Bingo battle continues

Published 6:03 am Saturday, April 13, 2013

The Poarch Band of Creek Indians, after successfully moving a lawsuit filed by Attorney General Luther Strange to federal court, have filed a motion seeking to dismiss the lawsuit – and Thursday Strange fired back at the tribe.

In an amended complaint filed Thursday in a U.S. District Court in Montgomery, Strange laid out for federal courts the reasons he believes the tribe’s casinos break Alabama and federal laws.

“We have amended the complaint to clarify the federal aspects of the State’s claim and to let the court know more about how the Tribe’s slot machines operate,” Deputy Solicitor General Andrew Brasher said in an email. “Amending a complaint is something that happens all the time in the early stages of a lawsuit. We were not surprised that the tribal defendants moved the lawsuit from state court to federal court. This procedural move required the tribal defendants to acknowledge that federal law gives the State a claim against them and to waive several defenses that they could have raised. So, we are not asking the federal court to send the case back to state court; we are asking the federal court to go ahead and consider our claim now.”
Strange’s initial lawsuit, filed Feb. 19 in Elmore County Circuit Court to try to shut down PCI’s Wind Creek Casino, claimed that it is a “public nuisance.”

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In their motion, the PCI Gaming Authority and other defendants cited Strange’s own words in a letter to attorneys for Victoryland in 2012.

The PCI motion states: “In fact, he contrasted non-Indian gaming facilities, such as Victoryland — where Alabama law applies — with Indian gaming facilities — ‘where federal law governs,’ where ‘the state does not have jurisdiction,’ and where the attorney general ‘do(es) not have jurisdiction to enforce either federal or Alabama law.’”

PCI’s motion also states that the lawsuit “comprises part of a concerted effort by the State of Alabama to usurp federal authority and impinge upon tribal sovereignty on lands that the United States holds in trust for the benefit of PBCI. This effort is unavailing.”

According to the Indian Gaming Regulatory Act, bingo games using “technological aids” are allowed, even if they are outlawed elsewhere in the state. The IGRA also states electronic “facsimiles” of slot machines are forbidden.

In Thursday’s amended complaint, Strange laid out for federal courts how PCI gaming machines are not electronic bingo, but are in fact slot-style machines, which are illegal, providing courts with photographs of slot machines and similarly built “electronic bingo” machines used in PCI casinos.

The complaint claims, “defendants’ gambling devices are operated as acknowledged slot machines in other jurisdictions. For example, on information and belief, ‘Red Hot Fusion,’ ‘Quick Hit,’ ‘Hot Shot Blazing 7s’ and ‘Wheel of Fortune’ are openly, notoriously, and continuously played at Defendants’ casinos. These games are marketed as both “bingo” and acknowledged slot machines.”

Strange’s filing also once again calls into question the very validity of the tribal lands’ sovereignty, again pointing to the U.S. Supreme Court’s 2009 Carcieri decision that ruled only tribes federally recognized before 1934 were eligible for federal lands. PCI was officially recognized in the 1980s.

In a letter sent last year from the U.S. Secretary of the Interior to the Escambia County Commission – who were also using Carcieri in an effort to debunk tribal sovereignty, the tribe’s protected status was affirmed.

In a letter last month to Strange, the federal Indian Gaming Authority stated that the state did not have the right to regulate the gaming at Wind Creek or other Indian gaming facilities in Alabama.

Strange responded that he disagreed with that opinion.