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7/2/2012 - July 2012 SLI Educational Update - Salazar v. Patchak - A Giant Step to Prosecuting Alabama Indian Gambling



 To:                  SLI Supporters                                  

 Date:               July 2012  

 From:              A. Eric Johnston

 Re:                  Salazar v. Patchak  – A Giant Step to Prosecuting Alabama Indian Gambling

 Finally, there is an actual step toward closing Indian gambling in Alabama.  Governor Bob Riley was criticized for not going after the Poarch Indian tribe, while he was trying to close down non-Indian casinos.  Others have questioned why Luther Strange was not also enforcing the law against the Indians.  It is a somewhat complicated mosaic, but the picture is beginning to come into focus. 

The only legal gambling in Alabama is authorized by bingo constitutional amendments that envisioned simple paper card bingo, which morphed into electronic slot machine style gambling.  The Alabama Supreme Court in its Cornerstone decision answered with a simple test that essentially defined it as paper bingo.  As a result of this, Riley’s Task Force was successful in closing down the non Indian casinos.  Yet, the Poarch Indians continue to use slot machine gambling calling it bingo.  Under the Indian Gaming Regulatory Act (“IGRA”), Indians are permitted “bingo” as Class II gaming.  Because Alabama authorizes “bingo,” the Indians claim that the slot machine bingo is permitted.  The Department of the Interior agrees and is unresponsive to Alabama’s entreaties against this improper interpretation of law. 

 In 2009 the U.S. Supreme Court decided Carcieri v. Salazar.[1]  It held that Indians tribes must have been recognized by 1934 before their lands would be considered sovereign and protected under federal law.  Carcieri held the Indian tribe there was subject to local zoning laws.  The question then is posed, do state criminal laws also apply to Indians?

 In 2009, a Michigan Indian tribe acquired land for a casino.  However, the tribe was not federally recognized until 1999.  Mr. Patchak filed a lawsuit on the basis of Carcieri, alleging the tribe was not recognized as a federal tribe and therefore the casino could not be opened.  The federal court held Patchak did not have the legal right to bring the lawsuit.

The Obama Administration’s Department of Interior sought to avoid Patchak’s lawsuit on the ground that it was actually a federal “Quiet Title Action” (“QTA”), which creates an exception that sovereign immunity is not waived as to Indian land.  That is, Indian land is protected when someone makes a claim to its title.  The Supreme Court ruled that the QTA statute applies where the plaintiff is claiming actual title to the land.  Patchak was not claiming title and therefore, the court ruled, QTA did not preclude Patchak from bringing his lawsuit.

 Patchak’s suit was filed under the Administrative Procedures Act (“APA”) asserting that Interior Secretary Salazar was not authorized to acquire the property for the casino because the tribe was not recognized in 1934.  The twofold opinion of the court was that the QTA did not preclude the lawsuit and that under the APA an individual, such as Patchak, would have standing to bring the lawsuit.  The court did not address the Carcieri issue of whether this 1999 recognized tribe could bring its land into trust and establish the casino.  The case is returned to the trial court to permit Patchak to develop the case on this issue.

 Parties like Escambia County, Alabama (where the Poarch Indians have their primary casino) may sue the Poarch Indians for taxes and others may file claims on issues, namely, gambling under state criminal law.  The Carcieri opinion is clear that tribes not recognized in 1934 are subject to state regulation.  With Patchak recognizing the right to file a lawsuit to stop a casino, we are hopeful that actions will be taken to close or restrict the Alabama gambling operations by the Poarch Indians.  The Poarch were not recognized until 1984, therefore they are in the same position as the Indian tribes in both Carcieri and Patchak.

The other part of the mosaic is that the claim that Class II bingo under IGRA allows Indians slot machine gambling is incorrect.  The Poarch do not have the right to have slot machine gambling and call it bingo and the Secretary of the Interior does not have the authority to tell Alabama law enforcement what its criminal laws permit.

An individual may file a lawsuit, similar to what Patchak did, but the financial burden is tremendous.  If there are those who wish to do this, we encourage them to contact us.  The most viable and better alternative is for Attorney General Strange to prosecute Indian gambling in Alabama.  We encourage him to do so.

 The courts are now in a position to address Indian “gaming” in Alabama for what it is.  As Justice Scalia commented during oral argument in Patchak, you call it “gaming,” I call it “gambling.”  And gambling is what it is.  We believe the façade of federal protection just crumbled and the Indians may not now flaunt their sham sovereign protection any longer.  They have mercilessly profited from hapless Alabamians and others for too long.  They have profited at the expense of non-Indian gambling in Alabama but they, like the non-Indian enterprises, are violating our criminal laws and they should now pay the price.

[1] See our July 2009 Educational Update.


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