Appendix — Alabama-Coushatta Tribe of Texas v. Texas

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03” 870 AUG 1 9 2003

IN THE

SUPREME COURT OF THE UNITED STATES

No.

ALABAMA-COUSHATTA TRIBE

OF TEXAS,

Petitioner,

STATE OF TEXAS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

DAN CRACCHIOLO

(Counsel of Record)

DARYL MANHART

STEPHEN M. HART

JAMES M. STIPE

JAKE D. Curtis

BURCH & CRACCHIOLO, P.A.

702 E. Osborn, Suite 200

Phoenix, Arizona 85014

(602) 274-7611

ScoTT CROWELL

CROWELL LAW OFFICES

1670 Tenth Street W.

Kirkland, Washington 98033

(425) 828-9070

CHRIS A. RULE

Route 3, Box 640

Livingston, Texas 77351

(936) 563-1100

August 19, 2003 Attorneys for Petitioner.

Washington, D.C. © THIEL PRESS ¢ (202) 328-3286

(:)

Page

TABLE OF CONTENTS

OF APPENDIX

Appendix A — Fifth Circuit Court of Appeals deci-

sion denying Petition for Rehearing en Banc....... la

Appendix B — Fifth Circuit Court of Appeals opinion

OUGEPOG FOU UG, BOG ok hoc cen ccs vasvicnteane 3a

Appendix C — Federal District Court: Final Judgment

ct Ee a nO a eae 7a

Appendix D — Federal District Court: Memorandum

Opinion and Order entered June 25, 2002 ........ 9a

Appendix E — Complaint (Nov. 21, 2001) ......... 29a

Appendix F — Alabama and Coushatta Indian Tribes

of Texas Restoration Act (25 U.S.C. § §731,

fF, Saeeeereey TC TeC ere y eee Teer Tee Tee ee ee 46a

Appendix G — Ysleta Del Sur Pueblo v. State of

See. De ae Bs oo ee eR AERA ae ewe 53a

Appendix H — Ysleta Del Sur Pueblo v. State of

TORE, TOS FN FOE ov bine sensed eae wiewn 77a

APPENDIX A

[Filed May 22 2003]

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-41030

ALABAMA COUSHATTA TRIBE OF TEXAS

Plaintiff - Counter Defendant - Appellant

STATE OF TEXAS; ET AL

Defendants

STATE OF TEXAS

Defendant - Counter Claimant - Appellee

Appeal from the United States District Court

for the Eastern District of Texas,

Lufkin

On Petition For Rehearing En Banc

(Opinion 4/16/03, 5 Cir., ; F.3d

)

Before KING, Chief Judge, REAVLEY and STEWART,

Circuit Judges.

PER CURIAM:

(X) Treating the Petition for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Panel Re-

hearing is DENIED. No member of the panel nor judge

in regular active service of the court having requested that

the court be polled on Rehearing En Banc (FED. R. APP.

P. and 5TH CIR. R. 35), the Petition for Rehearing En

Banc is DENIED.

( ) Treating the Petition for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Panel Re-

hearing is DENIED. The court having been polled at the

request of one of the members of the court and a major-

ity of the judges who are in regular active service not

having voted in favor (FED. R. APP. P. and 5TH CIR.

R. 35), the Petition for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ Thomas M. Reavley

United States Circuit Judge

CLERK’S NOTE:

SEE FRAP AND LOCAL

RULES 41 FOR STAY OF THE

MANDATE.

APPENDIX B

[Filed April 16, 2003]

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-41030

ALABAMA COUSHATTA TRIBE OF TEXAS,

Plaintiff-Counter Defendant-Appellant,

versus

STATE OF TEXAS; ET AL.,

Defendants,

STATE OF TEXAS,

Defendant-Counter Claimant-Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

(USDC No. 9:01-CV-299)

Before KING, Chief Judge, REAVLEY and STEWART,

Circuit Judges.

PER CURIAM: *

*Pursuant to 5TH CIR. R. 47.5, the Court has determined

that this opinion should not be published and is not precedent

[footnote continued]

The Alabama Coushatta Tribe of Texas sought a

declaratory judgment that high-stakes gaming activities

on tribal lands are lawful and enjoining the State of

Texas from interfering with such gaming activities.

The State counterclaimed to enjoin the Tribe from

conducting gaming on its lands in accord with Section

207 of the Ysleta del Sur Pueblo and Alabama Cou-

shatta Indian Tribes of Texas Restoration Act. See

25 U.S.C. §737. The district court ruled in favor of

the State, and the Tribe appealed. As we are bound by

this court’s decision in Ysleta del Sur Pueblo v. Texas,

36 F.3d 1325 (5th Cir. 1994), we affirm.

In 1987, Congress passed the Ysleta del Sur Pueblo

and Alabama Coushatta Indian Tribes of Texas Restor-

ation Act, see 25 U.S.C. §§1300g et seg. (regarding

the Ysleta del Sur Pueblo) and 25 U.S.C. §§731 et.

seq. (regarding the Alabama-Coushatta), which restored

the trust relationship between the federal government

and the tribes. The Act also provided that “[a] ll gaming

activities which are prohibited by the laws of the State

of Texas are hereby prohibited on the reservation and

on lands of the [Alabama Coushatta] tribe.” 25 U.S.C.

§737(a); see also 25 U.S.C. §1300g-6 (prohibiting

‘*{a] ll gaming activities which are prohibited by the laws

of the State of Texas” on the lands of the Ysleta del Sur

Pueblo).

This court interpreted the meaning of section 1300g-

6 in Ysleta del Sur Pueblo v. Texas. The Ysleta del Sur

Pueblo sued the State of Texas and its governor for

refusing to negotiate a compact that would permit the

tribe to engage in high-stakes gaming under the Indian

except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

Gaming Regulatory Act (IGRA). See 25 U.S.C. §§

2701-25. The State of Texas argued that 25 U.S.C.

§ 1300g-6 barred the tribe’s suit. After examining the

legislative history of the Restoration Act, the court

concluded that the Ysleta del Sur Pueblo were prohib-

ited from engaging in any gaming activity prohibited by

Texas state law, and that California v. Cabazon Band of

Mission Indians, 480 U.S. 202 (1987), did not alter the

ordinary meaning of the term “prohibit” in section

1300g-6.

We are bound by the Ysleta court’s resolution of the

meaning of the language contained in sections 1300g-6

and 737 of Title 25. Although the Alabama Coushatta

argue that the Ys/eta court’s interpretation was dictum,

and thus not binding upon this court, we disagree. In

one of the appeals consolidated in Ysleta, the State of

Texas asserted that the Restoration Act independently

barred the tribe’s IGRA suit; thus, the court was re-

quired to determine whether the tribe was precluded

from seeking relief under the IGRA because the Restor-

ation Act placed greater limits on the tribe’s ability to

conduct gaming operations. The Ysleta court’s decision

to begin its consideration of the consolidated appeals

was not an exercise of hypothetical jurisdiction. The

Alabama Coushatta tribe sought a declaratory judg-

ment that high-stakes gaming is permitted on tribal

lands, and the district court was bound by the Ysleta

court’s determination that it is not.

“It has long been a rule of this court that no panel

of this circuit can overrule a decision previously made

by another.” Ryals v. Estelle, 661 F.2d 904, 906 (5th

Cir. Nov. 1981) (per curiam). However sympathetic we

may be to the Tribe’s argument, we may not reconsider

Ysleta, even if we believed that the case was wrongly

decided. See Hodges v. Delta Airlines, Inc., 4 F.3d

350, 355-56 (5TH Cir. 1993), rev’d en banc on other

grounds, 44 F.3d 334 (5th Cir. 1995). Just as the dis-

trict court concluded, we are bound by the determination

that the Restoration Act precludes the Ysleta del Sur

Pueblo and the Alabama Coushatta tribes from con-

ducting all gaming activities prohibited by Texas law

on tribal lands.

AFFIRMED.

APPENDIX C

[Filed July 17 2002]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

No. 9:01-cv-299

ALABAMA-COUSHATTA TRIBES OF TEXAS,

Plaintiff,

STATE OF TEXAS, et al.,

Defendants.

FINAL JUDGMENT

On June 25, 2002, this Court issued a Memorandum

Opinion and Order, finding that the Alabama-Coushatta

Tribe’s Entertainment Center operates in violation of the

laws of the State of Texas, as made applicable to the

Tribe through the provisions of the Restoration Act.

The Court therefore issued an injunction barring con-

tinuation of the unlawful gambling activities taking

place at the Entertainment Center. On June 28, 2002,

the Court dismissed the Tribe’s Complaint for Declara-

tory and Injunctive Relief, concluding that the granting

of the injunction sought by the State of Texas necessarily

foreclosed the relief sought by the Tribe in its Complaint.

It is therefore the final judgment of the Court that the

Plaintiff shall take nothing against the Defendants, that

this case is DISMISSED, and that the costs of court be

borne by the parties incurring same.

SIGNED this 15th day of July, 2002.

/s/ John Hannah, Jr.

John Hannah, Jr.

United States Distict Judge

APPENDIX D

[Filed June 25 2002]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

No. 9:01-cv-299

ALABAMA-COUSHATTA TRIBES OF TEXAS

STATE OF TEXAS

MEMORANDUM OPINION AND ORDER

The States of Texas seeks a Permanent Injunction

enjoining the operation of the Alabama-Coushatta

Entertainment Center, a Las Vegas style casino that is

owned and operated by the Alabama-Coushatta Tribe

on Reservation lands located within Polk County, Texas.

The Court conducted a trial on the merits from April 1 to

April 4, 2002 in Lufkin, Texas, during the course of

which the Court accepted exhibits and testimony and

invited post-hearing briefs from both parties. After care-

ful consideration, the Court is of the opinion that a

permanent injunction should be issued.

The State correctly asserts that the Tribe should be

permanently enjoined from operating its casino because

(1) under the plain language of the Restoration Act, as

10a

codified in Title 25 of the United States Code, Section

737(a), and Texas law the Tribe is prohibited from con-

ducting casino gambling and (2) the Tribe’s resolution

not to engage in gaming in exchange for restoration of its

federal trust status was incorporated into the Restoration

Act.

THE HISTORY AND LANGUAGE

OF THE RESTORATION ACT

Prior to 1928, the Republic, and later the State of

Texas, maintained a relationship with the Alabama-

Coushatta Tribe through a variety of programs. From

1928 to 1954, the Tribe was under federal trust. On

August 23, 1954, federal responsibility for lands held in

trust by the United States for the Alabama-Coushatta

Tribe was terminated pursuant to 25 U.S.C. §721. The

Termination Act authorized the Secretary of the Interior

to convey to the State of Texas lands held in trust by

the United States for the Tribe. The Termination Act

went on to authorize the Tribe to convey to the State

of Texas lands purchased for and deeded to the Tribe in

accordance with an act of the legislature of the State of

Texas approved February 3, 1854 so that these lands

would be held in trust for the benefit of the Tribe. See

25 U.S.C. §721.

In March of 1983, Jim Mattox, who was then the

Attorney General of the State of Texas issued Attorney

General’s Opinion JM-17, which questioned the very

existence of the Reservation and Tribe by ruling uncon-

stitutional the trust relationship between the State and

the Tribe. In February of 1985, Congressman Ronald

Coleman addressed the House of Representatives on his

behalf and on behalf of Congressman Charles Wilson,

introducing legislation that would restore the federal

lla

trust relationship with the Tigua and Alabama-Coushatta

Tribes. On August 18, 1987, after multiple amendments,

the Restoration Act was passed into law. The Restora-

tion Act provides:

All gaming activities which are prohibited by the

laws of the State of Texas are hereby prohibited on

the reservation and on lands of the tribe.!_ Any vio-

lation of the prohibition provided in this subsection

shall be subject to the same civil and criminal penal-

ties that are provided by the laws of the State of

Texas. The provisions of this subsection are enacted

in accordance with the tribe’s request in Tribal Res-

olution No. T.C.-86-07 which was approved and

certified on March 10, 1986.

25 U.S.C. §737(a). The full text of Alabama-Coushatta

Tribal Resolution 86-07, which the Restoration Act

expressly incorporates, reads:

PERTAINING to the Tribal Council exercising its

delegated power under Section 1, Article IV, Pow-

ers, Constitution and ByLaws of the Alabama-

Coushatta Indian Tribe, to manage and protect

the land and natural resources of the Tribe.

WHEREAS, on December 16, 1985, the United

States House of Representatives passed H.R. #1344,

a bill to provide for the restoration of the federal

trust relationship to the Alabama-Coushatta Indian

Tribe of Texas, and H.R. #1344 is now before the

United States Senate for consideration; and,

WHEREAS, after hearings on H.R. #1344 before

the House Committee on Interior and Insular Af-

fairs on October 17, 1985, the Comptroller of

IThe Restoration Act provides: ““The Alabama and Coushatta

Tribes of Texas shall be considered as one tribal unit for purposes

of this subchapter and any other law or rule of law of the United

States.” 25 U.S.C. §732.

12a

Public Accounts for the State of Texas raised con-

cerns that H.R. #1344 would permit the Tribe to

conduct high stakes gambling and bingo operations

to the detriment of existing charitable bingo opera-

tions in the State of Texas and further expressed

concems that the Alabama-Coushatta Tribe would

be unable to properly manage such operations in

the event the Tribe decided to undertake them, and

would therefore become a prime target for organ-

ized crime; and,

WHEREAS the Comptroller urged members of the

Texas Congressional Delegation to defeat H.R.

#1344 unless the bill was amended to provide for

direct application of state laws governing gaming

and bingo on the Reservation; and

WHEREAS, the Alabama-Coushatta Tribe had no

interest in conducting high stakes bingo or other

gambling operations on its Reservation, regardless

of whether such activities would be governed by

Tribal law, state law or federal law; and,

WHEREAS, in response to the concerns voiced by

the Comptroller and other officials, the Tribe

attempted to insure that H.R. #1344 would give

the Tribe no competitive advantage in gaming oper-

ations by agreeing to amend H.R. §1344 to pro-

vide that any gaming activities on the Reservation

would be conducted pursuant to Tribal law that

would be required to be identical to state law, and

H.R. #1344 was so amended by the House Interior

Committee; and,

WHEREAS, some state officials and members of the

Texas Congressional Delegation continue to express

concern that H.R. #1344, as amended, does not pro-

vide adequate protection against high stakes gaming

operations on the Reservation; and

13a

WHEREAS, the proposal that H.R. #1344 be

amended to make state gaming laws applicable on

the Reservation continues to be wholly unsatisfac-

tory to the Tribe in that it represents a substantial

infringement upon the Tribes’ powers of self-govern-

ment, is inconsistent with the central purpose of

restoration of the federal trust relationship, and

would set a potentially dangerous precedent for

other Tribes who desire to operate gaming facilities

and are presently resisting attempts by states to

apply their law to Reservation gaming activities;

and

WHEREAS, the Alabama-Coushatta Tribe remains

firm in its commitment to prohibit outright any

gambling or bingo in any form on its Reservation;

and,

WHEREAS, although the Tribe, as a matter of

principle, sees no justification for singling out the

Texas Tribes for treatment different than that

accorded other Tribes in this country, the Tribe

strongly believes that the controversy over gaming

must not be permitted to jeopardize this important

legislation, the purpose of which is to ensure the

Tribe’s survival, protect the Tribe’s ancestral home-

lands and provide the Tribe with additional tools to

become economically and socially self-sufficient;

NOW THEREFORE LET IT BE RESOLVED that

the Alabama-Coushatta Tribe respectfully requests

its representatives in the United States Senate and

House of Representatives to amend Section 207 of

H.R. #1344 by striking all of that section as passed

by the House of Representatives and substituting

in its place language which would provide that all

gaming, gambling, lottery, or bingo, as defined by

the laws and administrative regulations of the state

of Texas, shall be prohibited on the Tribe’s reser-

vation or on Tribal land.

l4a

PASSED AND APPROVED this 10th day of March,

1986, and recorded in the minutes of the regular

called meeting of the Tribal Council on March 10,

1986.

Alabama-Coushatta Tribal Resolution #86-07.

Governing Law Interpreting the Restoration Act

This Court is not writing on a blank slate. The United

States Court of Appeals for the Fifth Circuit, whose deci-

sions are binding on this Court, has expressly addressed

the issue of whether tribes governed by the Restoration

Act* may conduct gambling operations on Reservation

lands, concluding that they may not, in Yselta del Sur

Pueblo v. State of Texas, 36 F.3d 1325 (5th Cir 1994)

(Ysleta 1). The Fifth Circuit’s decision was appealed to

the United States Supreme Court, which denied cer-

tiorari, thereby declining to review the Fifth Circuit’s

decision. See Ysleta del Sur Pueblo v. Texas, 514 U.S.

1016 (1995). Earlier this year, the Fifth Circuit affirmed

“The Fifth Circuit recognized that the Alabama-Coushatta

Tribe was not a party to the suit. The Court explained that:

The Restoration Act restored not only the Ysleta del

Sur Pueblo’s federal trust status but also the federal

trust status of the Alabama and Coushatta Indian

tribes. The Act has two titles. Title I, 25 U.S.C.

§ 1300g, concerns the Ysleta del Sur Pueblo, and Title

II, 25 U.S.C. §§731-37, concerns the Alabama and

Coushatta Indian tribes. The two titles are nearly

identical, particularly with regard to the sections con-

cerning gaming. It is important to note that the Ala-

bama and Coushatta Indian tribes are not parties to

this suit. In fact, these tribes recently voted to not

engage in casino-style gambling on their reservation.

See Dianna Hunt, Indians Defeat Plan for Casino on

Reservation, HOUSTON CHRON., June 16, 1994,

at 1A.

Ysleta I, 26 F.3d at 1329 n.3 (emphasis in original).

15a

the issuance of an injunction by the United States Dis-

trict Court for the Western District of Texas, through

which the District Court ordered the Ysleta del Sur

Pueblo Indians to cease, desist, terminate and refrain

from engaging in, permitting, promoting, and conducting

activities at the Speaking Rock Casino Entertainment

Center operated by the Yselta del Sur Pueblo Indians in

El Paso, Texas. See State of Texas v. Ysleta del Sur

Pueblo, No. 01-51129 (5th Cir. 2002) (‘‘We affirm the

judgment of the district court essentially for the reasons

stated in its careful, thorough September 27, 2001 Mem-

orandum Opinion.”’),

The Tribe asks the Court to disregard these prior rul-

ings, arguing that the Fifth Circuit’s interpretation of the

Restoration Act was dicta, ze. unnecessary to the Fifth

Circuit’s decision, and therefore is not controlling. Even

accepting for the sake of argument that portions of the

Fifth Circuit’s holding in Yselta J are dicta, the Court

rejects this approach, believing it to be inconsistent with

the United States Supreme Court’s teaching that: “It

cannot be said that a case is not authority on one point

because, although that point was properly presented and

decided in the regular course of the consideration of the

cause, something else was found in the end which dis-

posed of the whole matter.” Florida Cent. R. Co. v.

Schutte, 103 U.S. 118, 143 (1880). Moreover, this Court

finds itself in agreement with the spirit of the Fifth Cir-

cuit’s observation in Nardone v. Reynolds, 538 F.2d

1131 (5th Cir. 1976), decided nearly one hundred years

after the United States Supreme Court decided the

Schutte case, in which the Fifth Circuit wrote: “To the

sometimes veiled suggestion this was a gratuitous state-

ment not necessary to the Court’s decision, it is at least

considered dicta of hurricane velocity[.]” Reynolds,

538 F.2d at 1135 n.11.

16a

In Ysleta I, the State of Texas appealed the decision of

the United States District Court for the Western District

of Texas, challenging the district court’s granting of sum-

mary judgment in favor of the Ysleta del Sur Pueblo

Tribe in its suit against the State of Texas and the Gov-

ernor for refusing to negotiate a compact that would

allow the Tribe to engage in casino-style gambling on its

Reservation. The District Court had held that neither

the Indian Gaming Regulatory Act (IGRA), 25 U.S.C.

§2701-21, nor the Restoration Act, barred the Tribe

from engaging in such gambling. The Fifth Circuit held

that the Restoration Act, not IGRA governed the dis-

pute and reversed the district court’s grant of summary

judgment, holding that IGRA did not give the Tribe the

right to sue the State of Texas in federal court.

The following analysis from Yselta J demonstrates that

the Tribe’s assertion that the Supreme Court’s decision in

California v. Cabazon Band of Mission Indians, 480 U.S.

202 (1987) was incorporated into the Restoration Act

has been explored and rejected in this Circuit.

In the midst of the 100th Congress’ deliberations

over the Restoration Act, the Supreme Court issued

its opinion in California v. Cabazon Band of Mission

Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d

244 (1987). In that case, two Indian tribes located

in California were sponsoring unregulated gaming

activities on their reservations. The state of Cali-

fornia attempted to enforce against the tribes a state

statute regulating bingo operations. The tribes sued,

asserting that California had no authority to enforce

its gambling laws and regulations on tribal reserva-

tions because the United States, which has plenary

power over Indian affairs, had not authorized Cali-

fornia to do so. California argued that, pursuant to

Public Law 280 of 1953, the United States had

expressly authorized California to enforce its bingo

17a

statute against the tribes. Public Law 280 specifi-

cally granted California authority to (1) enforce its

criminal laws on Indian reservations, and (2) hear in

its courts civil causes of action in which an Indian

is a party. California argued in Cabazon Band that

its bingo statute was a criminal law which could be

enforced on Indian reservations.

The Supreme Court disagreed. The Court began

by noting that, while Public Law 280 broadened

California’s authority with regard to Indian reserva-

tions, Congress did not intend to grant it general

civil regulatory authority. Public Law 280, the

Court reasoned, was narrowly tailored to combat

lawlessness on reservations and not “to effect total

assimiliation of Indian tribes into mainstream

American society.” Cabazon Band, 480 U.S. at

207-08, 107 S.Ct. at 1087. Thus, according to the

Court, when a state invokes Public Law 280 to en-

force its laws, it must be determined whether the

law is “criminal” in nature, and therefore applicable,

or “civil” in nature, and therefore inapplicable

except when the law is relevant to private civil liti-

gation in state court. The question of whether a law

is criminal or civil, in turn, depends on the law’s

practical effect. That is, a state law is criminal, and

thus applicable under Public Law 280, if it generally

prohibits certain conduct, but a state law is civil,

and presumptively applicable, if it regulates the con-

duct at issue. Cabazon Band, 480 U.S. at 209-10,

107 S.Ct. at 1088.

Applying the criminal-prohibitory /civil-regulatory

dichotomy, the Court rejected California’s claim

that its bingo statute was criminal in nature on the

basis that the statute is not a general prohibition on

certain conduct. Instead, “‘the state law generally

permits the conduct at issue, subject to regulation.”

Id. at 209, 107 S.Ct. at 1088. The Court analo-

18a

gized California’s bingo statute to the state’s other

gambling statutes, all of which regulate (rather than

prohibit) the relevant conduct. The Court conclud-

ed that, given the extent to which the state cur-

rently regulated gambling, California had no public

policy against bingo in particular or gambling in

general. Jd. at 211, 107 S.Ct. at 1089. California

therefore could not prohibit the tribes from offer-

ing the gaming activities on their reservations.

* * * *

The Tribe argues that Texas does not prohibit the

Tribe’s proposed gaming activities by pointing to

the State’s broad definition of a lottery: “ ‘Lot-

tery’ means the procedures operated by the state

under this chapter through which prizes are award-

ed or distributed by chance among persons who

have paid, or unconditionally agreed to pay, for

a chance or other opportunity to receive a prize.”’

Tex. Gov’t Code Ann. §466.002(3) (Vernon Supp.

1994). The Tribe contends that its proposed gam-

ing activites fall within the State’s definition of

lottery. That is, like a lottery, the Tribe’s proposed

gaming activites (i.e., baccarat, blackjack, craps,

roulette and slot machines) are all games of prize,

chance and consideration. Because the State per-

mits one type of game where the elements are

prize, chance and consideration, the State no

longer prohibits any other games with the same ele-

ments. The State, instead, merely regulates them.

Consequently, according to the Tribe, §107(a) of

the Restoration Act does not act as an independ-

ent bar to the Tribe’s proposed gaming activities.

* * *K *

[1]n considering the Restoration Act, Congress

clearly was concerned with enacting the compromise

19a

between the Tribe, the State and various members

of the Texas congressionai delegation.

* kK kK *

[I] f Congress intended for the Cabazon Band

analysis to control, why would it provide that one

who violates a certain gaming prohibition is subject

to a civil penalty? We thus conclude that Congress

did not enact the Restoration Act with an eye

towards Cabazon Band. Congress was merely

acceding to the Tribe’s request that the tribal reso-

lution be codified. See S. REP. NO. 90 at 8 (the

Tribe, “by formal resolution, requested that this

legisiation incorporate [its] existing law and cus-

tom that forbids gambling’’).

* * * *

The Tribe’s second argument addmittedly raises a

closer question. In August 1987, as the Restor-

ation Act was on the brink of final passage in the

House of Representatives, a member made the fol-

lowing statement on the floor of the House:

It is my understanding that the Senate amend-

ments to [§107(a)] are in line with the rational

[sic] of the recent Supreme Court decision in

the case of Cabazon Band of Mission Indians

versus California. This amendment in effect

would codify the [the Tribe] the holding and

rational [sic] adopted in the Court’s opinion in

the case.

133 CONG. REC. H6975 (daily ed. Aug. 3, 1987)

(statement of Rep. Udall). Standing alone, this

statement supports the Tribe’s argument that Con-

gress intended to incorporate Cabazon Band into

the Restoration Act. But we find ourselves con-

fronted with substantial legislative history to the

contrary, including the plain language of §107(a),

its accompanying report language, and the tribal

20a

resolution to which §107(a) expressly refers. We

cannot set aside this wealth of legislative history

simply to give meaning to the floor statement of

just one representative that was recited at the

twelfth hour of the bill’s consideration. See, e¢.g.,

Fort Stewart Schools v. Federal Labor Relations

Auth., 495 U.S. 641, 648-50, 110 S.Ct. 2043,

1047-48, 109 L.Ed.2d 659 (1990). Rather, upon

reviewing these materials, we are left with the

unmistakable conclusion that Congress — and the

Tribe — intended for Texas’ gaming laws and reg-

ulations to operate as surrogate federal law on the

Tribe’s reservation in Texas.

* * * *

The Tribe warns that our conclusion (i.e., that

Texas gambling laws and regulations are surrogate

federal law) will constitute a substantial threat to

its sovereignty in that ‘“‘[e] very time the State mod-

ifies its gambling laws, the impact will be felt on

the reservation.’”” However, any threat to tribal

sovereignty is of the Tribe’s own making. The

Tribe noted in its resolution that it viewed § 107(a)

of the Restoration Act as “fa substantial infringe-

ment upon the Tribes’ [sic] power of self-govern-

ment” but nonetheless concluded that relinquish-

ment of that power was necessary to secure passage

of the Act. To borrow IGRA terminology, the

Tribe has already made its ‘“‘compact’’ with the

state of Texas, and the Restoration Act embodies

that compact. If the Ysleta del Sur Pueblo wishes

to vitiate the compact it made to secure passage of

the Restoration Act, it will have to petition Con-

gress to amend or repeal the Restoration Act rather

than merely comply with the procedures of IGRA.

Yselta I, 36 F.3d at 1329-35 (emphasis in original) (foot-

notes omitted).

2la

The Fifth Circuit has carefully considered and rejected

the Tribe’s assertion that the Restoration Act codified

the Supreme Court’s decision in Cabazon Band. The

Fifth Circuit has also rejected the argument that the State

of Texas may not prohibit gaming on the Tribe’s reserva-

tion because State law authorizes a lottery and other

games of chance. Even in light of testimony presented

at trial which shows that Congressman Morris Udall’s

statement was not a twelfth hour statement and that the

games authorized under Texas law are comparable to the

games being played in the Tribe’s Entertainment Center

in some respects, this Court concludes that the well

reasoned analysis of the Fifth Circuit controls this case.

By affirming the propriety of the injunction issued by the

Western District of Texas, in which the district court

relied heavily on Yselta J, the Fifth Circuit has confirmed

the continuing vitality of its analysis irrespective of the

Alabama-Coushatta Tribal Council’s April 26, 2001

revocation and retraction of Tribal Resolution No. T.C.-

86-07. As the Tribe’s case hinges on whether or not

Cabazon Band was incorporated into the Restoration

Act, and this Court concludes, based on the plain lang:

uage of the statute and its interpretation by the Fifth

Circuit that it was not, the Court proceeds to whether

the Tribe’s activities violate Texas law and whether the

State is entitled to the relief it seeks.

TEXAS LAW ON GAMBLING

The parties stipulated that the Entertainment Center

operated by the Tribe is a place where activities are con-

ducted which violate the provisions of the Texas Penal

Code as set forth below. The parties also stipulated that

the Tribe intends to continue these activities at the

Entertainment Center.

22a

Section 47.02 of the Texas Penal Code, which defines

the offense of Gambling, provides, in pertinent part:

(a) A person commits an offense if he:

(1) makes a bet on the partial or final result of a

game or contest or on the performance of a par-

ticipant in a game or contest; [ or]

(3) plays and bets for money or other thing of

value at any game played with cards, dice, balls,

or any other gambling device.

(b) It is a defense to prosecution under this section

that:

(1) the actor engaged in gambling in a private

place;

(2)no person received any economic benefit

other than personal winnings; and

(3) except for the advantage of skill or luck, the

risks of losing and the chance of winning were the

same for all participants.

that the actor reasonably believed that the conduct:

(1) was permitted under Chapter 2001, Occupa-

tions Code;

(2) was permitted under Chapter 2002, Occupa-

tions Code;

(3) consisted entirely of participation in the state

lottery authorized by the State Lottery Act

(Chapter 466, Government Code);

(4) was permitted under the Texas Racing Act

(Article 179e Vernon’s Texas Civil Statutes); or

(5) consisted entirely of participation in a draw-

ing for the opportunity to participate in a hunt-

ing, fishing, or other recreational event conducted

by the Parks and Wildlife Department.

23a

Section 47.03 of the Texas Penal Code, which defines the

offense of Gambling Promotion, provides, in pertinent

part:

(a) A person commits an offense if he intentionally

or knowingly does any of the following acts:

(1) operates or participates in the earnings of a

gambling place;

(3) for gain, becomes a custodian of anything of

value bet or offered to be bet; [or]

(5) for gain, sets up or promotes any lottery or

sells or offers to sell or knowingly possesses for

transfer, or transfers any card, stub, ticket, check,

or other device designed to serve as evidence of

Participation in any lottery.

Section 47.04(a) of the Texas Penal Code, which defines

the offense of Keeping a Gambling Place, provides:

(a) A person commits an offense if he knowingly

uses or permits another to use as a gambling place

any real estate, building, room, tent, vehicle, boat,

or other property whatsoever owned by him or

under his control, or rents or lets any such property

with a view or expectation that it be so used.

(b) It is an affirmative defense to prosecution under

this section that:

(1) the gambling occurred in a private place;

(2)no person received any economic benefit

other than personal winnings; and

(3) except for the advantage of skill or luck, the

risks of losing and the chances of winning were

the same for all participants.

24a

Section 47.06 of the Texas Penal Code, which defines the

offense of Possession of Gambling Device, Equipment,

or Paraphernalia, provides, in pertinent part:

(a) A person commits an offense if, with the intent

to further gambling, he knowingly owns, manufac-

tures, transfers, or possesses any gambling device

that he knows is designed for gambling purposes or

any equipment that he knows is designed as a sub-

assembly or essential part of a gambling device.

to further gambling, the person knowingly owns,

manufactures, transfers commercially, or possesses

gambling paraphernalia.

(d) It is a defense to prosecution under Subsections

(a) and (c) that:

(1) the device, equipment, or paraphernalia is

used for or is intended for use in gambling that is

to occur entirely in a private place;

(2) a person involved in the gambling does not

receive any economic benefit other than personal

winnings; and

(3) except for the advantage of skill and luck, the

chance of winning is the same for all participants.

(f) It is a defense to prosecution under Subsection

(a) or (c) that the person owned, manufactured,

transferred, or possessed the gambling device, equip-

ment, or paraphernalia for the sole purpose of ship-

ping it to another jurisdiction where the possession

or use of the device, equipment, or paraphermalia

was legal.

Additionally, section 125.001 of the Texas Civil Practice

and Remedies Code, which relates to Common Nuisances,

provides, in pertinent part,

25a

(a) A person who knowingly maintains a place to

which persons habitually go for the following pur-

poses maintains a common nuisance:

(1) prostitution or gambling in violation of the

Penal Code[.]

Section 125.041(1) of the Texas Civil Practice and Reme-

dies Code, which relates to Public Nuisances, provides, in

pertinent part,

For the purposes of this subchapter, a public nuis-

ance is considered to exist at a place if one or more

of the following acts occurs at the place on a regular

basis:

(1) gambling, gambling promotion, or communica-

tion of gambling information, as prohibited by

Chapter 47, Penal Code[.]

FINDINGS OF FACT

Based on the uncontested evidence presented at trial,

including a video tape showing the activities at the

Entertainment Center, and the parties’ Joint Stipulations,

the Court finds that the activites of the Alabama-Cou-

shatta Tribe at the Tribe’s Entertainment Center con-

stitute violations of Texas law, which operates as surro-

gate federal law on the Tribe’s reservation in Texas.

Specifically, in running the Entertainment Center, the

Tribe is committing violations of Texas Penal Code §§

47.02(a)(1) & (3), 47.03(a)(1), (3), & (5), 47.04(a),

and 47.06(a) & (c)). Facts do not exist which would

give rise to the defenses provided by these statutes.

Additionally, the Court finds that the Entertainment

Center is a Common and Public Nuisance, as these terms

are defined by sections 125.001(a)(1) and 125.041(1)

of the Texas Civil Practice and Remedies Code.

26a

INJUNCTIVE RELIEF

“When an injunction is explicitly authorized by

statute, proper discretion usually requires its issuance

if the prerequisites for the remedy have been demon-

strated and the injunction would fill the legislative pur-

pose.”” United States v. Buttorff, 761 F.2d 1056, 1059

(5th Cir. 1985). The Restoration Act specifically pro-

vides that any violations of its prohibition on gaming

activities shall be subject to the same civil and criminal

penalties that are provided by the laws of the State of

Texas. See 25 U.S.C. §737(a). The Restoration Act

also provides ‘‘nothing in this section shall be construed

as precluding the State of Texas from bringing an action

in the courts of the United States to enjoin violations of

the provisions of this section.”” 25 U.S.C. §737(c).

Additionally, section 125.022(a) of the Texas Civil Prac-

tice and Remedies Code authorizes the Attomey General

to sue to enjoin the use of places constituting a Public

Nuisance.? The injunction sought by the State of Texas

is authorized by both state and federal statutes.

A party seeking injunctive relief must show (1) actual

success on the merits; (2) a substantial threat of irrepar-

able injury if the injunction is not granted; (3) the threat-

ened injury to the plaintiff outweighs the potential harm

from the injunction to the defendant; and (4) the public

interest will not be jeopardized by the grant of the in-

junction. See Buttorff, 761 F.2d at 1059 n.3. See also

Amoco Production Co. v. Village of Gambell, Alaska,

480 U.S. 531, 546 n.12 (1987). Because Texas’ gaming

laws and regulations operate as surrogate federal law on

Sun district, county, or city attorney, the attorney general,

or a citizen of the state may sue to enjoin the use of a place for

purp Oses constituting a nuisance under this subchapter.” Tex. Civ.

Prac. & Rem. Code §125.022(a) (Vernon 2002).

27a

the Tribe’s Reservation in Texas and the State has shown

that Texas gaming laws are being violated at the Tribe’s

Entertainment Center, the State has succeeded on the

merits.

The Fifth Circuit ‘“‘recognize[s] that ‘[a]s a general

rule, courts are reluctant to issue injunctions against

the commission of a crime,’ although ‘if the court finds

that the prosecution of the criminal charge is not an

adequate remedy, as when the conduct is creating a

widespread public nuisance . . . the fact that a crime

is involved should not prevent the court from entering

an injunction.’ ” Buttorff, 761 F.2d 11 at 1063 (citing

Wright & Miller, Federal Practice and Procedure: Civil

§2942 at 386-87). The Texas Civil Practice and Reme-

dies Code’s definition of a Public Nuisance encompasses

gaming and gambling, as such terms are defined by chap-

ter 47 of the Texas Peral Code. Criminal prosecution

on a case by case basis would be unduly burdensome

given that the activities at the Entertainment Center con-

stitute a Public Nuisance.

The Tribe opened its Entertainment Center in late

November of 2001. Two months earlier, the United

States District Court for the Western District of Texas

interpreted the Restoration Act as making gambling

unlawful on the Tribal Reservation lands of the Ysleta

del Sur Pueblo Tribe. The Fifth Circuit and the parties

to this case recognize that the Ysleta del Sur Pueblo

and Alabama-Coushatta Tribes are affected by two

titles of the United States Code which are nearly iden-

tical, particularly with regard to the sections concerm-

ing gaming. The Tribe had fair warning when it opened

its Entertainment Center, that continued operation was

problematic. Tribal Chairman Kevin Battise testified

that the Tribe made enough money in the four months

28a

between when it opened the Entertainment Center and

the trial that the Tribe could repay the moneys it bor-

rowed to open the Entertainment Center. Nearly three

months have passed since the trial, during which, the

Court presumes, the Tribe has continued to profit from

its unlawful enterprise. The Court therefore concludes

that the threatened injury of continuing operation of

the Entertainment Center to the State outweighs the

potential harm to the Tribe and that the public interest

is not jeopardized by the granting of an injunction against

an enterprise that was unlawful from its inception.

If the Tribe wishes to operate an Entertainment

Center on its Reservation, its recourse lies with the legis-

latures of the United States and the State of Texas. A

change in the law, not an undoing of determinations

made by the United States Court of Appeals for the

Fifth Circuit, will allow the Tribe to conduct gambling

activities on its Reservation. In making this observa-

tion, the Court is not expressing any views regarding

whether a change in the law is appropnate.

For the foregoing reasons, the Alabama-Coushatta

Tribe, its Tribal Counsel and all persons acting by,

through or under the Tribe and its Tribal Council are

ORDERED to cease and desist operating, conducting,

engaging in, or allowing others to operate, conduct, or

engage in gaming and gambling activities on the Tribe’s

Reservation which violate State law. The Court GRANTS

the Tribe thirty (30) days within which to bring itself

into full and complete compliance with its injunction.

SIGNED this 25th day of June, 2002.

/s/ John Hannah, Jr.

John Hannah, Jr.

United States District Judge

29a

APPENDIX E

[ Filed Nov 21 2001]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

Judge Hannah

Civ. No. 9:01 cv 299

ALABAMA-COUSHATTA TRIBES OF TEXAS,

Plaintiff,

DEFENDANT 1: STATE OF TEXAS,

DEFENDANT 2: JOHN CORNYN, IN HIS

CAPACITY AS ATTORNEY GENERAL FOR THE

STATE OF TEXAS; DEFENDANT 3: STATE

OFFICIAL JOHN DOE; DEFENDANT 4:

STATE OFFICIAL JANE DOE

Defendants

ALABAMA-COUSHATTA TRIBES

OF TEXAS’ COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Scott Crowell “‘Attorney-in-charge”

Washington State Bar #18868

Monteau Peebles & Crowell LLP

1670 Tenth Street W.

Kirkland, Washington 98033

Phone (425) 828-9070

fax (425) 828-8978

email: scrowell@gte.net

email: scottcrowell @hotmail.com

Chris A. Rule ‘tof counsel”’

Texas State Bar #17386880

General Counsel

Alabama-Coushatta Tribes of Texas

Route 3

Box 640

Livingston, Texas 77351

Phone (936) 563-1100

Fax (936) 563-4397

email: carule @san.rr.com

COMPLAINT

Alabama-Coushatta Tribes of Texas alleges on its own

behalf, and on behalf of its entire tribal membership, by

and through its undersigned counsel, and pleads against

Defendants State of Texas; John Cornyn, in his capacity

as Attorney General for the State of Texas; State Official

John Doe; and State Official Jane Doe, as follows:

INTRODUCTION

1. This is an action by the federally recognized Ala-

bama-Coushatta Tribes! seeking a determination of

their rights and remedies under the provisions of the

Ysleta del Sur Pueblo and _ Alabana-Coushatta

IPlease note that although the official name of Plaintiff

includes the plural ‘‘Tribes,”’ it is a single Tribe as a tribal govern-

ment recognized by federal law. Accordingly, at first blush the

grammar may appear incorrect, even though it properly treats

“Tribes” as a single entity.

3la

Indian Tribes of Texas Restoration Act, P.L. 100-

89, 25 U.S.C. §§731 et seq. (Restoration Act), the

Indian Gaming Regulatory Act of 1988, 25 U.S.C.

§§2701 et seg. (“IGRA’’), or otherwise under fed-

eral law. The Alabama-Coushatta Tribes seeks jn-

junctive relief that allows the Alabama-Coushatta

Tribes to govern gaming activites on its Indian

lands, free from interference from Defendants.

2. This action seeks a Declaration that the Alabama-

Coushatta Tribes possesses authority to regulate

gaming activities on the Tribes’ Indian lands, and

may authorize and regulate ,forms of gaming which

(1) are not contrary to the public policy of the State

of Texas as set forth by the United States Supreme

Court in California v. Cabazon Band of Mission

Indians et al. 480 U.S. 202 (1987); or (2) are forms

of gaming that the State of Texas has not reasonably

characterized as completely and affirmatively pro-

hibited for any purpose by any person, organization

or entity, including the State of Texas: or (3) are

not prohibited by the laws of the State of Texas.

These three options are plead in the alternative

based on plausible interpretation of the federal stat-

utes at issue.

3. The Restoration Act, signed into law August 18,

1987, clarified that Alabama-Coushatta Tribes is a

federally recognized Indian Tribe possessing the

sovereign authority to govern. The date of enact-

ment fell between the landmark Supreme Court

decision in Cabazon Band, issued February 25,

1987, and the date of enactment of IGRA, which

became law on October 17, 1988. At issue in this

action is the applicability and interpretation of these

two statutes and other affected federal laws.

32a

4. The Defendant State of Texas, particularly through

the actions of the Defendant Attorney General,

threatens to deprive the Alabama-Coushatta Tribes

of tribal sovereign and statutory gaming rights

and/or privileges. The Alabama-Coushatta Tribes

is entitled to injunctive relief prohibiting the State

of Texas or any entity from interfering with the

Tribes’ gaming operation. |

5. Congress did not intend, and federal courts may not

interpret the Restoration Act in a manner that

allows the State of Texas to fundamentally change

its laws and public policy to allow for a multifaceted

and thriving gaming industry and still deprive the

Alabama-Coushatta Tribes of exercising its inher-

ent and soversign and statutory gaming mnghts on its

Indian lands.

JURISDICTION

6. This Court’s jurisdiction is invoked pursuant to 28

U.S.C. §1362, which governs controversies involv-

ing an Indian Tribe. The matter in controversy

arises under the 28 U.S.C. §§1331. The action is

brought pursuant to the Declaratory Judgment

Act, 28 U.S.C. §§2201, 2202. The action seeks

declarations regarding the Ysleta del Sur Pueblo

and Alabama-Coushatta Indian Tribes of Texas

Restoration Act, P.L. 100-89, 25 U.S.C. §§731

et seg., and the Indian Gaming Regulatory Act of

1988, 25 U.S.C. §§2701 et seg. (“IGRA’’), each

of which provide for the exclusive jurisdiction of the

federal courts. The declarations are sought in the

context of the facts and circumstances surrounding

the enactment of the two statutes and the funda-

mental shift in Texas’ policy regarding gaming.

33a

7. Jurisdiction over the individual agents of the State

of Texas, in their official capacities, is invoked pur-

suant to the ex Parte Young, 209 U.S. 123 (1908)

exception to Eleventh Amendment immunity.

Jurisdiction over Defendant State of Texas is sub-

ject to the consent of the State.

8. Upon information and belief, Plaintiff Tribe alleges

that Defendants have announced to media sources

that Texas will directly interfere with the Tribes’

exercise of its sovereign and statutory rights to offer

certain gaming activities on Tribal lands. The

imminent threat and considerable damage to the

Tribe’s governance provides a justicable case and

controversy per Article III of the United States

Constitution.

VENUE

9. Venue is in the United States District Court for the

Eastern District of Texas pursuant to 28 U.S.C.

§ 1391.

PARTIES

10. The Plaintiff is the Alabama-Coushatta Tribes of

Texas (‘“Tribe’”’ or “Tribes” or ‘*Alabama-Cou-

shatta Tribes”), a federally recognized Indian Tribe

restored to federal recognized status by the Restor-

ation Act, possessing the sovereign and statutory

powers to govern activities on its Indian lands,

including its Reservation, the external boundaries

of which lie in Polk County with tribal headquar-

ters located on the Alabama-Coushatta Reservation.

The Tribe exercises jurisdiction over said Indian

lands within the State of Texas.

34a

11. Defendant 1, State of Texas is a body politic exist-

ing pursuant to its relationship with the government

of the United States. Agents acting in their capacity

as officials of such body politic subjects the State to

this action to the extent the United States has

imposed a government-to-government relationship

between the Tribal government and the State gov-

ernment.

12. Defendant 2, John Cornyn is and at all times per-

tinent was the Attorney General of the State of

Texas, The Office of the Attorney General has

taken actions that pose a direct and immediate

threat to Plaintiff Tribe. Upon information and

belief, Plaintiff asserts that Defendant John Comyn

is poised to take action against the interests of the

Alabama-Coushatta Tribes.

13. Defendants 3, State Official John Doe and 4, State

Official Jane Doe are officials of the State of Texas

who may be necessary in order for the court to con-

struct a remedy consistent with its Declarations.

The Plaintiff Tribe will amend or seek to amend the

pleadings to include such officials as parties as their

identity becomes known.

GENERAL ALLEGATIONS

14. The Alabama-Coushatta Tribes is comprised of

approximately 1,100 direct descendants of the

mound building cultures that occupied the South-

east United States since time immernonal. 513

members of the Tribe reside on the Tribes’ current

Reservation. Many of those look to the Tribe to

provide services and opportunity. Many of the

Tribes’ members no longer residing on the Reserva-

tion have left because of the lack of opportunity.

16.

35a

Those employed off the Reservation commute as

far as 60 miles. Numerous efforts to foster econo-

mic development have not succeeded. The Tribal

membership is currently suffering a 48% adult un-

employment rate. Only 1% of Tribal members on

the reservation have a 4-year college degree. Health

conditions should be far better, 147 members are

diagnosed to be diabetic. Median Household income

of the Alabama-Coushatta is $10,809.

. The Tribe is responsible for stewardship of its 4,593

acre Reservation, the external boundaries of which

fall within Polk County of the State of Texas. The

land lies in the Big Thicket area and is generally

unsuitable for raising crops or grazing cattle. The

Tribes’ initial Reservation comprises 5,528,570

acres, 2,850,028 acres of which the Tribe was

wrongfully dispossessed by the United States and

2,677,423 acres of which the Tribe was wrong-

fully dispossed by the political entity of Texas.

However, this Declaratory Judgement Action only

seeks declaration of the Tribes’ rights regarding the

acreage currently held by the United States in trust

for the benefit of the Tribe.

The Alabama-Coushatta Tribal government’s obliga-

tions and responsibilities cover a broad range of

governmental services, including but-not limited to

education, housing, land and resource management,

environmental protection, health care including

emergency ambulance service and the Chief Kina

Health Clinic, lake management, forestry, social ser-

vices, fire protection, solid waste management,

security, cultural preservation, as well as govern-

ment administration and procurement. The Tribe

needs to generate revenues to properly fund its

17.

18.

36a

governmental services and administration — without

gaming revenues, the Tribes’ ability to adequately

function as a government is in serious jeopardy.

By means of the Restoration Act of 1987, the

Tribes were restored to federally recognized status.

All rights and privileges of the Tribe and its mem-

bers under any federal treaty, Executive Order,

agreement, statute or under any other authority

which may have been diminished or lost under the

Termination Act of 1954, 25 U.S.C. §§721 et seg.

have been restored to the Tribes. Federally recog-

nized status is recognition that the Tribe is a dis-

tinct political society, capable of managing its own

affairs and governing itself, having territorial bound-

aries within which the Tribes’ authority of self-

government is exclusive. Federally recognized

Tribes retain sovereign authority to regulate their

internal and social relations, including the power to

make their own substantive law in internal matters

and to enforce that law in their own forums.

In 1986, amidst a national scenario where several

tribes were offering commercial gaming on their

lands, while litigation regarding the sovereign auth-

ority of federally recognized tribes to govern gam-

ing activities was working its way through the

courts, certain members of Congress threatened

to block passage of the Restoration Act unless the

Tribe agreed to language that would forever prevent

the Tribe from offering any gaming activities on its

lands. Under duress, the Tribe was coerced into

passing a Resolution that supported certain lang-

uage, which if passed into law, would have pre-

cluded the Tribe from offering any gaming. But

19,

20.

21.

37a

Congress did not pass any bill regarding the Tribe’s

restoration in 1986 and the 1987 Congress rejected

the language supported by the Tribe’s resolution

when it adopted the Restoration Act. The Tribe has

since rescinded the Resolution.

On February 25, 1987, prior to the passage of the

Restoration Act, the United States Supreme Court,

in Cabazon, clarified that Indian Tribes have always

possessed the inherent sovereign authority to govern

gaming activities on Indian lands, and that Tribes

could lawfully offer gaming activities which do not

contravene a State’s public policy towards gaming.

At the time of the passage of the Restoration Act,

application of the Cabazon decision to Texas’ pub-

lic policy towards gaming rendered little or no gam-

ing opportunities for Tribes with Indian lands within

the external boundaries of the State of Texas

because, inter alia, the State Constitution prohibited

“Lottery” schemes, meaning any gaming activity

with the elements of prize, chance, and considera-

tion.

Texas’ public policy regarding gaming changed to

some degree in 1989 when the State Constitution

was amended to allow for certain raffle games, and

then underwent a monumental change in 1991

when Article 3, §47 of the Texas State Constitu-

tion was changed to allow for the State to engage in

games with “Lottery” schemes. Since these changes

in Texas State public policy, application of the

Cabazon decision to Texas public policy renders

substantial and multi-faceted gaming opportunities

for the Tribe.

38a

The facts and circumstances surrounding the pas-

sage of the Restoratin Act, when fully and thor-

oughly considered, do not support a conclusion that

Congress intended to deprive the Tribe of its sover-

eign and inherent authority over gaming activities.

Indeed, the facts and circumstances demonstrate

that Congress intended to preserve the Tribes’ auth-

ority such that it would not be precluded from

offering gaming activities in the event that Texas

State public policy were to change in the future.

. By official Referendum of the Tribes on October

21, 1999, the General Council of the Tribe voted

overwhelmingly for the Tribe to offer gaming activi-

ties as a critical source to generate badly-needed

tribal governmental revenues. Pursuant to this man-

date, the Tribal Council (1) enacted a Gaming Ordi-

nance to authorize and regulate gaming activities on

its Indian lands, (2) established a Gaming Agency to

regulate gaming activities in a manner that preserve

the integrity and honesty of the games, and (3) dir-

ected tribal officials to proceed with the construc-

tion of an entertainment facility on its Indian lands,

to offer a large variety of gaming activities.

. The Entertainment Facility is now open for mem-

bers of the Tribes’ private gaming club. The Enter-

tainment Facility is not open to non-members. The

Entertainment Facility is authorized to offer gam-

ing activities which contain the elements of prize,

consideration and chance. The Entertainment Facil-

ity is authorized to utilize a broad range of dis-

pensers, electronic or electro-mechanical aids and

gambling devices including but not limited to ran-

dom number generators, electronic ticket dispensers,

electronic pull tabs, spinning reel slots, and video

lottery devices.

26.

39a

The Tribe’s Reservation and lands of the Tribe are

a private place to which non-members of the Tribe

may attain access only by invitation of the Tribe.

The public policy of the State of Texas is to pro-

mote and protect commercial, high-stakes gaming,

allowing for extensive exposure to a great variety of

gaming opportunities for residents and Visitors

throughout the State. The State of Texas sanctions

and promotes a broad range of commercial and cas-

ino gaming activities, including a multifaceted State

Lottery, an extensive pari-mutuel horse racing

industry, an extensive commercial “slot parlor”

market, charitable carnival or casino nights, high-

stakes bingo, raffles, casino ““cruises-to-nowhere,”’

and widespread use of ‘amusement devices,’’ which

are slot machines that require a modicum of skill.

. Pleading in the alternative, the State of Texas has

embraced a policy of willful blindness or deliberate

non-enforcement as thousands of video “eight-liner’’

games are placed in hundreds of establishments

throughout the State of Texas, such that the public

policy of the State is to allow for such private,

non-govemmental “‘Lottery”’ games.

- The Texas State Lottery and the Texas State Horse

Racing Commission each have the regulatory /dis-

cretionary authority to offer a wide variety of games

on gambling devices. Such gambling devices within

their authority possess the same fundamental char-

acteristics as the gambling devices authorized by the

Tribe. If there are differences, there is no reason-

able characterization of the difference that renders

devices aithorized by the Tribe “prohibited” by

the laws of the State of Texas.

29.

30.

31.

33.

40a

The State allows for the same gaming activities au th-

orized by the Tribe for some entities for some pur-

poses, such that the games cannot be characterized

as “prohibited” by the laws of the State of Texas.

The State cannot reasonably characterize any gam-

ing activity authorized by the Tribe as a form of

gaming activity distinct from those gaming activities

authorized by the State.

The games authorized by the Tribe do not contra-

vene the State of Texas’ public policy regarding

gaming.

The Attorney General for the State of Texas has

responded to communication initiated by the Tribe

that the position of his office is that the Tribe’s

offering of gaming is unlawful. The Attorney Gen-

eral and members of his staff have been quoted in

newspapers stating that the Attorney General will

take action designed to directly interfere with and

impede the Tribe’s exercise of its sovereign and

statutory authority over gaming activities on the

Tribe’s Indian lands.

The Attorney General and his agents have attempted

to deprive the Alabama-Coushatta Tribes of their

day in court by subjecting it to a district court deci-

sion in another federal district in which the Ala-

bama-Coushatta Tribes are not a party, and mis-

aoplying non-binding dictum in an appellate court

case. Additionally, the Tribe that was a party to

that litigation has yet to be able to have the federal

court give proper consideration of a thorough rec-

ord of the facts and circumstances surrounding the

passage of the Restoration Act and the gaming

activities available in the State of Texas.

34.

36.

4la

The Alabama-Coushatta Tribes and its members

will incur irreparable harm, not compensable by

monetary damages, if games and gambling devices

of any sort remain unavailable for play. Such harm

includes but is not limited to: (1) interference with

the Tribe’s rights to self-governance; (2) interference

with the exercise of the Tribe’s inherent sovereign

gaming rights including the exclusive right to regu-

late gaming activities on tribal lands; (3) an erosion

of public confidence in the gaming operation in the

face of continued challenges and threats regarding

the authority of the Tribe to offer the games at

issue; (+) loss of economic opportunity, that plead

in the alternative, is not compensable against the

State of Texas or the United States, and will never

be recovered; (5) loss of desperately needed tribal

governmental revenues to properly fund Tribal

programs; and (6) furthering and promoting the

scheme of the State of Texas to deprive Tribes of

their gaming rights through tactics of intimidation

and delay in an effort to intimidate and unduly

influence decisions of sovereign tribal governments.

TRIBE’S CLAIM FOR RELIEF:

DECLARATORY JUDGMENT &

INJUNCTIVE RELIEF

Paragraphs 1 through 34 are incorporated herein by

reference.

Congress did not intend, and federal courts may not

interpret the Restoration Act in a manner that

allows the State of Texas to fundamentally change

its laws and public policy to allow for a multifaceted

and thriving gaming industry and still deprive the

Alabama-Coushatta Tribes of exercising its inherent

38.

59.

40.

42a

and sovereign and statutory gaming nghts on its

Indian lands.

7.In contrast to the irreparable harm suffered by the

Tribe if the State is allowed to interfere, the State

will not suffer any irreparable harm if the State is

prevented from interfering with the Alabama-Cou-

shatta Tribes exercising its inherent and sovereign

and statutory gaming rights on its Indian lands.

The Alabama-Coushatta Tribes is entitled to a Dec-

laration that the Alabama-Coushatta Tribes pos-

sesses authority to regulate gaming activities on the

Tribe’s Indian lands and may authorize and regulate

forms of gaming which are not contrary to the pub-

lic policy of the State of Texas as set forth by the

United States Supreme Court in California v. Caba-

zon Band of Mission Indians et al. 480 U.S. 202

(1987).

Plead in the alternative, The Alabama-Coushatta

Tribes is entitled to a Declaration that the Ala-

bama-Coushatta Tribes possesses authority to reg-

ulate gaming activities on the Tribe’s Indian lands

and may authorize and regulate forms of gaming

which are forms of gaming that the State of Texas

has not reasonably characterized as completely

and affirmatively prohibited for any purpose by

any person, organization or entity, including the

State of Texas.

Plead in the alternative, The Alabama-Coushatta

Tribes are entitled to a Declaration that the Ala-

bama-Coushatta Tribes possess authority to regu-

late gaming activities on the Tribe’s Indian lands

and may authorize and regulate forms of gaming,

which are not prohibited by the laws of the State

of Texas, meaning that if the gaming activity is

41.

allowed for any entity under any circumstance, it

can not be deemed “prohibited” in the context of

the Restoration Act.

In the event the Court provides any of the three

Declarations set forth in paragraphs 38 - 40, or any

comparable Declaration, the appropriate remedy is

to issue an injunction precluding the State of Texas

from interfering with the governance decisions of

the Alabama-Coushatta Tribes regarding gaming.

PRAYER FOR RELIEF

WHEREFORE, the Alabama-Coushatta Tribes of

Texas respectfully prays this honorable court for:

An Order declaring that the Alabama-Coushatta

Tribes possesses authority to regulate gaming activ-

ities on the Tribe’s Indian lands and may author-

ize and regulate forms of gaming which are not

contrary to the public policy of the State of Texas

as set forth by the United States Supreme Court in

California v. Cabazon Band of Mission Indians

etal. 480 U.S. 202 (1987);

.-An Order declaring that the Alabama-Coushatta

Tribes possesses authority to regulate gaming activi-

ties on the Tribe’s Indian lands and may authorize

and regulate forms of gaming that the State of Texas

has not reasonably characterized as completely and

affirmatively prohibited for all purposes by any per-

sons, organizations or entities, including the State

of Texas.

An Order Declaring that the Alabama-Coushatta

Tribes possesses authority to regulate gaming activ-

ities on the Tribe’s Indian lands and may authorize

and regulate forms of gaming, which are not pro-

44a

hibited by the laws of the State of Texas, meaning

that if the gaming activity is allowed for any entity

under any circumstance, it can not be deemed “‘pro-

hibited”’ in the context of the Restoration Act.

4. An Order enjoining the State of Texas and all

Defendants from taking any action that would

interfere with the Alabama-Coushatta Tribes’ gov-

ernance over gaming activities on its Indian lands;

specifically, an Order preventing Defendants from

taking any action to prevent or impede the Tribe

from offering gaming activities consistent with the

Declarations of law.

.In the event the State threatens actions other than

seeking an Order of this Court against the Tribe, the

Tribe pray for this Court to issue a preliminary

injunctive relief that prevents Defendants from tak-

ing any action to prevent or impede the Tribe from

offering gaming activities pending the Court’s final

decision on the Declarations of law sought herein.

1 |

6. Permanent injunctive relief precluding the State of

Texas from interfering with the governance deci-

sions of the Alabama-Coushatta Tribes regarding

gaming consistent with the Declarations of Law.

._ An award to the Alabama-Coushatta Tribes of such

other and further relief as this Court deems just

under the circumstances.

8. An award of attorneys’ fees and costs.

DATED: NOVEMBER 21, 2001

Respectfully submitted

/s/ Scott D. Crowell

Scott Crowell — ‘Attorney-in-charge”

Washington State BAR #18868

Monteau Peebles & Crowell LLP

1670 Tenth Street W.

Kirkland, Washington 98033

Phone (425) 828-9070

fax (425) 828-8978

email: scrowell@gte.net

email: scottcrowell@hotmail.com

/s/ Chris A. Rule

Chris A. Rule — ‘tof counsel”’

Texas State Bar #17386880

General Counsel]

46a

APPENDIX F

ALABAMA AND COUSHATTA INDIAN TRIBES

OF TEXAS RESTORATION ACT

(25 U.S.C. §§ 731, et seq.)

[25 U.S.C.A. §731]

3]. Definitions.

For purposes of this subchapter —

(1) the term “‘tribe”’ means the Alabama and Coushatta

Indian Tribes of Texas (considered as one tribe in accord-

ance with section 732 of this title);

(2) the term “Secretary’’ means the Secretary of the

Interior or his designated representative;

(3) the term “reservation”? means the Alabama and

Coushetta Indian Reservation in Polk County, Texas,

comprised of —

(A) the lands and other natural resources conveyed to

the State of Texas by the Secretary pursuant to the pro-

visions of section 721 of this ttle;

(B) the lands and other natural resources purchased for

and deeded to the Alabama Indians in accordance with an

act of the legislature of the State of Texas approved

February 3, 1854; and

the Secretary for the benefit of the tribe;

(4) the term ‘‘State’’ means the State of Texas;

SSS

47a

(5) the term ‘“‘constitution and bylaws” means the con-

stitution and bylaws of the tribe which were adopted on

June 16, 1971; and

(6) the term ‘Tribal Councii’’ means the governing

body of the tribe under the constitution and bylaws.

[25 U.S.C.A. §732]

32. Alabama and Coushatta Indian Tribes of Texas

considered as one tribe.

The Alabama and Coushatta Indian Tribes of Texas shall

be considered as one tribal unit for purposes of this sub-

chapter and any other law or mule of law of the United

States.

[25 U.S.C.A. §733]

33. Restoration of the Federal trust relationship; Fed-

eral services and assistance.

(a) Federal trust relationship

The Federal recognition of the tribe and of the trust

relationship between the United States and the tribe is

hereby restored. The Act of June 18, 1934 (48 Stat.

984) [25 U.S.C.A. §461 et seg.], and all laws and rules

of law of the United States of general application to

Indians, to nations, tribes, or bands of Indians, or to

Indian reservations which are not inconsistent with any

specific provision contained in this subchapter shall apply

to the members of the tribe, the tribe, and the reserva-

tion,

48a

(b) Restoration of rights and privileges

All rights and privileges of the tribe and members of

the tribe under any Federal treaty, Executive order,

agreement, statute, or under any other authority of the

United States which may have been dimished or lost

under the Act approved August 23, 1954 [68 Stat. 768;

25 U.S.C.A. §721 et seg.|, are hereby restored and such

subchapter shall not apply to the tribe or to members of

the tribe after August 18, 1987.

Notwithstanding any other provision of law, the tribe

and the members of the tribe shall be eligible, on and

after August 18, 1987, for all benefits and service furm-

ished to federally recognized Indian tribes.

(d) Effect on property rights and other obligations

Except as otherwise specifically provided in this sub-

chapter, the enactment of this subchapter shali not affect

any property right or obligation or any ontractual right

or obligation in existence before Augu,t 18, 1987, or any

obligation for taxes levied before such date.

[25 U.S.C.A. §734]

34. State and tribal authority.

(a) State authority

Nothing in this Act shall affect the power of the State

of Texas to enact special legislation benefitting the tribe,

and the State is authorized to perform any services bene-

fitting the tribe that are not inconsistent with the pro-

visions of this Act.

49a

(b) Current constitution and bylaws to remain in effect

Subject to the provisions of section 733(a) of this tit-

le, the constitution and bylaws of the tribe on file with

the Committee on Natural Resources of the House of

Representatives is hereby declared to be approved for the

purposes of section 476 of this title except that all ref-

erence to the Texas Indian Commission shall be consid-

ered as reference to the Secretary of the Interior.

No provision contained in this subchapter shall affect

the power of the Tribal Council to take any action under

the constitution and bylaws described in subsection (b)

of this section. The Tribal Council shall represent the

tribe and its members in the implementation of this sub-

chapter and shall have full authority and capacity —

(1) to enter into contracts, grant agreements, and

other arrangements with any Federal department or

agency;

(2) to administer or operate any program or activity

under or in connection with any such contract, agree-

ment, or arrangement, to enter into subcontracts or

award grants to provide for the administration of any

such program or activity, or to conduct any other activity

under or in connection with any such contract, agree-

ment, or arrangement; and

(3) to bind any tribal governing body selected under

any new constitution adopted in accordance with sec-

tion 735 of this title as the successor in interest to the

Tribal Council.

50a

[25 U.S.C.A. §735]

35. Adoption of new constitution and bylaws.

Upon written request of the tribal council,’ the

Secretary shall hold an election for the members of the

tribe for the purpose of adopting a new constitution and

bylaws in accordance with section 476 of this title.

1 So in original. Probably should be “Tribal Council,”.

[25 U.S.C.A. §736]

36. Provisions relating to tribal reservation.

(a) Federal reservation established

The reservation is hereby declared to be a Federal

Indian reservation for the use and benefit of the tribe

without regard to whether legal title to such lands is-held

in trust by the Secretary.

(b) Conveyance of land by State

The Secretary shall —

(1) accept any offer from the State to convey title

to any lands held in trust by the State or the Texas

Indian Commission for the benefit of the tribe to the

Secretary, and

(2) shall hold such title, upon conveyance by the

State, in trust for the benefit of the tribe.

At the written request of the Tribal Council, the Sec-

retary shall —

<—_

—

5la

(1) accept conveyance by the tribe of title to any lands

within the reservation which are held by the tribe to the

Secretary, and

(2) hold such title, upon such conveyance by the tribe,

in trust for the benefit of the tribe.

(d) Approval of deed by Attomey General

Notwithstanding any other provision of law or regu-

lation, the Attorney General of the United States shall.

approve any deed or other instrument from the State or

the tribe which conveys title to lands within the reser-

vation to the United States.

(e) Permanent improvements authorized

Notwithstanding any other provision of law or rule

of law, the Secretary or the tribe may erect permanent

improvements, improvemtns of substantial value, or any

other improvement authorized by law on the reserva-

tion without regard to whether legal title to such lands

has been conveyed to the Secretary by the State or the

tribe.

(f) Civil and criminal jurisdiction within reservation

The State shall exercise civil and criminal jurisdiction

within the boundaries of the reservation as if such State

had assumed such jurisdiction with the consent of the

tribe under sections 1321 and 1322 of this title.

[25 U.S.C.A. § 737]

37. Gaming activities.

(a) In general

All gaming activites which are prohibited by the laws

of the State of Texas are hereby prohibited on the reser-

eee

a ce i en OT AA

52a

vation and on lands of the tribe. Any violation of the

prohibition provided in this subsection shall be subject to

the same civil and criminal penalties that are provided

by the laws of the State of Texas. The provisions of this

subsection are enacted in accordance with the tribe’s

request in Tribal Resolution No. T.C.-86-07 which was

approved and certified on March 10, 1986.

(b) No State regulatory jurisdiction

Nothing in this section shall be construed as a grant of ;

civil or criminal regulatory jurisdiction to the State of

Texas.

Notwithstanding section 736(f) of this title, the courts

of the United States shail have exclusive jurisdiction over

any offense in violation of subsection (a) of this section

that is committed by the tribe, or by any members of the

tribe, on the reservation or on lands of the tribe. How-

ever, nothing in this section shall be construed as pre-—

cluding the State of Texas from bringing an action in the

courts of the United States to enjoin violations of the

provisions of this section.

53a

APPENDIX G

[36 F.3d 1325]

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 93-8477, 92-8823 and 94-50130

YSLETA DEL SUR PUEBLO,

Plaintiff-Appellee,

STATE OF TEXAS and Ann Richards, Governor

Defendants-Appellants.

YSLETA DEL SUR PUEBLO,

Plaintiff-Appellee,

STATE OF TEXAS and Ann Richards, Governor,

Defendants-Appellants.

YSLETA DEL SUR PUEBLO,

Plaintiff-Appellee,

STATE OF TEXAS and Ann Richards, Governor

Defendants-Appellants.

54a

Oct. 24, 1994

Rehearing Denied Nov. 21, 1994

in Nos. 93-8477, 93-8823

Toni Hunter, Asst. Atty. Gen., Dan Morales, Atty. Gen.,

Austin, TX, for appellants.

Tom Diamond, Ronald Jackson, John R. Batoon, Thom-

as M. Diamond, Jr., El Paso, TX, for appellee.

Thomas F. Gede, Sp. Asst. ATTY’ Gen., Sacramento,

CA, amicus curiae.

Dickstein & Merin, Howard L. Dickstein, Frank R. Law-

rence, Sacramento, CA, amicus curiae.

Thomas M. Diamond, Jr., El Paso, TX, for appellee in No.

94-50130.

Appeals from the United States District Court for the

Western District of Texas.

Before REYNALDO G. GARZA, DeMOSS, and PARK-

ER, Circuit Judges.

DeMOSS, Circuit Judge:

Pursuant to the Indian Gaming Regulatory Act

(IGRA), 25 U.S.C. §§2701-21, the Ysleta del Sur

Pueblo (‘‘Tribe”), a federally recognized Indian tribe

located near El Paso, Texas, sued the state of Texas

(‘State’) and its governor for refusing to negotiate a

compact that would permit the Tribe to engage in casino-

type gambling on its reservation. Having concluded that

neither IGRA nor the Restoration Act, 25 U.S.C. §

1300g, barred the Tribe from engaging in such gambling,

the district court granted the Tribe summary judgment.

We hold that the Restoration Act, not IGRA, governs

ee ae a a eae

‘ Te ee ee

55a

this dispute and does not give the Tribe the right to sue

the State in federal court. We therefore reverse the

district court’s summary judgment for the Tribe and

remand with instructions to dismiss the Tribe’s suit.

lL.

Before analyzing the State’s appeals, we first provide

some background on the Restoration Act, IGRA, and

the procedural history of this case.

In 1966, the federal government recognized the Tiwa

Indians! of the Ysleta del Sur Pueblo as an Indian tribe

but simultaneously transferred responsibility for the

Indians to the state of Texas. See Tiwa Indiaris Act,

Pub. L. No. 90-287, 82 Stat. 93 (1968). Although the

Tiwa Indians Act constituted legal recognition of the

Indians, it had no practical effect on the relationship

between the federal government and the Tribe because

[t]he Tribe had not been subject to federal supervision

and had received no federal Indian services before the

1968 Act, and that status continue [sic] after its enact-

ment.” S. REP. NO. 90, 100th Cong., 1st Sess. 7 (1987).

Instead, Texas administered the Tribe’s affairs, which

included holding the Tribe’s 100-acre reservation in trust

and providing economic development funds to the

Tribe. H.R. REP. NO. 36, 100th Cong., Ist Sess. 2

(1987). Furthermore, the Tiwa Indians Act expressly

recognized that the Tiwa Indians were “subject to all

I Prior to passage of the Restoration Act, the Ysleta del Sur

Pueblo were known as the Tiwa Indians. Section 102 of the

Restoration Act officially changed the name of the Tribe. 25

U.S.C. §1300g-1.

56a

obligations and duties [as] citizens under the laws of the

[s] tate of Texas.” See Tiwa Indians Act.

In 1983, however, Texas became concerned that its

trust relationship with the Tribe violated state constitu-

tional law. H.R. REP. NO. 36, at 2. Consequently,

the United States and the Tribe began the process of

granting the Tribe federal trust status. In December

1985, the House of Representatives of the 99th Congress

passed H.R. 1344, a bill to restore the trust relationship

between the United States and the Tribe. With reaard to

gaming activities, §107 of H.R. 1344 provided:

Gaming, lottery or bingo on the tribe’s reservation

and on tribal lands shall only be conducted pursuant

to a tribal ordinance or law approved by the Secre-

tary of the Interior. Until amended as provided

below, the tribal gaming laws, regulations and licens-

ing requirements shall be identical to the laws and

regulations of the State of Texas regarding gambling,

lottery and bingo.

131 Cong.Rec. H12012 (daily ed. Dec. 16, 1985) (text of

H.R. 1344 as passed by the House). Notwithstanding

§ 107, various state officials and members of Texas’ con-

gressional delegation still were concerned that H.R. 1344

did not provide adequate protection against high stakes

gaming operations on the Tribe’s reservation. Believing

that restoration of their federal trust status was more

important than exercising the option to operate gaming

operations, the Tribe approved Resolution No. TC-02-

86 in March 1986.2. The resolution represented a poli-

2 Because of its critical importance to our resolution of this

case, we re-print, with emphasis in certain portions, Resolution

No. TC-02-86:

WHEREAS, on December 16, 1985, the United States House

of Representatives passed H.R. 1344, a bill to provide for the

[footnote continued]

57a

tical accommodation between the Tribe, the state of

Texas, and various members of Texas’ congressional

delegation. The Tribe clearly viewed the applicability of

state ga‘ning laws on its reservation as an infringement on

restoration of the federal trust relationship to the Ysleta del

Sur Pueblo (Tigua Indian Tribe of Texas), and H.R. 1344 is

now before the United States Senate for consideration, and,

WHEREAS, after hearings on H.R. 1344 before the House

Committee on Interior and Insular Affairs on Octe@ber § A

1985, the Comptroller of Public Accounts for the State of

Texas raised concerns that H.R. 1344 would permit the Tribe

to conduct high stakes gambling and bingo operations to the

detriment of existing charitable bingo operations in the State

of Texas; and,

WHEREAS, the Comptroller urged members of the Texas

Congressional Delegation to defeat H.R. 1344 unless the bill

was amended to provide for direct application of state laws

governing gaming and bingo on the reservation; and,

WHEREAS, the Ysleta del Sur Pueblo has no interest in con-

ducting high stakes bingo or other gambling operations on

its reservation, regardless of whether such activities would be

governed by tribal law, state law or federal law; and,

WHEREAS, in response to the concerns voiced by the Comp-

troller and other officials, the Tribe attempted to insure that

H.R. 1344 would give the Tribe no competitive advantage

in gaming operations by agreeing to amend H.R. 1344 to

provide that any gaming activities on the reservation would

be conducted pursuant to tribal law that would be required

to be identical to state law, and H.R. was so amended by

the House Interior committee; and,

WHEREAS, some state officials and members of the Texas

congressional delegation continue to express concern that

H.R. 1344, as amended, does not provide adequate protec-

tion against high stakes gaming operations on the reserva-

tion; and,

WHEREAS, the proposal that H.R. 1344 be amended to

make state gaming law applicable on the reservation contin-

ues to be wholly unsatisfactory to the Tribe in that it rep-

resents a substantial infringement upon the Tribes’ power of

[footnote continued]

58a

its sovereignty. But to ensure passage of the restoration

legislation, the Tribe urged Congress to adopt “language

which would provide that all gaming, gambling, lottery,

or bingo, as defined by the laws and administrative reg-

ulations of the State of Texas, shall be prohibited on the

Tribe’s reservation or on tribal land.” The distinction

between the language in §107, as passed by the House,

and the Tribe’s suggested language is that §107 provided

the Tribe with the option to deviate from Texas’ gaming

laws tf the Tribe petitioned the secretary of Interior, the

secretary approved, and Congress did not overrule the

self government, is inconsistent with the central purposes of

restoration of the federal trust relationship, and would set a

potentially dangerous precedent for other tribes who desire

to operate gaming facilities and are presently resisting at-

tempts by State to apply their law to reservation gaming

activities; and,

WHEREAS, the Ysleta del Sur Pueblo remains firm in its

commitment to prohibit outright any gambling or bingo in

any form on its reservation; and,

WHEREAS, although the Tribe, as a matter of principle, sees

no justification for singling out the Texas Tribes for treat-

ment different than that accorded other Tribes in this

country, the Tribe strongly believes that the controversy over

gaming must not be permitted to jeopardize this important

legislation, the purpose of which is to ensure the Tribe’s sur-

vwal, protect the Tribe’s ancestral homelands and provide the

Tribe with additional tools to become economically and

socially self-sufficient.

NOW, THEREFORE, BE IT RESOLVED, that the Ysleta del

Sur Pueblo respectfully requests its representatives in the

United States [Senate] and House of Representatives to

amend [§107(a) of the Restoration Act] by striking all of

that section as passed by the House of Representatives and

substituting in its place language which would provide that

all gaming, gambling, lottery, or bingo, as defined by the laws

and administrative regulations of the State of Texas, shall be

prohibited on the Tribe’s reservation or on tribal land.

59a

secretary. The Tribe’s suggested language, on the other

hand, established that Texas law with regard to gaming

would effectively operate as surrogate federal law. The

resolution also clearly indicates thai the Tribe, at the

time of the resolution’s adoption, ‘“‘ha[d] no interest in

conducting high stakes bingo or other gambling opera-

tions on its reservation” and “remain[ed] firm in its

commitment to prohibit outright any gambling or bingo

in any form on its reservation.”

The Senate of the 99th Congress incorporated the

Tribe’s suggested language. Section 107 of H.R. 1344, as

passed by the Senate in September 1986, provided that

‘‘{g] aming, gambling, lottery or bingo as defined by the

laws and administrative regulations of the State of Texas

is hereby prohibited on the tribe’s reservation and on

tribal lands.” 132 CONG. REC. S13634 (daily ed.

Sept. 25, 1986) (text of H.R. 1344 as passed by the Sen-

ate). Shortly thereafter, however, the Senate vitiated

action on H.R. 1344, see 132 CONG. REC. $13735

(daily ed. Sept. 25, 1986), whereupon the bill died.

The restoration legislation was reintroduced as H.R.

318 in the 100th Congress, and the House passed the bill

in April 1987. Section 107 of H.R. 318 provided that,

“[p] ursuant to Tribal Resolution T.C.-02-86 which was

approved and certified on March 12, 1986, all gaming as

defined by the laws of the State of Texas shall be pro-

hibited on the tribal reservation and on tribal land.”’ 133

CONG. REC. H2051 (daily ed. April 21, 1987) (text of

H.R. 318 as passed by the House). The Senate approved

H.R. 318 in July 1987. The Senate amended §107 to

read:

All gaming activities which are prohibited by the

laws of the State of Texas are hereby prohibited on

the reservation and on lands of the tribe. Any vic

60a

lation of the prohibition provided in this subsection

shall be subject to the same civil and criminal penal-

ties that are provided by the laws of the State of

Texas. The provisions of this subsection are enacted

in accordance with the tribe’s request in Tribal

Resolution No. T.C.-02-86 which was approved and

certified on March 12, 1986.

133 CONG. REC, S10568 (daily ed. July 23, 1987) (text

of H.R. 318 as passed by the Senate). According to the

Senate Report accompanying the legislation, the only

difference between §107 as passed by the Senate and

§ 107 as passed by the House was that the Senate version

‘“‘expand|s] on the House version to provide that anyone

who violates the federal ban on gaming contained in

[§ 107] will be subject to the same civil and criminal pen-

alties that are provided under Texas law.” S.Rep. No. 90,

100th Cong., Ist Sess. 8-9 (1987). Otherwise, the report

stated, the ‘‘central purpose”’ of the two versions was the

same: ‘‘to ban gaming on the reservations as a matter of

federal law.”” /d. at 8. The House concurred in the Sen-

ate’s amendments in August 1987, see 133 Cong. Rec.

H6972 (daily ed. Aug. 3, 1987), whereupon H.R. 318

became public law 100-89. Section 107 of the Restora-

tion Act is now codified at 25 U.S.C. §1300-g.°

5 the Restoration Act restored not only the Ysleta del Sur

Pueblo’s federal trust status but also the federal trust status of the

Alabama and Coushatta Indian tribes. The Act has two titles.

Title I, 25 U.S.C. §1300g, concerns the Ysleta del Sur Pueblo, and

Title Il, 25 U.S.C. §§ 731-37, concerns the Alabama and Cou-

shatta Indian tribes. The two titles are nearly identical, particu-

larly with regard to the sections concerning gaming. It is impor-

tant to note that the Alabama and Coushatta Indian tribes are

not parties to this suit. In fact, these tribes recently voted to not

engage in casino-style gambling on their reservation. See Dianna

Hunt, Indians Defeat Plan for Casino on Reservation, HOUSTON

CHRON., June 16, 1994, at 1A.

6la

In the midst of the 100th Congress’ deliberations over

the Restoration Act, the Supreme Court issued its opin-

ion in California v. Cabazon Band of Mission Indians,

480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987).

In that case, two Indian tribes located in California were

sponsoring unregulated gaming activities on their reser-

vations.* The state of California attempted to enforce

against the tribes a state statute regulating bingo opera-

tions. The tribes sued, asserting that California had no

authority to enforce its gambling laws and regulations

on tribal reservations because the United States, which

has plenary power over Indian affairs, had not author-

ized California to do so. California argued that, pursuant

tp Public Law 280 of 1953,° the United States had

expressly authorized California to enforce its bingo

Statute against the tribes. Public Law 280 specifically

granted California authority to (1) enforce its criminal

laws on Indian reservations,® and (2) hear in its courts

civil causes of action in which an Indian is a party.’

California argued in Cabazon Band that its bingo statute

was a criminal law which could be enforced on Indian

reservations.®

The Supreme Court disagreed. The Court began by

noting that, while Public Law 280 broadened California’s

4The California tribes were sponsoring bingo, draw poker,

and other card games.

5See Pub. L. No. 83-280, ch. 505, §§2 & 4, 67 Stat 588

(1953) (codified at 18 U.S.C. §1162(a) and 28 U.S.C. §1360(a)

respectively).

Sid. §2 (codified at 18 U.S.C. §1162(a)).

"Id. §4 (codified at 28 U.S.C. § 1360(a)).

Sin addition to California, Public Law 280 applied to five

other states: Alaska, Minnesota, Nebraska, Oregon and Wisconsin.

62a

authority with regard to Indian reservations, Congress did

not intend to grant it general civil regulatory authority.

Public Law 280, the Court reasoned, was narrowly tail-

ored to combat lawlessness on reservations and not “to

effect total assimiliation of Indian tribes into mainstream

American society.” Cabazon Band, 480 U.S. at 207-

08, 107 S.Ct. at 1087. Thus, according to the Court,

when a state invokes Public Law 280 to enforce its laws,

it must be determined whether the law is “criminal” in

nature, and therefore applicable, or “‘civil” in nature, and

therefore inapplicable except when the law is relevant to

private civil litigation in state court. The question of

whether a law is criminal or civil, in tum, depends on the

law’s practical effect. That is, a state law is criminal, and

thus inapplicable under Public Law 280, if it generally

prohibits certain conduct, but a state law is civil, and pre-

sumptively inapplicable, if it regulates the conduct at

issue. Cabazon Band, 480 U.S. at 209-10, 107 S.Ct. at |

1088.

Applying the _— criminal-prohibitory/civil-regulatory

dichotomy,’ the Court rejected California’s claim that its

bingo statute was criminal in nature on the basis that the

statute is not a general prohibition on certain conduct.

Instead, ‘“‘the state law generally permits the conduct at

issue, subject to regulation.” Id. at 209, 107 S.Ct. at

%The Court noted that this Circuit originally enunciated

the dichotomy in Seminole Tribe of Florida v. Butterworth, 658

F.2d 310 (5th Cir. 1981). Cabazon Band, 480 U.S. at 209-10,

107 S.Ct. at 1088.

l0-The statute in particular required bingo games to be

operated by unpaid members of designated charitable organiza-

tions. In addition, it limited prizes to $250 and required profits

to be used for charitable purposes. Cal. Penal Code §326.5

(1987).

63a

1088. The Court analogized California’s bingo statute

to the state's other gambling statutes, all of which regu-

late (rather than prohibit) the relevant conduct.!! The

Court concluded that, given the extent to which the state

currently regulated gambling, California had no public

policy against bingo in particular or gambling in gen-

eral. /d. at 211, 107 S.Ct. at 1089. California there-

fore could not prohibit the tribes from offering the gam-

ing activities on their reservations. _

Cabazon Band led to an explosion in unregulated gam-

ing on Indian reservations located in states that, like Cali-

fornia, did not prohibit gaming. While Congress recog-

nized that the growth in gaming generated substantial

revenues for the tribes and, hence, fostered tribal auton-

omy, it nonetheless became concerned that unregulated

growth might invite criminal elements. In 1988, Congress

therefore enacted the Indian Gaming Regulatory Act

(IGRA), 25 U.S.C. §§ 2701-21. IGRA was intended to

balance the right of tribes to self-government with the

need “to protect both the tribes and the gaming public

from unscrupulous persons.” See generally S. REP. NO.

446, 100th Cong., 2d Sess. 1-3 (1988), reprinted in

1988 U.S.C.C.A.N, 3071, 3071-73.

IGRA establishes three distinct classes of gaming —

Class I, Class II, and Class III — each with its own degree

of regulation. IGRA defines Class I gaming as social

games typically offered at traditional Indian ceremonies.

25 U.S.C. §2703(6). IGRA expressly states that it does

not regulate Class I gaming. Jd. §2710(a)(1). IGRA

Min addition to bingo, California permits, with certain

regulatory constraints, a lottery, pari-mutuel betting on horse

races,-and card games. Cabazon Band, 480 U.S. at 210-11, 107

S.Ct. at 1088-89.

64a

defines Class II gaming as bingo and non-banking card

games (i.e., card games in which the casino has no eco-

nomic interest in the outcome). Jd. §2703(7)(A).

IGRA provides that a tribe may engage in Class II gaming

so long as the state in which the tribe is located ‘“‘per-

mits’? such gaming. /d. §2710(b)(1). Finally, IGRA de-

fines Class III gaming as all forms of gaming, id. §2703-

(8), particularly the lucrative casino-style games such as

blackjack, slot machines, roulette and baccarat. See S.

REP. NO. 446 at 3, 7, U.S. Code Cong. & Admin. News

1988, pp. 3073, 3077. IGRA places two important con-

ditions on Class III gaming. First, just as it does with

Class II gaming, IRGA establishes that a tribe may engage

in Class III gaming so long as the state in which the tribe

is located ‘‘permits” such gaming. 25 U.S.C. §2710(d)-

(1)(B). Second, IGRA requires a tribe that seeks to en-

gage in Class III gaming to negotiate a compact with the

state in which it is located. Jd. §2710(d)(1)(C). Con-

gress viewed tribal-state compacts as the most effective

means of balancing tribal sovereignty with the states’

need to protect the public against the risks typically

associated with Class III-type gaming. S. REP. NO. 446

at 13-14, U.S. Code Cong. & Admin. News 1988, pp.

3083-3084. If a state refuses to negotiate a compact

with a tribe, IGRA permits the tribe to sue the state in

federal court. 25 U.S.C. §2710(d)(7)(A)(i).

Pursuant to IGRA, the Ysleta del Sur Pueblo peti-

tioned the governor of Texas in February 1992 to begin

negotiations to enter into a tribal-State compact.!* Gov-

l2-The Tribe specifically proposed baccarat, blackjack, craps,

roulette and slot machines, which hereinafter will be referred to

collectively as ‘‘proposed gaming activities.”

65a

eror Ann Richards took the position that she could not

negotiate a compact for the proposed gaming activities

because Texas law and public policy forbid such gaming

activities. The tribe therefore sued the State in April

1993. In May 1993, The State moved to dismiss on the

grounds that the Eleventh and Tenth Amendments

barred the suit. The district court denied the State’s

motion in June 1993, and the State appealed in July

1993. The State’s appeal from the district court’s denial

of the motion to dismiss (No. 93-8477) represents the

first of three appeals in this case.

After we denied a motion to Stay the proceedings

pending resolution of the State’s first appeal,!* the par-

ties returned to district court. In September 1993, the

Tribe and the State each filed motions for summary

judgment. The parties’ motions primarily focused on

a host of detailed IGRA-related questions, such as wheth-

er Texas law currently “permits” Class III games to be

played. The parties also raised the issue of whether the

Restoration Act independently bars the Tribe from

engaging in Class III-type gaming. In November 1993,

the district court granted the Tribe summary judgment.

Ysleta del Sur Pueblo v. State of Texas, 852 F.Supp.

587 (W.D. Tex. 1993). The court found that Texas

effectively “permits”? the Class III games in which the

Tribe is seeking to engage, and that therefore Texas

could not refuse to negotiate a tribal-state compact. Id.

at 590-96. The Court also found that the Restoration

Act does not serve as an independent bar to the Tribe’s

gaming plans. Jd. at 597.

3 The motion to stay was filed along with the first appeal.

We denied the motion in August 1993, with the caveat that the

governor could not be subject to process in the district court dur-

ing the pendency of the State’s first appeal.

66<

In response to the court’s summary judgment for the

Tribe, the State filed its second appeal (No. 93-8823)

in November 1993. The State again moved for a stay in

the proceedings pending resolution of this latest appeal.

Instead of granting a stay, we consolidated the State’s

two appeals in January 1994 and expedited their con-

sideration. Meanwhile, the Tribe, in response to the

State’s second appeal, filed with this court a motion to

dismiss that appeal for lack of jurisdiction. The Tribe

argued that, absent the appointment of a mediator,!*

the district court’s summary judgment for the Tribe was

not a final judgment for purposes of 28 U.S.C. $1291.

The Tribe’s motion, however, was subsequently rendered

moot when the district court appointed a mediator in

February 1994. To ensure that its second appeal was

properly preserved, the State formally appealed the

court’s appointment of a mediator. We consolidated the

State’s third appeal (No. 94-50130) with its remaining

two (Nos. 93-8477 & 93-8823).

II.

Ous sister circuits have split on the issue of whether

IGRA constitutionally permits an Indian tribe to sue a

state. Compare Seminole Tribe of Florida v. State of

Florida, 11 F.3d 1016, 1026-28 (11th Cir. 1994) with

Cheyenne River Sioux Tribe v. State of South Dakota,

3 F.3d 273, 280-81 (8th Cir. 1993).’° The State has

I4IGRA provides that, if a tribe and a state fail to reach a

compact within the sixty-day period following a court order to

do so, the court is empowered to appoint a mediator to choose

between each party’s “‘last best offer for a compact.” 25 U.S.C.

§ 2710(d)(7)(B) (iv).

15 See also William T. Bisset, Tribal-State Gaming Compacts:

The Constitutionality of the Indian Gaming Regulatory Act, 2)

[footnote continued]

67a

appealed precisely the same issue. However, as is appar-

ent below, our resolution of the State’s second appeal

renders this issue moot. Mindful that we should not

reach constitutional issues when a case can be resolved

on other grounds, we will merely assume, without decid-

ing, that Congress did not exceed its constitutional auth-

ority when it enacted IGRA.

III.

We now consider the State’s two remaining appeals

(Nos. 93-8823 & 94-50130), both of which essentially

appeal the district court’s order granting summary judg-

ment in favor of the Tribe and denying the State’s cross-

motion for summary judgment. In their respective

motions for summary judgment, the parties devoted

most of their discussion to IGRA-related questions. The

parties addressed the issue of whether Texas law “‘per-

mits” the Tribe’s proposed gaming activities to be played

‘for any purpose by any person.” 25 U.S.C. §2710(d)-

(1)(B). Texas, of course, argued that its laws and pub-

lic policy prohibit the Tribe’s proposed gaming activ-

ities whereas the Tribe argued the exact opposite. The

State alternatively argued that the Restoration Act inde-

pendently bars the Tribe from engaging in its proposed

gaming activities. The Tribe argued that under either

IGRA or the Restoration Act, the analysis and the con-

clusion are the same: Texas law does not prohibit the

proposed gaming activities, and therefore Texas cannot

bar the Tribe from engaging in them. As to both IGRA

HASTINGS CONST. L.Q. 71, 76-92 (1993); Joseph J. Weissman,

NOTE, Upping the Ante: Allowing Indian Tribes to Sue States in

Federal Court Under the Indian Gaming Regulatory Act, 62

GEO. WASH. L. REV. 123, 133-61 (1993).

68a

and the Restoration Act, the district court agreed with

the Tribe and granted its motion for summary judgment.

See Ysleta, 852 F.Supp. at 590-97. We conclude that

(1) the Restoration Act and IGRA establish different

regulatory ‘regimes with regard to gaming, (2) the Res-

toration Act prevails over IGRA when gaming activities

proposed by the Ysleta del Sur Pueblo are at issue, and

(3) the Tribe’s suit is barred because the Restoration

Act did not even attempt to abrogate the State’s Eleventh

Amendment immunity.

The Tribe insists that, under either IGRA or the Res-

toration Act, the analysis for determining whether the

Tribe’s proposed gaming activities are allowed is the

same. Specifically, it insists that §107(a) of the Restor-

ation Act does not operate as an independnet bar to its

proposed gaming activities because Texas does not ‘‘pro-

hibit” the proposed gaming activities. The first sentence

of §107(a) of the Restoration Act provides: “All gam-

ing activities which are prohibited by the laws of the

State of Texas are prohibited on the reservation and on

lands of the tribe.” 25 U.S.C. §1300g-6. The Tribe

maintains that the term “prohibit” has special signifi-

cance in federal Indian law, which is derived from Caba-

zon Band, and whether a federal court is interpreting

IGRA or the Restoration Act, it should apply the same

analysis, i.e., the Cabazon Band criminal-prohibitory/

civil-regulatory dichotomy. Thus, according to the

Tribe, the critical question under either IGRA or the

Restoration Act is whether Texas law and public policy

69a

“prohibit” (that is, criminalize rather than regulate) the

proposed gaming activities. !®

The Tribe argues that Texas does not prohibit the

Tribe’s proposed gaming activities by pointing to the

State’s broad definition of a lottery: “ ‘Lottery’ means

the procedures operated by the state under this chapter

through which prizes are awarded or distributed by

chance among persons who have paid, or unconditionally

agreed to pay, for a chance or other opportunity to re-

ceive a prize.” Tex. Gov’t. Code Ann. § 466.002(3)

(Vernon Supp. 1994). The Tribe contends that its pro-

posed gaming activities fall within the State’s definition

of lottery. That is, like a lottery, the Tribe’s proposed

gaming activities (i.e., baccarat, blackjack, craps, rou-

lette and slot machines) are all games of prize, chance

and consideration. Because the State permits one type of

game where the elements are prize, chance and consid-

eration, the State no longer prohibits any other games

with the same elements. The State, instead, merely reg-

ulates them. Consequently, according to the Tribe,

§107(a) of the Restoration Act does not act as an inde-

pendent bar to the Tribe’s proposed gaming activities.

The Tribe’s argument is appealing only because § 107-

(a) of the Restoration Act uses the word ‘‘prohibit.”’

But our analysis of the legislative history of both the

Restoration Act and IGRA leads ut to a conclusion con-

trary to that sought by the Tribe. When it passed IGRA,

Congress indicated that, when determining whether Class

II games are “prohibited” in certain States, federal

l6The Tribe contends that both IGRA and the Restoration

Act incorporated the Cabazon Band rationale because both statutes

were passed by the same committees in each chamber at roughly

the same time.

70a

courts should rely on Cabazon Band’s criminal-prohibi-

tory/civil-regulatory distinction.!? No such express

recognition of Cabazon Band appears in the committee

reports accompanying the Restoration Act. Rather, in

considering the Restoration Act, Congress clearly was

concerned with enacting the compromise between the

Tribe, the State and various members of the Texas con-

gressional delegation. | Congress specifically drafted

§ 107(a) “in accordance with the tribe’s request in tribal

Resolution No. T.C.-02-86.” 25 U.S.C. 1300g-6(a).

That resolution is crystal clear. The Tribe, in response to

the concerns of Texas officials and various members of

the State’s congressional delegation, petitioned Congress

to adopt “‘language which would provide that all gaming,

gambling, lottery, or bingo, as defined by the laws and

administrative regulations of the State of Texas, shall be

prohibited on the Tribe’s reservation or on tribal land.”

Congress acquiesced, and in so doing, spelled out the pur-

pose of §107(a): “‘[t] his section provides that gambling,

lottery or bingo as defined by the laws and administrative

regulations of the State of Texas is prohibited on the

17In the committee report accompanying IGRA, Congress

stated that:

Federal courts will rely on the distinction between State

criminal laws which prohibit certain activities and the civil

laws of a State which impose a regulatory scheme upon those

activities to determine whether class II games are allowed in

certain States. This distinction has been discussed by the

Federal courts many times, most recently by the Supreme

Court in Cabazon.

S. Rep. No. 446 at 6. Thus, while Congress was specific as to

Cabazon Band’s application to Class I] gaming, Congress lett open

‘ the question as to whether that case applied to Class III gaming.

Because we conclude that the Restoration Act clearly does not

incorporate Cabazon Band, we leave open the question of whether

IGRA incorporates Cabazon Band with regard to Class III gaming.

71la

tribe’s reservation and on tribal lands.” S. REP. NO. 90

at 10 (emphasis added). The report’s reference to both

the laws and administrative regulations of Texas is clearly

inconsistent with a centention that the Tribe and Con-

gress contemplated that the prohibitory-regulatory dis-

tinction of Cabazon Band would be involved in analyzing

the Restoration Act. Furthermore, as a means of enforc-

ing those laws and regulations, Congress provided in

§107(a) that “[a]ny violation of the prohibition pro-

vided in this subsection shall be subject to the same civil

and criminal penalties that are provided by the laws of

the State of Texas.” 25 U.S.C. § 1300g-6(a) (emphasis

added). Again, if Congress intended for the Cabazon

Band analysis to control, why would it provide that one

who violates a certain gaming prohibition is subject to a

cwil penalty? We thus conclude that Congress did not

enact the Restoration Act with an eye towards Cabazon

Band.'® Congress was merely acceding to the Tribe’s

request that the tribal resclution be codified. See S.

REP. NO. 90 at 8 (the Tribe, “>y formal resolution,

requested that this legislation incorporate [its] existing

law and custom that forbids gambling”). !9

The Tribe points to two items in the Restoration Act’s

legislative history that it believes indicates Congress

incorporated Cabazon Band into §107(a) of the Act.

18 our conclusin is buttressed by the fact that the Restoration

Act, which (like IGRA) was enacted after Cabazon Band was

decided, makes no reference to the case, whereas IGRA does.

See S. REP. NO. 446 at 6, U.S. Code Cong. & Admin. News

1988, p. 3076. We take IGRA’s reference to Cabazon Band as

evidence that Congress knew how to incorporate the case when it

so intended.

19 the report also states that the “central purpose” of § 107(a)

is ‘‘to ban gaming on the reservations as a matter of federal law.”

S. REP. NO. 90 at 8.

72a

First, Congress noted in its report that §107(b) “‘is a

restatement of the law as provided in [Public Law

280].” Jd. at 10. The reference to Public Law 280, the

statute at issue in Cabazon Band, presumably is the hook

on which the Tribe hangs this argument. The Tribe’s

argument, however, misses the mark, because §107(b),

as opposed to §107(a), states only that the Restoration

Act is not to be construed as a grant of civil or criminal

regulatory jurisdiction to the State. In that sense only,

§107(b) is a restatement of Public Law 280. But it is

§107(a) that determines whether Texas ‘‘prohibits” cer-

tain gaming activities, and §107(a) is not a restatement

of Public Law 280.

The Tribe’s second argument admittedly raises a closer

question. In August 1987, as the Restoration Act was on

the brink of final passage in the House of Representa-

tives, a member made the following statement on the

floor of the House:

It is my understanding that the Senate amend-

ments to [§107] are in line with the rational

[sic] of the recent Supreme Court decision in the

case of Cabazon Band of Mission Indians versus

California. This amendment in ¢ffect would cod-

ify for [the Tribe] the holding and rational [sic]

adopted in the Court’s opinion in the case.

133 CONG. REC. H6975 (daily ed. Aug. 3, 1987) (state-

ment of Rep. Udall). Standing alone, this statement

supports the Tribe’s argument that Congress intended to

incorporate Cabazon Band into the Restoration Act.

But we find ourselves confronted with substantial legis-

lative history to the contrary, including the plain lang-

uage f §107(a), its accompanying report language, and

the tribal resolution to which §107(a) expressly refers.

We cannot set aside this wealth of legislative history

" i ta ae ita .

73a

simply to give meaning to the floor statement of just one

representative that was recited at the twelfth hour of the

bill’s consideration. See, e.g., Fort Stewart Schools v.

Federal Labor Relations Auth., 495 U.S. 641, 648-50,

110 S.Ct. 2043, 2047-48, 109 L.Ed.2d 659 (1990).

Rather, upon reviewing these materials, we are left with

the unmistakable conclusion that Congress — and the

Tribe — intended for Texas’ gaming laws and regulations

to operate as surrogate federal law on the Tribe’s reserva-

tion in Texas.”

We find it significant that §107(c) of the Restoration

Act establishes a procedure for enforcement of §107(a)

which is fundamentally at odds with the concepts of

IGRA. Under §107(c), the state of Texas is authorized

to file suit in a federal court to enjoin any. violation by

the Tribe of the provisions of §107(a). 25 U.S.C.

§ 1300g-6(c); see also S. REP. NO. 90 at 9. The state of

Texas did not initiate this litigation under §107(c);

rather, the Tribe brought this suit under IGRA. Because

the Restoration Act and IGRA establish such funda-

mentally different regimes, we now must decide which

statute applies in this case. The Tribe argues that, to the

extent that a conflict between the two exists, IGRA

impliedly repeals the Restoration Act. We disagree.

20We are aware that the Supreme Court has established some

rules of construction as to Acts of Congress relating to Indian

affairs which require that Congress’ intention be “explicit,”

“clear,” “unambiguous,” “plain” and “specific.” See United

States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 62 S.Ct. 248,

86 L.Ed. 260 (1941); United States v. Dion, 476 U.S. 734, 106

S.Ct. 2216, 90 L.Ed.2d 767 (1986); Solem v. Bartlett, 465 U.S.

463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984). The Restoration

Act satisfies these requirements.

74a

The Supreme Court has indicated that “[r]epeals by

implication are not favored.” Crawford Fitting Co. v.

J.T. Gibbons, Inc., 482 U.S. 437, 442, 107 S.Ct. 2494,

2497, 96 L.Ed.2d 385 (1987). The Court in Crawford

Fitting further noted that, ‘“‘where there is no clear

intention otherwise, a specific statute will not be con-

trolled or nullified by a general one, regardless of the

priority of enactment.” Jd. at 445, 107 S.Ct. at 2499

(quoting Radzanower v. Touche Ross & Co., 426 U.S.

148, 153, 96 S.Ct. 1989, 1992, 48 L.Ed.2d 540 (1976)).

With regard to gaming, the Restoration Act clearly is a

specific statute, whereas IGRA is a general one. The

former applies to two specifically named Indian tribes

located in one particular state, and the latter applies to

all tribes nationwide. Congress, when enacting IGRA

less than one year after the Restoration Act, explicitly

stated in two separate provisions of IGRA that IGRA

should be considered in light of other federal law.”!

Congress never indicated in IGRA that it was expressly

repealing the Restoration Act. Congress also did not

include in IGRA a blanket repealer clause as to other

laws in conflict with IGRA. Finally, we note that in

1993, Congress expressly stated that IGRA is not appli-

cable to one Indian tribe in South Carolina, evidencing

in our view a clear intention on Congress’ part that

IGRA is not to be the one and only statute addressing

the subject of gaming on Indian lands.”* Therefore, we

conclude not only that the Restoration Act survives

21 cee 25 U.S.C. §2701(5) (“{t]he Congress finds that...

Indian tribes have the exclusive right to regulate gaming activity

on Indian lands if the gaming activity is not specifically prohibi-

ted by federal law’); id. §2701(b)(1)(A) (tribes may engage in

Class II gaming if, inter alia, ‘‘such gaming is not otherwise specif-

ically prohibited on Indian lands by Federal law”).

22 cee 25 U.S.C. §9411 (a).

75a

today but also that it — and not IGRA — would govern

the determination of whether gaming activites proposed

by the Ysleta del Sur Pueblo are allowed under Texas

law, which functions as surrogate federal law.

The Tribe warns that our conclusion (i.e., that Texas

gambling laws and regulations are surrogate federal

law) will constitute a substantial threat to its sover-

cignty in that “[e]very time the State modifies its

gambling laws, the impact will be felt on the reserva-

tion.”” However, any threat to tribal sovereignty is of

the Tribe’s own making. The Tribe noted in its resolu-

tion that it viewed §107(a) of the Restoration Act as

‘‘a substantial infringement upon the Tribes’ [sic] power

of self government” but nonetheless concluded that

relinquishment of that power was necessary to secure

passage of the Act. To borrow IGRA terminology, the

Tribe has already made its ‘‘compact”’ with the state of

Texas, and the Restoration Act embodies that compact.

If the Ysieta del Sur Pueblo wishes to vitiate the com-

pact it made to secure passage of the Restoration Act,

it will have to petition Congress to amend or repeal the

Restoration Act rather than merely comply with the

procedures of IGRA. :

Finally, having concluded that the Restoration Act

governs this case, we now must determine whether the

Tribe’s suit against the State is cognizable. The Eleventh

Amendment bars any suit against a state in federal court,

unless either the state has waived its sovereign immunity

or Congress, pursuant to another provision in the Con-

stitution, has expressly abrogated the state’s immunity.

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-

40, 105 S.Ct. 3142, 3144-46, 87 L.Ed.2d 171 (1985).

76a

A state’s sovereign immunity under the Eleventh Amend-

ment includes immunity from suits brought by Indian

tribes. Blatchford v. Native Village of Norfolk, 501

U.S. 775, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991).

While the State clearly raised the Eleventh Amendment

as a defense to the Tribe’s IGRA suit, it did not do the

same with regard to the Restoration Act. The State’s

omission, however, does not mean we are precluded

from raising the issue sua sponte, because the Eleventh

Amendment operates as a jurisdictional bar. See Edel-

man v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363,

39 L.Ed.2d 662 (1974); Ortiz v. Regan, 749 F.Supp.

1254, 1264 (S.D.N.Y. 1990); 13 CHARLES A. WRIGHT,

et al., Federal Practice and Procedure §3524 at 167-71.

We find nothing in the record indicating that the state of

Texas consented to the Tribe’s suit. Likewise, in enact-

ing the Restoration Act, Congress said nothing whatso-

ever which could be construed as an abrogation of the

State’s sovereign immunity. Accordingly, we reverse the

district court’s summary judgment in favor of the Tribe

and remand the case with instructions to dismiss the

Tribe’s suit for lack of jurisdiction.

IV.

For the foregoing reasons, we REVERSE the district

court’s summary judgment for the Tribe and REMAND

with instructions to DISMISS the Tribe’s suit.

77a

APPENDIX H

[852 F.Supp. 587]

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS,

PECOS DIVISION

YSLETA DEL SUR PUEBLO

STATE OF TEXAS and Ann Richards,

Governor of the State of Texas.

No. P-93-CA-29.

Nov. 1, 1993.

Tom Diamond, Ron Jackson, John Batoon, Diamond,

Rash, Gordon & jackson, El Paso, TX, for plaintitts.

Dan Morales, Will Pryor, Mary Keller, Jorge Vega, Toni

Hunter, State Atty. Gen’s. Office, Austin, TX, for de-

fendants.

MEMORANDUM OPINION AND ORDER

BUNTON, Senior District Judge.

BEFORE THIS COURT, in the above-captioned cause of

action, are the following:

1. Defendants’ Motion for Partial Summary Judgment

with Brief in Support Thereof;

78a

2. Plaintiff's Motion for Summary Judgment with

Brief in Support Thereof;

3. Plaintiff’s Response to Defendants’ Motion for

Partial Summary Judgment with Brief in Support

Thereof;

4. Defendants’ Response to Plaintiff's Motion for

Summary Judgment with Brief in Support There-

of;

5. Plaintiff's Supplemental Motion for Summary

Judgment with Brief in Support Thereof;

6. Defendants’ Supplemental Motion for Summary

Judgment with Brief in Support Thereof;

7. Plaintiff's Response to Defendants’ Supplementai

Motion for Summary Judgment with Brief in

Support Thereof; and

8. Defendants’ Reply to Plaintiff's Supplemental

Motion for Summary Judgment.

BACKGROUND

Plaintiff, Ysleta Del Sur Pueblo (hereinafter referred

to as the ‘“‘Tribe’’), is a federally recognized Indian Tribe

whose reservation is located in El Paso County, Texas.

The Defendants are the State of Texas and Ann Rich-

ards, Governor of the State of Texas. On February 12,

1992, the Tribe requested that the Governor of Texas,

Ann Richards, enter into negotiations for the formation

of a compact with the Tribe which would allow the Tribe

tu conduct various types of gaming activities on their

Tribal lands, pursuant to the Indian Gaming Regulatory

Act (hereinafter referred to as “IGRA’’), 25 U.S.C.

§2701, et seg. On March 5, 1992, Karen Abernathy,

Director of Scheduling in the office of the Governor

acknowledged the Tribe’s request, but due to the Gov-

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ernor’s heavy schedule, declined to meet with the Tribe

to discuss the possible formation of a compact.

However, over the period of the next thirteen months,

several meetings did take place between Tribal repre-

sentatives and representatives from the Governor’s Gen-

eral Counsel. During the course of these meetings, the

Tribe proposed several versions of a Tribal State Com-

pact. The Governor’s representatives refused to nego-

tiate over any proposed compact which would include

any Casino-style games.

As a result of a newspaper article published in the final

edition of The Houston Post on April 1, 1993, in which

the Governor was quoted as saying that the State would

not negotiate a compact which included Casino-style

games, the Tribe filed this action.

In the Tribe’s complaint, filed on April 15, 1993, the

Tribe requested this Court to issue an Order requiring the

State to enter into negotiations for the formation of a

Tribal-State compact within a sixty day period from the

entry of any such Order, pursuant to the IGRA. In the

Tribe’s First Amended Complaint, filed September 28,

1993, the Tribe seeks a determination as to exactly which

games are the proper subject of negotiations of a Tribal-

State compact under the IGRA.

STANDARD ON

MOTION FOR SUMMAR Y JUDGMENT

Summary judgment, “shall be rendered forthwith if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judment

as a matter of law.” Fed. R. Civ. P. 56(c); see Hansen

80a

v. Continental Ins. Co., 940 F.2d 971, 975 (5th Cir.

1991); Hogue v. Royse City, 939 F.2d 1249, 1252

(5th Cir. 1991). ‘Summary judgment procedure is

properly regarded not as a disfavored procedural short-

cut, but rather as an integral part of the Federal Rules

as a whole, which are designed ‘to secure the just, speedy,

and inexpensive determination of every action.’ ” Celo-

tex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548,

2555, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P.

1).

‘“‘All facts contained in the pleadings, depositions,

admissions, and answers to interrogatories are

reviewed by ‘drawing all inferences most favorable

to the party opposing the motion.’ ” James uv.

Sadler, 909 F.2d 834, 836 (5th Cir. 1990) (quoting

Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d

577, 578 (5th Cir. 1986); Waltman v. Int'l Paper

Co., 875 F.2d 468, 474 (5th Cir. 1989); Moore v.

Mississippi Valley State Univ., 871 F.2d 545, 549

(5th Cir. 1989); Degan v. Ford Motor Co., 869

F.2d 889, 982 (5th Cir. 1989). However,

“lw]hen a motion for summary judgment is

made and supported as provided in this rule, an

adverse party may not rest upon the mere allega-

tions or denials of the adverse party’s pleading,

but . . . must set forth specific facts showing

that there is a genuine issue for trial.”’

Duplantis v. Shell Offshore, Inc., 948 F.2d 187,

190-91 (5th Cir. 1991) (quoting Fed. R. Civ. P.

56(e)). .

Accordingly, the focus of this Court is upon dis-

putes over material facts; that is, facts likely to affect

the outcome of the lawsuit under the governing sub-

stantive law which will preclude summary judgment.

ee eC

8la

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,

106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Phillips

Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.),

cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d

107 (1987). The Fifth Circuit stated, “{t]he standard

of review is not merely whether there is a sufficient

factual dispute to permit the case to go forward, but

whether a rational trier of fact could find for the non-

moving party based upon the record evidence before the

court.” James, 909 F.2d at 837; see Matshshita Elec.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106

S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Boeing

Co. v. Shipman, 411 F.2d 365, 374-375 (5th Cir. 1969)

(en banc).

The Supreme Court’s 1986 trilogy of summary judg-

ment cases clarified the test for summary judgment. In

the first case of thr trilogy, Anderson, the Court stated

the trial court must consider the substantive burden

of proof imposed on the party making the claim. A

plaintiff has the burden with respect to each of his or her

claims and a defendant has the burden with respect to

his or her defenses and claims for affirmative relief.

Anderson requires this Court to substantively evaluate

the evidence offered by the moving and nonmoving par-

ties. “(T]he requirement is that there be no genuine

issue of material fact.” Id. at 248, 106 S.Ct. at 2510

(emphasis in original). A dispute is “genuine” “ if the

evidence is such that a reasonable jury could return a

verdict for the non-moving party.” /d. “Only disputes

over facts that might affect the outcome of the suit under

the governing law will properly preclude the entry of

summary judgment.”’ Jd.

In the second case of the trilogy, Matsushita Electric

Industrial Co., Ltd. v. Zenith Radio Corp.; 475 USS.

82a

574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Sup-

reme Court reiterated the requirement that once the

party moving for summary judgment has made a prima

facie showing there is no genuine issue as to any mater-

ial fact, the nonmoving party must then come forward

with “specific facts’ showing a genuine issue for trial.

“Its opponent must do more than simply show that

there is some metaphysical doubt as to the material

facts.”’ Id. at 586, 106 S.Ct. at 1356. The burden shifts

to the nonmoving party to produce evidence in support

of its claims. ‘‘The nonmovant can satisfy its burden by

tendering depositions, affidavits, and other competent

evidence to buttress itc claim.”” Topalian v. Ehrman, 954

F.2d 1125, 1132 (5th Cir. 1992). The nonmovant can-

not establish a fact issue by resting on the mere allega-

tions of the pleadings. “In fact, unsupported allegations

or affidavits setting forth ‘ultimate or conclusory facts

and conclusions of law’ are insufficient to either support

or defeat a motion for summary judgment.” Galindo v.

Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.

1985).

The third case of the trilogy, Celotex Corp. v. Catrett,

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986),

held when the moving party shows the opposing party is

unable to produce the evidence in support of its case,

summary judgment is appropriate. The entry of sum-

mary judgment is mandated”’ ‘after adequate time for dis-

covery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of

an element essential to that party’s case and upon which

that party will bear the burden of proof at trial.’ Aidd

v. Southwest Airlines Co., 891 F.2d 540, 547 (5th Cir.

1990) (quoting Celotex Corp., 477 U.S. at 318, 106 S.Ct.

at 2552). In Celotex Corp., it was not necessary for the

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motion for summary judgment to be supported by affi-

davits or other materials specifically negating the non-

moving party’s claim so long as the District Court was sat-

isfied of the absence of evidence to support it.

Nothing in Rule 56(c) “requires that an oral hearing

be held on a motion for summary judgment.” McMillan

v. City of Rockmart, 653 F.2d 907, 911 (5th Cir. 1981);

see Fed. R. Civ. P. 78; Local Court Rule CV-7(h). How-

ever, this Court has demonstrated its willingness to allow

a nonmoving party a day in court in borderline cases

where, under the governing law or reasonable extensions

of existing law, the hearing of some testimony would be

helpful to understanding the proper application of the

law. However, such is not the situation in the case at

bar.

DISCUSSION

The issues presented by the Tribe and the State in their

Motions for Summary Judgment are: (1) Whether or not,

under the IGRA, the Governor and the State of Texas

have failed to negotiate in good faith with the Tribe over

the formation of a Tribal-State Compact; (2) which

games that the Tribe has requested are the proper sub-

ject of negotiations under Class III gaming of the IGRA;

(3) whether the Johnson Act, 15 U.S.C. §1171, et seq.,

prevent the transportation of the proposed gambling

devices in the State of Texas; and (4) whether or not the

Restoration Act, 25 U.S.C. §1300g-6, prohibits gaming

activities pursuant to the IGRA.

THE IGRA FRAMEWORK

Congress enacted the IGRA in 1988. In §2701 Con-

gress listed its findings:

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(1) numerous tribes have become engaged in or have

licensed gaming activities on Indian lands as a

means of generating tribal government revenue;

(3) existing Federal law does not provide clear

standards or regulations for the conduct of

gaming on Indian lands;

(4) a principal goal of Federal Indian policy is to

promote tribal economic development, tribal

self-sufficiency, and strong tribal government;

and

(5) Indian tribes have the exclusive right to regulate

gaming activity on Indian lands if the gaming

activity is not specifically prohibited by Federal

law and is conducted within a State which does

not, as a matter of criminal law and public pol-

icy, prohibit such activity.

25 U.S.C. §2701.

The stated purposes of the IGRA are:

(1) to provide a statutory basis for the operation

of gaming by Indian tribes as a means of pro-

moting economic development, self-sufficiency,

and strong tribal governments;

(2) to provide a statutory basis for the regulation of

gaming by an Indian tribe adequate to shield it

from organized crime and other corrupting influ-

ences, to ensure that the Indian tribe is the pn-

mary beneficiary of the gaming operation, and to

assure that gaming is conducted fairly and hon-

estly by both the operators and the players; and

(3) to declare that the establishment of independent

Federal authority for gaming on Indian lands, the

establishment of Federal standards for gaming

on Indian lands, and the establishment of a

National Indian Gaming Commission are neces-

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Sary to meet congressional concerns regarding

gaming and to protect such gaming as a means of

generating tribal revenue.

25 U.S.C. § 2702.

Under IGRA gaming is divided into three classes.

Class I gaming includes “‘social games solely for prizes of

minimal vaiue or traditional forms of Indian gaming

engaged in by individual as a part of, or in connection

with, tribal ceremonies or celebrations.” 25 U.S.C.

§2703/6). Class I gaming is subject to the exclusive

jurisdiction of the Indian tribes. 25 U.S.C. § 2710(a)-

(1).

Class II gaming means “the game of chance commonly

known as bingo (whether or not electronic, computer,

or other technologic aids are used in connection there-

with) . . . . including (if played at the same location)

pull-tabs, lotto, punch boards, tip jars, instant bingo,

and other games similar to bingo and card games that —

(I) are explicitly authorized by the laws of the State,

or (II) are not explicitly prohibited by the laws of the

State and are played at any location in the State,”’ pro-

vided such card games comply with the laws and regula-

tions of the State regarding hours of operation, limi-

tations on wagers, and pot sizes. 25 U.S.C. § 2703-

(7)(A). Class II gaming does not include “any banking

card games, including baccarat, chemin de fer, or black-

jack, or . . . electronic or electromechanical facsimilies

of any game of chance or slot machines of any kind.”’

25 U.S.C. §2703(7)(B). The tribes have jurisdiction over

Class II gaming, subject to the requirements of IGRA and

the oversight of the National Indian Gaming Commis-

sion. 25 U.S.C. §2710(b).

Class III gaming includes all forms of gaming that are

not Class I or II gaming. 25 U.S.C. §2703(8). The

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games that are in dispute are Class III games. In regard to

Class III games the IGRA provides:

Class III gaming activities shall be lawful on Indian

lands only if such activities are —

(A) authorized [by an approved Tribal] ordi-

nance or resolution....,

(B) located in a State that permits such gaming

for any purpose by any person, organization, or

entity, and

State compact entered into by the Indian tribe

and the State under paragraph (3) that is in effect.

If a tribe wishes to engage in Class III gaming activities

on tribal land, it must ‘‘request the state in which such

lands are located to enter into such negotiz vions for the

purpose of entering into a Tribal-State compact govern-

ing the conduct of gaming activities.” 25 U.S.C. §2710-

(d)(3)(a). Upon receiving the request, the state must

negotiate in good faith with the Tribe. Jd. (emphasis

added).

The stimulus that led to the passage of the IGRA was

the Supreme Court’s decision in California v. Cabazon

Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083,

94 L.Ed.2d 244 (1987). Before discussing Cabazon

it is necessary to determine if Congress intended the

Cabazon analysis to be applied in cases brought under the

IGRA. 25 U.S.C. §2710(d). The State of Texas asserts

that the analysis in Cabazon should not be followed

because Texas is not a P.L. 280 state. P.L. No. 83-280,

codified as 18 U.S.C. §1162 and 28 U.S.C. §1360,

gave certain states limited civil and general criminal jur-

isdiction in certain areas of Indian country within their

borders. The State asserts that it is unnecessary for this

Court to apply the civil/regulatory or criminal/prohibi-

4 ead at

87a

tory analysis because it is superseded by the language in

the IGRA.

The definitive language in the IGRA in order to det-

ermine whether or not a particular game is the proper

subject of a Tribal-State Compact is the phrase “located

within a State that permits such gaming for any purpose

by any person, orgaiiization or entity”’.

The Senate Report accompanying IGRA’s passage

provided the following guidance in construing the above

mentioned language in IGRA:

[T]he Committee anticipates that Federal courts

will rely on the distinction between State criminal

laws which prohibit certain activities and the civil

laws of a State which impose a regulatory scheme

upon those activities to determine whether class II

games are allowed in certain States. This distinc-

tion has been discussed by the Federal Courts many

times, most recently by the Supreme Court in

Cabazon.

S. Rep. No. 446, 100th Cong., 2d Sess., reprinted in

1988 U.S.C.C.A.N. 3071, 3076. Although the language

in the Report refers to Class II gaming, it also applies to

Class III gaming. See Mashantucket Pequot Tribe v. State

of Conn., 913 F.2d 1024, 1030 (2d Cir. 1990), cert.

denied, 499 U.S. 975, 111 S.Ct. 1620, 113 L.Ed.2d 717

(1991) (applying well settled principles of statutory con-

struction the Court found the Senate Report’s conclusion

regarding the application of Cabazon analysis applicable

to Class III gaming). See also U.S. v. Sissteon- Wahpeton

Sioux Tribe, 897 F.2d 358, 366 (8th Cir. 1990): Rumsey

Indian Rancheria of Wintun Indians, Table Mountain

Rancheria v. Wilson, No. Civ-S-92-812, 1993 WL 360652

(E.D. Cal. July 20, 1993), and Seminole Tribe of Florida

v. Florida, No. 91-6756-CIV, 1993 WL 475999 (S.D. Fla.

88a

September 22, 1993). The civil/regulatory and criminal/

prohibitory analysis was intended to be part of the IGRA

framework determining the appropriate scope of Class

III gaming.

In Cabazon, interpreting a California statute, which

allowed some forms of bingo but not high stakes bingo,

the Supreme Court found the statutes to be regulatory in

nature, stating:

California does not prohibit all forms of gambiing.

California itself operates a state lottery, and daily

encourages its citizens to participate in this state-

run gambling. California also permits pari-mutuel

horse-race betting. Although certain enumerated

gambling games are prohibited . .. , games not

enumerated . . . are permissible . . . [B]ingo is

legally sponsored by many different organizations

and is widely played in California... In light of the

fact that California permits a substantial amount of

gambling activity, including bingo, and actually pro-

motes gambling through its state lottery, we must

conclude that California regulates rather than pro-

hibits gambling in general and bingo in particular.

480 U.S. at 211, 107 S.Ct. at 1089. The Court

cautioned that the mere fact that a law could be

enforced by criminal as well as civil mechanisms

did not automatically convert it into a criminal

law. The key is “whether the conduct at issue vio-

lates the State’s public policy.” 480 U.S. at 209,

107 S.Ct. at 1089.

The State maintains that Texas has a broad public pol-

icy against commercial gambling. Specifically they point

out that Texas prohibits all forms of gambling with the

exception of bingo, pari-mutuel betting on horse and

dog races, charitable raffles, and the Texas lottery. Tex.

Penal Code §4701 et seg. The Tribe maintains that the

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public policy with respect to gaming in Texas is civil/

regulatory.

Not only does Texas allow the above-mentioned gam-

bling activities, but it also allows electronic, electro-

mechanical, or mechanical games of chance as long as the

reward is a non-cash prize with a value of no more than

five dollars. Act of June 17, 1993, ch. 774, §1993 Tex.

Sess.Law Serv. 3030 (Vernon). Additionally, wagers on

carnival contests are not considered illegal so long as the

prize is limited to merchandise worth no more than

$25.00. Tex. Panel Code Ann. §47.01(1)(C), (D) (Ver-

non Supp. 1992). Finally, social gambling is not illegal if

the place in which the gambling is conducted is private,

there are even chances and risks, and there is no bank.

Tex. Penal Code Ann. § 47.02(b).

It can no longer be asserted that Texas’ public policy

is against gambling. Carnival Leisure Industries, Ltd. v,

Aubin, 830 F.Supp. 371 (S.D. Tex. 1993), By allowing

pari-mutuel gambling at horse and dog tracks, various

bingo games, and promiting a multi-billion dollar lottery,

Texas can no longer assert that it has a broad public pol-

icy against gambling, to so claim would be anachronistic.

Id. See also U.S. v, Sisseton-Wahpeten Sioux Tribe, 897

F.2d 358, 367 (8th Cir. 1990) (South Dakota law was

civil/regulatory where state permitted bingo, horse and

dog racing, a state lottery and siot machines); Lac du

Flambeau Band of Lake Superior Chippewa Indians v.

Wisconsin, 770 F.Supp. 480 (W.D. Wis. 1991), app.

dism’d, 957 F.2d 515 (7th Cir. 1992), cert. denied, 506

U.S. 829, 113 S.Ct. 91, 121 L.Ed.2d 53 (1992) (State

law is civil/regulatory where it Permits pari-mutuel

betting on horse, dog and snow mobile racing, allows

charitable raffles and bingo, and operates lottery and

lotto). Thus this Court agrees with the Tribe, Texas is

a Civil/regulatory jurisdiction when it comes to gaming.

90a

The IGRA and Cabazon combined demonstrate that

a two-step analysis must be employed to determine which

Class III games are the proper subject of a Tribal-State

Compact. Rumsey Indian Rancheria of Wintum Indians,

Table Mountain Rancheria v. Wilson, No. Civ-S-92-812,

1993 WL 360652 (E.D. Cal. July 20, 1993). In step one

the court must determine whether the siat¢ permits the

gaming activity to be played “for any purpose by any

person” Jd. If the game is permitted then it is clear that

the game is the proper subject of a Tribal State Compact

under the IGRA, thus the analysis ends at that point.

However, if the game is not permitted by the state then

the court must proceed to step two of the analysis. It

is under step two that the Cabazon analysis is utilized to

ascertain whether the proposed game violates the state’s

public policy. If the state’s public policy does not pro-

hibit the game, then the game is the proper subject of

a Tribal-State Compact. The Court in Rumsey sum-

marized the analysis as follows:

The effect of IGRA is simply to provide a short-

ened application of the Cabazon ruie where a game

is found to be played within a state. In such in-

stance, no further analysis is necessary to find the

game is proper for a Tribal-State compact. In every

other case, however, Cabazon retains its full vital-

ity and a game wili only be prohibited on Indian

lands if it violates the state’s public policy. /d.

It is also important to note that the Tribe does not

have to show that the state formally authorizes the same

gaming activities of which they plan to offer; the key

inquiry is whether the state prohibits those activities.

Lac du Flambeau Band of Lake Superior Chippewa

Indians v. Wisconsin, 770 F.Supp. at 487.

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TRIBE’S PROPOSED GAMES

Black Jack, Roulette, Baccarat, Craps (Dice), and

“Slot” machines, including electronic and electromech-

anical games of chance, are the games that the Tribe has

sought to include in the negotiations of the Tribal-State

Compact. The Tribe asserts that the games it has pro-

posed should be included in the negotiation of a Tribal-

State compact under the IGRA. The State asserts that

the “‘casino-type” games the Tribe Proposes are not per-

mitted in Texas and are not the Proper subject of any

negotiations. Specifically, the State has maintained that

the only Class III gaming activities allowed are those

which Texas expressly allows, pari-mutuel betting on

horse and dog racing and the State Lottery. The State

maintains the specific gaming activities requested by the

Tribe are neither “played” nor allowed; therefore, such

gaming activities should not be included in the negotia-

tion of a Tribal-State Compact under the IGRA.

The Tribe maintains that each of the games it has

requested are permitted in Texas. The Tribe uses the

definition of “Lottery” as that term is defined in the

State lottery Act in support of its position.

When the present State constitution was adopted,

it contained the following provision:

The legislature shall pass laws prohibiting the

establishment of lotteries and gift enterprises

in this State, as well as the sale of tickets in lotteries,

gift enterprises or other evasions involving the lot-

tery principle, established or existing in other

States.

Tex. const. art. III, §47 (1876). At that time there was

no constitutional or legislative definition of “‘lottery.”’

It was ot until 1936 when the Texas Supreme Court

decided City of Wink v. Griffith Amusement Co., 129

NEE

92a

Tex. 40, 100 S.W.2d 695 (1936) (citation omitted), in

which the elements oi a lottery were stated as the offer-

ing of a prize, the award of a prize by chance, and the

giving of a consideration for an opportunity to win the

prize.

The first legislative definition of the term “‘lottery”’

appeared in 1974 when Texas adopted its present Penal

Code:

‘“‘Lottery” means any scheme or procedure whereby

one or more prizes are distributed by chance among

persons who have paid or promised consideration

for a chance to win anything of value, whether such

scheme or procedure is called a pool, lottery, raf-

fle, gift, gift enterprise, sale, policy game, or some

other name.

Tex. Penal Code Ann. §47.01(6) (Vernon 1989). On

November 5, 1991, the State of Texas amended its con-

stitution to provide that the Legislature by general law

may authorize that State to operate lotteries. Tex.

Const. Art. II], §47(3) (1991). When the Legislature

passed the State Lottery Act, lottery is defined as:

‘“‘Lottery” means the procedures operated by the

State under this Act through which prizes are

awarded or distributed by chance among persons

who have paid, or unconditionally agreed to pay,

for a chance or other opportunity to receive a

prize.

Tex. Rev. Civ. Stat. Ann. art. 179g, §1.02(3) (Vernon

Supp. 1992). As evidenced by the above definition,

lottery is broadly defined and includes as its elements

prize, chance, and consideration.

ee eee ee ee eee ls

The State argues that although the legislature could

authorize casino gambling, that has no bearing on any

issue before this Court. The State further argues that

93a

whether or not the gaming activities requested by the

Tribe could fall under the definition of “lottery” in the

Lottery Act is irrelevant. Jd. The State appears to have

missed the point. Again we return to the key phrase in

IGRA: “permits such gaming for any purpose by any

person, organization, or engty. ..”.

In determining whether Texas permits the gaming

activities at issue it is not necessary to determine whether

or not the State has given €xpress approval to the play-

ing of a particular game. Lac du Flambeau Band of Lake

Superior Chippewa Indians v. State of Wisconsin, 770

F.Supp. at 486. In Lac du Flambeau the State of Wis-

consin could engage in any game of chance, prize, and

consideration under its lottery laws. The tribe sought to

include casino games, video games and slot machines in

its negotiations with Wisconsin. Wisconsin argued that

since the games the tribe requested were not specifically

authorized under state law, they were not required to

negotiate over those types of games. The court con-

cluded that since Wisconsin was a civil/regulatory juris-

diction, and under the lottery law the state was permit-

ted to play any game of prize, chance and consideration,

then it must negotiate a Tribal-State compact governing

the conduct of any type of class III gaming requested

by the tribe which involved prize, chance and consider-

ation. This Court agrees with the reasoning of Lac du

Flambeau.

The State cites Seminole Tribe of Florida v. Florida,

No. 91-6756-CIV, 1993 WL 475999 (S.D. Fla. Septem-

ber 22, 1993), for the Proposition that just because the

state allows some types of Class III gaming to occur the

State is not required to engage in negotiations over all

types of Class III gaming activities. The Court agrees

with the State in that regard; however, the court in

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Seminole was interpreting Florida’s Constitution and

Statutes, not Texas’. Furthermore the Tribe does not

advance that postiion before this Court, they maintain

that the games they seek to include in the negotiations

are permissible under the existing laws of Texas.

Interpreting the Texas Lottery Act, the only restric-

tion found with regard to the Act’s broad definition of

lottery is contained in § 2.02(k):

The Comptroller shall adopt rules prohibiting the

operation of any game using a video lottery machine

or machine. As used in this subsection “video lot-

tery machine” or “machine” means any electronic

video game machine that, upon the insertion of

cash, is available to play or simulate the play of a

video game, including but not limited to video

poker, keno, and blackjack, utilizing a video display

in microprocessors in which the player may receive

free games or credits that can be reedeemed for

cash, coins or tokens, or that directly dispenses

cash, coins, or tokens.

Tex. Rev. Civ. Stat. Ann. art. 179g, §2.02(k) (Vernon

Supp. 1992). The State Lottery Act only excludes the

video forms of casino games, not the live or other non-

video electronic games.

The Texas Lottery Act is not the only legislation that

supports the Tribe’s position that Texas allows ‘casino

gaming’. In section 47.01 of the Texas Penal Code a

bet is defined as:

“Bet”? means an agreement that, dependent on

chance even though accompanied by some skill,

one stands to win or lose something of value. A

bet does not include:

(B)...

95a

greater than $25, made by the proprietor of a

bona fide carnival contest conducted at a car-

nival sponsored by a nonprofit religious, fra-

ternal, school, law enforcement, youth, agri-

cultural, or civic group, if the person to receive

the merchandise from the proprietor is the per-

son who performs the carnival contest.

Texas Penal Code Ann. §47.01 (Vernon 1989). The

above exception is referred to as the “camival excep-

tion”. A recent opinion of Attorney General Dan

Morales dated April 20, 1992, dealing with the validity

of casino nights sponsored by charitable organizations

held that they would be in violation of the law unless

they came within the carnival exception. The opinion

states:

Those participating in ‘casino games” at the des-

cribed non profit charitable organizations fund

raising event would violate the Penal Code § 47.02

prohibition on gambling — “making bets” — unless

as a matter of fact, the ‘“‘casino games” in question

would fall within the “carnival contests” exception

to the definition of “‘bet” in the Penal Code § 47.01-

(1)(C) and (D).

Op. Tex. Atty. Gen. No. DM-112 (1992).

Thus, it is clear that casino gaming is permitted under

the carnival exception; therefore satisfying the require-

ment of section 2710(d)(1) of IGRA... .” permits

such gaming for any purpose by any person, organiza-

tion, orentity...”’. (emphasis added).

On June 17, 1993, section 47.01 of the Texas Penal

gambling device:

96a

. any electromechanical or mechanical contriv-

ance designed, made, and adopted solely for bona

fide amustment purposes of the contrivance re-

wards the player exclusively with noncash mer-

chandise prizes, toys, or novelties or representation

of value redeemable for those items which have a

wholesale value available from a single play of the

game or device of not more than 10 times the

amount charged to play the game or device once

or $5,00, whichever is less.

Act of June 17, 1993, ch. 774, §1, 1993 Tex. Sess.

Laws 3030 (Vernon).

Because casino gaming is permitted by some persons

and individuals under the carnival exception, and based

on the definition of “lottery” in the Texas Lottery Act

allowing games which include chance, prize, and con-

sideration, the Court is of the opinion that the casino

games requested by the Tribe should be included in the

negotiations of a Tribal-State Compact under the IGRA.

GOOD-FAITH NEGOTIATIONS UNDER IGRA

The Tribe, in addition to asserting that the State has

‘‘wholly”’ failed to negogiate, asserts that the State has

failed to negogiate in good faith. The State has consis-

tently refused to negotiate with the Tribe concerning

the ‘‘casino style’? games the tribe has proposed. The

State has maintained that the proposed games are not

allowed in Texas; therefore it has repeatedly refused to

engage in negotiations over the Tribe’s proposed games.

When the State wholly fails to negogiate it cannot

meet its burden of proof to show that it has negogiated

in good faith. Mashantucket Pequot Tribe v. State of

Connecticut, 913 F.2d 1024 (2nd Cir. 1990). Further-

97a

The State’s protestations that its failure to nego-

tiate resulted from sincerely held views as to the

meaning of the IGRA, and that it declared its

willingness to resolve these legal issues of first

impressions by litigation, do not alter the out-

come. The statutory terms are clear, and provide

no exception for sincere but erroneous legal anal-

yses. Further, the manifest purpose of the statute

is to move negotiations toward a resolution where

a state either fails to negotiate, or fails to nego-

tiate in good faith, for 180 days after a tribal

request to negotiate. The delay is hardly amelior-

ated because that state’s refusal to negotiate is not

malicious,

Id. See also Lac du Flambeau Band of Lake Superior

Chippewa Indians v. Wisconsin, 770 F. Supp. at 482

(where the state wholly fails to negotiate, it cannot meet

its burden to establish that it has bargained in good

faith).

It is not necessary to repeat the state’s position, suf-

fice it to say that it is clear that the State has failed to

negotiate with the Tribe. Before the Court concludes

that the State must negotiate with the Tribe, the State’s

arguments under the Johnson Act and the Restoration

Act must be addressed.

JOHNSON ACT

The State contends that the transportation of any

gambling devices would be illegal under the Johnson

Act, 15 U.S.C. §1172. Gambling devices are defined

as, among other things, any slot machine or other:

machine or meahcnical device (including, but not

limited to, roulette wheels and similar devices)

designed and manufactured primarily for use in

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connection with gambling, and (A) which when

operated may deliver, as the result of the applica-

tion of an element of chance, any money or prop-

erty, or (B) by the operation of which a person may

be entitled to receive, as the result of the applica-

tion of an element of chance, any money or prop-

CHF. ci

Id. at §1171(a)(2). The IGRA expressly provides that

the prohibitions contained in the Johnson Act ‘shall

not apply to any gaming conducted under a Tribal-

State Compact that ... (A) is entered into... by a

State in which gambling devices are legal, and (B) is

in effect.” 25 U.S.C. §2710(d)(6). To support their

position the Defendant’s cite Citizen Band Potawatomi

Indian Tribe of Oklahoma v. Greene, 995 F.2d 179

(10th Cir. 1993).

In Potawotamt, the Tenth Circuit Court of Appeals

held that since video lottery terminals were not allowed

under the provisions of Oklahoma law, the Johnson Act

prohibited their transportation and the waiver contained

in the IGRA did not apply since the subject gambling

devices were not legal in the state of Oklahoma. The

holding of Potawatomi is narrow, gambling devices that

are not legal in the subject state cannot be transported

or used within Indian country within that state absent

a statutory exception to the prohibition. Oklahoma has

no state run lottery and does not allow the numerous

gambling activities that Texas permits.

Additionally, the language of §1772 under the IGRA

expressly permits transportation of gambling devices,

if those devices are designed ‘“‘for use at and transported

to licensed gambling establishments where betting is legal

under applicable laws.. ..” 15 U.S.C. 81172. It is the

opinion of the Court that the type of gambling devices

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at issue are exempt from the Johnson Act pursuant to

section 2710(d)(6) of the IGRA.

RESTORATION ACT

The State of Texas argues that 25 U.S.C. § 1300g-6

of the Restoration Act, which restored federal trust

status to the Ysleta Del Sur Pueblo in 1987, precludes

gaming by the tribe pursuant to the IGRA.

As part of the Restoration Act, §1300g-6, prohib-

ited the tribe from engaging in any gaming activity that

was prohibited by the laws of the State of Texas. Sec-

tion 1300g-6 provides: 7

(a) In general

All gaming activities which are prohibited by the

laws of the State of Texas are hereby prohibited on

the reservation and on lands of the tribe. Any vio-

lation of the prohibition provided in this subsection

will be subject to the same civil and criminal penal-

ties that are provided by the laws of the State oi

Texas. The provisions of this subsection are enacted

in accordance with the tribe’s request in Tribal

Resolution No. T.C.-02-86 which was approved

and certified on March 12, 1986.

(b) No State regulatory jurisdiction

Nothing in this section shall be construed as a grant

of civil or criminal regulatory jurisdiction to the

State of Texas.

The clear purpose and intent of the IGRA is to further

the economic development of Indian Tribes and to fur-

ther the longstanding federal goal of establishing tribal

independence and self-sufficiency. The State is basically

arguing that the IGRA and its clear purpose, allowing

gaming activities to be conducted by tribes on tribal

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lands, should be ignored and that the Ysleta Del Sur

Pueblo be barred from obtaining the benefits IGRA was

intended to provide for Indian Tribes, this the Court is

unwilling to do. The law is clear and well settled, it is

basic statutory construction that where there is a con-

flict in two statutory enactments, the latter enactment

will control. U.S. v. Crittenden, 600 F.2d 478 (5th Cir.

1979).

Even if this Court were to follow the State’s argument,

the Restoration Act would have no effect on the relief

the Tribe requests. The Tribe has requested Class III

gaming activities which are not prohibited by the laws of

the State of Texas.

CONCLUSION

The Court finds that the State is required to negotiate

with the Tribe concerning the casino-type games of

chance that the tribe has proposed. Furthermore, neither

the Johnson Act nor the Restoration Act prohibits the

games that the Tribe has proposed.

IT IS ORDERED that the State of Texas is required to

conclude a Tribal-State Class III Gaming Compact with

Plaintiff Ysleta Del Sur Pueblo Indians within sixty (60)

days from the date of this Order.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.