The 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.
According to attorney Bryan Taylor, who was hired by the commission as a legal advisor specifically for assistance in the PCI case, 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.
A release from Taylor’s office states, “Rape is appealing the ruling of Circuit Judge Eugene Reese, who threw out the case based on the Indian tribe’s argument that the dispute is beyond the jurisdiction of state courts to decide.”
In his lawsuit Rape pointed to the 2009 U.S. Supreme Court ruling on the Cariceri case 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.”
In his release, Taylor states, “now it will be up to the Alabama Supreme Court to decide, and from there the case could go all the way to the U.S. Supreme Court.”
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.
Monday the commission 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, whose district 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.
In Taylor’s recent release, he continued to address the issue stating, “The Carcieri case has also taken center stage lately in Escambia County, where county commissioners have come under intense criticism by the tribe and some editorial page writers for raising questions about the Carcieri decision’s impact on the tribe’s taxable status. Currently, the tribe claims they are federally exempted from state and local property taxes, sales taxes, tobacco taxes and other fees and taxes. The Escambia County Commission has question whether that tax exemption still stands after the Carcieri ruling, but the county has taken no formal legal action.”
Taylor said “although Rape’s case is unrelated to Escambia County, the legal briefs in the case seem to vindicate the county commissioners. Rape’s attorneys are making strong legal arguments that he believes will be taken very seriously by Alabama Supreme Court justices.”
Can we please get a break from gambling and casino talk?
Apparently not, based on a story sent to me by Dr. Jess Brown…
The U.S. Department of the Interior this week brushed aside questions from Escambia County officials about the legitimacy of Alabama Indian land, where highly successful casinos eventually could have to close if their federally regulated status were removed.
In a terse, two-paragraph letter, Donald Laverdure, acting assistant secretary of Indian affairs for the federal department, confirmed that Poarch Band of Creek Indian land in Alabama remains under federal jurisdiction.
In April, David Stokes, the chairman of the Escambia County Commission, wrote a letter to the Interior Department asking whether the land should still fall under federal rules and control after the U.S. Supreme Court rejected the department’s approval of new land for a Rhode Island tribe in the 2009 Carcieri v. Salazar case.
The commission is seeking millions of dollars in taxes annually from the tribe and maintains that the county’s objective is not to stop the gambling operations.
So they don’t want gambling in the state but they want the tax dollars from federally allowed Indian casinos?
Seems like a bit of a stretch.
Here comes a double-dipping politician…
Stokes and the commission’s attorney, Prattville Republican state Sen. Bryan Taylor, on Wednesday criticized the department’s letter as vague and unresponsive to their questions.
“Not surprisingly, the letter appears to have been artfully worded by federal bureaucrats to avoid taking an explicit official position on Carcieri,” Taylor said in a written statement. “Instead, the letter seems to recite facts that nobody disputes and leaves the crux of the legal issue unanswered.”
Here is where it gets sticky…
“The (Poarch Band of Creek Indian’s) reservation, including the portion of the reservation that is situated within the geographical boundary of Escambia County, Alabama, is held in trust by the United States for the benefit of the band,” Laverdure’s letter said.
“As such, the band enjoys all rights and privileges associated with having its reservation held in trust by the United States under federal law.”
Among those rights and privileges, traditionally, is offering slots-like electronic bingo machines on tribal land and not paying state and local taxes that most others in the county must pay.
But are they an official tribe?
In the Carcieri case, the Supreme Court blocked an attempt to create new Indian lands in Rhode Island, ruling that the secretary of the interior did not have the authority to place lands into federal trust for tribes recognized after the Indian Reorganization Act of 1934.
The Poarch tribe was recognized in 1984, and Stokes argued that, as a result, the federal government did not have the authority to put land in a federal trust for the tribe.
If they aren’t a tribe, then they are in Alabama. Riight?
That is the argument.
And if that was the case they would be subject to our laws.
Didn’t the Alabama Supreme Court rule that these games were not bingo and create a six step test? The AG says they did…
“This is not about whether I believe gambling is good or bad,” said Attorney General Strange. “This is about the rule of law, pure and simple. When the Alabama Supreme Court makes a ruling, it is my job and my duty to uphold the rule of law. The Alabama Supreme Court has been crystal clear about what is legal in Alabama when it comes to so-called ‘electronic bingo’,” said Attorney General Luther Strange.
“The only form of bingo authorized by any amendment to the Alabama Constitution is the traditional game commonly known as bingo. The six mandatory characteristics of bingo set forth by the Alabama Supreme Court in the 2010 Cornerstone case, which plainly requires that the human elements of the traditional game of bingo must be fully preserved in order for a game to potentially qualify as legal bingo, will be strictly followed. Slot machines and other illegal gambling devices cannot be used to play bingo, period. My office, along with other state and local law enforcement agencies, has been aggressive in investigating and shutting down illegal gambling operations since I took office in January 2011, and absolutely nothing has changed.” said Attorney General Strange.
Oh well, the state can’t do anything…
The state’s Indian casinos have thrived in the meantime, tallying the nation’s fastest-growing revenue from 2008 to 2010, the most recent year for which information is available.
But all three gambling halls — Creek Casino Montgomery, Creek Casino Wetumpka and Wind Creek Casino & Hotel in Escambia County, the tribe’s largest venue — could go the way of their shuttered competitors if anti-gambling state officials were granted the power to regulate them.
The funny part of all of this is Escambia County just wants the money…
While commission officials maintain that they are not trying to close Wind Creek, the Riley administration viewed the Carcieri case as a possible way to stop Indian gambling in Alabama.
Paying taxes to the county would resolve Escambia’s objections, Taylor said. Taylor said he hasn’t yet discussed with county officials taking the case to court, but he acknowledged that doing so could be a “threat to the existence of the casino.”
It seems that they are attempting to extort the tribe.
There is a more reasonable solution that will never ever happen. Pass a legit gambling bill, one that does not have specific casinos carved out for legislator’s friends and allies.
They could then regulate and tax the crap out of them and the state can benefit from the idiots plunking their money down.
This will never happen, so the Indians will continue to operate in Alabama and our residents will continue to spend their money there.
But hey, at least we don’t have gambling in Alabama, right?
Mike Thomson says: Escambia County AL is in this fix because when The Neal Trust expired, the county ran out of money.... Poor planning on the county's part.
Commission to extend invitation to PCI officals
Escambia County Commissioners agreed that meeting with members of the Poarch Band of Creek Indians Tribal Council is the next step in finding a resolution to a conflict between the two governmental bodies following an opinion on taxations questions issued by the secretary of interior last week.
Commissioner David Quarker, who serves the district, which includes the Wind Creek Casino and Hotel facility, said a meeting with Tribal officials is in order.
“I think the answer we received was vague and didn’t answer our question,” Quarker said. “I think we need to accept that for the time being. I think that it is important that we step back and sit down with PCI and come up with a resolution to this issue. I have talked with Arthur Mothershed and he is willing to sit down and discuss some possibilities.”
Commissioners agreed to have a letter of invitation sent to Tribal officials from the group to plan a meeting to discuss options and possibilities in working out an agreement between the two groups.
STAFF REPORTS, ATMOREADVANCE June 11, 2012
Mike's Comment: David Stoke's is beginning to feel the pressure.....
Stokes: 'There is a next step'
A federal Indian Affairs statement has not put an end to a dispute between the Poarch Band of Creek Indians and the Escambia County Commission over potential taxation of tribe properties — in fact, the fight might be just beginning.
“Short and vague” were the words the commission’s attorney Bryan Taylor used to describe the letter from the U.S. Department of the Interior concerning the ongoing debate between the commission and the Poarch Band of Creek Indians.
The Poarch Band of Creek Indians said this week that the Interior Department’s statement — which affirms the tribe operates on land held in federal trust — proves the tribe is no jeopardy of taxation from the county or state government. But members of the Escambia County Commission disagree — and are considering further action.
“There is a next step,” Escambia County Commission Chairman David Stokes said. “We will weigh our options on how we can obtain some answers. This has been an attempt to divert attention from what the real issue is.”
According to the letter, sent by Acting Assistant Secretary for Indian Affairs Donald E. Laverdure, “the Band’s Reservation, including the portion of the Reservation that is situated within the geographical boundary of Escambia County, Alabama, is held in trust by the United States for the benefit of the Band. As such, the Band enjoys all rights and privileges associated with having its Reservation held in trust by the United States under federal law.”
PCI officials said in a release the letter is “decisively dismissing (the Escambia County Commission’s) contention that the Poarch Band of Creek Indians’ lands are not protected by federal laws. This letter shows that (commission Chairman David) Stokes’ attempt to tax the Tribe’s trust lands is without merit.”
Stokes, on the other hand, said this week the Interior’s letter actually only tells the commission what they already knew, confirming the Tribe was granted federal recognition in 1984 and has enjoyed the resulting privileges since. Stokes said the letter does not address the commission’s initial question of whether or not a 2009 U.S. Supreme Court ruling applies to PCI.
The letter the commission sent to the Secretary of the Interior, Stokes said, asks if the ruling in Carcieri v. Salazar, denying a Rhode Island tribe 31 additional acres of trust land, sets a precedent that would dissolve land PCI currently holds in trust in Alabama, making that acreage taxable by local and state government.
Stokes said the question about whether the lands were protected was never at issue — taxation was the reason behind the request for clarification on the rule.
“The reply we received is disheartening,” Stokes said. “It was just a very vague answer from the Interior to side-step a very simple question. That question is if the tax exception of the Indian Reorganization Act is still one of the Poarch Band of Creek Indian rights and privileges after the U.S. Supreme Court decision.”
Commission attorney Taylor — who was hired specifically to look into the issue — said he is not surprised that the Interior did not address the county’s question.
“In the Carcieri case, the U.S. Supreme Court ruled that the Secretary of the Interior does not have legal authority to administratively exempt an Indian tribe from state and local taxation if the tribe was not a ‘recognized tribe under federal jurisdiction’ by 1934, when Congress enacted the tax exemption for Indian tribes of the day,” Taylor said in a statement. “The Poarch Creek Indians were not recognized until 1984, but have not paid property, sales, and other taxes that all other county residents and businesses have to pay. In its two-paragraph reply letter, the Interior Department completely ignored the Carcieri ruling — the letter doesn’t even mention the case — and provided no statutory or Constitutional references whatsoever.”
Taylor himself said the reply is “typical.”
“It’s a textbook example of federal arrogance,” he said. “It doesn’t point to a single law, a single regulation, or a single case to support the PCI’s claim to tax-exempt status after the Supreme Court’s ruling in the Carcieri case.”
Taylor stressed the commission’s involvement began with a simple question about the two cases because they have an obligation to enforce tax codes on all citizens and organizations that are required to pay those taxes.
“Clarification is important,” Taylor said, “because the county is legally and constitutionally obligated to apply the tax laws fairly and equally to everyone determined to be subject to them. Unfortunately, the Interior Department letter does nothing to bring clarity to this situation, and the county commission is still faced with the prospect of being sued by a taxpayer under Carcieri for failing to tax the PCI equally as all other taxpayers.”
Submitting the request for a legal opinion, Taylor said, was “simply a procedural requirement for keeping all of the county’s options open.”
“What’s important procedurally is that we gave them that opportunity,” he said. “It is telling that the Interior Department will not — or perhaps, cannot — offer up a simple explanation of the legal basis for the PCI’s tax-free status after the Carcieri ruling. If there is one, we’d just like to know what it is.”
Taylor explained that the county commission — and, no doubt, the PCI — “would have preferred to receive from the Interior Secretary a solid legal opinion backing up the PCI’s claim to tax-exempt status with a reference to some — any — legal authority. At least that would have provided clarity and perhaps even resolved all of this in the Tribe’s favor, but regrettably, the lack of clarity after the Carcieri ruling still remains: Is exemption from state and local taxes still one of ‘the rights and privileges’ enjoyed by the PCI, and if so, what’s the legal basis for it? It’s a simple question, and, not surprisingly, the Interior Department punted.”
PCI officials said the letter confirms the concrete protection their Tribal lands enjoy.
“Indian tribes are recognized several times in the United States Constitution. Most notably, the commerce clause acknowledges that tribes are considered separate, distinct governments, as are states and foreign nations. Therefore, none of these entities, nor their lands is, subject to taxation by another form of government.”
Head of Tribal Affairs Robbie McGhee said he is glad to see an end to the ordeal surrounding the commission’s attempt to tax PCI land.
“It is unfortunate that Chairman Stokes did not attempt to sit down with the tribe before taking this action,” McGhee said. “His move by the commission has clearly strained our relationship. We have given the commission hundreds of thousands of dollars to be spent on improving the county. We have paid millions in taxes and created thousands of jobs that employ county residents and add to the tax base. This was a short-sighted attempt on the part of the commission that we hope will not have a long-term effect on the relationship between our government and the county.”
Tribal Chairman Buford L. Rolin said PCI will continue to contribute to the City of Atmore, Escambia County and the State of Alabama.
“We are committed to being good neighbors to Escambia County and throughout the State,” Rolin said. “We are pleased to be able to continue to create jobs, contribute millions of dollars to the schools, provide fire protection, public safety and infrastructure improvements in Escambia County and serve as an economic driving force in Alabama.”
Taylor said the commission just wants to know what the Supreme Court ruling means with respect to the PCI’s tax status.
“To that end,” he said, “the commission is exploring a number of options to obtain that clarity, including whether the Interior Department’s letter may provide a basis for judicial review.”
Blake Bell, The Atmore Advance, June 9 2012
LOOK'S LIKE A FIGHT! I'M BETTING ON THE INDIAN'S.....
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