By Brandon Moseley
Alabama Political Reporter
Thursday, September 3, the US Eleventh Circuit Court of Appeals officially ended any last faint hopes by social conservatives that the Poarch Band of Creek Indians’ (PCI) casinos can ever be closed down by the State of Alabama. Alabama Luther Strange said that he will not appeal.
The Attorney General’s office had argued that the gaming at the casinos constitutes a public nuisance under Alabama law and should be enjoined. Strange argued that state law forbidding gaming should apply to the Poarch Creek Indians because the Secretary of the Interior (who has defended the Indians gaming rights) lacked the necessary authority to take land into trust for the Tribe; therefore, the Tribe’s casinos are not located on Indian lands, and Alabama may regulate the gaming there. Second, the State of Alabama contended that incorporating state laws governing gambling into federal law creates a right of action for a state to sue in federal court to enforce its laws on Indian lands.
The district court rejected these arguments and dismissed the action on the grounds that the defendants were entitled to tribal immunity on nearly all of Alabama’s claims and that Alabama failed to state a claim for relief. The Eleventh Circuit wrote, “After careful consideration of the briefs and the record, and with the benefit of oral argument, we affirm the district court’s judgment in favor of the defendants.” The state had asked the court to overturn the decisions by the US Secretary of the Interior to accept PCI’s properties into trust as tribal lands. The court ruled that Alabama had six years under the statute to appeal those decisions; but the statute of limitations on that has run out a long time ago: “A six-year general statute of limitations applies to APA claims brought against the United States; the statute begins to run when the agency issues the final action that gives rise to the claim…Because the Secretary accepted the lands at issue into trust for the Tribe in 1984, 1992, and 1995, the statute of limitations to challenge those decisions had run by 1991, 1999, and 2002, respectively.”
Alabama Attorney General Luther Strange issued a written statement following the stinging defeat in the case of State of Alabama v. PCI Gaming Authority. AG Strange wrote, “From the beginning it has been my goal to settle the question of the legality of gambling at Indian-run casinos in Alabama once and for all. The 11th US Circuit Court of Appeals has upheld the district court’s opinion that the United States is the only government that can enforce state and federal gambling laws on the PCI’s lands. While I do not agree with the Appeals Court’s decision, it provides certainty and guidance to state officials where there was none before. The Appeals Court’s decision makes it clear that the only way for the State of Alabama to regulate the gambling conducted on the PCI’s lands is to enter into a compact with the PCI. That is a decision for the Governor and Legislature, not me. After thoroughly reviewing the decision, I do not intend to petition for review in the United States Supreme Court.”
There are enormous ramifications from this for the gaming debate. The State has spent millions shutting down electronic gaming at: Greene Track, the Birmingham Race Course, Victoryland, White Hall, Country Crossings, etc. Today appeals court judgement means that despite these past actions the Indians can not be closed down by the State. Effectively, the PCI have a federally protected monopoly on gaming in the State.
The Judge in the Victoryland case has ruled against Strange and the AG’s office on the grounds that Milton McGregor and Victoryland weren’t doing anything that the PCI wasn’t doing and that the law could not be enforced because it was arbitrary in its application. Since the State can’t close down the Indian casinos, McGregor’s attorneys will continue to press that argument going forward as Strange appealed that decision.
In April the Indians had offered to pay the state $250 million and pay taxes if they would allow them to continue to operate and not open up gaming to other parties. Since the federal courts have ruled that the State can’t shut down their casinos, the PCI have less incentive to agree to any compact or paying any taxes, although to this point Governor Robert Bentley (R) has opposed any compact and there are questions as to whether the Governor actually has the necessary legal authority to negotiate any compact on gaming without it going to a vote of the people as a state constitutional amendment.
The court cited: ‘Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians’; the United States Supreme Court’s decision in ‘California v. Cabazon Band of Mission Indians’; and ‘Michigan v. Bay Mills Indian Cmty.’ in the decision.
