Indian Bingo lawsuit is ‘a novel claim,’ but unlikely to succeed, expert says
February 20, 2013 at 5:50 PM, updated February 21, 2013 at 7:03 AM
Attacking Indian bingo in state courts on the grounds that the gambling presents a public nuisance is novel, but it’s unlikely to be a successful legal strategy, according to an expert in Indian gaming law.
“It’s a novel claim, but I don’t think it’s likely to change the outcome,” said Katheryn Rand, dean of the North Dakota School of Law and co-director of the Institute for the Study of Tribal Gaming Law and Policy.
Indian gaming is governed by federal and tribal law, and Alabama courts have no jurisdiction to intervene, Rand said.
Rand is the third expert on Indian gambling to express doubts about Alabama Attorney General Luther Strange’s chances in his lawsuit against the Poarch Band of Creek Indians, which he filed Tuesday in Elmore County Circuit Court.
Given the seemingly long odds, AL.com asked Strange’s office whether he believed he actually had a chance of winning. The office returned this response, attributed to Deputy Solicitor General Andrew Brasher:
“There is no quick and easy solution to the complicated problem of Indian gambling. We have exhaustively studied the tactics that other States have used to try to address their own Indian gambling issues. Based on this history, we decided the right first step was to bring a lawsuit against officers of the Poarch Tribe in state court. We believe the law is on our side and intend to establish that in court, not in the press.”
The four-page suit goes into detail in its argument that electronic bingo machines are illegal in Alabama, then proceeds to ask the court to declare the Poarch Band’s operations a public nuisance and order them to be shut down.
A “nuisance,” under Alabama law, is any activity “that works hurt, inconvenience or damage to another.” That the activity may otherwise be legal does not prevent the state from declaring it a nuisance. However, the law continues by saying that alleged inconvenience to the public “must not be fanciful or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man.”
The definition of a nuisance is irrelevant, Rand said, and it doesn’t matter whether the games are legal in Alabama. They are legal on Indian lands, she said.
She said that under federal law, if bingo is “legal in any form, for any purpose by any person” in Alabama, the Indians are entitled to engage in electronic bingo on their land. It doesn’t matter that the state considers only paper bingo to be legal, she said, adding that the issue has already come up in other states and has been decided.
That Strange is using a public nuisance statute is odd, but it makes no difference because the federal Indian Gaming Regulatory Act “occupies the field,” meaning it is the applicable law regarding Indian gambling, Rand said.
Were the Poarch Band digging a rock quarry, or engaging in some other business that had a deleterious effect on the quality of life in the surrounding area, Strange might be standing on sturdier ground, she said, because those types of activities are not governed by a single, comprehensive federal statute in the way Indian gaming is.
Simply put, the federal Indian Gaming Regulatory Act trumps state law when it comes to gambling on Indian lands.
Another of Strange’s legal tacks also seems to face similar legal hurdles for the same reason.
Strange has filed a friend-of-the-court brief in an unrelated case before the Alabama Supreme Court that asks the body to apply the so-called “Carcieri” decision to the Poarch Band.
The Carcieri decision is a 2009 ruling by the U.S. Supreme Court that has cast doubt on the federal-trust status of some tribes’ lands. No federal-trust status equals no federal protection for Indian gaming.
However, according to Rand, the Alabama Supreme Court has no decision-making power when it comes to whether Carcieri would apply to the Poarch Creeks, a federally recognized tribe.
A serious effort to remove federal trust status would have to go through the federal system, she said.