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PCI, Part 3: Justice Not Denied Yet

Bill Britt

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By Bill Britt
Alabama Political Reporter

Ruthie Mae Rachard is the baby sister of Calvin McGhee the man who fought for the recognition of the Poarch Band of Creek Indians, (PCI).

From the 50s to the 70s tribal leader Calvin McGhee spearheaded a campaign for recognition of Creek land claims in the southeastern states.

Ruthie Mae is 92 years old but her mind is clear about the events of the past.

“Education was the real reason Calvin started to go to Washington to fight for our tribes recognition,” said Ruthie Mae. “Indian children could not go to school passed grade six because we were not allowed in white schools.”

She said to Calvin this was about justice and he wanted the same rights for Indian children that were being given to others.

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Her son Lonnie Rachard who was on the Tribal Council during some of this period said, “President John F. Kennedy was the man who was doing the most to help Calvin. Their is no telling how many years would have been saved if Kennedy had not been assassinated.”

Ruthie Mae said, “My brother, Calvin, just want what was right from the government. We used to hold chicken dinners to raise money to send him and others to Washington.”

“It was about justice with my uncle,” said Lonnie. “That’s all any of us wanted.”

Today in the eyes of the PCI and the thousands they employee in Escambia County and elsewhere are looking to see if the justice Calvin McGhee won will withstand the charges made by some on the Escambia County Commission.

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The County Commission has contended that the PCI is not a sovereign nation and is therefore responsible to pay taxes on land and earnings at there casinos.

According the to the Chairman of the Escambia County Commission, the United States Supreme Court ruling in 2009 in Carcieri vs. Salazar strips the PCI of their status.

“The Poarch Band of Creek Indians received federal recognition in 1984—50 years too late to have lands lawfully set aside by the federal government,” Stokes said.

The Commission’s attorney Bryan Taylor from Prattville has said that if the tribe would pay their fair share of taxes that the Commission would drop their threats of legal action.

“Today they pay X, tomorrow they could pay Y.  The problem seems to be that they would prefer to keep paying X and don’t want to pay Y, what every other taxpayer pays,” said Taylor.  “That seems to be one of the reasons they’ve been so busy lobbying Congress to overturn the Carcieri decision rather than just complying with it and paying Y.”

However, many tribes are seeking the so-called Carcieri-fix to clear up the court ruling.

The Carcieri-fix has had bipartisan backing as well as support from the Obama administration. But the issue has faced opposition from tribes that want to create two classes of Indian recognition and the lawmakers that are fund such tribes.

If two classes are created then tribes like the PCI would not be allow to have gaming on their reservation.

But according to Taylor the issue with the commission is simply taxes.

“If PCI chooses to go to court to dispute the taxes, the result could be a ruling that’s worse for everyone than if the PCI simply were to pay their fair share,” said Taylor.

But if the tribe’s rights are not valid under Carcieri vs. Salazar then neither is gaming and by extension there would be few taxes to collect.

Many wonder if Taylor has not led the commission down a path that will be a looser for all but Taylor.

“This man made his political career working to help Bob Riley end gaming in Alabama,” said. Lonnie Rachard, “There is more to this than what that man is saying. I don’t believe the commission ever thought this through.” Rachard continued, “Bryan Taylor wants more than taxes.”

The following is a breakdown of what the Escmabia County Commission has said and the PCI response.

Escambia County Commission has said: On February 24, 2009, the United States Supreme Court handed down its decision in the case of Carcieri v. Salazar, tossing out everything we thought we knew about the legal status of Poarch Creek Indian lands.

PCI Position: The Carcieri decision does not impact the legal status of the lands that the United States has held in trust for the Tribe for over 25 years. The decision in Carcieri did not divest the United States of the 1,800 acres of land that the United States already held in trust for the Narragansett Tribe. Likewise, the decision did not divest the United States of the lands held in trust for the Poarch Band of Creek Indians.

Federal Jurisdiction is Not Limited to Federal Acknowledgment

Escambia County Commission’s has said: The Poarch Band of Creek Indians received federal recognition in 1984–50 years too late to have lands lawfully set aside . . . under . . . the Indian Reorganization Act.

PCI Position: Carcieri did not hold that a tribe must be federally acknowledged in 1934 to have lands taken into trust. Instead, it held that the tribe must be “under federal jurisdiction” in 1934. The Narragansett Tribe made no claims and proffered no evidence that prior to acknowledgment. The Narragansett maintained the kind of federal relationship possessed by many other tribes. The record in Carcieri showed only that the Narragansett were under formal guardianship of the State of Rhode Island beginning in 1709. In stark contrast, the Poarch Band of Creek Indians, though not formally acknowledged until 1984, has a longstanding relationship with the United States.

Carcieri Did Not Divest the Federal Government of Title

Escambia County Commission has said: The Federal Government still hasn’t come into compliance with the Carcieri decision by relinquishing title to trust lands it has no legal authority to hold.

PCI Position: Nothing in Carcieri divested the United States of title to land that the United States already held in trust for the Narragansett Tribe or required the United States to relinquish title for lands held in trust for any other tribe.

The Tribe’s Support of the Carcieri-Fix Is Not About Avoiding County Taxes

Escambia County Commission has said: [The Tribe] is desperately pressuring Congress to overturn a Supreme Court ruling . . . in order to avoid having to pay their fair share of taxes.

PCI Position: The U.S. Constitution acknowledges Indian tribes as distinct governments, which are not subject to taxation by other governments. The Poarch Band of Creek Indians has joined Indian tribes across the country in actively advocating that Congress enact a “Carcieri-fix” not because the Tribe believes that its existing lands are no longer held in trust and thus taxable, but to resolve confusion and obviate potential frivolous claims resulting from the Carcieri decision.

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected] or follow him on Twitter.

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Jones says Senate race a choice between “substance and leadership, and nothing”

“One of the great disappointments in this campaign is that Alabama is not really getting choices between substance and substance,” Jones said.

Eddie Burkhalter

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Incumbent Sen. Doug Jones speaks at a rally in Anniston. (EDDIE BURKHALTER/APR)

Speaking outside the Calhoun County Democratic Party headquarters in Anniston on Friday, Sen. Doug Jones, D-Alabama, told a group of supporters that Alabamians haven’t gotten a look at what his Republican opponent might do if he wins the Nov. 3 election. 

“One of the great disappointments in this campaign is that Alabama is not really getting choices between substance and substance,” Jones said. “They’re getting a choice between substance and leadership, and nothing — nothing. We have not heard anything from Tommy Tuberville about what he really wants to do.” 

While Jones has held numerous interviews with the media, and regular web briefings over the summer and in recent weeks, Tuberville’s campaign seems to prefer the safety of keeping Tuberville from making possible gaffs or damaging statements in interviews. 

Tuberville hasn’t agreed to interviews with traditional media outlets, or to debate Jones, and instead has focused on conservative talk radio spots, speaking to smaller Republican groups and at private parties.

Tuberville’s campaign has ignored or denied our numerous attempts to interview Tuberville, including another request on Friday. He also declined to attend a student forum held at Auburn University on Wednesday, which Jones attended. The forum was sponsored by the Auburn College Republicans and College Democrats.

“If you ever hear something Tommy Tuberville says, it is just simply this: ‘Build a wall. No amnesty. Drain the swamp.’ That ain’t him. That’s Donald Trump,” Jones said. “He cannot think for himself. He doesn’t think for himself.” 

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Jones spoke of his record of working to help veterans through legislation. And he referred to Tuberville’s nonprofit for veterans and reporting that indicates, through tax records, that less than a third of the money raised for Tuberville’s charity went to help veterans. 

“I don’t just create charities and send only pennies on the dollar. I do things for the veterans of this state and this country,” Jones said. 

Jones also made a case for Alabamians to remember the contributions past Democrats made in the state. Jones said it was Democratic Sen. John Sparkman who helped build Alabama’s Redstone Arsenal. 

“It was a Democrat, Lester Hill, who built the rural hospitals around here that Donald Trump and Mitch McConnell and Tommy Tuberville are trying to destroy,” Jones said. “It was Howell Heflin who built up agriculture in this state. Those are the Democrats. It was Franklin Rosevelt that put electricity in this state. We’re going to do the same thing for broadband. People forget those things. They forget those things because we’ve let other people define us with lies.”

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Jones plans to visit Jefferson County on Saturday, then on to the Black Belt and Mobile on Sunday with another stop in Birmingham on Monday afternoon. 

“The goal is to get everybody out. That’s the thing if we want to continue to ensure Alabama moves forward — moves forward and not backwards, to continue to have somebody, if I do say so myself, somebody that’s just not going to damn embarrass us,” Jones said.

Supporters of Democratic Sen. Doug Jones rally in Anniston on Oct. 30, 2020. (EDDIE BURKHALTER/APR)

“We’ve had too much of that in Alabama,” Jones said, “and I bet you it won’t be a year that Tommy Tuberville would be an embarrassment to this state because he doesn’t know the issues. He doesn’t know what to do, and he’s dang sure not going to know what to do when Donald Trump is not president of the United States.” 

Jones encouraged supporters to be skeptical of recent polling. One such recent poll, by Auburn University at Montgomery, puts Tuberville ahead of Jones by 12 percentage points, 54 to 42.1. An internal poll by Tuberville’s campaign puts Tuberville ahead by 15 percentage points, while an internal poll from the Jones camp put Jones ahead by one percentage point. 

“Don’t listen to these polling folks that come in, and they don’t know Alabama, and they don’t know what they’re doing. We’re tracking this race, and I can tell you, everything has been moving in our direction the last two months,” Jones said. 

People standing along roadsides holding his signs and showing support, Jones said, is “the energy we’ve got out there. That’s what you can’t poll.”

Ellen Bass of Anniston, standing outside the Calhoun County Democratic Party headquarters just after Jones spoke, told APR that she has numerous Republican friends who are voting for Jones.

“My hat’s off to them because they’re coming out,” Bass said. “They recognize that he is a better candidate.”

Ciara Smith, 21, newly elected to the Anniston City Council, told APR outside the headquarters building that Jones is the better candidate.

“I think that he’s educated. I think that he speaks with passion and heart,” Smith said. “And he knows what he’s talking about, which is important, and which is more than we can say about the other candidate.”

Speaking to APR after his speech to supporters, Jones said that he feels very good about the state of his campaign.

“Everything we’re seeing is moving in our direction,” Jones said. “And the more he stays hidden, the better it is for us.”

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Crime

Inmate assault injures two St. Clair prison correctional officers

The assaults happened at approximately 7:30 p.m. and both officers were taken to a local hospital and treated for those non-life-threatening injuries.

Eddie Burkhalter

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(STOCK PHOTO)

Two correctional officers at St. Clair Correctional Facility were injured in an inmate-on-officer assault on Monday, the Alabama Department of Corrections confirmed to APR.

Among the two officers who sustained non-life-threatening injuries was a basic correctional officer (BCO), a position created in May 2019, who are not Alabama Peace Officers Standards and Training Commission (APOST) certified and who cannot transport inmates, work perimeter fencing or in towers.

The other officer injured was a full correctional officer, Alabama Department of Corrections spokeswoman Samantha Rose told APR in a message Friday. The assaults happened at approximately 7:30 p.m. and both officers were taken to a local hospital and treated for those non-life-threatening injuries and subsequently released, according to Rose.

“The ADOC condemns all violence in its facilities, and the actions taken by the inmate against ADOC staff are being thoroughly investigated,” Rose said. “As the investigation into this incident is ongoing, we cannot provide additional detail at this time. More information will be available upon the conclusion of our investigation.”

The ADOC created the new basic correctional officer position to bolster the state’s woefully understaffed prisons. The creation of the position was also at the suggestion of experts ordered by a federal court to study the department’s staffing problems, ADOC attorneys wrote to the court in a filing in 2019.

The ongoing lawsuit is over the state’s handling of mental health in prisons.

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The Southern Poverty Law Center and the Alabama Disability Advocacy Program filed the 2014 suit arguing the state was indifferent to the health of inmates dying by suicide in greater and greater numbers.

Attorneys for the plaintiffs in June argued that ADOC was far behind on the court-ordered hiring new additional officers. It has been more than two years since U.S. District Judge Myron Thompson ordered the Alabama Department of Corrections to hire an additional 2,000 correctional officers by 2022.

U.S. District Judge Myron Thompson in a previous opinion wrote that prison understaffing “has been a persistent, systemic problem that leaves many ADOC facilities incredibly dangerous and out of control.”

“Taken together, ADOC’s low correctional-staffing level, in the context of its severely overcrowded prisons, creates a substantial risk of serious harm to mentally ill prisoners, including continued pain and suffering, decompensation, self-injury, and suicide,” Thompson’s previous opinion continued.

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The SPLC in court filings late last year expressed concern over the use of basic correctional officers in Alabama’s overcrowded and understaffed prisons. ADOC attorneys have argued to the court, however, that BCO’s are adequately trained to do their jobs and are needed for the department to hire the necessary number of officers per the court’s timeline.

In a court filing on Thursday, attorneys for the plaintiffs asked the court not to again delay site visits to Alabama prisons by two experts who are tasked by the court to determine which positions should be filled by correctional officers and which by BCO’s and which by another new position, called cubical correctional officers, who are to have no direct interaction with inmates.

Those visits were to begin in May, but both parties in the suit agree to wait due to the COVID-19 pandemic and the threat it posed to the experts, who are particularly vulnerable to the disease due to “age and other factors,” according to court records.

Both parties again agreed to postpone those visits in June for those same reasons, those records show. ADOC seeks a third extension but attorneys for the plaintiffs argue that the experts can visit the prisons while keeping themselves, prison staff and inmates safe from harm of COVID-19 and that thousands of employees and contractors enter Alabama prisons daily.

The plaintiff’s attorneys argue in the court filing that the expert guidance is needed because ADOC wishes to use BCO’s and cubical correctional officers to comply with the court-ordered hiring of additional staff by Feb. 20, 2022.

“Ensuring adequate staffing is of upmost importance to address the constitutional violations underlying mental health care within ADOC,” the plaintiffs’ attorneys wrote to the court Thursday.

ADOC in May was employing 494 BCO’s, a 57 percent increase in the number of BCO’s employed in Oct. 2019, according to ADOC’s staffing numbers. The number of correctional officers working in Alabama prisons fell by two percent during that time, dropping from 1,319 to 1,287.

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Elections

Slow absentee voting in Tuscaloosa sparks outrage, possible legal action

Among the issues were incredibly long lines that left some voters waiting more than five hours and an inefficient process that managed to take in fewer than 100 absentee ballots in six hours. 

Josh Moon

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(STOCK PHOTO)

Long lines and slow absentee ballot processing in Tuscaloosa County have left voters outraged and incumbent Sen. Doug Jones’s campaign threatening legal action. 

On Wednesday, Jones’s campaign attorney, Adam Plant, sent a letter to Tuscaloosa County Circuit Clerk Magaria Bobo, outlining a number of issues with ongoing absentee voting and promising to take legal action if Bobo doesn’t improve the process on the final day, Friday. Among the issues documented by Plant were incredibly long lines that left some voters waiting more than five hours and an inefficient process that managed to take in fewer than 100 absentee ballots in six hours. 

Additionally, Plant noted that Bobo has hired her family members to help process absentee ballots and at least one family member had made disparaging remarks on social media about voters. 

“You and those acting on your behalf are suppressing the vote of qualified Alabama voters,” Plant wrote in the letter. “If you are unable or unwilling to execute your duties competently, and allow Tuscaloosa voters to exercise their voting rights without undue burdens, we will take further action.”

In an interview with the Montgomery Advertiser on Wednesday, Bobo noted that her office had received more than 13,000 requests for absentee ballots — a remarkable uptick from the 3,000 or so her office usually receives — and there had been problems in managing that number of ballots while also adhering to social distancing guidelines within the office. 

However, as Plant’s letter notes, the massive increase in absentee ballots for this election shouldn’t have been a surprise. Also, Secretary of State John Merrill had made additional funds available to absentee managers to facilitate hiring extra staff, purchasing additional computers and staying open for longer hours to accommodate the anticipated increase. 

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In a press release on Wednesday, the Alabama Democratic Party criticized Bobo and her family members, and the release included screenshots of Facebook posts from Bobo’s daughter lashing out at voters who complained about the long wait times. 

“No voter should have to wait in line for hours to exercise their rights,” said ADP executive director Wade Perry. “We should leverage every tool we have to make voting easier, not harder. Also, it should go without saying that election workers should not insult the very people they are employed to serve. If Ms. Bobo is incapable of processing voters quickly, someone else needs to do the job.”

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Elections

Jones campaign calls Tuberville a “coward” after no-show at Auburn forum

“Tuberville is hiding because he knows that on every front — policy, experience, character, competence — he loses to Doug Jones. Hands down,” Jones’s campaign said.

Brandon Moseley

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Sen. Doug Jones, left, and Senate candidate Tommy Tuberville, right.

There are only four days left before election day, and incumbent Democratic Sen. Doug Jones’s re-election campaign is slamming Republican challenger Tommy Tuberville, accusing him of “hiding” and calling him a “coward.”

On Wednesday, Jones addressed an Auburn University forum. Tuberville did not attend.

“Tonight, the College Democrats and College Republicans at Auburn University co-hosted a debate between Doug Jones and Tommy Tuberville, offering students a chance to ask the candidates about the issues that matter most to Alabama,” the Jones campaign said in an email to supporters. “But Tuberville never showed up – he’s too scared to face Doug… even on his own home turf. Tuberville has repeatedly refused to debate Doug Jones. He’s consistently refused to be interviewed by the press. He’s refused to tell Alabama the truth about who and what they’re voting for – and it’s clear why.”

“Tuberville is hiding because he knows that on every front — policy, experience, character, competence — he loses to Doug Jones. Hands down,” the campaign continued. “If he won’t tell the truth, we will. Tuberville expects to win this race off of his blind allegiance to the President and his party affiliation. But Alabamians know better.”

“People deserve to know who they’re really voting for if they vote for Tuberville: someone who … won’t protect our health care, doesn’t believe in science, has no idea what the Voting Rights Act is, and doesn’t care about the lives and livelihoods of Alabamians,” the Jones campaign concluded. “Alabama will never elect a coward. Pitch in now and help us spread the truth about the man hiding behind the ballot.”

“I am disappointed that Tommy Tuberville is not here,” Jones said. “I think it is important that people see two candidates side by side answering the same questions.”

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Tuberville meanwhile is canvassing the state, speaking to rallies and Republican groups to turn out the Republican vote for himself and President Donald Trump. Tuberville spoke at Freedom Fest in Madison County on Thursday and at the Trump Truck Parade rally in Phenix City.

“It’s time Alabama had a U.S. senator who represents our conservative beliefs and traditional values,” Tuberville said in Phenix City. “It’s time Alabama had a U.S. senator who supports the Second Amendment, the right to life, and putting God back in the classroom.”

Polling consistently shows Tuberville with a commanding lead over Jones. Real Clear Politics lists the race on their current board as a likely Republican win. FiveThirtyEight’s election model gives Tuberville a 79 percent chance of defeating Jones.

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