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7/1/2009 - July 2009 SLI Educational Update - Poarch Indians Off the Reservation?



To: SLI Supporters

Date: July 2009

From: A. Eric Johnston

Re: Poarch Indians Off the Reservation?

In the old western movies, settlers were always concerned when the Indians were “off the reservation.” In other words, the Indians may be up to no good. A legal question now exists about whether, in effect, the Poarch Band of Creek Indians are off the reservation with their gambling activities.

In recent years we have all learned the significance of gambling in Alabama. During the past legislative session, the “Sweet Home Alabama” plan was to monopolize gambling in Alabama. See April 2009 SLI Educational Update for more information at www.SoutheastLawInstitute.org. However, that legislative bill did not regulate Indians. Common belief is that Indians are not subject to Alabama laws and operate only under federal law.

The Poarch Indians have significant gambling operations in Escambia and Elmore Counties. They were no doubt concerned that the Sweet Home Alabama law would have given them stiff competition. They are probably hopeful the Governor’s Task Force on Gambling will succeed in putting the non-Indian competition out of business.

All of this is true because Indian gambling is regulated by the Indian Gaming Regulatory Act (“IGRA”). IGRA classifies three levels of gambling: Class I permits social games for minimal value; Class II permits bingo gambling subject only to the National Indian Gaming Commission (there is also the question of whether this bingo may be electronic); Class III permits high stakes gambling of every description if otherwise allowed in the host state.

Because Alabama does not have Class III gambling, the Indians cannot. They must be satisfied with the Class II bingo which they say, electronic or not, is exempt from state law. In other words, they do not expect to see state criminal investigators on Indian property checking out their operations. But is their belief correct?

A February 24, 2009 United States Court opinion could change all that. Writing for the majority in Carceiri v. Salazer, 129 S.Ct. 1058 (2009), Justice Clarence Thomas delivered an opinion that could bring drastic change to whether Indians are subject to state and local laws, whether on or off their land, which they would call their “reservation.” The court opinion was vaguely reminiscent of some of Bill Clinton’s arguments on what the meaning of the word “is” is. The 21 page opinion focused on the meaning of the word “now.” This is not as trivial as it sounds.

The federal law regulating Indian land, the Indian Reorganization Act (“IRA”), defined “Indian” to “include all persons of Indian descent who are members of any recognized Indian tribe now under federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing under the present boundaries of any Indian reservation . . . .” The argument was on whether “now” strictly meant Indians recognized as such in 1934, or did it mean Indians who would be recognized at any future time.

In the Carceiri case, the Narragansett Tribe in Rhode Island were arguing that land they acquired in 1988 was not subject to local building laws. The Narragansett Indians had not been formally recognized by the federal government until 1983. The Supreme Court ruled that “now” meant June 1, 1934. Consequently, the Narragansett Indians who are seeking to develop their property are subject to local building laws.

What does this mean for the Poarch Indian gambling operations? There is no published legal opinion on this, but consider what it may mean. The Poarch Band of Creek Indians was not recognized as an Indian tribe until 1983. Therefore, they would not be an Indian tribe for purposes of the Indian regulatory laws and the definition of tribal lands. Unless IGRA preempts IRA, Carceiri would impact Alabama Poarch Indian gambling. Poarch Indian gambling operations in both Escambia and Elmore Counties would be subject to state and local laws. This would include all Alabama constitutional, statutory, and county and city regulatory laws. And more specifically, we believe the state constitutional provisions in Article IV, § 65, 1901 Constitution of Alabama prohibiting games of chance, would prohibit their gambling operations. Please recall that the only games of chance in Alabama are games of bingo permitted in the 18 counties with constitutional amendments permitting such bingo. Neither Escambia nor Elmore Counties have bingo permitted in any form. This does not only affect the Poarch Indians. The Cherokee Indians recently purchased the River Trace Golf Course in Etowah County, Alabama for the purpose of opening a casino. Although Etowah County has a bingo amendment, it should be limited to paper card bingo.[1]

SLI can only act as a conscience in this. We have no authority to interpret, investigate and prosecute criminal laws. That job must be left to the state attorney general. The state attorney general has shown reluctance to challenge gambling operations of any description. Perhaps, the Governor’s Task Force on Gambling would include this Indian scenario in their strategic plan. Law enforcement officials should be enforcing laws against gambling proliferation, including now the spread of Indian gambling. The opportunity is there and our government should do the right thing.

[1] The Etowah County issue is on appeal to the Alabama Supreme Court. Politicians and gamblers there are trying to circumvent a clear requirement that bingo is limited to paper cards, the traditional and constitutional method of charity bingo in keeping with Alabama’s strong public policy against gambling.

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