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STATE CAPITOL MONTGOMERY, ALABAMA 36130
BOB RILEY GOVERNOR
(334) 242-7100 (334) 242-0937
STATE OF ALABAMA
October 30, 2009
Dear Senator/Representative: I am aware that members of the Legislature recently received a letter from Dr. Randy Brinson which asserted, based on a newspaper article, that Indian casinos in Alabama would not be affected by an Alabama Supreme Court ruling on so-called "electronic bingo." Dr. Brinson's letter parrots the self-serving declarations of casino owners and aspiring casino owners around the State. Other individuals have also misrepresented (or intentionally distorted) the law in their quotes in newspaper reports. Therefore, I am writing you to correct the record-not with newspaper stories, but with copies of official federal documents that disprove these claims. Having suffered the crippling blow of three major judicial defeats in a row, organized gambling interests and their allies have launched a massive new misinformation campaign. Their lies are part of a desperate, last-ditch attempt to con you into doing what respected Alabama judges have properly refused to do -legalize full-blown slot-machine gambling in Alabama and call it "bingo." In declining to legalize these illicit gambling machines, the courts have adhered to the most fundamental of conservative judicial principles-that only the Legislature, not the courts, can change State law to legalize slot machines and casinos. Alabamians can be thankful that these judges have rejected the kind of liberal judicial activism it would take to redefine the innocent game we all know as "bingo" to allow for a wholesale legalization of slot-machine gambling in Alabama. Having failed in their efforts to change the law by judicial decree, the gambling interests are once again turning to you, the Legislature. Seeking nothing but their own salvation, they are preaching the false gospel that a statewide referendum on electronic "bingo"their euphemism for slot machines-is the way to clear up the legal confusion that the gambling interests and their supporters have created. Now they are spreading their message through surrogates who either don't understand the law or deliberately distort it.
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For example, it appears they have convinced Dr. Brinson that "even if the Alabama Supreme Court rules in such a way that electronic bingo is found to be illegal, as long as paper bingo is allowed, the Indians will be allowed to continue their [electronic] gaming operations thereby creating a monopoly for the Indians." There is no evidence that Dr. Brinson's letter represents the views ofthe Christian Coalition membership or that it was approved by any governing board of that organization. But you can bet one thing-the gambling interests certainly approve of it. Make no mistake, based on the federal documentation we have received, the claim that our enforcement of Alabama's anti-gambling laws in the Alabama Supreme Court will guarantee exclusive rights to Indian casinos is a baldfaced lie. The truth is ... • According to the National Indian Gaming Commission (NIGC)-the federal agency responsible for interpreting and enforcing Indian gaming law-fully automated "electronic bingo" machines are not permissible Class II bingo games, but Class III slot machines, which ordinarily require a state-tribe compact. We have been informed that the only reason the federal government is allowing Indian casinos in Alabama to run Class III "electronic bingo" slot machines today is because the same form of gambling is going on-and has been tolerated for years-at non-Indian facilities across the state. Of course, this is something our Task Force on Illegal Gambling is working to correct, In other words, previous failures to enforce the State's anti-gambling laws has created the mistaken impression in Washington that slot machine gambling ofthe "electronic bingo" variety is permissible in Alabama. But if we aggressively enforce State law and the Alabama Supreme Court upholds it, the federal government will have no sound basis for continuing to allow Indian casinos to flout the federal law against Class III gambling in Alabama.
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So how did things get to this point? 1. NIGC informs Alabama that fully automated bingo, but Class III slot machines. "electronic bingo" is not Class II
As you know, a federal judge ruled so-called "electronic bingo" machines in Madison County illegal last month. That ruling was followed this week by State court decisions in Walker and Jefferson Counties, both of which held that these fully automated slotmachine-style games are not the game commonly known as bingo that is narrowly authorized by charity bingo amendments to the Alabama Constitution. When asked about the recent gambling decisions in Walker and Jefferson Counties, Attorney General Troy King responded, "This whole business that you've got to call bingo and you've got to daub [the numbered spaces on a bingo card], it seems to me that that's something that has been gubernatorially and judicially made up. Now I don't see that in the law anywhere. ,,1 Let me set the record straight. Over five years ago, on October 19, 2004, the National Indian Gaming Commission (NIGC) informed Attorney General King, in writing, that a fully automated electronic "bingo" machine in which a player "would insert money into the machine, press the play button and the game would play by Itself" is not bingo under federal law and NIGC guidance. The NIGC explained to Mr. King in very clear terms that "[g]ames played in this manner do not meet our understanding of a Class IIelectronic bingo game. Our advisory opinions have emphasized the need for players to participate in the bingo game by taking further actions to cover the numbers on the cards." According to the letter, an NIGC field investigator had discovered several of these Class III fully automated "bingo" slots at the Victoryland, Greenetrack, and White Hall casinos and clearly wanted the State to know about them? This letter could and should have been the State's first clue that the federal government was keenly interested in whether the State would enforce State law against these machines before the NIGC would take any enforcement action against Indian casinos.
The Birmingham News, October 27,2009 (emphasis added). At the time of the NIGC field investigator's inspections, only about 30 percent of the machines inspected fit this "fully automated" description. Today, based on our ongoing investigations, we know that virtually all of the so-called "electronic bingo" machines in Alabama fit this description.
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The law explained in the NIGC letter is backed by several official NIGC rulings. For example, as recently as June 2008, NIGC Chairman Phil Hogen denied the Metlakatla Indian Tribe's application for permission to operate "fully electronic, fully automated, multi-player bingo games" in Alaska. Mr. Hogen explained: [T]he gaming equipment performs those functions traditionally performed by the operator, such as drawing the numbers, and those traditionally performed by the players, such as covering numbers called and claiming a prize. I conclude that a game so designed does not meet IGRA's [the Indian Gaming Regulatory Act's] statutory defmition of Class II bingo, does not meet the NIGC's defmition of Class II "game similar to bingo," and is, in fact, a Class III facsimile of a game of chance [i.e., a slot machine]. Unfortunately, the first time I ever learned of the NIGC letter's existence was about six months ago on April 8, 2009, when the letter was provided to our office by the NIGC during the course of the Task Force's investigation. Mr. King never showed me the letter. In fact, despite its obvious relevance, he clearly disregarded it in issuing his press release of December 1, 2004 (less than two months after receiving the NIGC letter), in which he detailed the "findings" of what he said was a formal review of gambling in Alabama. In this press release, which drew stinging criticism last month from a federal judge," the Attorney General outlined, in his opinion, the required elements oflegal electronic bingo. In so doing, he completely omitted any mention of: (1) any minimum level of player participation and (2) the State's clear, unambiguous statute against slot machines. Then he essentially declared that the totally passive electronic games at Greenetrack and Victoryland were legal. Consequently, casino owners and gambling machine suppliers have used this press release in nearly every gambling case across the state as their "authority" for operating slot machines in the name of "bingo." Now we know that the NIGC, as well as an Alabama federal judge and two circuit judges, disagree with the Attorney General's expansive interpretation of what qualifies as the simple game of bingo. The Attorney General is likely to respond that NIGC
3 In his ruling striking down "electronic bingo" in Madison County, Federal District Judge Lynwood Smith rejected the casino owner's reliance on the AG's press release and wrote, "The powers and duties of the Attorney General of the State of Alabama are generally set forth in Article V, sections 116 and 137 of the Alabama Constitution, and Chapter 15 of Title 36 of the 1975 Code of Alabama. These governing laws do not authorize the Attorney General of the State of Alabama to legalize otherwise illegal activity, or to declare any particular activity to be legal."
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interpretations of federal law are not relevant to State law. But that's not the point. The point is that the Attorney General was clearly put on notice in 2004 that these machines aren't even bingo under Indian gaming law, and a very strong case could and should have been made at that time that they are patently illegal under State law. Instead of making that case, the State's chief prosecutor put forth the rationale on which the casino operators rely for their defense. The NIGC and Alabama courts have agreed that the game of bingo requires at least some level of human participation and competition; merely pressing a button to start the game and waiting six seconds for spinning reels to tell you whether you have won or lost is most definitely not bingo. While the Attorney General says he does not "see that in the law anywhere," the NIGC letter certainly contained it, and, as Jefferson County Circuit Court Judge Scott Vowell ruled this week: (1) the only game authorized by the Alabama constitution is the ordinary game of bingo," (2) the Court of Criminal Appeals, led by current Chief Justice Cobb, ruled over a decade ago that Alabama's bingo amendments allow "only a narrow exception to the state's clear public policy against lotteries and the Alabama constitution's prohibition of lotteries;"s and (3) in any event, the Alabama Supreme Court has already held that even a legal game cannot be played on an illegal slot machine.6 Thus, based on existing Alabama law, these fully automated "electronic bingo" machines are not bingo, but slot machines, and based on the official NIGC interpretation of federal law, they are not Class II bingo, but Class III slot machines.
2. We have been informed that the only reason this Class III slot machine gambling is allowed to go on at Indian casinos is because it is going on at non-Indian casinos in Alabama. On March 4,2008, the U.S. Department of Interior issued a preliminary determination that the Indian casinos in Alabama "should be authorized to engage in ... electronic forms of bingo or electronic games of chance which may be considered Class III gaming by the NIGC .... " (Emphasis added). The reasons stated for this conclusion were: • The Attorney General failed to challenge "electronic bingo" when he submitted the State's official response to the Poarch Creek Indian Tribe's request for Class III gaming rights. The Interior Department letter explains,
See City of Piedmont v. Evans, 642 So. 2d 435 (Ala. 1994). See Barrett v. State, 705 So. 2d 529 (Ala. Crim. App. 1996) and Foster v. State, 705 So. 2d 534, 538. 6 See Barber v. Jefferson County Racing Association, Inc., 960 So. 2d 599,614 (Ala. 2006).
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"The State does not directly address the electronic bingo question in its written submissions. " • The Attorney General's Office failed to raise the State's clear, unambiguous statute against slot machines. According to the Interior Department letter, the State's Chief Deputy Attorney General stated to Interior Department officials: "There is nothing within state law that prohibits an electronic form of that game [bingo] from occurring." It is unclear to me why he did not say that electronic slot machines by whatever name are absolutely illegal in Alabama. While the Attorney General continues to insist that the State's constitutional bingo amendments are different from county to county," it is indisputable that none of them expressly legalizes slot machines anywhere. Class III "electronic bingo" is going on at non-tribal casinos across the State. The letter emphasizes: [T]he facts on the ground in the State, at least in Macon and Greene Counties, [are that] 'charitable bingo' has developed into its penultimate form, Quincy's 777 Casino in Macon County, a $100 million per year operation that offers over 3,500 electronic bingo machines as well all the related amenities of a modern Class III gaming facility. While the Interior Department noted that bingo can be played electronically (a point I have never disputed, as long as it really is bingo and it's not played on an illegal slot machine) the Department stressed, "[T]here appears to be a conflict between the type of electronically-aided bingo offered in Alabama and NIGC's classification of the same games. Therefore, in order to avoid this conflict, the Tribe requests [permission] for the same type of electronic bingo games offered elsewhere in Alabama." (Emphasis added). And because this fast-paced, high-stakes, fully automated game of so-called "bingo" was apparently allowed "elsewhere in Alabama," the Interior Department concluded that the Indians ought to be able to offer it, too. Thus, the March 2008 Interior Department letter makes clear that the federal government is severely misinformed about Alabama law. For whatever reason, the case was never made that the fully automated, slot-machine-style "electronic bingo" games being
7 "The question has been asked: Why aren't the laws being enforced uniformly across Alabama? The answer is: The laws are not being enforced uniformly across Alabama because the laws are not uniform across Alabama." The Birmingham News, June 28, 2009.
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played at Indian and non-Indian casinos in Alabama are, in fact, illegal under Alabama law. Fortunately, it is not too late to correct that misunderstanding ...
So where do we go from here? In June of this year, I wrote the Interior Department and declined their invitation to continue Class III compact negotiations with the Poarch Creek Indians. In my letter, we began the process of correcting the record. I emphasized the State's law against slot machines and detailed the efforts of our recently formed Task Force on Illegal Gambling to crack down on slot-machine gambling by whatever name. By concentrating on the uniform enforcement of Alabama's anti-gambling laws and winning confirmation in the Alabama Supreme Court, the State can re-assert its sovereignty against the efforts of the Interior Department to authorize Class III Indian gambling within our borders. The gambling interests are coming back again in the next Legislative Session. And again, their deceitful message will be that a vote of the people is needed to "limit, regulate, and tax electronic bingo." But the courts have confirmed that their "bingo" label is a sham, and what's going on today is already illegal. So let's be perfectly clear: A vote for a referendum is a vote to allow the gambling interests the opportunity to use their unlimited financial resources to legalize full-blown slot-machine gambling in Alabama. And if the bill looks anything like it did last year, the people will be led to believe they are merely voting on "bingo." The way to stop the expansion of gambling is to enforce the law, not legalize and build more casinos. The law is clear. As Federal District Judge Lynwood Smith ruled several weeks ago, "The governing laws do not authorize the attorney general of the state of Alabama to legalize otherwise illegal activity." The gambling interests, and the Attorney General himself, have tried to downplay the applicability of that ruling in other counties. Well, "electronic bingo" operators in Jefferson County are finding out today just how broadly that ruling applies: Judge Vowell cited to it in his decision last Monday. Other courts are likely to cite it in future cases. So to continue to operate slotmachine casinos in the name of "bingo" anywhere in the State of Alabama is to roll the dice, but eventually, the law will catch up with them. So that there is no question, my intent is to enforce the anti-gambling laws on the books today everywhere in Alabama. I strongly urge you not to change them. When
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we have proven our determination to combat illegal gambling in our State, then the federal government will have to address this issue at Indian casinos. But if you officially legalize this form of gambling, there is no question that the Indian casinos will be able to continue doing what they are doing today. The Task Force began its work only 10 months ago, but in cooperation with district attorneys committed to enforcing the law, we have made tremendous progress. Several cases are now pending before the Supreme Court, and the Task Force continues to work with the district attorneys on the front lines. Again, I urge you to let the law stand so we can enforce it. SinC~ Bob Riley Enclosures
ENCLOSURES 1. Letter from the National Indian Gaming Commission to Attorney General Troy King, dated October 19,2004, explaining that fully automated "electronic bingo" machines are not considered Class II bingo under federal Indian gaming law. 2. NIGC ruling, dated June 4, 2008, denying the Metlakatla Indian Tribe's request to operate fully automated "electronic bingo" machines that require no active participation by the players and determining such machines to be Class III slot machines under the federal Indian Gaming Regulatory Act. 3. Letter from the U.S. Department ofInterior to Chairman Buford L. Rolin, Poarch Band of Creek Indians, dated March 4, 2008, in which the Interior Department issued a preliminary determination that "The Tribe should be authorized to engage in the following activities under Class III gaming procedures ... Electronic forms of bingo or electronic games of chance which may be considered Class III gaming by the NIGC."
THE FOLLOWING DOCUMENTS ARE NOT ENCLOSED BUT ARE AVAILABLE UPON REQUEST IN THE GOVERNOR'S LEGISLATIVE OFFICE. 4. Letter from Attorney General Troy King to Acting Deputy Assistant Secretary George T. Skibine, U.S. Department ofInterior, dated July 28, 2006, in which the Attorney General was silent regarding "electronic bingo" in the State's official response to the Poarch Creek Indians' application for federal permission to conduct "electronic bingo" in a form considered Class III by the NIGC. 5. Letter from Governor Bob Riley to Ms. Paula Hart, Indian Gaming Office Acting Director, U.S. Department of Interior, dated June 12,2009, in which Governor Riley declines to continue Class III compact negotiations with the Poarch Creek Indians and discusses Alabama law and the work of the Task Force on Illegal Gambling to enforce it.