By Sondra Washington
In states where full-fledged casino-style gambling is illegal, like Alabama, Indian tribes must negotiate a tribal-state compact to operate those types of establishments. Representatives for the Poarch Band of Creek Indians consider this to be a cut-and-dried issue. But, like many other legal matters, the issue may not be as easy as it seems.
The Indian Gaming Regulatory Act (IGRA), which governs Indian gambling across the country, explains how a state’s government and a sovereign Indian nation should negotiate the agreement.
The law states, “Any Indian tribe having jurisdiction over the Indian lands upon which a Class III gaming activity is being conducted, or is to be conducted, shall request the state in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the state shall negotiate with the Indian tribe in good faith to enter into such a compact.”
The federal law adds, “The United States district courts shall have jurisdiction over any cause of action initiated by an Indian tribe arising from the failure of a state to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact … or to conduct such negotiations in good faith.”
Daniel McGhee, administrator of the Poarch Creek Tribal Gaming Commission, believes IGRA requires Alabama to negotiate a compact with the tribe. He said his tribe has asked Gov. Bob Riley and previous Alabama governors to enter into such a compact, but they were repeatedly refused.
“It’s a matter of principle,” he said. “As an Indian tribe, you are supposed to be allowed to make the rules on your reservation. That’s what the constitution says. … It’s supposed to be your decision because you have a reservation. … Alabama doesn’t have to negotiate with Mississippi when they want to do something. But, the Poarch Creek has to negotiate with Alabama, and we are supposed to be considered a sovereign nation — a state within a state.”
But Todd Stacy, Riley’s press secretary, disagreed.
“Gov. Riley has said for years that he will not sign a compact with the Poarch Band because it would expand gambling in the state of Alabama,” he said. “In 2004 the National Indian Gaming Commission (NIGC) said that, under the NIGC interpretation of IGRA, the machines in use at White Hall, VictoryLand and Greenetrack were not Class II bingo at all, but Class III slot machines because the machines perform the task that the game of bingo requires of human players.”
The NIGC does consider some slot machine-style gambling machines to be Class II gambling or electronic bingo, and the Poarch Creeks must be approved by NIGC to operate their casinos.
Birmingham attorney Eric Johnston said the law is not as simple as McGhee makes it out to be.
“Until there is a new constitutional provision passed that allows Class III-type gambling — which includes card games, roulette wheels, etc. — a governor can not allow a compact with the Indians,” said Johnston, who heads the Southeast Law Institute. “Gov. Riley has taken the position that the state does not have Class III gambling, and that he is not going to enter into an agreement that allows the Indians to have Class III gaming.”
In a November 2007 educational update from the Southeast Law Institute, Johnston described a similar standoff between Texas and one of its Indian tribes. In that case, a Texas tribe asked the secretary of the interior to permit them Class III gambling because the state wouldn’t allow it. According to Johnston, the 5th Circuit Court of Appeals ruled that this request violated the terms of IGRA since “Congress did not mean to give that much authority to the secretary, and he certainly could not infringe on the sovereignty of the state.”
The Poarch Creek Indians attempted to get the same type of relief from the Department of the Interior against the state of Alabama in 2006 trying to “force Alabama into the position of not acting ‘in good faith’ (as IGRA states) and having the secretary make that decision and then permit high stakes forms of gambling.” The 5th Circuit court’s ruling does not apply in Alabama which falls under the 11th Circuit Court’s jurisdiction.
In 2006, the state of Alabama responded asking the Department of the Interior to refer to a prior case where a federal court ruled against this type of action. But, in 2008, their request was dismissed.
Attorney General Troy King then filed a federal lawsuit against the department and responded, “The Department of the Interior’s recent actions represent a complete disregard for fundamental principles of states’ rights and an arrogant lack of respect for the people of Alabama. Federal bureaucrats simply lack the authority to override the will of the people of Alabama by allowing casino gambling to invade our state. I will not stand idly by and allow them to do so.”
The tribe responded accusing King of running a “game of hypocrisy” and “selectively applied justice.”
“In football, a great defense may be a great offense, but in the case of Alabama’s attorney general, trying to convince Alabama that he is defending the state by offending our intelligence will just not work,” the tribe said in a press release. “For some time, the Poarch Band of Creek Indians have asked that it be allowed to operate the same kind of electronic bingo games that wealthy racetrack owners operate in other parts of the state. Unlike those racetrack owners, the Poarch Band actually asked for permission from the appropriate federal entities to operate the games instead of charging ahead and then expecting to be forgiven or ignored.”
Since that time, Johnston said the case has been dismissed “for being premature, and there has been no further action on whether Indian tribes in Alabama wish to have Class III gaming.”
Still, McGhee and the tribe are optimistic about signing a compact with the incoming governor.
“From a tribe member’s perspective, I’m always hopeful,” he said. “No one is out to break any laws. We just want to exercise our sovereign right. … We deserve the same respect as any other state you negotiate with.”
According to the National Indian Gaming Commission (NIGC), Alabama’s three Indian casinos are a part of the Washington region, which includes 25 other gambling operations in Connecticut, Florida, Louisiana, Mississippi, North Carolina and New York — all but Florida and Alabama have state compacts allowing full casino gambling.
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