Strange takes PCI dispute to federal appeals court

Published 4:26 pm Thursday, July 17, 2014

The state of Alabama, represented by Attorney General Luther Strange, has taken its case against the Poarch Band of Creek Indians (PCI) Gaming Authority to a federal appeals court.

Earlier this month, Strange’s office filed its opening brief to the 11th Circuit U.S. Court of Appeals in Atlanta, arguing that PCI’s casinos are illegal in the state of Alabama. On Thursday, April 11, Judge W. Keith Watkins of the U.S. District Court for the Middle District of Alabama, Northern Division, granted PCI’s motion to dismiss the lawsuit.

The state appealed Watkins’ decision on May 5, and the 11th Circuit Court of Appeals is handling the appeal.

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In the 60-page appellant’s brief, Strange cites the U.S. Supreme Court case of Carcieri v. Salazar, which ruled that the federal government could only take land into trust for tribes that were under federal jurisdiction before 1934. PCI did not receive its federal recognition until 1984.

“In Carcieri v. Salazar, the Supreme Court held that the [Interior] Secretary has no authority ‘to acquire land and hold it in trust’ for tribes that were not ‘under federal jurisdiction when the I[ndian] R[eorganization] A[ct] was enacted in June 1934,” according to the state’s brief. “Can the state litigate the issue of whether the Poarch Band was ‘under federal jurisdiction’ in 1934 in response to the defendants’ argument that their gambling activities are on ‘Indian lands’ such that federal law preempts the state-law claim?”

Strange also argues that PCI’s casinos are governed by the Indian Gaming Regulatory Act (IGRA), which provides that a state must consent before a tribe offers “class III” games, which include “slot machines of any kind.” The National Indian Gaming Commission has previously confirmed that PCI only operates Class II electronic bingo machines, which do not require state consent.

However, Strange’s brief cites the IGRA to argue that PCI’s casino machines can not qualify as Class II gaming.

“The term ‘Class II gaming’ does not include … (ii) electric or electromechanical facsimiles of any game of change or slot machines of any kind,” the brief states, citing the IGRA.

“Because ‘slot machines of any kind’ cannot be operated without a state’s consent under IGRA, slot machine manufacturers and Indian tribes have gone to great lengths to conflate class III slot machines with ‘technological aids’ used to play the class II game of bingo,” the state argues, in the brief. “…By recasting class III machines as class II ‘technological aids,’ tribal gambling officers have avoided the necessity of negotiating a compact with the surrounding state.

“…The defendants’ gambling devices play like, look like, sound like, and attract the same class of customers as acknowledged slot machines.”

As of Wednesday, PCI Gaming Authority had not yet filed its brief. PCI officials have said it is the tribe’s policy not to comment on pending litigation.