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.
The Poarch Creeks have significant gambling operations in Escambia and Elmore counties. They were no doubt concerned that recent attempts to legalize “electronic bingo” would have given them stiff competition.
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 Supreme 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 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 Creek 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 Creek gambling. Poarch Creek 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 Creeks. The Cherokee Indians recently purchased the River Trace Golf Course in Etowah County for the purpose of opening a casino. Although Etowah County has a bingo amendment, it should be limited to paper card bingo.
Southeast Law Institute 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.
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.
EDITOR’S NOTE — Johnston wrote this piece in July 2009. He said at press time that nothing has been done about the case in Alabama because ‘until we deal with gambling elsewhere in the state, trying to deal with the Poarch Creek makes no sense.’
The American Bar Association said: ‘The most immediate impact of the Carcieri land-into-trust decision is its effect on tribal gaming activity. Because trust status for Indian lands is usually a precursor for gaining the necessary approvals under IGRA, tribes that are no longer able to use the IRA land acquisition mechanism likely will need new, special legislation to conduct gaming activities on any newly acquired, nonreservation lands.’
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