshel Bridgers, for the
defendant.
TIMMONS-GOODSON, Judge.
J.C. Hatcher (“plaintiff”) appeals an order of the trial court
granting a motion by Harrah's NC Casino Company (“defendant”) todismiss his complaint for unfair and deceptive trade practices for
lack of subject matter jurisdiction. For the reasons stated
herein, we affirm the order of the trial court.
The factual and procedural history of this case is as follows:
Harrah's Cherokee Casino in Cherokee, North Carolina, is owned by
the Eastern Band of Cherokee Indians
(See footnote 1)
and managed by defendant.
Plaintiff alleges that on 3 May 1998, he inserted money into a
machine at the casino which returned a display announcing that
plaintiff won a prize of $11,428.22. Plaintiff attempted to
collect his winnings, but was told by a member of the casino staff
that the prize would not be awarded to him.
After initially filing a complaint with the Cherokee Tribal
Gaming Commission, plaintiff filed the underlying complaint in
Jackson County District Court on 31 August 2000, alleging that the
casino's failure to award the prize to plaintiff constitutes an
unfair and deceptive trade practice. In response to the complaint,
defendant filed a motion to dismiss for lack of subject matter
jurisdiction pursuant to Civil Procedure Rule 12(b)(1). The trial
court granted defendant's motion to dismiss, concluding that “[t]he
Indian Gaming Regulatory Act preempts the exercise of authority by
this Court of the gaming dispute which is the underlying basis for
the Plaintiff's claim.” Plaintiff appealed the trial court's order
to this Court. In deciding Hatcher v. Harrah's N.C. Casino Co., 151 N.C. App.
275, 565 S.E.2d 241 (2002) (“Hatcher I”), this Court was guided by
a two-prong test set forth in Jackson Co. v. Swayney, 319 N.C. 52,
352 S.E.2d 413 (1987). The two-prong test requires our courts to
consider the following: (1) “whether federal law preempted state-
court jurisdiction;” and (2) “whether the exercise of state-court
jurisdiction 'unduly infringe[d] on the self-governance of the
Eastern Band of Cherokee Indians.'” Hatcher I, 151 N.C. App. at
277, 565 S.E.2d at 243 (citing Swayney, 319 N.C. at 56, 565 S.E.2d
at 415, and quoting Swayney, 319 N.C. at 58, 565 S.E.2d at 417).
With regard to the first prong, this Court held that “state-court
jurisdiction is not preempted by federal law in this case.” Id. at
278, 565 S.E.2d at 243. With regard to the second prong, we noted
that “[t]he Swayney Court identified three criteria that are
'instructive on the issue of infringement.' These criteria are
'(1) whether the parties are Indians or non-Indians, (2) whether
the cause of action arose within the Indian reservation, and (3)
the nature of the interest to be protected.'” Id. at 279-80, 565
S.E.2d at 244 (quoting Swayney, 319 N.C. at 59, 352 S.E.2d at 417-
18). We held that “[f]ull consideration of the third factor
identified in Swayney requires remand to the district court for
further proceedings.” Id. at 280, 565 S.E.2d at 244. The Hatcher
I Court issued the following mandate to the trial court:
On remand, the district court should determine
whether state-court jurisdiction would “unduly
infringe[] on the self-governance of the
Eastern Band of Cherokee Indians,” by applying
the factors identified in Swayney. In
particular, the district court shoulddetermine the nature of the activities in
which plaintiff engaged and whether those
activities are inconsistent with the public
policy of this State. If so, the third
Swayney factor counsels against a finding of
subject matter jurisdiction.
Id. at 280, 565 S.E.2d at 244.
On remand, the trial court conducted a hearing “at which legal
counsel for the parties appeared, with the Defendant presenting
testimony of witnesses and both attorneys presenting documentary
evidence and both counsel presenting oral argument.” Upon
considering the evidence and the arguments, the trial court entered
an order wherein it took judicial notice of the following statutes,
regulations and agreements:
(A) the Indian Gaming Regulatory Act, 25
U.S.C. 2710 et seq.;
(B) the Tribal-State Compact Between the
Eastern Band of Cherokee Indians and the
State of North Carolina, approved
September 22, 1994;
(C) the Tribal Gaming Ordinance of the
Eastern Band of Cherokee Indians, the
Cherokee Code, Chapter 16;
(D) the Management Agreement between The
Eastern Band of Cherokee Indians and
Harrah's NC Casino Company, LLC, dated
June 19, 1996;
(E) the General Statutes of the State of
North Carolina.
The trial court's order contained the following pertinent finding
of fact:
(J) That in May of 1998 the Plaintiff was in
the Cherokee Casino playing an electronic
game manufactured by Leisure Time, the
game being a five card poker game which
had been approved as a game involvingskill or dexterity by the Certification
Commission created by the Tribal-State
Compact.
Based on its findings of fact, the trial court entered the
following conclusions of law:
1. That the nature of the Plaintiff's
activities in the Cherokee Casino are the
type of acts which are inconsistent with
the public policy of this State.
2. That by virtue of Section 16-12.12 of the
Cherokee Gaming Ordinance, the Plaintiff
consented to the jurisdiction of the
Tribe for these types of activities.
3. That the Compact between the Eastern Band
of Cherokee Indians and the State of
North Carolina does not consent to or
grant civil jurisdiction to the State of
North Carolina with respect to gaming
activities on the Cherokee Indian
Reservation.
4. That the Plaintiff's Unfair Trade
Practice claim for relief arose out of
the Plaintiff's activities at the
Cherokee Casino.
5. That exercise of jurisdiction in the
present case would unduly infringe upon
the self-governance of the Eastern Band
of Cherokee Indians.
The trial court thus determined that it did not have subject matter
jurisdiction, and dismissed plaintiff's complaint for a second
time. It is from this order that plaintiff appeals.
The issues presented on appeal are whether the trial court
erred by concluding that (I) it did not have subject matter
jurisdiction because gambling was against North Carolina public
policy; (II) the State of North Carolina has no civil jurisdictionwith respect to gaming activities on the Cherokee Indian
Reservation; and (III) plaintiff consented to the jurisdiction of
the tribe for gaming activities conducted on the reservation.
[1] Plaintiff first argues that the trial court erred by
concluding that the court lacked subject matter jurisdiction.
Specifically, plaintiff argues that state court has jurisdiction
because the Eastern Band of Cherokee Indians is not a party to the
action, and state court jurisdiction “does not infringe in any way
upon the political integrity of the Eastern Band or unduly threaten
its rights of self-governance.” We disagree.
“[T]he standard of review on a motion to dismiss under Rule
12(b)(1) for lack of jurisdiction is de novo.” Country Club of
Johnston Cty., Inc. v. U.S. Fidelity & Guar. Co., 150 N.C. App.
231, 238, 563 S.E.2d 269, 274 (2002) (citing Fuller v. Easley, 145
N.C. App. 391, 395, 553 S.E.2d 43, 46 (2001)). Article 37 of our
criminal law statutes generally makes it illegal to engage in
organized gambling for cash prizes in North Carolina. N.C. Gen.
Stat. § 14-289 - 14-309.20 (2003). Specifically, N.C. Gen. Stat.
§ 14-306.1(a) provides that “[i]t shall be unlawful for any person
to operate, allow to be operated, place into operation, or keep in
that person's possession for the purpose of operation any video
gaming machine as defined in subsection (c) of this section.”
(2003). Subsection (c) provides that “a video gaming machine means
a slot machine as defined in G.S. 14-306(a) and other forms of
electrical, mechanical, or computer games such as . . . [a] video
poker game or any other kind of video playing card game.” N.C.Gen. Stat. § 14-306.1(c)(1) (2003). However, the statute provides
the following exception: “This section does not make any
activities of a federally recognized Indian Tribe unlawful or
against public policy, which are lawful for any federally
recognized Indian Tribe under the Indian Gaming Regulatory Act,
Public Law 100-497.” N.C. Gen. Stat. § 14-306.1(n) (2003). Thus,
the trial court erred by concluding that North Carolina public
policy is violated by the video poker machine operated by the
Eastern Band of Cherokee Indians. However, our analysis of state
court subject matter jurisdiction does not end here.
We now turn to the second prong of the two-prong test
identified in Swayney, which more broadly instructs us to weigh the
interests of the Indians in settling this dispute against the
interests of the state. As evidenced by our extensive statutory
law prohibiting gambling, and as noted by this Court in Hatcher I,
the state has very little interest in protecting plaintiff's right
to engage in an activity that, but for the Indian Gaming Regulatory
Act, would be contrary to our public policy. See Hatcher I, 151
N.C. App. at 280, 565 S.E.2d at 244 (“[I]f plaintiff seeks to
recover gambling proceeds, the State of North Carolina would have
no interest in protecting plaintiff's right to enforce his
contract, although the Tribe may.”).
Conversely, “[t]he Cherokee Indians have an interest in making
their own laws and enforcing them.” Jackson County ex rel. Smoker
v. Smoker, 341 N.C. 182, 184, 459 S.E.2d 789, 791 (1995) (citing
Williams v. Lee, 358 U.S. 217, 3 L. Ed. 2d 251 (1959)). The tribehas in fact established a procedure for resolving disputes arising
out of gaming activity. Chapter 16 of The Cherokee Code sets forth
the tribe's procedure for resolving patron disputes:
Any person who has any dispute, disagreement
or other grievance with the gaming operation
that involves currency, tokens, coins, or any
other thing of value, may seek resolution of
such dispute from the following persons and in
the following order:
(a) A member of the staff relevant of the
gaming operation;
(b) The supervisor in the area of the
relevant gaming operation in which the
dispute arose;
(c) The manager of the relevant gaming
operation; and
(d) The [Cherokee Tribal Gaming] Commission.
The Cherokee Code § 16-12.08 (1996).
When a person brings a dispute for resolution
pursuant to section 16-12.08, the complainant
has the right to explain his or her side of
the dispute, and to present witnesses in
connection with any factual allegations. At
each level, if the dispute remains unresolved,
the complainant shall be informed of the right
to take the dispute to the next higher level
as set forth in section 16-12.08. . . .
The Cherokee Code § 16-12.09 (1996). “All disputes which are
submitted to the gaming Commission shall be decided by the
Commission based on information provided by the complainant,
including any witnesses for, or documents provided by or for, the
complainant. . . .” The Cherokee Code § 16-12.10 (1996).
It is clear that the Eastern Band of Cherokee Indians has
policies and procedures in place to resolve disputes such as the
one plaintiff presents in the case sub judice. Thus, for ourcourts to exercise jurisdiction in this case would plainly
interfere with the powers of self-government conferred upon the
Eastern Band of Cherokee Indians and exercised through the Cherokee
Tribal Gaming Commission. Swayney, 319 N.C. at 62, 352 S.E.2d at
419 (quoting Fisher v. District Court, 424 U.S. 382, 387-88, 47 L.
Ed. 2d 106, 112 (1976). It would subject a dispute arising on the
reservation between the casino and its patron to a forum other than
the one the Indians have established for themselves. Id.
Whereas the Eastern Band of Cherokee Indians has a greater
interest in resolving patron disputes related to activities within
the casino, and has policies and procedures for resolving such
disputes, the interests of the Indians outweigh the interests of
the state. Therefore, the exercise of state court jurisdiction in
the present case would unduly infringe on the self-governance of
the Eastern Band of Cherokee Indians. For these reasons, we hold
that our state courts must yield subject matter jurisdiction to the
Eastern Band of Cherokee Indians in the case sub judice and affirm
the decision of the trial court.
[2] Plaintiff next argues that the trial court erred by
concluding that “the Compact between the Eastern Band of Cherokee
Indians and the State of North Carolina does not . . . grant civil
jurisdiction to the State of North Carolina with respect to gaming
activities on the Cherokee Indian Reservation.” We disagree.
“If a party presents to the trial court a question concerning
. . . errors in conclusions of law, de novo is the appropriate
standard of review.” N.C. Dep't of Corr. v. McKimmey, 149 N.C.App. 605, 608, 561 S.E.2d 340, 342 (2002) (citing Associated
Mechanical Contractors, Inc. v. Commission for Health Services, 345
N.C. 699, 706, 483 S.E.2d 388, 392 (1997)). Section 8 of the
Tribal-State Compact between the Eastern Band of Cherokee Indians
and the State of North Carolina addresses the application of state
laws. Plaintiff specifically cites to the following sections of
the Tribal-State Compact as granting state court jurisdiction in
this case:
(A) State civil and criminal laws shall be
applicable to and enforceable by the
State against any person for activities
relating to Class III gaming which occur
outside of Eastern Cherokee Lands.
(B) State criminal laws and regulatory
requirements shall be applicable to and
enforceable by; the State against any
person who is not a member of the Tribe
for activities relating to Class III
gaming which occur on tribal lands.
. . . .
(D) The State shall have concurrent
jurisdiction to commence prosecutions for
violation of any applicable state civil
or criminal law or regulatory requirement
as set forth in the Sections 8(A) and
8(B) of this Compact.
Tribal-State Compact Between the Eastern Band of Cherokee Indians
and the State of North Carolina, Sept. 22, 1994.
In the present case, the incident that plaintiff complains of
took place in a casino located on the Indian reservation. Thus,
Section 8(A), which governs gaming activities that “occur outside
of Eastern Cherokee Lands,” does not apply to this action. Section
8(B) allows our courts to apply and enforce criminal and regulatorylaws violated by non-Indians on tribal property, but does not grant
jurisdiction over civil actions alleging unfair and deceptive trade
practices. Section 8(D) gives the state the power to prosecute
matters involving civil, criminal and regulatory violations, but
does not grant jurisdiction for a private cause of action. See Lea
v. Grier, 156 N.C. App. 503, 508, 577 S.E.2d 411, 415 (2003) and
Lane v. City of Kinston, 142 N.C. App. 622, 628, 544 S.E.2d 810,
815 (2001) (citations omitted) (Holding that “a statute allows for
a private cause of action only where the legislature has expressly
provided a private cause of action within the statute.”). We agree
with the trial court that the Tribal-State Compact does not grant
state courts jurisdiction over this matter, and accordingly, we
affirm the trial court's conclusion of law.
[3] Plaintiff's final argument is that the trial court erred
by concluding that “by virtue of Section 16-12.12 of the Cherokee
Gaming Ordinance, the Plaintiff consented to the jurisdiction of
the Tribe” for disputes related to gaming activities conducted on
the reservation. We dismiss this assignment of error.
The Rules of Appellate Procedure require that for each issue
that appellant addresses in his brief, “[t]he body of the argument
shall contain citations of the authorities upon which the appellant
relies.” N.C.R. App. P. 28(b)(6) (2004). This rule is mandatory,
and failure to follow the rule subjects the appeal to dismissal.
Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299
(1999) (citations omitted).
In the present case, plaintiff fails to cite any legal
authority in support of his position. Accordingly, we concludethat this issue does not warrant appellate review, and we dismiss
this assignment of error.
Having considered all of plaintiff's assignments of error
properly brought forward, we conclude that the trial court did not
err in granting defendant's motion to dismiss. Accordingly, we
affirm the order of the trial court.
AFFIRMED.
Judges Bryant and Levinson concur.
*** Converted from WordPerfect ***