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Analysis: The Poarch Creeks had a very bad day in the Ala. Supreme Court

Josh Moon

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By Josh Moon
Alabama Political Reporter

The Alabama Supreme Court on Friday dealt two blows to the Poarch Band of Creek Indians – one directly, one indirectly – with opinions on three cases involving the Poarch Creeks’ casinos in Alabama.

On paper, the tribe lost two and won one.

But in reality – and in the court of public opinion – they can count all three as losses.

The biggest of the blows were the rulings specifically against the Poarch Creeks.

They are a game-changer for the tribe.

In those rulings, the ALSC said that the idea of tribal sovereign immunity – the thing that protects the Poarch Creeks and their businesses from lawsuits – was invalid in Alabama when it comes to issues where the injured party has no other means to remedy his or her injury.

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In other words, let’s say a PCI casino employee with a history of showing up to work drunk showed up to work drunk on Jan. 1, 2015, and was allowed to drive a company truck to pick up supplies. And let’s say she caused a head-on collision on Highway 14 in Wetumpka, seriously injuring two college kids.

In such a case, courts have routinely found that the tribe’s casino – regardless of how obviously negligent it might have been – could not be sued, because it, by extension of the tribe, enjoyed sovereign immunity.

If the example I used sounds very specific, it’s because that’s the case that prompted one of the appeals to the ALSC. Long before it ever landed in the ALSC, I wrote about it and the long road to recovery (along with the related medical bills) that the Wilkes family endured.

The end of that case in Elmore County Circuit Court was a judge tossing the lawsuit because he felt – rightly – that his court had no standing due to the tribe’s sovereign immunity.

And that was the basis of the appeal – that tribal sovereign immunity shouldn’t extend so far, particularly when it involves non-tribal members who interact with tribe members/employees off of tribal land.

The ALSC agreed.

But it took a legal leap to get there.

A Legal Leap

The ALSC acknowledged that there was no U.S. Supreme Court opinions or federal court rulings that backed their decision, and, in fact, the courts have been fairly clear and consistent when it comes to tribal immunity. Basically, only Congress can alter such laws affecting tribes.

The ALCS, as it’s known to do, simply ignored all of that and did what it wanted.

In this particular instance, it’s hard to argue with them. Particularly if you boil this down to an issue of fairness.

A private casino would, most likely, have paid a large sum to the two college kids because of the casino’s negligence in allowing a drunk employee (who, amazingly, nearly two hours after the crash, blew a .293 – over three times the legal limit), with a history of drinking problems, to drive away in a company truck.

How can it possibly be fair that a tribal casino that does the same business as a non-Indian casino isn’t held to the same legal standards?

The ALSC said it can’t.

It’s a decision that will likely cost the tribe millions over the next few years, although it’s unclear who will make them pay any verdicts against them. The state, as Congress has repeatedly insisted, has no authority over recognized tribes.

Still, it will be a public relations nightmare.

As will the ruling in the tribe’s favor.

Jackpot Denied

In that case, a Montgomery man sued the Poarch Creeks after he was denied his winning jackpot of $1.3 million at the Wind Creek Casino in Montgomery.

According to court documents, there’s no argument that Jerry Rape played an electronic bingo machine at the casino, or that the machine’s lights and bells went crazy announcing that he’d won a massive jackpot on Nov. 19, 2010.

After sitting in a casino office all night, Rape had his winning ticket confiscated and was told by casino and tribal officials that the machine had malfunctioned and there was no win. He left with nothing.

In this case, the ALSC justices wrote in the majority opinion that they were in a no-win situation that left Rape no relief.

There were two options. If electronic bingo is legal in Alabama – a long-running fight that has continued to cause issues in our courts – then federal law dictates that the tribes and tribal courts should be the ones to settle any disputes. If the games are illegal, then Rape could not get relief from the courts for that illegal activity.

The Down Side

With all due condolences to Rape, here’s the true down side of this ruling: Imagine if you represent the Poarch Creeks’ gaming interests and you’re attempting to negotiate a gaming compact with Alabama officials – many of who are skeptical of gaming and casino owners already. And now you have to acknowledge that if the state enters into that compact, or even just continues to allow the current gaming monopoly to continue, it will have no regulatory control whatsoever.

That means tribal casinos could refuse to pay out any winning ticket, claiming malfunctioning machines, and there is no recourse for the customer or the state.

That’s a terrible look from a PR standpoint.

And if you’re the Poarch Creeks, you have to wonder if Friday’s rulings indicate a shift in favor within the state. That happens around here from time to time – the favorite pocket-liners of state lawmakers get upended and relegated to also-rans. Just ask the AEA or look at what’s happening with the BCA.

You have to ask if the political winds have shifted on the PCI, because it would be a horrible time for them to do so. Alabama is facing massive budget deficits the next few years and there is no increase in revenue that might magically appear. The state will be desperate for funding sources and gambling is on the table.

The Poarch Creeks have resisted deals for years that would have left them sharing massive profits with a handful of non-Indian casinos.

They might have been a bit too greedy for their own good.

Josh Moon is an investigative reporter and featured columnist at the Alabama Political Reporter with years of political reporting experience in Alabama. You can email him at [email protected] or follow him on Twitter.

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Opinion | The clumsier, dumber George Wallace: Donald Trump

Josh Moon

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George Wallace acknowledges the cheers of supporters at Madison Square Garden in New York City on Oct. 24, 1968. (CSU Archives/Everett Collection)

Be afraid, white people. The Blacks and Hispanics are coming for you. Coming for your children. Coming for your wives. And now, the police are being prevented from protecting you.  They’re going to take your statues. They’re going to take your jobs. They’re going to take your rights.

This is the message that the Trump re-election campaign will push. 

It is the only message they have left, as their candidate has so royally screwed up everything else he has touched. 

His precious economy is in shambles — a result of his botching the response to the coronavirus pandemic so spectacularly. There is unprecedented civil unrest — a result, in part, of his overbearing and callous attempts at “law and order” while ignoring the pleas of Black Americans seeking equal treatment. And there is a seemingly endless barrage of embarrassing news, mostly stemming from Trump’s Twitter feed and the bumbling group of imbeciles and racists that make up his cabinet and closest advisors. 

So, a culture war is all they have left. And dammit, they plan to play it like a fiddle at a bluegrass festival. 

Trump began his march down this pathway in earnest on Saturday, delivering a disgusting and divisive speech aimed at stoking fear and playing up the Black-v-white culture war. 

On Monday, after a day of golf on Sunday — because even racists rest on the sabbath — he was back at it, attacking, of all people, NASCAR driver Bubba Wallace. Reviving an old story for no apparent reason, Trump called the noose left in Wallace’s garage stall a “hoax” — an outright lie, since there was, in fact, a noose in the garage stall — and asked if Wallace had apologized. Of course, Wallace has nothing to apologize for, since he didn’t report the noose, didn’t investigate it, didn’t ask the FBI to look into it and generally handled himself with grace and dignity throughout the ordeal. 

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Unlike the president. On any given day. 

But we weren’t finished. By late Monday, Trump’s chief of staff, Mark Meadows, was on the channel your grandparents claim tells them the truth about stuff, and was sending the scared whites into full-on panic. Meadows, without an ounce of shame or the intelligence to know he should have some, exclaimed that Trump is “the only thing that stands between a mob and the American people.” 

(And by “American people,” he means white people.) 

“First, it’s the statues. Then, it’s the businesses. Then, it’s their homes,” Meadows said. 

It’s like a dumber, clumsier, less articulate George Wallace campaign. 

But then, the entirety of Trump’s presidential run and presidency has essentially been a slightly updated, less polished George Wallace campaign. Leaning on thinly-veiled racism, stoking racial anger, massaging the fear that so many white people have of anyone who looks slightly different. 

Now, they’re going full-Wallace. Because it’s all they have. 

Trump has proven that he doesn’t care about anything or anyone, and will put his interests above the American people and the security of the country. Hell, he sold out American soldiers without batting an eye. 

So, he will burn this place to the ground, if he must. And 30 percent of the country, at least, will follow along. Happily holding tiki torches and chanting that the Jews won’t replace them, like the very fine people they are. 

That hateful rhetoric and the regression it represents — after all this country has gone through, after all the growth and all the progress — is what we should all fear the most.

 

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Bill Britt

Opinion | A search for the American conscience

Our response to the immediate crisis will surely determine our long-term destiny, and the collective conscience of “we the people” can be the moral force that brings about needed change.

Bill Britt

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U.S. Constitution, Declaration of Independence and the Bill of Rights with a quill pen. (Stock photo)

A seemingly unstoppable virus, a sputtering economy and a cry for equal justice for Black citizens are trying the very soul of our nation. We stand at a time when the very conscience of our county and state is being tested in ways perhaps unimaginable just a few months ago.

Is there an American conscience?

Our government, our institutions and even who we are as a people are in question, and as with life in general, there are no easy answers.

Nearly 130,000 in the U.S. have lost their lives to COVID-19. In Alabama, almost 1,000 souls, and yet some of our citizens don’t even believe the virus exists, and if it does, some think it is not as bad as health professionals say.

Hospitals are being pushed to the brink, both physically and financially. While unemployment numbers are improving, there is a yet a steep hill to climb before fiscal solvency is restored to all Alabamians.

There are arguments over masks, fights over monuments and some are corrosively dismissive of the social injustice that disproportionately targets Black citizens.

The winds of change are blowing seeds of renewal; will they find a fallow ground or fall among the weeds and rocks?

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Many of our citizens want the nation to remain in the past, a past that, for the most part, never existed. Others desire that the country move forward and fulfill its greatest promises.

Can a house divided stand?

This national crisis of moral conscience is where the dividing line is drawn.

The Catechism of the Catholic Church states, “Moral conscience, present at the heart of the person, enjoins him at the appropriate moment to do good and to avoid evil. It also judges particular choices, approving those that are good and denouncing those that are evil.”

In this rendering, it is as if an unseen umpire sits somewhere in our minds and judges our actions.

But if the conscience is formed from birth and as the Stanford Encyclopedia of Philosophy suggests, “is like an empty box that can be filled with any type of moral content,” then our learning and understanding is the umpire and not some innate righteous force.

Is this why seemingly reasonable people see things so differently?

Take, for example, the Black Lives Matter movement. According to a recent CBS/YouGov poll, a majority of the American public, including more than half of white Americans, say they agree with the Black Lives Matter movement’s ideas.

The June CBS/YouGov survey also found a partisan divide exists on the issue with most Democrats and Independents supportive while a “large majority of Republicans say they disagree with the ideas expressed by the Black Lives Matter” and most Republicans also oppose the protests—though “one-quarter of Republicans join that majority of Democrats in supporting them.”

The poll is neither startling nor unimaginable and only confirms a divided nation.

The same schism can be found when individuals are polled about the new coronavirus and monuments.

Since individuals see things through entirely different apertures, is it possible to turn to a national conscience for resolution?

On December 23, 1776, Thomas Paine wrote, “These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now deserves the love and thanks of man and woman.”

Paine was rallying the people of the American colonies to a revolution that would form a new nation with an aspirational promise of equality and unalienable rights, “that among these are Life, Liberty and the pursuit of Happiness.”

America just celebrated its 244th year of independence and the principles of the new nation were well-defined — even if not universally applied.

For Black Americans, the promise of the founding principles is yet unfulfilled.

Yes, the laws changed in the 60s, but there is still a long way to go in practice. Laws in themselves do not alter hearts and minds.

Alabama’s 1901 Constitution was written to deny equal access to justice for Black and poor Alabamians by keeping Montgomery as the power center from which all money and rights would flow. There have been changes but none so great as to amend the wrongs written into the state’s founding document.

A few short years ago, the state government passed a law that protected Confederate monuments that state lawmakers thought should be preserved as part of Southern heritage.

What monuments are revered speaks to national and local character. Is our character one that says we should honor those who sought to ensure the continuance of human bondage?

Should we honor those who preached and enforced segregation for political gain?

There is another way to look at statues and that is to realize that they are more reflective of the thinking at the time than the shrine itself.

If monuments are artifacts of the moment and not truthfully to honor history, then what they mean today is an open subject for debate.

Is the statue of Jefferson Davis on the Capitol grounds in Montgomery a symbol of who we are now or a reminder of who Alabama citizens were at the time it was erected?

This is not about erasing history but about recognizing monuments for what they are and acknowledging their meaning to all citizens.

The fact that most world religions warn against idols shouldn’t be lost in the moment either. Statues are tricky because heroes are almost always redefined by present events.

While nations should be built on laws alone, they are also made on myths and legends. But history has a way of exposing myths and bringing legends low.

Washington could tell a lie, Honest Abe was not always truthful, and under our current law application, some people are more equal than others. Should their memorials be removed because they were flawed? No

In his work “Adam Smith on the nature and authority of conscience,” Albert Shin argues, “there is a need to cultivate our conscience. We do so; I will argue, primarily through encountering diversity, which leads to disagreements, which prompt us to reevaluate how we judge others.”

Again the Catholic Church finds, “Faced with a moral choice, conscience can make either a right judgment in accordance with reason and the divine law or, on the contrary, an erroneous judgment that departs from them.”

Are we more divided than ever? Probably not.

Is there a way out of the present threefold dilemma? Yes.

Returning to our founding principles while understanding that they are for everyone is a start. But principles shouldn’t change with every election or be sacrificed to win one.

Indeed, King George III thought those who staged the Boston Tea Party were thugs and looters, set to overthrow the government.

No, they were ordinary citizens who saw injustice and launched a revolution.

Today, we do not see so much a call for revolution but a demand for evolution across a broad front of problems.

There is now a need for better respect for health and science, for our neighbors of all skin colors and a rethinking of the inequities of poverty.

Our response to the immediate crisis will surely determine our long-term destiny, and the collective conscience of “we the people” can be the moral force that brings about needed change.

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Opinion | Somebody, please, take the lead

Joey Kennedy

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Gov. Kay Ivey held a press conference to update the COVID-19 situation in Alabama Friday May 8, 2020 in Montgomery, Ala. (Governor's Office/Hal Yeager)

Just like Donald Trump on the national level, Gov. Kay Ivey has bungled containing the novel coronavirus COVID-19. Alabama is showing record cases and hospitalization levels.

But while Ivey extended the Safer-at-Home order though July 31, she didn’t add any new restrictions. The governor says requiring masks is simply too difficult to manage and enforce.

Nobody said fighting the virus would be easy. The problem is neither Ivey nor many other governors, along with the White House, didn’t really make containment much of a priority.

Testing is still inadequate, nearly a half-year after the pandemic started. Alabama’s first diagnosed case was March 13. Since then – as of Wednesday – Alabama has racked up more than 30,000 cases with more than 900 deaths. Nationally, there have been more than 2.6 million cases and nearly 130,000 deaths.

When the pandemic was young, Ivey responded well, ordering everybody to stay home except for essential workers. She did much better than the governors in the state’s surrounding Alabama. But just as with most states across the Southeast, after a few weeks Ivey’s resolve cracked. Like the governors of states like Georgia and Florida, which are also seeing a spike in infections and are setting records.

Ivey should tighten up the restrictions, including closing the state’s beaches over the July 4th weekend. Bars, gyms, and other places where large crowds gather, usually not social distancing and many without masks, should be restricted.

Yes, such measure will continue to cause economic pain, but such restrictions would slow the spread of the virus. We’ve already seen that not just in the United States, but across many parts of the world.

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Ivey and health officials also need to increase testing and contact tracing.

Yes, all of that is difficult, but what are the consequences? More deaths. Just how many deaths are acceptable? Is it 1,000 (we’re almost there), or 2,000, or 5,000? Is any number unacceptable. It doesn’t suffice for elected officials to claim even one death is too many when, through their own actions, thousands and thousands have died in Alabama and across the nation.

And those numbers don’t include infected and once hospitalized patients who are left with permanent organ and lung damage.

Cities like Birmingham and Montgomery have mandatory mask laws, and they need to be enforced because a lot of people are going out without their masks. Still, there are many laws on the books that are difficult to enforce; that doesn’t mean those laws don’t have value. A statewide mandatory mask order if, nothing else, would lead more people to wear masks, plus it would give support to businesses who refuse to allow people inside without masks.

UAB is planning to bring students back on campus when the fall semester begins in late August, but there will be strict safety measures to follow, including wearing masks, social distancing, handwashing, and regular health checks.

Ivey says if the rate of cases and hospitalizations doesn’t slow, she’ll enact more stringent measures. But when she finally gets around to making those decisions, it could very well be too late.

Indeed, it may be too late already.

We’ve seen what indecisive leadership does during a pandemic. What we need to see – in Alabama and nationally – is a more determined response that helps put the virus in check. That includes mask wearing, increased testing, and contact tracing.

Every day that doesn’t happen, more people will get sick and die when they didn’t have to.

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Opinion | GOP Senate runoff in less than two weeks

Steve Flowers

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Folks, we are less than two weeks away from our election contest for our U.S. Senate seat.  The runoff between former Senator Jeff Sessions and former Auburn football coach, Tommy Tuberville may be close and will be interesting.

The two conservatives were in a virtual dead heat in the March 3rd GOP primary.  Congressman Bradley Byrne, the Republican U.S. Representative from the 1st District, primarily Mobile and Baldwin counties, finished a strong third.

The runoff was initially set for March 31.  However, the coronavirus delayed the runoff until July 14. Therefore, the big question is how did the 15-week delay affect the runoff outcome.  It is difficult to say.  However, my guess is that it may have been a salvation for Sessions.

Most pundits and polls indicated that Coach Tuberville had the momentum and was set to win the runoff.  The over three-month hiatus may have stymied if not thwarted that momentum the same way that football coaches call a timeout when the opposing team is driving toward a winning touchdown.  It halts the Big Mo.

Amazingly, the entire campaign has been about Donald Trump and who can cozy up the most to the conservative Republican President. All three frontrunner candidates, Tuberville, Sessions and Byrne made their campaign pitches not about issues but who can be Trump’s buddy or valet.

Sessions and Byrne both had instances where they both had lapses in their obedience to the irrational and irascible Don, so Tuberville’s lack of playing time in the political arena made him the more perceptual slave for Trump.

Coach Tuberville’s entire campaign has been based on his being loyal to Trump.  It has paid dividends.  He led with 33 percent to Sessions 32 percent and Byrnes 25 percent.  Indeed, as soon as the first primary was over in early March, Trump officially endorsed Tuberville.  This endorsement propelled Tuberville into a nine-point lead in the polls in mid-March, which is when the pandemic hit and the election was delayed until July 14.

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In the meantime, when the national economic virus shutdown subsided somewhat in mid-May, the campaign resumed. Trump again inserted himself into the Alabama GOP Senate race by blasting Sessions again with yet another vitriolic attack. Trump espoused that Sessions had asked him four times to be Attorney General.  Finally, Sessions took up for himself and quickly retorted that he never asked Trump for the job.

Folks, I have watched Jeff Sessions’ career as our Junior U.S. Senator for 20 years and prior to that as Alabama’s Attorney General, and I am here to tell you that Jeff Sessions’ truth, veracity, and integrity trumps Trump by a country mile.  Honesty, integrity, and truthfulness is not Trump’s forte.  However, it has been Sessions’ his entre 30+ years in public service in Alabama.

In fact, Trump owed more to Sessions than naming him Attorney General.  When Trump began his quest for the GOP nomination, he was given very little chance.  Jeff Sessions’ endorsement as the nation’s most conservative senator gave the bombastic, egocentric New Yorker credibility and gave impetus to his race for the White House.

Actually, I said at the time that Sessions acquiescence to becoming Attorney General was a step down from being a veteran 20-year U.S. Senator and Chairman of the Judiciary Committee in a safe U.S. Senate seat.  You can bet your bottom dollar he is now sorry he accepted the post.  It is apparent he is not going to get Trump’s endorsement for obvious reasons.  He would not break the law or do Trump’s bidding, so Trump hates him.

Trump has reaffirmed his endorsement of Tommy Tuberville. Historically, in Alabama politics, endorsements by one politician in another political race have not been advantageous.  In fact, they have been counterproductive.  Alabamians have inherently resented endorsements. However, in this case and in this race, my guess is that Trump is so popular among Republican voters in Alabama that his attacks on Sessions and endorsement of Tuberville will propel the coach to victory. In fact, polls show Tuberville with a double-digit lead. He has run a good campaign staying on point and simply saying, I am going to support Donald Trump.

Have a Happy 4th of July.

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