Alabama Supreme Court to hear PCI case

Published 12:14pm Saturday, June 16, 2012

Alabama Supreme Court has agreed to rule on the Poarch Band of Creek Indians tax-emption status after an appeal filed this week that points to the now infamous Cariceri v. Salazar case Escambia County Commissioners have been attempting to flesh out since April.

Lee County resident Jerry Rape sued PCI and its casino business last year in Montgomery County Circuit Court for refusing to pay him a $1.3 million jackpot he said he won at the tribe’s Creek Casino Montgomery.

Circuit Judge Eugne Reese threw out the case because he said the case was beyond the jurisdiction of state courts to decide.

In his lawsuit, Rape pointed to the same 2009 U.S. Supreme Court ruling on the Cariceri case as the Escambia County Commission has, arguing it means the federal government “did not possess authority to take land into trust for the tribe, and the tribe is not entitled to immunity.”

In their motion to dismiss the case, PCI said Alabama courts have no jurisdiction over the incident because it “occurred on the Tribe’s trust lands, which are held in trust by the United States for the benefit of the Tribe.”

The Cariceri case has been the focal point of the ongoing dispute between the Escambia County Commission and the PCI over the legality of the tax-exempt status of tribal lands currently held in federal trust.

A recent reply to a commission letter from the U.S. Department of the Interior confirmed the tribe’s trust status, but failed, commissioners said, to address their main concern of how the Cariceri case impacts the issue, if at all.

Attorney Bryan Taylor — whose services were retained by the county commission in April as they began to look into the tribe taxation issue — said this week that the Rape case before the Supreme Court could have an impact on the commission’s inquiries.

“Although Rape’s case is unrelated to Escambia County, the legal briefs in the case seem to vindicate the county commissioners,” Taylor said in a press release this week. “Rape’s attorneys are making strong legal arguments that he believes will be taken very seriously by Alabama Supreme Court justices.”

On Monday, commissioners announced they would take a step back from the legal process and extend an invitation to tribal leaders in order to attempt to come to an agreement on the issue.

During the same meeting commissioners Raymond Wiggins and David Quarker, the latter of whom represents the district that includes the area in Atmore housing the PCI Wind Creek Casino and Hotel, said they felt the commission no longer needed to work with Taylor. Both commissioners, joined by Commissioner Brandon Smith, who has supported the tribe throughout the course of the dispute, said they felt Taylor’s background as a member of former Gov. Bob Riley’s advisory panel made him a poor fit to aid the county in their quest to clarify the Cariceri decision’s connection to PCI; however, a formal vote on the issue was not taken.

Commissioner Smith, who has been in sole opposition to the commission’s actions towards PCI from the beginning, said he believes the Supreme Court will see the differences between the situation in Poarch and that of the Narragansett tribe in the Carcieri case.

“The Narragansett tribe was recognized by the state of Rhode Island,” Smith said. “The Poarch Creek Indians are recognized federally. What PCI has is whole different ball game. That’s two different tribes and two different situations.”

Quarker emphasized that the case going before the state Supreme Court and the commission’s inquiries are unrelated.

“That case has nothing to do with the Escambia County Commission,” he said.

Quarker said Taylor was hired by the commission only for legal advice and should not blend any aspects of the Rape lawsuit with what is going on in Escambia County.

“Mr. Taylor has never represented us,” Quarker said. “There was never a case or a lawsuit or any legal action taken against PCI by the county.”

Despite a statement in the recent release acknowledging the two situations as separate legal items unrelated to one another, Taylor said of the Escambia County dispute, “no matter how badly the tribe wants everyone to believe it, Escambia County commissioners have not gone off the reservation. To the contrary, they are raising fair and legitimate legal questions about the impact of a U.S. Supreme Court ruling on the tribe’s claim to tax-free status.”

“If this were any other multi-million dollar corporation not paying taxes, the county commission would get scalped — and rightly so — for looking the other way while ignoring a ruling by our nation’s highest court. No court has ever ruled that the Poarch Creek Indians’ casinos don’t have to pay state and local taxes. So why aren’t they paying their fair share, just like every other Alabama business? That’s a perfectly fair question, and on behalf of those who do pay taxes, the commission is right to ask it.”

Taylor went on to say PCI has lashed out at the commission over legal questions that come from Washington — not Brewton.

“The Poarch Band of Creek Indians has launched a relentless smear campaign against Escambia County commissioners for simply doing their job and trying to follow the law.” Taylor said. “It is now clear to everyone that the Escambia County commission didn’t create this problem for the tribe, the U.S. Supreme Court did. And the U.S. Supreme Court cannot be ignored.”

Friday, Quarker was quick to say Taylor’s comments do not necessarily reflect the feelings of the commission.

“(Taylor) might have his own agenda and his comments have not been approved by the county,” Quarker said. “They are just personal comments he made. Anything he said after Monday should not have any bearing on the county or PCI.”

  • Redman

    When Vanity Fair closed it’s doors Atmore lost 500 jobs.Now, with this deal, we,and this state, stand to loose 2000 more.It seems any time there’s a chance to sue the tribe or shut down the casino this Brian Taylor dudes name is right in the middle of it.Even though the Es. commission has backed off, this guy is still dragging them into this without their consent based on his comments in this article.
    2000 jobs gone, but atleast his pockets will be full so him and his can continue to live the American dream when there will be momma’s and daddy’s” that will not be able to put food on the table or buy medicine for their sick children after there loose their jobs.Where will these people find jobs, how will they provide for their family?I don’t know, but I do know that will be a sad day when life as they know it has been turned upside down.Their fate in the hands of a few people…but I guess Mr.Taylor will be satisfied.

  • alexande0582

    Well, it is obvious that Mr. Quarker and Mr. Wiggins are true politicans. When it looks like one side is losing, jump the fence. Thing is the damage has already been done. Why would someone who lives in the PCI commmunity and represents those individuals ever take the side of people who are wanting to destroy those lives. Numerous employees of creek casino live in the freemanville area. The Poarch Creek Indians has always been a friend to Freemanville. Does Mr. Quarker remember when a chemical company wanted to buy Mike Simpson’s Fertilizer. Freemanville residents brought the issue and concerns to the Creeks and what did they do. They bought the property and it sits empty still to this day !!!!!
    The Poarch Creek Indians gives way more to the community and surrounding counties than they would ever have to pay in taxes. So which one would you like? As the old saying goes, “MONEY IS THE ROOT OF ALL EVIL” As far as an invitation to meet with the commissioners, THE OLIVE BRANCH IS DEAD.

  • jbe333

    Let me play devil’s advocate for a second. I in no way intend to endorse one view or another by this comment, and I am in no way pro-taxation in general: – Redman: Your entire argument is non sequitur and most overused in this storyline. It does not follow that Wind Creek would be forced to close if it has to pay taxes, especially not if they are bringing in approximately $50 million in profit annually. They would still run in the black, and more money than they currently donate would be spent in providing for education, infrastructure, etc. in the county. – Alexande0582: How is it a good thing when a government agency buys something and then does not put it to use[.] How does that benefit Freemanville[.] The tax dollars netted from the production created by such a chemical company would have certainly assited the county’s economy.

  • jbe333

    Cariceri v. Salazar:

    The Indian Reorganization Act (IRA), enacted in 1934, authorizes the Secretary of the Interior, a respondent here, to acquire land and hold it in trust “for the purpose of providing land for Indians,” **1059 25 U.S.C. § 465, and defines “Indian” to “include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction,” § 479. The Narragansett Tribe was placed under the Colony of Rhode Island’s formal guardianship in 1709. It agreed to relinquish its tribal authority and sell all but two acres of its remaining reservation land in 1880, but then began trying to regain its land and tribal status. From 1927 to 1937, federal authorities declined to give it assistance because they considered the Tribe to be under state, not federal jurisdiction. In a 1978 agreement settling a dispute between the Tribe and Rhode Island, the Tribe received title to 1,800 acres of land in petitioner Charlestown in exchange for relinquishing claims to state land based on aboriginal title; and it agreed that the land would be subject to state law. The Tribe gained formal recognition from the Federal Government in 1983, and the Secretary of the Interior accepted a deed of trust to the 1,800 acres in 1988. Subsequently, a dispute arose over whether the Tribe’s plans to build housing on an additional 31 acres of land it had purchased complied with local regulations. While litigation was pending, the Secretary accepted the 31–acre parcel into trust. The Interior Board of Indian Appeals upheld that decision, and petitioners sought review. The District Court granted summary judgment to the Secretary and other officials, determining that § 479′s plain language defines “Indian” to include members of all tribes in existence in 1934, but does not require a tribe to have been federally recognized on that date; and concluding that, since the Tribe is currently federally recognized and was in existence in 1934, it is a tribe under § 479. In affirming, the First Circuit found § 479 ambiguous as to the meaning of “now under Federal jurisdiction,” applied the principles of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694, and deferred to the Secretary’s construction of the provision to allow the land to be taken into trust.
    *380 Held: Because the term “now under federal jurisdiction” in § 479 unambiguously refers to those tribes that were under federal jurisdiction when the IRA was enacted in 1934, and because the Narragansett Tribe was not under federal jurisdiction in 1934, the Secretary does not have the authority to take the 31–acre parcel into trust. Pp. 1063 – 1068.
    (a) When a statute’s text is plain and unambiguous, United States v. Gonzales, 520 U.S. 1, 4, 117 S.Ct. 1032, 137 L.Ed.2d 132, the statute must be applied according to its terms, see, e.g., Dodd v. United States, 545 U.S. 353, 359, 125 S.Ct. 2478, 162 L.Ed.2d 343. Here, whether the Secretary has authority to take the parcel into trust depends on whether the Narragansetts are members of a “recognized Indian Tribe now under Federal jurisdiction,” which, in turn, depends on whether “now” refers to 1998, when the Secretary accepted the parcel into trust, or 1934, when Congress enacted the IRA. The ordinary meaning of “now,” as understood at the time of enactment, was at “the present time; at this moment; at the time of speaking.” That definition is consistent with interpretations given “now” by this Court both before and after the IRA’s passage. See e.g., Franklin v. United States, 216 U.S. 559, 569, 30 S.Ct. 434, 54 L.Ed. 615; Montana v. Kennedy, 366 U.S. 308, 310–311, 81 S.Ct. 1336, 6 L.Ed.2d 313. It also aligns with the word’s natural reading in the context of the IRA. Furthermore, the Secretary’s current interpretation is at odds with the Executive Branch’s construction of § 479 at the time of enactment. The Secretary’s additional arguments in support of his contention that “now” is ambiguous are unpersuasive. **1060 There is also no need to consider the parties’ competing views on whether Congress had a policy justification for limiting the Secretary’s trust authority to tribes under federal jurisdiction in 1934, since Congress’ use of “now” in § 479 speaks for itself and “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–254, 112 S.Ct. 1146, 117 L.Ed.2d 391. Pp. 1067 – 1068.
    (b) The Court rejects alternative arguments by the Secretary and his amici that rely on statutory provisions other than § 479 to support the Secretary’s decision to take the parcel into trust for the Narragansetts. Pp. 13–15.
    497 F.3d 15, reversed.
    THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, BREYER, and ALITO, JJ., joined. BREYER, J., filed a concurring opinion. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. STEVENS, J., filed a dissenting opinion.

  • jbe333

    Cariceri v. Salazar:

    The Indian Reorganization Act (IRA), enacted in 1934, authorizes the Secretary of the Interior, a respondent here, to acquire land and hold it in trust “for the purpose of providing land for Indians,” **1059 25 U.S.C. § 465, and defines “Indian” to “include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction,” § 479. The Narragansett Tribe was placed under the Colony of Rhode Island’s formal guardianship in 1709. It agreed to relinquish its tribal authority and sell all but two acres of its remaining reservation land in 1880, but then began trying to regain its land and tribal status. From 1927 to 1937, federal authorities declined to give it assistance because they considered the Tribe to be under state, not federal jurisdiction. In a 1978 agreement settling a dispute between the Tribe and Rhode Island, the Tribe received title to 1,800 acres of land in petitioner Charlestown in exchange for relinquishing claims to state land based on aboriginal title; and it agreed that the land would be subject to state law. The Tribe gained formal recognition from the Federal Government in 1983, and the Secretary of the Interior accepted a deed of trust to the 1,800 acres in 1988. Subsequently, a dispute arose over whether the Tribe’s plans to build housing on an additional 31 acres of land it had purchased complied with local regulations. While litigation was pending, the Secretary accepted the 31–acre parcel into trust. The Interior Board of Indian Appeals upheld that decision, and petitioners sought review. The District Court granted summary judgment to the Secretary and other officials, determining that § 479′s plain language defines “Indian” to include members of all tribes in existence in 1934, but does not require a tribe to have been federally recognized on that date; and concluding that, since the Tribe is currently federally recognized and was in existence in 1934, it is a tribe under § 479. In affirming, the First Circuit found § 479 ambiguous as to the meaning of “now under Federal jurisdiction,” applied the principles of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694, and deferred to the Secretary’s construction of the provision to allow the land to be taken into trust.
    *380 Held: Because the term “now under federal jurisdiction” in § 479 unambiguously refers to those tribes that were under federal jurisdiction when the IRA was enacted in 1934, and because the Narragansett Tribe was not under federal jurisdiction in 1934, the Secretary does not have the authority to take the 31–acre parcel into trust. Pp. 1063 – 1068.
    (a) When a statute’s text is plain and unambiguous, United States v. Gonzales, 520 U.S. 1, 4, 117 S.Ct. 1032, 137 L.Ed.2d 132, the statute must be applied according to its terms, see, e.g., Dodd v. United States, 545 U.S. 353, 359, 125 S.Ct. 2478, 162 L.Ed.2d 343. Here, whether the Secretary has authority to take the parcel into trust depends on whether the Narragansetts are members of a “recognized Indian Tribe now under Federal jurisdiction,” which, in turn, depends on whether “now” refers to 1998, when the Secretary accepted the parcel into trust, or 1934, when Congress enacted the IRA. The ordinary meaning of “now,” as understood at the time of enactment, was at “the present time; at this moment; at the time of speaking.” That definition is consistent with interpretations given “now” by this Court both before and after the IRA’s passage. See e.g., Franklin v. United States, 216 U.S. 559, 569, 30 S.Ct. 434, 54 L.Ed. 615; Montana v. Kennedy, 366 U.S. 308, 310–311, 81 S.Ct. 1336, 6 L.Ed.2d 313. It also aligns with the word’s natural reading in the context of the IRA. Furthermore, the Secretary’s current interpretation is at odds with the Executive Branch’s construction of § 479 at the time of enactment. The Secretary’s additional arguments in support of his contention that “now” is ambiguous are unpersuasive. **1060 There is also no need to consider the parties’ competing views on whether Congress had a policy justification for limiting the Secretary’s trust authority to tribes under federal jurisdiction in 1934, since Congress’ use of “now” in § 479 speaks for itself and “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–254, 112 S.Ct. 1146, 117 L.Ed.2d 391. Pp. 1067 – 1068.
    (b) The Court rejects alternative arguments by the Secretary and his amici that rely on statutory provisions other than § 479 to support the Secretary’s decision to take the parcel into trust for the Narragansetts. Pp. 13–15.

    497 F.3d 15, reversed.

    THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, BREYER, and ALITO, JJ., joined. BREYER, J., filed a concurring opinion. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. STEVENS, J., filed a dissenting opinion.

  • jbe333

    § 465. Acquisition of lands, water rights or surface rights; appropriation; title to lands; tax exemption
    Currentness
    The Secretary of the Interior is authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians.
    For the acquisition of such lands, interests in lands, water rights, and surface rights, and for expenses incident to such acquisition, there is authorized to be appropriated, out of any funds in the Treasury not otherwise appropriated, a sum not to exceed $2,000,000 in any one fiscal year: Provided, That no part of such funds shall be used to acquire additional land outside of the exterior boundaries of Navajo Indian Reservation for the Navajo Indians in Arizona, nor in New Mexico, in the event that legislation to define the exterior boundaries of the Navajo Indian Reservation in New Mexico, and for other purposes, or similar legislation, becomes law.
    The unexpended balances of any appropriations made pursuant to this section shall remain available until expended.
    Title to any lands or rights acquired pursuant to this Act or the Act of July 28, 1955 (69 Stat. 392), as amended (25 U.S.C. 608 et seq.) shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.

  • jbe333

    § 479. Definitions
    Currentness
    The term “Indian” as used in this Act shall 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 within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. For the purposes of this Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians. The term “tribe” wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation. The words “adult Indians” wherever used in this Act shall be construed to refer to Indians who have attained the age of twenty-one years.

  • jbe333

    303 Poarch Road Atmore, AL 36502.

    Is the land at this address held in federal trust?

    It would not be enough to simply be on tribal land.

  • jbe333

    Unless a court interprets that all land held by PCI is held in trust.

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