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Legislature

PCI tribe admits state played into their hands, still calls Alabama ‘their deadliest enemies’

Bill Britt

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Former Poarch Creek Band of Indians’ attorney general in the fall of 2016 bragged to the magazine “Indian Gaming Lawyer” that the state of Alabama played into the tribe’s hands giving the Indians a de facto monopoly of gaming in the state.

Last summer, PCI tribal chief Stephanie Bryan wrote the Bureau of Indian Affairs informing it that the tribe intends to petition to move thousands of acres of non-tribal lands into trust.

Former Gov. Bob Riley’s “bingo wars” enriched PCI beyond anything imaginable for the nascent band of under 4,000 members.

In the years following the bingo wars, PCI parlayed their gambling operations into an empire far beyond its three casinos in Alabama. PCI currently owns a media company, convenience stores, condominiums in Florida, over 12 miles of riverfront property, a helicopter maintenance company, a resort/theme park,  farming interest and a trucking company — all which compete with Alabama business. All of these PCI-owned entities operate without paying taxes to the state.

A lottery bill proposed by Senate President Pro Tempore Del Marsh, R-Anniston, and Sen. Greg Albritton, R-Atmore, whether voted up or down will ensure PCI continues to expand its tax-free empire exponentially.

Former PCI attorney general and current outside counsel Venus Price, in 2016, wrote in “Indian Gaming Lawyer” about how the state unwittingly ensured the tribe’s success.

“The State then began to shutter commercial gaming operations throughout the State and threatened the Tribe’s operations, even though the State has absolutely no jurisdiction over the Tribe’s trust lands or its ability to conduct Class II gaming under IGRA,” Prince wrote. “Little did the State know that it was playing into the Tribe’s hands by essentially providing the Tribe with a de facto monopoly of gaming within the State.”

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Before Donald Trump became president of the United States, he warned the U.S. Congress about the unfair advantage lawmakers afforded Indians tribes over private business owners.

Trump railed against not only the tax-exempt status tribes enjoyed but also the fact that Indian gambling interests were unregulated, leaving players and states to wonder if tribal games were rigged.

Trump warned against it in 1993, now it’s coming home to Alabama

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The Poarch Creeks operate under a veil of secrecy about the tribe’s finances and how much money the tribe makes off Alabama citizens from gaming at its three Alabama casinos.

But the tribe’s vast holdings shed some light on their wealth. PCI generates enough untaxed revenue in Alabama to purchase/build/own: casinos in Florida, Mississippi, Nevada, Pennsylvania (acquired for $1.3 billion), Aruba and Curacao. The tribe also owns a machine and fabrication plant for the Department of Defense and at least four hotels, not including the ones at casinos.

None of PCI’s holdings return money to the state.

As recently as last summer in a letter to the Bureau of Indian Affairs, PCI informed BIA that the tribe intends to petition to move into trust 16,000 acres of non-tribal lands, which means activities on the property are not subject to state laws and are tax exempt.

PCI’s current casinos and other business interests operate on less than 400 acres.

For years, PCI has been quietly buying up land around Alabama. This stealth move would carve out more tribal lands from state taxes, state laws and state courts. This would also allow the tribe to add additional gaming locations around the state without any vote of Alabama citizens.

In a brief to the United States Supreme Court in October 2017, the Poarch Band of Creek Indians refer to the State of Alabama as one of “their deadliest enemies.”

The Poarch Band also argued that “Any limitation on a tribe’s immunity, including the dramatic and unprecedented limitation invented by the Alabama Supreme Court, is, therefore, an affront to the tribal sovereignty.” (emphasis added)

In that case, PCI argued to the United States Supreme Court that the tribe should be protected by sovereign immunity when one of the tribe’s employees was driving a tribal vehicle down an off-reservation highway about 15 minutes north of the casino, hit a guardrail while driving on a bridge, crossed into oncoming traffic and collided head on with an approaching car.

The tribal employee had been reported to management on six previous occasions for smelling of alcohol at work. Nearly two hours after the accident, the tribal employee had a blood alcohol level of 0.293.

The accident did not occur on tribal land, did not involve tribal members and happened 15 minutes away from the casino. One of the victims received life-threatening injuries and has been left disabled.

The state of Alabama has no authority or power on PCI land. In fact, the Poarch Creeks have fought numerous lawsuits against the state of Alabama to prevent the state from limiting their gaming activities, allowing lawsuits by non-tribal members, paying property taxes and exercising any oversight whatsoever.

Why senators like Marsh and Albritton continue to do PCI’s bidding even after they called the state their deadliest enemies is a mystery.

The tribe admits the state was played, that they plan to expand their empire and will not pay taxes. It seems some have not only ignored Trump’s warning but the one that PCI has stated about itself.

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Economy

Likely Republican primary voters reject Poarch Creeks “winning” plan

Bill Britt

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A survey of likely Republican primary voters obtained by APR shows that a majority do not support giving the Poarch Band of Creek Indians a monopoly over gaming in the state despite the tribe’s promise of a billion dollars.

Over the last several months, PCI has orchestrated a massive media blitz to convince Alabamians that they have a winning plan for the state’s future in exchange for a Tribal-State compact and exclusive rights to Vegas-style casino gaming.

The survey commissioned by the Republican House and Senate caucuses and conducted by CYGNAL, a highly respected Republican polling firm, found that only 34.1 percent of likely Republican primary voters are buying what the tribe is selling. On the contrary, nearly 50 percent of Republicans oppose the plan, with almost 40 percent voicing strong opposition.

Of those surveyed, females are against the plan by nearly 50 percent, with men weighing-in at almost 60 percent unfavorable to PCI’s proposal.

Perhaps most significant is that PCI’s monopoly plan was widely rejected in areas where the tribe already operates casinos. In the Mobile area, nearest Windcreek Atmore, over half of Republicans see a monopoly unfavorably. The same is true in the Montgomery area, where PCI has two gaming facilities.

Not a single big city surveyed in the state held a favorable view of PCI’s plan with Birmingham and Huntsville rejecting the tribal monopoly by almost 50 percent.

Very conservative, somewhat conservative and moderate voters didn’t view the plan as positive.

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Ninety-one percent of respondents said they defiantly would be voting in the upcoming Republican primary on March 3.

PCI has lavished money on media outlets throughout the state, garnering favorable coverage, especially on talk radio and internet outlets. The tribe has also spent freely on Republican lawmakers.

Perhaps some good news for PCI is that Republican primary voters believe that state legislators are more likely to represent special interests above the interests of their constituents.

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PCI lobbyists continue to push the tribe’s agenda at the State House in defiance of Gov. Kay Ivey’s call for no action on gaming until her study group returns its findings.

The survey found that Ivey enjoys a 76.3 percent favorability rating among likely Republican primary voters.

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House

McCutcheon not optimistic about passage of “constitutional carry” legislation

Brandon Moseley

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Alabama House Mac McCutcheon, R-Monrovia, discussed gun legislation that could appear before the House of Representatives this year.

In past sessions, constitutional carry legislation has made it out of the Alabama Senate, but stalls in the House. This year, Rep. Andrew Sorrell, R-Muscle Shoals, is carrying the bill in the House. APR asked McCutcheon whether he anticipates it passing this time.

“The mood would tend to be the same that it was in the past,” McCutcheon said. “There is a bill out there now for a lifetime carry permit and a procedural check for a permit.”

McCutcheon said that under that bill a state database would be used for granting concealed carry permits instead of a local database. Each sheriff of each county would be doing things the same way by ALEA (the Alabama Law Enforcement Agency) being involved in this.

McCutcheon said that the House is “taking a very serious look at that bill.”

State Sen. Randy Price, R-Opelika, and State Representative Proncey Robertson, R-Mt. Hope, pre-filed the lifetime permit bill that would establish a cohesive and statewide management level process for administering and managing concealed weapons permits in the state of Alabama. The National Rifle Association has endorsed this legislation.

Robertson’s House version is HB39. It has been assigned to the House Public Safety and Homeland Security Committee where it is awaiting action. Price’s Senate version is SB47. It has been assigned to the Senate Judiciary Committee where it is also awaiting action in committee.

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Currently, the application process and managing of applicants is different county by county. Some rural county sheriffs have issued concealed carry permits, sometimes called pistol permits, without doing background checks. This resulted last year in federal authorities revoking Alabama concealed carry permit holders from being able to buy firearms without having to go through the background check system.

The sponsors promise that this legislation would create a streamlined process of standards for Sheriff Departments to implement and will be monitored by the Alabama Law Enforcement Agency (ALEA). This bill creates a cohesive standard for background checks and will bring 21st century technology to Sheriff’s departments and all other law enforcement agencies across the state. Sheriff departments will now have access to electronic information of which all levels of law enforcement will have access to. It will also require municipalities to start reporting those that are convicted of domestic violence as well as Probate Judges to begin reporting individuals that have been involuntarily committed. Applicants will also now have the option to apply for a concealed weapons permit for one year, five years or a lifetime permit.

Sorrell told APR on Saturday that he opposes HB39/SB47 because it creates a statewide database with all of Alabama’s concealed carry holders.

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In the State of Alabama, it is a Class A Misdemeanor to carry concealed weapons without a permit.

Sorrell’s legislation, Constitutional Carry, would eliminate that crime altogether and give every Alabamian the constitutional right to carry a firearm concealed if they so choose.

State Senator Gerald Allen (R-Tuscaloosa) has introduced Constitutional Carry legislation in the State Senate; SB1. That bill has been assigned to the Senate Judiciary Committee where it awaits committee action.

SB1 would allow all Alabama citizens who have not had their gun rights revoked to carry firearms concealed without having to have a concealed carry permit. That legislation could not get out of committee in the Senate last year.

Sorrell told APR that there is momentum in the Alabama House of Representatives for Constitutional Carry and that he hoped to have as many as twenty cosponsors when he introduces his bill.

It is currently legal in Alabama to openly carry firearms without a permit, if your gun rights have not been taken away. A citizen can lose their gun rights due to a felony conviction, being declared mentally unfit by a probate judge, or a misdemeanor domestic violence conviction. While every citizen, who still has gun rights, may openly carry without a concealed carry permit; it is against the law to have a loaded handgun in a vehicle without a concealed carry permit.

Handguns must be unloaded and locked in a box or trunk out of reach. Similarly, if a person is openly carrying a handgun on their side, were to put a jacket on so that the gun was no longer visible that would also be a misdemeanor as they are now carrying concealed, unless they have a valid concealed carry permit allowing them to conceal their handgun. Persons with a concealed carry permit are allowed to have their gun on their person while riding in a motor vehicle or within reach like in the glove box, loaded or not. This does not apply to long guns (rifles and shotguns). All Alabama citizens, who still have their gun rights, may carry their shotgun or rifle with them in their vehicle, without having to obtain a concealed carry permit to exercise that right.

To get your concealed carry permit you must go to the sheriff’s department in your home county. The fee varies from county to county.

Twenty percent of adult Alabamians have a concealed carry permit, the highest rate in the country. The Alabama Sheriff’s Association have steadfastly opposed Constitutional Carry legislation. According to the National Association for Gun Rights, fifteen states, including Mississippi, have Constitutional Carry already.

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House

McCutcheon is in “wait and see mode” on medical marijuana bill

Brandon Moseley

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Speaker of the Alabama House of Representatives Mac McCutcheon (R-Monrovia) last Thursday was asked by reporters where he stood on pending medical marijuana legislation.

“I am in a wait and see mode,” McCutcheon told reporters. “The sponsor of the bill has done a lot of work.”

On Tuesday, State Senator Tim Melson (R-Florence) introduced a bill to legalize tightly controlled medical cannabis. The Medical cannabis bill introduced on Tuesday is Senate Bill 165.

“We have a letter from the Attorney General,” recommending that the legislature reject the bill.

Attorney General Steve Marshall (R) is arguing that while marijuana remains a federally controlled substance the legislature should not pass a state law that would be noncompliant with federal law. Marshall believes that if medical marijuana has any medical benefit then the federal Food and Drug Administration (FDA) will be the appropriate authority to approve such legislation and the state should wait for FDA to act.

33 states already have legalized medical marijuana.

“It brings up a legal question when you get a legal opinion from the attorney general office,” McCutcheon explained. “It answers some of my questions and also on the pro and the con there were some questions raised in the legal community.”

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McCutcheon said, “That is why we are in the mode that we are in.”

Melson introduced a medical marijuana bill last year during the 2019 regular session. That bill passed the Senate; but had difficulty getting out of committee in the Alabama House of Representatives. Instead of passing medical marijuana legislation the legislature passed a bill extending Leni’s Law and Carly’s law and establishing the Alabama Medical Cannabis Study Commission tasked with making a recommendation to the legislature.

The Alabama Medical Cannabis Study Commission was chaired by Sen. Melson and met monthly from August to November. In December, the commission voted in favor of a draft proposal recommending that the state allow licensed medical providers to prescribe marijuana based medications to patients with a demonstrated need. The state would create the Alabama Medical Cannabis Commission to regulate medical cannabis in the state. Farmers, processors, transporters, and dispensaries would have to get a license from the Commission and product would be strictly regulated.

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Despite the Commission’s recommendation, SB165 remains highly controversial in the legislature and there is expected to be considerable opposition to the bill. SB165 is 82 pages long.

SB165 has been assigned to the Senate Judiciary Committee. Judiciary Committee Chairman Cam Ward (R-Alabaster) told the Alabama Political Reporter that there will be a public hearing on SB165 on Wednesday, at 8:30 a.m. in the Alabama Statehouse room 825. Opponents and proponents will both be given the opportunity to voice their opinions.

Thursday was the fourth day of the 2020 legislative session.

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Legislature

Ophthalmologists concerned over questionable Senate Health Committee vote

Eddie Burkhalter

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A controversial call in a state Senate Health Committee vote has some who are opposed to a bill that would expand the scope of practice for optometrists seeing red. 

APR obtained a video of a portion of the Feb. 5 Senate Health Committee meeting, during which state Sen. Tom Whatley, R-Auburn, who sponsored Senate Bill 66, made a motion to give a favorable report for Senate Bill 66. 

Committee chairman Sen. Jim McClendon, R- Springville, called for a second to Whatley’s motion, to which no one could be heard on the video to have spoken up but McClendon said “I have a second” and asked that “all in favor say aye” without calling for “nays” and then declared the motion approved and closing the meeting. 

In a video several senators can be heard expressing concern over McClendon’s move, and asking that their “no” votes be counted. Sen. Linda Coleman-Madison, D-Birmingham, can be heard off camera saying “Record my no vote please.” 

Sen. Coleman-Madison’s is the only “nay” vote noted on the Health Committee Vote Roll Call Sheet, which McClendon signed as having passed in a 5/4 vote. 

If it becomes law, the bill would allow optometrists to expand their scope of practice to include numerous procedures that state law now only allows done by ophthalmologists, who are graduates of medical schools and who undergo lengthier training including residencies. A similar bill failed approval by the legislature last year.

APR’s Brandon Moseley reported Friday on the differences of opinion between the optometrists and the ophthalmologists about the bill. 

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Asked why he didn’t call for “nays” before closing the vote, McClendon, a retired optometrist and a co-sponsor of the bill, told APR by phone on Friday that “that’s the chairman’s prerogative.” 

McClendon said that the only written information about the transactions within a committee is the vote, and that the committee clerk, not him, notated on the vote total that Sen. Coleman-Madison was a “nay.”  

Sen. Cam Ward, R-Alabaster, told APR that every committee chairperson has the authority under Senate rules to conduct a vote as McClendon did. 

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“Typically, you get a one-time pass on that,” Ward said. “In other words, you can pull that one time during the session. You can’t do it repeatedly…It’s kind of an unspoken rule.” 

“It’s not that the chairman gets a pass,” McClendon said when told of Ward’s statement. “It’s that that chairman is in charge of the meeting.” 

Asked if it was fair to move the bill through the committee without taking a full vote on it, McClendon said “it’s the procedure. Life is not fair. Let’s face it.” 

“As someone who’s not familiar with the political process and how these things are done, it was surprising to me how the meeting transpired,” Dr. Brendan Wyatt, an ophthalmologist who spoke out against SB66 at the Feb. 5 meeting, told APR by phone Friday. 

Wyatt said before the meeting those who opposed the bill had commitments from eight senators who said they’d vote against moving it out of committee.  

“Having the mindset that we’re in a representative government I was surprised and taken back on how that whole thing took place,” Wyatt said of the vote. 

Senate Bill 66 now rests with the Senate Rules Committee, which will determine whether the bill will move on to the special calendar for a full Senate vote. 

APR’s attempts to reach Senate Rules Committee chairman Jabo Waggoner, R-Vestavia Hills, and several other Health Committee members last week were unsuccessful. 

Asked if he believes the bill has a chance of passing this year, McClendon said “I’d say it’s better than last year.” 

“It’s out of the committee,” McClendon said.

 

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