The federal authority that oversees Indian casinos strongly reinforced to Alabama Attorney General Luther Strange that, despite his recent attempted action against the Poarch Band of Creek Indians, the tribe does not have to follow the state definition of bingo and has a right to operate electronic bingo casinos in the state.
Strange has pushed the National Indian Gaming Commission to crack down on the Poarch Creek facilities on land in federal trust in Montgomery, Wetumpka, and Atmore, arguing they are operating slot machines that are illegal in the state and are not bingo, which is Class II gambling allowed in certain areas of the state.
“We have always been careful to follow the laws governing Indian gaming,” Poarch Band Attorney General Venus McGhee Prince said in a statement. “No one is more concerned about conducting our business the right way than we are, and we are hopeful that this will end any further discussion on the issue.”
Strange does not plan to end the legal fight.
Eric Shepard, acting general counsel for the NIGC, outlined the views of the commission in a March 14 letter to Strange.
Strange quickly responded, in a March 15 letter, informing Shepard he did not misunderstand the legal position of the NIGC – “I just believe that you are wrong.”
“As I have said previously, the NIGC intends to let the Poarch Band play so-called ‘electronic bingo’ in three huge for-profit casinos, as long as charity paper bingo is legal in Alabama,” Strange said in a statement sent to the Montgomery Advertiser. “I disagree that federal law gives the Poarch Band the right to ignore state law in that way, and I expect that my lawsuit against the tribe will determine who is right.”
Strange filed a civil suit against the Poarch Creek Indians in Elmore County circuit court in February trying to shut down the casinos. Poarch Creek officials and those operating private facilities in the state said the lawsuit had no legal merit and Strange did not have any jurisdiction.
At the same time his office filed the lawsuit, Strange successfully obtained a search warrant and raided VictoryLand casino in Shorter.
“As a federally recognized sovereign Indian nation, Poarch Creek’s land is governed by federal, not state law,” according to the Poarch Creek statement at the time. “While we respect Mr. Strange’s attempts to fulfill his duties as state attorney general, he is not a federal official and therefore, has no jurisdiction or enforcement authority over tribal land or tribal gaming operations.”
In his letter, Shepard indicates to Strange that the commission previously informed him about its position on the legality of the Poarch Creek operations. Shepard included a March 2011 letter that the commission sent to Gov. Robert Bentley and copied to Strange. The letter, according to the NIGC, was in response to former Gov. Bob Riley pushing for the commission to investigate and shut down the Poarch Creek casinos. Strange and a task force formed by Riley have been able to shut down most non-Indian casinos in the state, including VictoryLand, leaving the Poarch Creek casinos to flourish.
“Though I believe that letter thoroughly articulated the NIGC’s authority over Indian gaming on Indian lands, the recent action taken by your office against the Poarch Band of Creek Indians, as well as subsequent statements in press releases and newspaper editorials, gives me cause to reiterate that federal, not state, law applies to gaming within the Poarch Band’s Indian lands and the NIGC, not the state, has jurisdiction over that gaming,” Shepard wrote.
“… That letter makes clear that Indian tribes are not bound by state definitions of the game of bingo when operating on Indian lands. So long as a state permits the game of bingo, regardless of its definition of the game, a tribe in that state may operate the game as defined by IGRA (Indian Gaming Regulatory Act). Furthermore, Congress vested NIGC, and not states, with the authority to regulate bingo conducted on Indian lands.”
The letter informs Strange that since the IGRA was passed in 1988, “courts have repeatedly confirmed that the IGRA preempts state gaming laws” and outlines some cases.
“I hope this letter resolves any misunderstanding about the Poarch Band’s authority to operate bingo on its Indian lands,” Shepard said.
In the March 2011 letter, NIGC Chairwoman Tracie Stevens wrote that when the IGRA was passed, Congress realized most states allowed bingo and those states had different laws and standards. So, Congress defined bingo at the federal level for the tribes to follow so there would not be different standards for different tribes. Stevens indicated that tribes could take advantage of technology in operating the game of bingo and could use computers and electronics.
“Thus, so long as a state permits the game of bingo, regardless of the state’s definition of the game, an Indian tribe within that state may also play bingo as defined in IGRA,” Stevens wrote. “Accordingly, tribes are not bound to state definitions of the game of bingo. If a state permits paper bingo only, as Mr. Strange represents Alabama does, a tribe within that state may play electronic bingo so long as it otherwise meets IGRA’s Class II definition.”
In his response to Shepard, Strange wrote “your letter is contrary to clearly established law when it asserts that state law does not apply to slot-machine gambling on Indian lands.”
“The Indian Gaming Regulatory Act expressly distinguishes between ‘technological aids’ that may be used with Class II games like bingo, which can be operated without the state’s permission, and Class III games such as ‘slot machines,’ which cannot be operated without the state’s permission.”
“The Poarch Tribe’s gambling devices are a ‘kind’ of ‘slot machine,’ not ‘technological aids’ to help people play bingo,” Strange wrote.
Strange also argues that Shepard’s letter “does not address one of the biggest hurdles that the Poarch Tribe faces” and references the federal case of Carcieri v. Salazar.
“In Carcieri, the U.S. Supreme Court held that the secretary of the Interior did not have the power to set aside land for Indian tribes to use for gambling if those tribes were not recognized and under federal jurisdiction in 1934,” Strange wrote. “The Poarch Tribe was first recognized in the 1980s, raising a substantial question about whether the Poarch Tribe has an obligation to comply with Alabama law regardless of the Indian Gaming Regulatory Act.”
Strange wrote that ultimately it was his intent to resolve these issues in the courts.
“I believe that my pending lawsuit against the Poarch Tribe will help to provide some clarity on what kinds of gambling the Poarch Tribe can offer,” the attorney general wrote.
– posted by Sebastian Kitchen