Judge dismisses bid to block Alabama tribe from Class III

Law

Wednesday, November 26, 2008

A federal judge on Monday refused to allow the state of Alabama to challenge a long-disputed provision of the Indian Gaming Regulatory Act.

Alabama Attorney General Troy King, a Republican, sued the Interior Department in April in hopes of blocking the Poarch Band of Creek Indians from engaging in Class III gaming. IGRA regulations that allow the federal government to step in when a state refuses to negotiate a compact are unconstitutional, he contends.

In Texas, the state was able to stop the Kickapoo Tribe from Class III gaming even before Interior reached a decision on the matter. King hoped to do the same in Alabama, where officials have balked at coming to the table with the Poarch Band for nearly two decades.

But Judge William Steele said King filed the suit too early. Without a "final agency action" from Interior, the court doesn't have anything to review, the 17-page decision stated.

"The issues of whether the [IGRA] regulations exceed statutory authority or represent an unconstitutional delegation of legislative authority to the executive are presumably legal ones, but to establish them the state invokes matters that can be fully considered only on a factual record developed in the underlying administrative proceedings," Steele wrote in dismissing the case.

Steele left the door open for King to file another lawsuit if Interior takes action on behalf of the tribe. The state could also appeal, a route that led to victory in Texas after a lower court judge dismissed that case.

The 5th Circuit Court of Appeals invalidated the IGRA regulations in a lengthy August 2007 decision. The court said Interior couldn't cut Texas out of the process because that would go against IGRA, which gives states a role in Class III gaming on reservations.

The Kickapoo Tribe asked the U.S. Supreme Court to hear the decision. But the Department of Justice, even though it believed the 5th Circuit "erred" by invalidating the regulations, opposed review of the case.

As for the Poarch Band, it's not clear when Interior would issue regulations for the tribe, whose leaders intervened in King's lawsuit. The tribe's request for Class III gaming has been pending since March 2006.

With the change in administration quickly approaching, it's unlikely a decision will be made soon or even after president-elect Barack Obama is inaugurated in January 2009. Poarch Creek officials were among the hundreds of tribal leaders who endorsed the Democratic candidate.

The tribe has always been willing to negotiate a compact but state governors have consistently refused. The tribe is limited to Class II games like bingo and pull-tabs, along with electronic versions of those games.

Despite the restrictions, the tribe has built a strong economy around its gaming enterprise. A $260 million casino resort, including a 232-room hotel, makes its debut in January. The tribe recently doubled the size of another casino.

Court Decision:
Alabama v. US (November 24, 2008)