Litigation

Poarch Creeks secure major ruling in gaming dispute in Alabama

Thursday, September 3, 2015

The Wind Casino and Hotel in Atmore, Alabama. Photo from Facebook

A federal appeals court handed a major victory to the Poarch Band of Creek Indians in a gaming dispute with the state of Alabama.

In a unanimous decision, 11th Circuit Court of Appeals rejected the state's attempt to dispute the legality of the tribe's gaming facilities. A three-judge panel said the deadline to challenge the land-into-trust acquisitions for the sites passed long ago.

"Because the [Interior] 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," Judge Jill Pryor wrote for the majority.

The ruling pointed to a similar dispute from the 9th Circuit Court of Appeals in which the state of California questioned the legality of land placed in trust for the Big Lagoon Rancheria. An en banc panel of 11 judges in that case also determined that the challenge was untimely.

The Wind Creek Casino and Hotel in Wetumpka, Alabama. Photo from Facebook

"We are in no position, given the procedural posture of this case, to disturb the Secretary’s long-ago decisions to take the lands in question into trust—decisions which Alabama could have but chose not to challenge at the time," Pryor wrote for the 11th Circuit.

Two appeals courts have now reached the same conclusion regarding a "collateral attack" on the authority of the Bureau of Indian Affairs to place land in trust. The development is a positive one, given the attention paid to the Big Lagoon case -- tribes across the nation submitted briefs in order to get the case reheard by the 9th Circuit.

Attorney General Kamala Harris (D), who is campaigning for U.S. Senate, has not said whether she will appeal to the U.S. Supreme Court. As for Alabama, Attorney General Luther Strange previously said he would drop his case if he loses at the 11th Circuit.

Strange didn't just lose on the land-into-trust issue, he lost on all of the major claims in his lawsuit, which he originally filed in the state court system. The 11th Circuit ruled that PCI Gaming, the tribe's gaming enterprise, enjoys the same sovereign immunity as the tribe.

A view of the gaming floor of the Creek Casino Montgomery. The tribe only offers Class II games at its facilities. Photo from Facebook

"We conclude that PCI shares in the tribe’s immunity because it operates as an arm of the tribe," Pryor wrote.

The court also settled a question raised in the wake of the Supreme Court's decision in Michigan v. Bay Mills Indian Community, another immunity case. The 11th Circuit held that the state lacks the authority to sue individual Poarch Creek leaders for allegedly violating the Indian Gaming Regulatory Act.

Alabama argued that the tribe has been offering Class III games without a Class III gaming compact. Although the National Indian Gaming Commission has determined that isn't the case, the 11th Circuit went ahead and said IGRA wouldn't have authorized a lawsuit anyway.

"Indeed, if we were to hold that states could sue to enjoin class III gaming when a tribe engaged in class III gaming without a compact, we would undermine IGRA’s careful balance of federal, state, and tribal interests," the decision stated. It would be up to the federal government to prosecute tribal leaders, the court said.

Turtle Talk has posted briefs from the case, Alabama v. PCI Authority.

11th Circuit Decision:
Alabama v. PCI Gaming Authority (September 3, 2015)