A Supreme Court Case Puts Escambia County at Odds with the Poarch Band of Creek Indians

Jul 16, 2012

Wind Creek Casino, owned and operated by the Poarch Band of Creek Indians, is at the heart of rising tension between the tribe and Escambia County commissioners. Robert McGhee is the Governmental Affairs advisor for the Poarch Band of Creek Indians. He says since the casino opened the tribe has experienced a large boon in revenue. McGhee says a fact that hasn’t been lost on the county…

“A lot of the money in Brewton and East Brewton my understanding has ran out they’ve had a lot of trust funds Neal trust McMillan trusts that have gone away and they’re looking at ways that okay we don’t have any more income coming in and now Atmore has this income coming in so how can we benefit.”

The issue is over what land can be protected under federal law as tribal land.  Much of the argument comes down to a 2009 Supreme Court decision called Carcieri vs. Salazar. But first a brief history lesson from private attorney Bryan Taylor who’s been assisting some of the Escambia commissioners on this issue.

“In 1934 Congress passed a law called the Indian reorganization act and in that law they gave the Secretary of the Interior the authority they basically delegated to him the power to set aside land for Indian tribes now under federal jurisdiction.”

In other words, under certain conditions, Native Americans can buy land, and have it placed in a federal land trust making it apart of their reservation. Now, back to the 2009 case… Rhode Island Governor Don Carcieri asked Secretary of the Interior Ken Salazar to stop the Narrangansett tribe from buying extra land for its reservation. The reason being the Narragansetts weren’t recognized by Washington until 1983, long after the 1934 cutoff point. …

“The court just said look we’re going to take a look at the plain language of Congress’ statute and it says tribes now under federal jurisdiction, “ Taylor says. “Meaning now meaning 1934 so that hit with a loud thud across the country with tribes not recognized before 1934.”

That could apply to the Poarch Band of Creek Indians, who weren’t federally recognized until after 1934. Escambia County Commissioner David Stokes says it’s about bringing the tribe on equal footing with other businesses in the county.

“What we do is collect from all businesses sales and ad valorem taxes primarily and that’s what we’re asking them to do.”

But McGhee says that’s where the Poarch Creek Tribe and some members of the Escambia County Commission begin to differ. McGhee says this isn’t a county dealing with another business but rather one government dealing with a sovereign nation.

“This is what a reservation is it’s a sovereign and the fact that individuals want to come on and challenge the taxation issues of regarding one government to another. It’s sitting back and having the respect of two entities and figuring out how we can work together.”

McGhee adds they have an agreement in place already that helps pay for roads, schools, and hospitals in the county and not just those used by the Poarch Creek tribe. But Stokes calls that payment in lieu of tax "penny anny." When the agreement was being drawn up five years ago Stokes pushed for an agreement that he thought was fair, but claims political pressure forced the other commissioners to accommodate the Poarch tribe with a deal more to their liking.

“Escambia County government does not have a casino that produces millions of millions of dollars that they can use for their political gain and things they want to accomplish. They do.” Stokes says.  “They can lobby they can pay for somebody to run against me or against Mr. Brown or whomever and it’s not fair.”

The casino if subject to taxation from Escambia County could bring in millions in added revenue to the beleaguered county. But if that were to happen that would subject tribal lands to local law and in turn state law and in Alabama gambling and electronic bingo has essentially been outlawed.

“You can look at the records of how much money we give just to the schools the donations that we make”, McGhee says. “So you’re willing to challenge all of that for what reason that you think you can get taxation on but then if it all goes the way they planned it would go then we would not be able to operate the facility under the rules of the state.”

The two sides are exchanging letters to try and settle the matter peacefully. A sit down meeting was proposed, but Stokes has objected to the terms. Right now the Poarch Creek Tribe wants to meet with just the two commissioners that interact with the tribe. They claim it’s a district issue, but Stokes who has not been invited says

“We want to do something about this because there are other outside forces other than us that want more than just the taxation they want them shut down completely. We’re not after that. We want to get things worked out and then join up with them and become an ally to protect the privileges they have as a federally recognized tribe that they’ve had since 1984.”

But McGhee adds the Poarch Creek Tribe feels strongly about their case and will not be forced into an agreement.

“We’ve heard little comments have been made in the paper well if they just pay their fair share this will go away we don’t want this. We pay you something and something goes away. We don’t play that game.”

The Poarch Band of Creek Indians recently announced their plans to bring what they’ve done in Atmore to Wetumpka. So not only will business proceed as usual but expand. What does remains to be seen is if this issue between the tribe and the county can be settled in friendly negotiations, or if this showdown will be forced to play out in court?