# Appendix — Alabama-Coushatta Tribe of Texas v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2006%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2003 - **Citation:** 540 U.S. 882 ## Text ( , vee ow 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 - p> (:) 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 la 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. 2a 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. 3a 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] 4a 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. 5a 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 6a 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. 7a 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. 8a 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 en 9a 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 4 4 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). Se 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. (c) It is a defense to prosecution under this section 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. (c) A person commits an offense if, with the intent 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. 15 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. re 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. ys 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. bo 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: Rs i) 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 (C) lands «ubsequently acquired and held in trust by 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. (c) Federal benefits and services 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. (c) Authority and capacity of Tribal Council 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. (c) Conveyance of land by tribe At the written request of the Tribal Council, the Sec- retary shall — <—_ er — oz 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 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. (c) Jurisdiction over enforcement against members 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. =O 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. A. 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). C. 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). er 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. A. 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.” B. 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. : C. 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- 79a 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. 19 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2006%3A2. Public record. Not legal advice.