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11/1/2007 - November 2007 Educational Update - Indian Gambling in Alabama





To:                  SLI Supporters                                 


Date:               November 2007


From:              A. Eric Johnston


Re:                  Indian Gambling in Alabama


            Indian activities and lands are governed by federal law.  They come under the sovereignty of the United States and not under the sovereignty of the state where they are located.  One of the most significant Indian tribes in Alabama is the Poarch Band of Creek Indians located in Atmore, Escambia County, Alabama.  Indian tribes in many states seek to operate casinos on their lands with as much gambling as possible.  


            The Indian Gaming Regulatory Act ("IGRA") regulates Indian gaming (gambling).  It permits:  Class I gaming, which are social games played for minimal value with no government oversight; Class II gaming, which is bingo gambling subject to oversight by the National Indian Gaming Commission; and Class III gaming, which includes all types of high stakes gambling, viz., slot machines, lotteries, etcetera, which is subject to significant regulation through a federal/state process.  Alabama Indians are permitted Class I and Class II gaming.  They are not permitted Class III gaming and that is the issue at hand. 


            Class III gaming by Indians could be permitted in two ways.  First is by a tribal-state compact (a written agreement) between the Indian tribe and the state.  The extent of gambling would be negotiated by the tribe and the state.  Indian tribes are generally able to have the same level of gambling as a state otherwise permits its other residents.


            If no agreement could be reached, then IGRA allowed the tribe to file suit against the state in federal court to determine whether the state negotiated in good faith.  In 1996, the U.S. Supreme Court ruled in Seminole Tribe of Florida v. Florida that this second method violated the state's sovereign immunity, i.e., states cannot be sued without giving their permission.  This permission is not something you can ask for; it is usually given by a state in a statute to serve some public good.


            In order to get around this problem, the Secretary of the Interior developed procedures which the Kickapoo Traditional Tribe of Texas attempted.  Since the tribe could not sue the State of Texas in federal court as a result of the Seminole case, it went to the Secretary of the Interior requesting he permit Class III gaming because the State of Texas did not act in good faith.  This put the Secretary in the position of deciding what gambling is permitted.  The Fifth Circuit Court of Appeals held in Texas v. United States Department of Interior and Kickapoo Traditional Tribe of Texas that violated the terms of IGRA.  Congress did not mean to give that much authority to the Secretary and he certainly could not infringe on the sovereignty of the state.  


            This is important to Alabama because on March 3, 2006, the Poarch Band of Creek Indians sought the same relief against the State of Alabama as the Kickapoo Indians did in Texas.  The Poarch Indians request is still pending.  It was their goal to force Alabama into the position of not acting "in good faith" and having the Secretary make that decision and then permit the high stakes forms of gambling.  Since Alabama does not generally permit Class III gaming, it is not interested in giving that opportunity to the Indians.


            The Kickapoo decision is by the Fifth Circuit Court of Appeals which covers Mississippi, Louisiana and Texas.  It is binding only on those states.  It is not binding on Alabama, which is included in the Eleventh Circuit Court of Appeals, viz., Alabama, Georgia and Florida.


            Attorney General Troy King has written the Secretary of the Interior asking whether he intends to ask the U.S. Supreme Court to review the Kickapoo decision.  The Kickapoo have asked the Fifth Circuit to rehear the case en banc.  If it does not, which is likely, the Kickapoo could also ask for Supreme Court review.  If the U.S. Supreme Court reviews the case, its decision would apply to the entire United States, including Alabama. 


            Review of the case is, however, discretionary with the Supreme Court.  If it chooses not to review the case, the Fifth Circuit decision will not directly help Alabama.  Since it is a national question effecting every state, it is hoped the Supreme Court would choose to review the case.  There is no way to predict what the Supreme Court will do.  It is likely the Eleventh Circuit would rule the same way the Fifth Circuit did.  This is especially true because the Seminole case, referenced above, was first decided favorable to us in the Eleventh Circuit.  Therefore, it is likely the Eleventh Circuit would also hold that the Secretary does not have the authority to force us to negotiate with the Poarch Indians.


            In the meantime, Attorney General King is suggesting to the Secretary that if the Supreme Court does not review the case, that the Secretary not negotiate with the Poarch Indians.  If the Secretary or the Kickapoo decide not to appeal the Kickapoo decision and the Secretary continues negotiations with the Poarch Indians, we expect Attorney General King will file a lawsuit in federal court seeking an order similar to what was decided by the Fifth Circuit in Kickapoo.


            We have met with Mr. King and he agrees with the foregoing analysis.  He told us he would file suit if the Secretary allows the Poarch Indians to continue the process of trying to obtain Class III gaming from the Secretary of the Interior.

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