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4/1/2011 - April 2011 SLI Educational Update - A Respite from Gambling, but the Indians are Still There

AN EDUCATIONAL UPDATE FROM

THE SOUTHEAST LAW INSTITUTE™, INC.

 

To:                  SLI Supporters                                  

Date:               April 2011  

From:              A. Eric Johnston

Re:                  A Respite from Gambling, but the Indians are Still There

 

Many have asked what the status is of gambling in Alabama.  At this time last year, the Legislature was still filibustering against gambling bills.  The short answer for the Legislature this year is:  no gambling bills have been filed and none are being considered.

Another area of concern has been recent news reports that “bingo” establishments are reopening in Jefferson County, as well as probably other areas.  The Attorney General’s Office has been quick to respond that no unlawful gambling will be permitted.  Because Governor Riley’s Task Force has gone away, does not mean there is a more permissive atmosphere.  Attorney General Luther Strange has committed to us that he will continue efforts against unlawful gambling and he hired Sonny Reagan, Governor Riley’s staff legal advisor on gambling. 

While we do not know what machines are being used in these new operations, we are doubtful they would be the “slot machines” being used last year.  It would be extremely risky for those establishments to taunt law enforcement.  Also, the slot machines previously in use were mostly owned by out-of-state interests.  Attorney General Strange sent them a letter giving them a short period of time within which to remove their machines, which they did.  The Alabama Supreme Court’s definition of bingo makes it clear that these slot type machines are not permitted. 

The area of final concern is Indian gambling.  Many have complained that the state has pursued non-Indian gambling interests, but not the Indians.  The Indians seem to feel they have immunity.  This is not so.

On February 7, 2011, we filed a “Formal Comment” with the National Indian Gaming Commission (“NIGC”).  The NIGC had solicited comments for a comprehensive review of regulations to implement the Indian Gaming Regulatory Act.   We filed a four page comment which essentially said bingo does not include slot machines and state law must be observed.  Let us know if you would like a copy.

Please recall Indians are permitted three classes of gambling:  Class I – home card and tribal games, etc.; Class II – bingo; Class III – all other forms of gambling, i.e., roulette, keno, slot machines, card games, etc.  The issue is the definition of bingo for Indian tribes.

We explained Article IV, Section 65, 1901 Alabama Constitution prohibits games of chance, but there are 18 amendments permitting charity bingo.  We cited David Barber, et al. v. Cornerstone Community Outreach, Inc., et al., 42 So.3d 65 (Ala., 2009) which properly defined and limited permitted bingo.  We also cited Section 13A-12-20 (10), 1975 Code of Alabama, which criminalizes slot machines.  Based on this, Alabama does not permit any games of chance, except for limited charity traditional bingo.

Class II bingo specifically excludes slot machines of any kind.  25 U.S.C. Section 2703 (7)(B)(ii); 25 C.F.R. Part 547, RIN 3141-AA29.  In other words, bingo and slot machines are not synonymous.

In the past, Alabama Indians cited VictoryLand and other establishments as precedent for permitting unlimited electronic machine gambling.  In fact, those facilities were always unlawful and now they have been closed down.  Some have incorrectly said the Indians’ right is simply that “if the state has bingo, then the Indians can gamble however they want to.”  It is incumbent on the NIGC to properly regulate them, and if it does not, then the State Attorney General must being a lawsuit against the NIGC and the Alabama Indians.

Alabama’s criminal laws, including prohibition of slot machines, are meant to protect its citizens and punish those who violate the law.  The Indians cannot be an exception and they are not above the law.  Alabama’s sovereign rights are reserved under the 10th Amendment to the United States Constitution, i.e., the right to enforce its laws.  We cited additional legal authorities to the NIGC requesting it amend its regulations to honor Alabama’s sovereignty and criminal laws.  If it does not, then by these same authorities we can  compel them to do so. 

State authorities have not neglected the Indians, as many have complained.  It is a multi-step process.  Please encourage the State Attorney General, Governor and other state officials to take the proper steps.  

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