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Analysis | New guidelines, old opinions raise questions about Poarch Creek status

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Is the Poarch Band of Creek Indians’ federally recognized status in serious question? 

This is a question I would have laughed at a few years ago. In fact, I did laugh at it when the state of Alabama raised questions about PCI’s federal status in a lawsuit challenging its right to operate electronic bingo casinos. 

But a few weeks ago, during a press conference very few people paid much attention to, former state Sen. Gerald Dial dumped a bunch of documents on the media and claimed the tribe’s status was in doubt. 

There were a handful of brief stories about Dial’s press conference but very few people paid much attention to the finer details contained within the documents that were released. Documents that included the current Secretary of the Department of the Interior stating plainly that he doesn’t believe PCI meets the definition of a federally recognized tribe. 

I’ll explain more about that in a minute, but first, let’s discuss more recent events that raise questions about PCI’s status and the tribe’s ability to take lands into trust. 

First and foremost, there is the push by PCI over the last several years to have Congress reaffirm its trust lands. That’s a curious move for a tribe that has federally recognized status, but PCI has continued to push this legislation and donated heavily to a few state politicians to get it passed in the House (Sen. Richard Shelby has been one of the few consistent barriers to it passing).

In addition to that reaffirmation push, there is also the current gaming bill that was dropped last week by the tribe’s favorite state senator, Greg Albritton. That bill heavily favored the tribe and was undoubtedly heavily influenced by its attorneys and consultants. 

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And here’s the curious part: It asks for a gaming monopoly and the approval of four casinos owned by the tribe but not located on tribal trust lands. 

If this were a documentary, there would be a tires screeching sound effect here. 

Because there’s simply no good reason, in this day, why a tribe would pursue a compact and four casinos not located on trust lands. Unless, of course, taking lands into trust was going to be a huge problem for that tribe. 

To be clear, if PCI bought lands in Alabama using tribal funds, under current law and with approval of the governor, those lands could be converted to trust lands, pending approval from the Bureau of Indian Affairs, and be utilized for Native American gaming. 

Gaming on trust lands provides a vastly different set of rules for the tribe — rules that are much more beneficial and much more profitable for the tribe. In fact, of all the cases I can find of tribes pursuing off-tribal-lands casino deals, those deals are almost always in other states, and usually in other countries. 

Because to give up the tribal casino designation means also giving up a say in the regulation of that casino and giving up huge profits in taxes. Tribal casinos never pay taxes. Even under compacts, taxes are forbidden and tribes typically pay a fee that’s negotiated with the state. 

And PCI is just giving all that up. Right off the bat. And agreeing to an absurdly high 25-percent tax rate. 

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Something stinks. 

And I think that something is located within the documents Dial dumped during his press conference. 

While working as the solicitor for the Department of the Interior, current secretary David Bernhardt wrote numerous times to other officials within the department stating his belief — which was also shared by the other attorneys in the solicitor’s office — that the Poarch Band of Creek Indians was “not a restored tribe” under the various definitions utilized by the Interior Department. 

And Bernhardt took it a step farther: He also attempted to block PCI’s use of lands in Montgomery County for a casino, raising questions about the connection of the lands to the tribe and about the tribe’s “questionable” history. 

Now this same guy is in charge of the entire department. At the same time, there’s a presidential administration that has proven to be very unsympathetic to Native American tribes.

To prove how big of an issue this could be for PCI, on Wednesday, the Interior Department released all new guidance for determining whether a tribe is “federally recognized.” It does not appear that PCI could meet any of those guidelines, which are based on tribal status in 1934 and tribes’ interactions with the U.S. government both before and after that time. 

Should the state challenge the tribe’s federal status at this point, it’s not clear what might happen or what could be gained. An attorney who spoke to APR on background to provide some guidance on the issue said such a case would be breaking new ground. 

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However, one thing is clear: It would mean the end of tax-free gaming for the tribe, and given Alabama’s stance on electronic bingo games, it could mean the end of casino gaming. 

Of course, that’s only if someone in Alabama raises the question.

Read latest Department of Interior guidelines here and here.

 

Josh Moon
Written By

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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