Alabama AG Loses Court Case against Poarch Indians
This week, a 2009 gambling case in Rhode Island had a direct impact on the outcome of a trial in Alabama. In each case, the arguments were the same. In both cases, the results were quiet similar, too.
Alabama’s Attorney General Luther Strange tried to shut down three tribal casinos, but a district court ruled that the owner of the three casinos had the right to operate. Those owners are the Poarch Band of Creek Indians, who run casinos on their tribal lands in Atmore, Montgomery, and Wetumpka, Alabama.
11th US Circuit Court of Appeals
Luther Strange appealed that decision to the 11th U.S. Circuit Court of Appeals, which ruled this week that the district court made the right decision. David Smith, a lawyer from Washington DC who represented the tribe at the trial, said that the Alabama AG is stepping on decades of precendent trying to stop the casinos from operating.
Smith said, “When you had tribal lands that have had that (immunity) status for decades, it’s too late now to reverse that. The tribal lands are preserved and not subject to attack.”
Interior Department Took Land from Alabama
The attorney general based his case on the argument the US Interior Department did not have the legal right to take land from Alabama and put it into a trust for the Poarch Band when it did so in 1984, 1992, and 1995.
Smith says the Poarch Band was not a federally-recognized Tribe in 1934, when the Indian Reorganization Act was passed and went into effect. Most of the time, the 1934 date is considered the true test of whether a Native American tribe or band should be recognized.
2009 Rhode Island Case
In 2009, the state of Rhode Island made similar charges against the Narragansett Indian Tribe, which had received lands for the Interior Ministry. One difference in the two cases is that Rhode Island challenged the Interior Department using the Administrative Procedure Act, which allows for reviews of U.S. federal agency decisions.
Alabama did not use the APA, but instead chose to fight in a more traditional court ruling. APA cases have a 6-year statute of limitations, so Alabama was barred from making such claims. The last time such methods could have been made were in 2002. Thus, the Poarch have immunity from state prohibitions on gambling.
Challenged PCI Gaming Authority
One focus of the lawsuit was to challenge PCI Gaming Authority’s ability to manage the tribal casinos. PCI Gaming Authority is a non-tribal entity, but the Poarch hired the company to manage the casinos in a professional way. Alabama challenged whether immunity could be conferred upon a non-tribal entity.
Judge Jill Pryor of the U.S. Court of Appeals 11th Circuit wrote, “Although the Supreme Court has expressed doubts about ‘the wisdom of’ tribal immunity, the Court nonetheless has recognized that the ‘doctrine of tribal immunity is settled law and controls’ unless and until Congress decides to limit tribal immunity. Here, the Tribe has not waived its immunity and Congress has not expressly abrogated it.”
Poarch Band of Indians’ Operations
Thus, the Poarch Band of Indians is able to run its three casinos, while deciding who manages them, free of state interference. The tribe and the state must agree to a compact, which allows the state to negotiate the level of gaming taxes.
The Poarch Band wields significant political power within the state of Alabama, due to its casino gaming monopoly and the money its 3 operations generate. The tribe is one of several key interests which has stood in the way of an expansion of gambling in Alabama, alongside conservative forces who take a stand against gambling on religious and social grounds.
Over the past several months, Alabama State Senate President Del Marsh has tried to expand casino-style gambling to the state’s racetracks, which are in need of an influx of cash. Marsh’s bill also would have created a state lottery which would have generated $400 million a year to help deal with Alabama’s $1 billion debt situation. The leader of the Poarch Indians spoke before the Alabama State Senate to give a speech about the dangers of expanded gambling and the need of the Indians to maintain their casino monopoly.
The bill went down to defeat, though Del Marsh and a coalition of Alabama businessmen (and ex-Auburn football coach Pat Dye) have redoubled their efforts to pass the bill into law.
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