Opinion
No. EP-99-CA0320-GTE
September 27, 2001
Attorney's for plaintiff: John Cornyn, III, Attorney General State of Texas, Austin, TX; Karen Burdett Ray, Assistant Attorney General State of Texas, Austin, TX; Toni Hunter, Joseph Virgil Crawford, Michael T. McCaul, Julie C. Parsley, Shane Peter Phelps, Linda Eads, Melanie P. Sarwal, Jennifer Cook Pointer, Financial Litigation Division, Rande K. Herrell, Christopher D. Livingston, Attorney General's Office, Austin, TX; Andy Taylor, Locke Liddell Sapp LLP, Houston, TX; Bryan Gantt, McCraw McCraw, McKinney, TX; Debra A. Verbil, Senior Counsel Southwestern Bell Telephone Company, Austin, TX;
Attorney's for defendant: Norman J. Gordon, Ronald L. Jackson, Thomas M. Diamond, Diamond, Rash Gordon Jackson, El Paso, TX.
Intervenor Attorneys: Jennifer Cook Pointer, Financial Litigation Division, Rande K. Herrell, Christopher D. Livingston, Attorney General's Office, Austin, TX.
Counter-defendant Attorneys: John Cornyn, III, Attorney General State of Texas, Austin, TX; Karen Burdett Ray, Assistant Attorney General State of Texas, Austin, TX; Toni Hunter, Michael T. McCaul, Shane Peter Phelps, Linda Eads, Attorney General's Office, Austin, TX; Andy Taylor, Locke Liddell Sapp LLP, Houston, TX; Bryan Gantt, McCraw McCraw, McKinney, TX; Debra A. Verbil, Senior Counsel Southwestern Bell Telephone Company, Austin, TX;
Counter-plaintiff: Norman J. Gordon, Ronald L. Jackson, Thomas M. Diamond, Diamond, Rash Gordon Jackson, El Paso, TX.
MEMORANDUM OPINION
Before the Court are the Plaintiff State of Texas' Motion for Summary Judgment and also the Defendants' Motion for Summary Judgment. The respective parties have filed responses and replies to both motions, and, on August 22, 2001, the Court took up the motions at a hearing in open court. Finally the Court permitted the parties to file post oral argument supplemental memoranda Both parties took advantage of the opportunity by filing their respective supplements on August 31, 2001. The Court concludes that there are no genuine issues of fact and that said motions should be disposed of in accordance with the applicable law. For the reasons stated at said hearing, as well as those set out below, the Court will grant the State's Motion and deny the Defendants' Motion.
I. Background
The State of Texas filed this action against the Defendants on September 27, 1999, seeking to stop the operation of the Speaking Rock Casino and Entertainment Center (the "Casino") by the Ysleta del Sur Pueblo Indian Tribe (the "Tribe"). As stated in Plaintiff's motion for summary judgment the Defendants are:
The Ysleta del Sur Pueblo Tribe is also known as the Tigua Indian Tribe.
[t]he Ysleta del Sur Pueblo tribe, tribal officials, and administrative bodies of the tribe. The Tigua Indian Tribe "own(s] and operate[s]" the casino. Tab B p. 0000806; Tab A, No. 14 (admitting same); Defs.' Resp. to Interr. No. 5 (Tab C). The Tribal Council is the tribe's traditional governing body. See Ysleta del Sur Pueblo Gaming Ordinance No. 001-96, at 1 (Feb. 14, 1996) (Tab D); Ysleta del Sur Pueblo Tribal Resolution No. TC-06-96 (feb. 14, 1996) (Tab E); see also 25 U.S.C. § 1300g(5) (recognizing Ysleta del Sur Pueblo "Tribal Council" (and its successors) as "the governing body of the tribe"); 25 U.S.C. § 1300g-3(b) (specifying that the "Tribal Council shall represent the tribe and its members in the implementation of [the Restoration Act]"). The civil and criminal law authority, indeed, "all inherent governmental power, fiscal authority, and Tribal Sovereignty," of the tribe reside with the Tribal Council. Tab E, p. 1. The tribe operates without "organic or written constitution charter, or by-laws" and "does not possess any organic documents of governance such as a constitution or By-Laws." Id. The Tribal Governor, Albert Alvidrez, is a member of the Tribal Council, as is the Tribal Lieutenant Governor, Filbert Candelaria. Id. (listing cacique, governor, lieutenant governor, war captain, ajuacil, and four council members as the members of the Tribal council). As members of the Council, and by virtue of their positions, Alvidrez and Candelaria have certain authority over the casino's financial transactions and decisions. See, e.g., tab CC, p. T-4316. The Tigua Gaming Agency supervises and regulates all gaming conducted on Tigua Lands. See Tab A, No. 23 (citing Gaming Ordinance No. 001-96, § 3.003); George Candelaria Aff., p. 1 (Tab F) (noting that Tigua Gaming Agency "regulates all aspects of the Tribe's gaming activities"); Tab D, §§ 2.002, 3.005-.014. The Commissioner of the Tigua Gaming Agency is Francisco Hernandez, who has supervisory authority for the tribe's gambling activities. See Tab A, No. 24 (citing Gaming Ordinance No. 001-96, § 3.003).
The Court accepts the Summary Judgment record cited by Plaintiff as supporting the asserted roles of the various named defendants. The Casino is located in El Paso, Texas on the Tribe's reservation land and has been operating since 1993. Although it opened as a bingo hall, the Casino has greatly expanded its gaming operation since that time and now offers a wide variety of games of chance. The Court observed a video presentation prepared by the Defendants which depicts what can best be described as a Las Vegas type casino operation. Its doors are open 24 hours a day, seven days a week. Thousands of persons who are not members of the Tribe and who do not reside on the reservation come to the Casino on frequent occasions to engage in the many gambling activities offered by the Casino, The State seeks to shut it down as a nuisance in violation of the Texas Penal Code and the Restoration Act, 25 U.S.C. § 1300g-1 et seq. The Defendants, on the other hand, contend that all of the activities occurring within the Casino are permitted to the Tribe pursuant to the Ysleta del Sur Pueblo and Alabama Coushatta Indian Tribes of Texas Restoration Act,(the "Restoration Act" or the "Act") 25 U.S.C. § 1300g-1 et seq.
The gambling activities include slot machines, poker, blackjack, bingo, number games, keno number games, dice games, and off-premises wagering on horse and dog races. In 1996 the Tribal council enacted Gaming Ordinance No. 001-96 which authorized gaming activities on the reservation. That ordinance has been intended. The current gaming ordinance was adopted September 28, 1999. It authorizes "any game containing the elements of prize, chance or skill, and consideration" conducted in conformity with the ordinance's provisions. See Tab D, § 1.004(b); Tab NN, T-6 998; and Tab D §§ 2.001(d), 4.001(a). The Council prohibited three categories of gambling: (1) betting on the outcome of elections; (2) betting on the outcome of sports events; and (3) games conducted by use of a "video lottery machine." Tab D, § 1.005(a-(c); Tab NN; T.6999. It appears that the Defendants patterned their Ordinance after the Texas Lottery Act. As noted, infra, they argue that the language of the Texas Lottery Act is broad enough to permit the State of Texas to engage in the same gaming activities that are engaged in by the Defendants, and that their Ordinance puts the Tribe in the same position as the State. But see discussion, infra.
The Court accepts the Plaintiff's representations as to evidence supporting its Motion for Summary Judgment as set forth on pp 5-17 of its Motion for Summary Judgment and Injunction filed June 12, 2001.
The Court notes particularly the following established facts:
Any adult person aged 21 years or older who furnishes personal identification and who is not a known criminal or enemy of the tribe may participate in the gambling activities offered by the Casino.
The Ysleta del Sur Pueblo tribe realizes significant financial gain and profit from the gambling activities conducted by the Casino.
The Tribe makes available gaming activities to the general public for the purposes of generating revenue for the Tribe,
The Tribe operates the Speaking Rock Casino and Entertainment Center through the Tigua Gaming Agency. The individual members of the Tribe participate in the income and earnings of the enterprise through the receipt of annual payments. For the year 2000, the payment was $15,000 per member.
The casino provides in excess of 1,000 slot machines for its patrons and the tokens used to operate them must be purchased for U.S. currency and can be redeemed for cash.
In order to participate in card games and dice games customers of the casino must pay fifty cents for each game of cards or roll of the dice, resulting in a net revenue gain to the casino.
The Defendants publicly advertise the Casino and its operations in order to attract customers to participate in the gambling activities offered.
The Tribal Governor Albert Alvidrez, the Tribal lieutenant Governor Filbert Candelaria, the Tigua Gaming Agency, and Gaming Commissioner Francisco Hernandez exercise some control and supervision over the operations and activities of the Speaking Rock Casino and Entertainment Center.
The Defendants are correct in pointing out that there is not, on the present record, any issue of inadequate regulatory oversight. With one exception the Court accepts the Defendants' statement and exhibits with respect to the Pueblo's oversight to-wit:
Gaming on the Pueblo's reservation is governed by provisions of the Pueblo's Gaming Ordinance (Pueblo's Opposition Ex.F), which provides for regulatory oversight by an independent tribal agency, the Tigua Gaming Agency. Financial and internal controls are in place. See State's Supplemental Appendix, Ex. 4, Certified Audit (under seal); Ex. 6, Background Investigation Forms; Ex. 7, Vendor License; Ex. 12, Finance and Accounting Manual; Ex. 13, Cash Operations Manual; and Ex. 14, Tracking Paperwork. There has been no evidence offered nor any suggestion of any type of improper or criminal activity being carried out at the Pueblo. Moreover, prior to sanitizing by the attorneys for the State, the State's expert expressed a similar opinion. In his draft report. Mr. William Holmes, a former FBI agent proffered by the State as an expert in gambling wrote:
The Speaking Rock Casino is a well managed casino with a compliment of dedicated employees. Their security procedures appear to be efficient and responsible. There is a separation of powers from the standpoint the Tigua Gaming Agency answers to the Tribal Council. (Pueblo's Opposition Ex. 0, Ex. 84.)
The statement was removed at the request of the Attorney General. The Attorney General's expressed concern about regulatory oversight is wrong.
See Defendants Post Oral Argument Statement, pp 2-3, The one exception is that the Court does not agree with Defendants' statement that there is no evidence or suggestion "of any type of improper or criminal activity being carried out at the Pueblo." The Court accepts, however, that the security arrangements were, and are, good.
A. Prior Actions
This lawsuit is not the first involving this Tribe's casino operation on its reservation land. In April of 1993, the Tribe sued the State in this federal court seeking a court order directing the State to enter into negotiations for the formulation of a Tribal-State compact pursuant to the Indian Gaming Regulatory Act, ("IGRA"), and sought a determination as to which games were the proper subject of such negotiations. See Ysleta Del Sur Pueblo v. Texas, 852 F. Supp. 587, 589 (W.D. Tex. 1993). The district court found that the State of Texas effectively permitted the types of games in which the Tribe sought to engage, and that, under IGRA, the State could, therefore, not refuse to negotiate a Tribal-State compact. The U.S. District Court required the State to enter into such a compact within 60 days of its order, Id. at 597.
IGRA is codified at 25 U.S.C. § 2701 et seq.
The State appealed, and the United States Court of Appeals for the Fifth Circuit reversed. See Ysleta Del Sur Pueblo v. Texas, 36 F.3d 1325 (5th Cir. 1994) ( Ysleta I) In its opinion, the Fifth Circuit determined that the Restoration Act, and not IGRA, governed the case. Id. at 1335. It then concluded that the State had not waived its Eleventh Amendment sovereign immunity from suit and accordingly reversed and remanded the case with instructions for the district court to dismiss the Tribe's suit. Id. at 1335-36.
In 1998, the Tribe brought another lawsuit against the State of Texas for declaratory and injective relief after the states Governor opined that the Tribe was violating the Restoration Act by its operation of the Casino. See Ysleta del Sur Pueblo v. Bush, No, P-98-CA-47. The district court concluded that the State had not waived its Eleventh Amendment immunity, and dismissed the case. The Fifth Circuit affirmed.
After this lawsuit was commenced by the State of Texas in September, 1999, the Defendants filed a motion to dismiss arguing that (1) Congress never waived the Tribe's sovereign immunity; (2) the United States must be joined as an indispensable party; and (3) the Attorney General lacked the capacity to sue the Tribe on behalf of the State. Texas v. Ysleta Del Sur Pueblo, 79 F. Supp.2d 708, 710 (W.D. Tex. 1999). The district court on December 2 1999, held against the Tribe on the first two issues but found some merit in the lack of capacity argument. Nevertheless, it denied the Defendants' Motion, and allowed the State to amend its Complaint thereby affording the Attorney General an opportunity to demonstrate the source of his authority to bring the suit. Id. at 714. After the Attorney General filed an Amended Complaint, the district court, by its order of January 13, 2000, overruled another motion to dismiss, concluding that the Attorney General had the authority to bring this action. Because of the importance of both of these decisions and their relevance to many of the issues presently in the case, the Court will later herein quote therefrom at some length.
The Honorable Harry L. Hudspeth.
In a footnote, the district court stated that the Attorney General could characterize the Casino as a common nuisance operating in violation of the Texas Penal Code. The court went on to state that the Attorney General has the authority to bring suit to enjoin such a nuisance, Texas v. Ysleta, 79 F. Supp.2d at 714, n. 13. This Court agrees with Judge Hudspeth's opinion but also accepts his rulings as the "law of the case."
B. Legislative History
Although the Tribe traces its roots back to Indian refugees who fled from New Mexico in the Pueblo Revolt of 1680, it was not officially recognized by the State of Texas until 1967, when its present 100-acre reservation was established. See Texas v. Ysleta, 79 F. Supp.2d at 709 (citing W.H. TIMMONS, EL PASO: A BORDERLANDS HISTORY, 17-24 (1990)). In 1968, the federal government first recognized the tribe, and this Court now quotes from the Fifth Circuit's very pertinent and extensive review of the history behind the Restoration Act beginning in that year
In 1968, 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 Indians 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 enactment." 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 fluids to the Tribe H.R. REP. NO. 36, 100th Cong., 1st Sess. 2 (1987). Furthermore, the Tiwa Indians Act expressly recognized that the Tiwa Indians were "subject to all 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 constitutional 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 regard 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 Secretary of the Interior, until amended as provided below, the tribal gaming laws, regulations and licensing 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' congressional 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. The resolution represented a political accommodation between the Tribe, the state of Texas, and various members of Texas' congressional delegation. The Tribe clearly viewed the applicability of state gaming laws on its reservation as an infringement on 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 regulations 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 if the Tribe petitioned the secretary of Interior, the secretary approved, and Congress did not overrule the secretary. The Tribe's suggested language, on the other hand, established that Texas law with regard to gaining would effectively operate as surrogate federal law. The resolution also clearly indicates that the Tribe, at the time of the resolution's adoption, "ha[d] no interest in conducting high stakes bingo or other gambling operations 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 Senate). Shortly thereafter, however the Senate vitiated action on H.R. 1344, see 132 CONG. REC. S13735 (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 prohibited 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 gaining 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 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.-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 penalties that are provided under Texas law." S. REP. NO. 90, 100th Cong., 1st Sess. 8-9 (1987). Otherwise, the report stated, the "central purpose" of the two versions was the same: "to ban gaining on the reservations as a matter of federal law." Id. at 8. The House concurred in the Senate'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 Restoration Act is now codified at 25 U.S.C. § 1300g-6.Ysleta I, 36 F.3d at 1327-29 (footnotes omitted).
It may help to amplify a bit upon this legislative history. As noted in Ysleta I, supra, when H.R. 1344 was first introduced, it did not contain a gaming provision. However, the State's Comptroller of Public Accounts objected, and, as passed by the House, the bill contained the § 107 provision which is quoted and discussed by the Fifth Circuit opinion above. However, as recounted in Ysleta I, the first § 107 did not allay the State's concern over the possibility of high-stakes gambling occurring on the reservation. The Texas Comptroller of Public Accounts requested that the Senate Select Committee replace § 107 with the following language:
All forms of gaming, gambling, betting, lottery and bingo on the reservation of the tribe or on any land acquired after the date of the enactment of this title and added to the reservation or held in trust status for the tribe is hereby prohibited. For the purpose of this section, the terms "gaming", "gambling", "betting", "lottery", and "bingo" shall have the meaning given those terms under the laws and administrative regulations of the State of Texas.See Defendants' Motion, Ex. C. As discussed in Ysleta I, the Tribe, concerned that federal trust status might not be approved amidst the gambling controversy, adopted Tribal Resolution No. T.C.-02-86 in March of 1986. At that time, the tribe was not engaged in gaming activities. The full resolution reads:
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 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 October 17, 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 stare laws governing gaming and bingo on the reservation; and,
WHEREAS, the Ysleta del Sur Pueblo has 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 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 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 provide adequate protection against high stakes gaming operations on the reservation; and,
WHEREAS, the proposal that H.R. 1344 be amended to make state gaining law applicable on the reservation continues to be wholly unsatisfactory to the Tribe in that it represents a substantial infringement upon the Tribes' power of 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 gaining facilities and are presently resisting attempts 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 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 Tribes survival, 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.Ysleta I, 36 F.3d at 1328, n. 2. Both Plaintiff and Defendants emphasize the language of the resolution which shows that, while the Tribe viewed a statute restricting gaming activities on its land as an interference with its sovereignty, it nonetheless consented to such language in an effort to ensure federal trust status. The Senate therefore amended § 107 to include the provision: "Gaming, 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."
However, that bill died, and the issue was not taken up again until the next Congress, the 100th. When the 100th Congress took up the bill again, this time titled H.R. 318, the House Committee amended § 107 to state that: "Pursuant to Tribal Regulation No. T.C.-02-86 which was approved and certified on March 12, 1986, all gaining as defined by the laws of the State of Texas shall be prohibited on the tribal reservation and on tribal lands." This bill was referred to the Senate Select Committee on Indian Affairs, which ordered H.R. 318 to be reported favorably, but not before substituting a new version of the § 107 ban. That new version, as it is now codified, reads:
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 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.-02-86 which was approved and certified on March 12, 1986.25 U.S.C. § 1300g-6 (a). The Committee report submitted with the bill to the full Senate explained its actions regarding the gaming provisions:
The Committee recommends an amendment in the nature of a substitute. The amendments are in response to concerns raised by the State of Texas and Senators Gramm and Bentsen of Texas. In addition, the tribes have requested amendments to the bill to remove those concerns. Staff has worked closely with the Department of Interior and with the tribes which have resulted in a number of amendments, most of which are technical, clarifying, or conforming in nature; however, three of the amendments are substantial and merit explanation. Those three substantive amendments are explained in the "Explanation of Amendments" section which follows.
* * *
Sections 107 and 207 are stricken and new sections 107 and 207 are inserted. However, the central purpose of these two sections — to ban gaming on the reservations as a matter of federal law — remains unchanged. Both tribes, by formal tribal resolution, requested that this legislation incorporate their existing law and custom that forbids gambling. The Committee's amendments simply expand on the House version to provide that anyone who violates the federal ban on gaining contained in Sections 107 and 207 will be subject to the same civil and criminal penalties that are provided under Texas law, New subsection 107(b) and 207(b) were added to make it clear that Congress does not intend, by banning gaining and adapting state penalties as federal penalties, to in any way grant civil or criminal regulatory jurisdiction to the State of Texas. New subsections 107(c) and 207(c) grant to the federal courts exclusive jurisdiction over offenses committed in violation of the federal gaming ban and make it clear that the State of Texas may seek injunctive relief in federal courts to enforce the gaming ban.
* * *
Section 107. This section provides that gambling, lottery or bingo as defined by the laws and administrative regulations of the State of Texas is prohibited on the tribe's reservation and on tribal lands. The provisions of Section 107 are also applicable to any lands acquired after the date of enactment of the Act and without regard to whether such lands are located within or outside of El Paso and Hudspeth Counties, Texas, if they are taken into trust by the Secretary and made part of the tribe's reservation. The prohibition contained in this section will also apply to any lands outside the reservation which might be acquired by the tribe or a member thereof and be taken into trust. With regard to tribal lands not taken into trust and therefore not made a part of the tribe's reservation, the laws and administrative regulations of the State of Texas related to gaming, gambling, lottery or bingo shall be applicable. This section also provides penalties for violations of these provisions which are the same as the penalties provided by Texas law.See Defendants' Ex.
The Senate passed H.R, 318 with the new § 107 on July 23, 1987, and the House passed the same on August 3, 1987. On the same date (August 3, 1987) Representative Morris K. Udall articulated his personal understanding of the new Senate Amendments with regard to the gaming provisions of the bill:
H.R. 318 passed the House. It was sent bask from the Senate with an amendment in the nature of a substitute. The bill as amended is supported by the administration.
The Senate amendment makes changes to sections 107 and 207 of the bill. These sections deal with the regulation of gaming on the respective reservations of the two tribes. It is my understanding that the Senate amendments to these sections 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 for these tribes the Court's opinion in the case.
133 Cong. Rec. H6975 (daily ed. August 3, 1987).
On February 25, 1987, during deliberations over the Restoration Act, the United States Supreme Court decided California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). This Court borrows from Ysleta I's thorough description of that case and the Congressional reaction thereto:
In that case, two Indian tribes located in California were sponsoring unregulated gaming activities on their reservations. The state of California 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 reservations because the United States, which has plenary power over Indian affairs, had not authorized California to do so. California argued that, pursuant to 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 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 tailored to combat lawlessness on reservations and not "to effect total assimilation 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 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 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 stature 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 analogized California's bingo statute to the state's other gambling statutes, all of which regulate (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 general. Id. at 211, 107 S.Ct. at 1089. California therefore could not prohibit the tribes from offering the gaming activities on their reservations.
Cabazon Band led to an explosion in unregulated gaming on Indian reservations located in states that, like California, did not prohibit gaming. While Congress recognized that the growth in gaming generated substantial revenues forte tribes and, hence, fostered tribal autonomy, 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 gaining 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.Ysleta I, 36 F.3d at 1329-30 (footnotes omitted).
The Defendants argue that the final amendments to § 107 of H.R. 318 along with Representative Udall's statements, establish that the Act, as passed into law, completely eliminated the outright ban on gaming which was a part of all of its previous drafts. The Defendants contend that there is no longer a total ban on all gaming on the reservation, but, instead, there is only a ban on those "gaming activities" which are prohibited under the law of Texas.
At oral argument, Defendants contended that, even if the Court is unpersuaded that Representative Udall's statement is an accurate reflection of what change in the law was intended by Congress to accomplish, it is certainly evidence that a change occurred, whatever its purpose. The Court agrees. It is true that the Senate Committee reports indicate that no substantive change was intended and Ysleta I appears to agree with that conclusion. However, both parties now agree that the change was substantive, as both agree that the ban in the enacted version of the Restoration Act is not absolute, something the Senate Committee report did not mention when it described Section 107 as banning "gambling, lottery, or bingo as defined by the laws and administrative regulations of the State of Texas." See Supra. Whether or not the parties and this court now agree that the Amendment constituted a significant change, the question remains: Did the Fifth Circuit in Ysleta I agree, or did it view the final change in the wording of Section 7(a) as making no change in the intent or effect of the section? See discussion, infra.
The Defendants earlier in the history of this case urged the Court to undertake a Cabazon- style analysis of the statute centering on two questions of statutory interpretation: First, the meaning of the term "gaming activities," and, second, the meaning of the phrase "prohibited by the laws of the State of Texas."
However, these arguments concerning the regulatory/prohibitory dichotomy in a manner akin to Cabazon, have been foreclosed by the Fifth Circuit's opinion in Ysleta I:
The Tribe insists that, under either IGRA or the Restoration 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 Restoration Act does not operate as an independent bar to its proposed gaining activities because Texas does not "prohibit" the proposed gaming activities. The first sentence of § 107(a) of the Restoration Act provides: "All gaming 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 significance in federal Indian law, which is derived from Cabazon 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 "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 receive a prize." TEX. GOV'T. CODE ANN. § 466.002(3) (Vernon Supp. 1994). The Tribe contends that its proposed gaining 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, roulette 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 consideration, the State no longer prohibits any other games with the same elements. The State, instead, merely regulates them. Consequently, according to the Tribe, § 107(a) of the Restoration Act does not act as an independent bar to the Tribe's proposed gaining activities.
The Tribe's argument is appealing only because § 107(a) of the Restoration Act uses the word "prohibit." But out analysis of the legislative history of both the Restoration Act and IGRA leads us to a conclusion contrary to that sought by the Tribe. When it passed IGRA, Congress indicated that, when determining whether Class III games are "prohibited" in certain states, federal courts should rely on Cabazon Band's criminal-prohibitory/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 congressional 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, us 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 purpose 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 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 contention that the Tribe and Congress contemplated that the prohibitory-regulatory distinction of Cabazon Band would be involved in analyzing the Restoration Act. Furthermore, as a means of enforcing those laws and regulations, Congress provided in § 107(a) that "[a]ny 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." 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 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 resolution be codified. See S. REP. NO. 90 at 8 (the Tribe, "by formal resolution, requested that this legislation incorporate [its] existing law and custom that forbids gambling").
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. First, Congress noted in its report that § 107(b) "is a restatement of the law as provided in [Public Law 280]." Id. 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" certain 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 Representatives, a member made the following statement on the floor of the house:
It is my understanding that the Senate amendments 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 effect would codify 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) (statement 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 legislative history to the contrary, including the plain language of § 107(a), its accompanying report language, and the tribal resolution to which § 107(a) expressly refers. We cannot set aside this wealth of legislate 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, 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 reservation in Texas.
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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 modifies 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 "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 Ysleta del Sur Pueblo wishes to vitiate the compact 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.Ysleta I, 36 F.3d at 1332-34, 1335.
It is not so clear to the Court how far the Fifth Circuit interpreted the Restoration Act's ban on gaming to stretch. Ysleta I certainly found that the Act's Section 107 was a codification of the Tribe's resolution and promise as recorded in T-C-02-86. That promise made the ban absolute, regardless of the legality of the practice in Texas; "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." See Ysleta I, 36 F.3d at ___. However, the Fifth Circuit also seemed to recognize the possibility that the scope of the ban might change with alterations in Texas law, when it recognized the Tribe's warning that, "`[e]very time the State modifies its gambling laws, the impact will be felt on the reservation.'" Id. at 1335. Arguably Texas could change its definitions off "gaming, gambling, lottery or bingo," or it could change the gaming or gambling activities it chose to prohibit. Ysleta I leaves this an open question.
The State, likewise, does not in this proceeding urge the Court to read Ysleta I as interpreting the Restoration Act to be a complete ban, on all gaming on the Reservation. Note the following language from Motion for Summary Judgment:
Additionally, the State does not, as the tribe contends, bottom its case on a view that the Restoration Act bans all gaming. The plain language of the Restoration Act is the beginning and the end of the State's theory: "All gaining activities which are prohibited by the laws of Texas are prohibited on the reservation and on lands of the tribe." 25 U.S.C. § 1300g-6 (a). If the tribe qualifies for a gambling activity not prohibited to it by Texas law, then, of course the tribe may pursue that activity within the confines and limits of the law. At this point, however, it is undisputed that the tribe is not running nonprofit or charity gaming, it is not the State of Texas, its prizes are cash that far exceed $5 or $25, the tribe lacks a license from the Texas Racing Commission, and it is a commercial casino operator, generating millions in annual revenues See Plaintiff's Reply to Defendants' Response to Motion for Summary Judgment, p. 2.
So the State and Defendants agree that only gaining which is prohibited by Texas law is prohibited to the Tribe.
Note the following statement of counsel for the State during the August 22, 2001, oral arguments:
MR. CRAWFORD (For the State of Texas): So what the change in the language for the Restoration Act did, if anything. from being defined by the laws of the State of Texas to being prohibited by Texas, it would actually give the tribe the ability to engage in charitable raffling or charitable bingo or any of the things that other people can if they met the criteria set out under Texas statutes. So, wider that reading which we argue is the correct reading they're treated no differently than any other citizen of the State of Texas, no difference from Julie Parsley or Joe Crawford or anyone else who wanted to go out and operate a slot machine or keno table or whatever it was that we were going to be doing, we are prohibited by law from doing it, and the tribe is prohibited by law from doing it
Tr. Heating on Summary Judgment Motions, Pages 36-37.
The "as defined" versus "which are prohibited" difference could have been significant because if Texas law "defined" certain gaming or gambling activities but then legalized same (i.e., did not "prohibit" such activities) then the prior version of § 1.07(a) would have prevented the Tribe from engaging in such activities on its reservation even though everyone else in Texas could engage in those activities. However, under Texas Law as presently written, interpreted and applied, the differences in terminology do not affect the outcome. See, infra.
The State urges the Court to accept a reading of the Restoration Act which would treat the Tribe as any other citizen of Texas. What a citizen of Texas can do, the Tribe can do. But what a citizen of Texas cannot do, the Tribe cannot do. The State argues that when the Restoration Act was passed, it waived any sovereign status claim the Tribe might have regarding gaining, with the sill knowledge and consent of the Tribe. The State contends that during the passage of the Restoration Act, the Tribe through its Resolution, agreed to be subjected to the gaming laws of Texas just as any other citizen in exchange for federal trust status.
The Tribe argues that it is not just any other citizen, but a sovereign nation, and the Restoration Act did not change that status, even with regard to gaming.
The Defendants agree that Ysleta I makes clear that Congress did not enact the Restoration Act with an eye towards Cabazon. However, they argue that the court did not delineate the scope of the Restoration Act's prohibition on gaming in its decision. In addition, the Defendants contend that nothing said by the Circuit Court panel regarding the Restoration Act's gaming clause has a preclusive effect on this Court's decision as the discussion was not necessary to support its decision and is therefore merely dicta.
Although the Defendants disclaim reliance on the Cabazon rationale, their arguments in this case relating to the interpretation of the word "prohibit" clearly echo the same or similar theory. Their plea for a strange and unnatural interpretation of the language of the Restoration Act ultimately is justified an the basis of the Pueblo's unusual status as a "sovereign" Indian Tribe. The Tribe simply wants to be treated differently from others. But the State says that the Tribe gave up the right to be treated differently from others when it gave up any sovereign immunity it may have possessed with respect to gaining and gambling in exchange for federal trust status. And, as pointed out by the State at page 4 of its Reply in Support of its Motion for Summary Judgment, this particular limitation on the Tribe's sovereignty is not inconsistent with other federal laws dealing with similar issues:
It also bears emphasis that the tribe's urged meaning for the Restoration Act makes no sense in the context of other statutes addressing tribal gambling. With 18 U.S.C. § 1166, Congress criminalized all gambling on reservations that is against state law and not permitted under the IGRA. Through the Johnson Act, 15 U.S.C. § 1175, it outlawed the manufacture, possession, or use of gambling devices, and in the Organized Crime Control Act, 18 U.S.C. § 1955, it prohibited for profit gambling businesses that are illegal under state law. With the IGRA, Congress established a detailed scheme of oversight and coordination with state governments to permit gambling on some Indian reservations. See 25 U.S.C. § 2701 et seq; 25 C.F.R. § 500 et seq. The tribe's interpretation of "prohibited" is not in keeping with these strict limitations, oversight, and criminalization in the field of Indian gaming. It defies common sense to believe that this particular tribe may operate with no controls or limitations, while other tribes are governed by the limitations and procedures of the I(IRA and the regulations of its implementing agency, the National Indian Gaming Commission.
As for the Defendants' first argument, the Court disagrees that Ysleta I did not delineate the Restoration Act's prohibition on gaming. What it did not do, as the Defendants' had sought (and seek again here), was to engage in a game by game analysis of what is, and is not, prohibited under Texas law. The fifth Circuit did not do that because it determined that the Restoration Act's prohibition was drafted specifically in accordance with the Tribe's wishes as detailed in Tribal Resolution No. T.C.-02-86, and that that resolution petitioned Congress to adopt language which would prohibit "all gaming, gambling, lottery, or bingo as defined by the laws and administrative regulations of the State of Texas . . ." See Ysleta I, 36 F.3d at 1333 (emphasis added). Ysleta I appears to have determined that § 107, as enacted, and properly interpreted, bans all gaming. Therefore, contrary to the Defendants' assertion, it can be argued that the scope of the Act's prohibition as articulated in Ysleta I was to encompass all gaming activity as "defined" by the laws and regulations of the State of Texas, whether "prohibited" or not. This interpretation would be consistent with the Senate Report explaining the "substantive" changes occasioned by the amendatory language and also with the language in Ysleta I just quoted above.
Likewise, the Court disagrees with the Defendants' contention that Ysleta I's lengthy discussion of the Restoration Act's ban on gaming was merely dicta. The question before the court was: Which statutory scheme; IGRA or the Restoration Act, governed the Tribe's casino operation? And, to resolve that question, the Fifth Circuit had to first determine the effect of the Restoration Act's § 107. Only after determining § 107's effect could it then decide whether the Restoration Act and IGRA had an actual conflict. Once the court found conflict, it was forced to decide which statute to apply, and, in so doing, concluded that the Restoration Act, as the specific statute, was applicable. See Ysleta I, 36 F.3d at 1332-33. Only after it decided that the Restoration Act applied could the court decide whether the Act had waived the State's sovereign immunity. If the court had determined that IGRA applied, or that the Restoration Act and IGRA followed the same basic statutory scheme regarding gaming, the result of the case would have been different. So the initial determination regarding the breadth of the Restoration Act's provisions on gaming was a necessary step toward the Court's final decision. And that determination being necessary, it cannot be dicta. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996) (holding that "it is net only the result but also those portions of the opinion necessary to that result by which we are bound").
Further, this Court agrees, as held in Ysleta I, that the Restoration Act, and not IGRA, controls the outcome of this case.
However, IGRA's presence in general Indian Law, and the Fifth Circuit's analysis of the Restoration Act, further undermines the Defendants' position. For the only way for the Defendants to fully win, i.e., to be permitted to maintain and operate its Casino as it presently does, is for this Court to find in the Restoration Act a specific grant of gaming privileges to the Tribe and that said grant trumps the IGRA provisions regarding Class III gaming, Stated otherwise, it would not be enough for the Court to conclude only that the Restoration Act does not bar the Tribe's gaming activities. The Court would also have to conclude that, because of the Restoration Act, the provisions of IGRA cannot be enforced against the Tribe.
To illustrate, one need only ask what if no gaming provision had been included in the Restoration Act? Then, most assuredly, IGRA would apply. In Ysleta I, the Fifth Circuit concluded that the specific statute (the Restoration Act) controlled over the general (IGRA) on the gaining issue. So, if there were no specific statute, then IGRA would provide the only means by which the Tribe could operate its Casino, i.e., through IGRA's tribal-state compact provisions. Even if the Court agreed that Ysleta I did not delineate the scope of § 107's ban, or that it only discussed § 107 in dicta, it cannot reasonably be argued that the Fifth Circuit read § 107 as a grant of gaming authority to the Tribe. See discussion below.
Defendants have conceded that if the final change in the wording of § 107 had not been made, i, e., if § 107 as enacted contained the earlier language, to-wit: "Gaming, gambling, lottery or bingo as defined by the laws and regulations of the State of Texas is hereby prohibited on the Tribe's reservation and on tribal lands," then, and in that event, they cannot prevail. However, both of the parties, and this Court, agree that the amendatory language did significantly, if not substantially, change the statute, although this Court is convinced, as the legislative history and Ysleta I strongly indicates, that Congress did not intend any change. This Court's own view of proper statutory construction does not permit reliance upon legislative history to change the meaning of the language used in the statute, where the language used is clear and unambiguous, as it is in § 107 as enacted. But the question is: does the Fifth Circuit's opinion adopt a different view of statutory construction thereby concluding that all gaming as defined by Texas law is prohibited on the reservation. If so, we should stop here. The court acknowledges its uncertainty as to the correct resolution of this issue. Prudence indicates, therefore, that it should go forward.
So, assuming that Ysleta I does not foreclose such analysis, the Court will now deal with the remaining issues as presently argued by the parties.
Applicability of the Texas Penal Code to the Pueblo
The Defendants contend that the Texas Penal Code by its own terminology does not apply to it. They argue that the Tribe is not a "person" under Code definitions but) rather, a "dependent sovereign nation." Section 1.07 (38) of that Code defines "person" as an "individual, corporation or association." Section 1.07(6) defines an "association" as "a government or governmental subdivision or agency, trust, partnership or two or more persons having a joint or common economic interest." The Tribe as a group of "two or more persons" clearly has a "joint and common economic interest" under the facts of this case. The Tribe is engaged in the casino gambling enterprise for profit, receiving millions of dollars in revenues each year. This interpretation of "association" is reinforced by § 1.05 of the Penal Code which provides that "the rule that a penal statute is to be strictly construed does not apply to this Code. The provisions of this Code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the statute." Courts and the United States Congress have frequently referred to tribes as "associations." See, e.g., Blue Legs v. U.S.B.I.A., 867 F.3d 1094 (8th Cir. 1989) wherein it is stated that "over the course of the last two centuries Indian tribes have evolved into dependent associations with limited powers of self-government." It is clear to the Court from a reading of the Texas Penal Code that it intended to embrace within the term "person" any entity that was capable of violating the provisions of that Code. The Court further agrees with the State that while the Code's definition of the word "person" is clear, as just indicated, it is also inconsequential since the Restoration Act itself imposes state law as surrogate federal law on the Defendant Tribe as a matter of law.
The Defendants need to understand also that the Restoration Act's prohibition reaches beyond the Tribe and the other named Defendants. It states that "all gaming activities which are prohibited by the laws of the State of Texas are prohibited on the reservation and on lands of the Tribe." That language covers all persons who patronize the casino and engage in its gambling activities as well as the Defendants who own the facilities and administer, manage and regulate the casino's gambling activities. And, of course, the patrons are "persons" within the meaning of the Penal Code. Finally, this being a civil action to enforce civil remedies under the Restoration Act, the Court is not limited by the definitions in the Penal Code. So the next question is: do the provisions of the Texas Penal Code prohibit the gambling activities that are being conducted by the Defendants on the Tribe's reservation land?
The State would answer, "yes" because it believes that the effect of the Restoration Act is to treat the Tribe as any other citizen of Texas. Again, what a citizen of Texas can do, the Tribe can do. But what a citizen of Texas cannot do, the Tribe cannot do.
The Tribe, while it agrees that Texas law would not permit any Texas citizen to do what its casino is doing, nevertheless, contends that it is not just any other citizen but, rather, a sovereign nation, and that this prevents it from being treated as any other citizen of Texas under the provisions of the Restoration Act. Rather, it argues that it should be treated as the State of Texas is treated. And it points to the language of § 107(a) which states that "all gaining activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation . . ." It argues that the laws of the State of Texas, particularly the Lottery Law, are bread enough to permit the State of Texas to engage in any and all of the gaming activities that are presently conducted by the Tribe. Here the Defendants contend that if the State of Texas itself is not prohibited under its own constitution and its own state laws from engaging in the gaining and gambling activities of the type engaged in by the Pueblo on its reservation then the Pueblo is not prohibited from engaging in those gaining and gambling activities, and that this would be so whether or not the State actually chooses to engage in such gaming activities.
Again, note the colloquy between the court and the Defendants' attorney during the Court's first conference on the case in July 2001:
THE COURT: Are you contending that the language of the State Lottery Act would permit a citizen, any citizen in the State of Texas, on their own lands to conduct an operation such as you are conducting because of the breadth of' its language?
MR. GORDON: No, sir. We are contending the State lottery Act allows the State of' Texas to conduct any activities, including any activities a tribe may be operating at its casino under the lottery act. And we are contending that those activities are, by virtue of the constitutional amendment and the lottery act, permitted to the State of Texas.
THE COURT: Since they are permitted to the State of Texas, then how does that work that they are permitted to the Tribe?
MR. GORDON: It opens up the whole gamut of gaming to the state. We believe its permitted to the state, it is permitted to the tribe.
THE COURT: In other words, your focus is on the state's rights. In other words, if the state has the authority to do it; then it's in your view not, quote, prohibited, unquote.
MR. GORDON: Yes. That is certainly true.
To the same effect note the Defendants' statement at page 2 of its Opposition to Plaintiff's Motion for Summary Judgment:
"The State's entire approach and argument relies on the misplaced assumption that the Pueblo, a dependent political community, possessing attributes of sovereignty, is no different than a corporation or fraternal association. Proper recognition of the nature and status of the Pueblo requires denial of the State's Motion."
But the State does not deny that the Pueblo as an Indian Tribe possesses certain attributes of sovereignty. What it does deny is that the Pueblo possesses any attribute of sovereignty with respect to gaming and gambling activities. As stated by Judge Hudspeth in his December 2, 1999, order, "The court finds that § 1300g-6 [of the Restoration Act] does represent an unequivocal waiver of tribal immunity, and governs the sovereign immunity issue in this case." See p. 5 of opinion. So the State is right in its contention that, with regard to gaming activities, the Pueblo must be treated the same as any person, corporation or association.
The problem for the Defendants is that, as Ysleta I makes clear, the Tribe waived any parallel sovereign status claim that it might have regarding gaming when it made its "compact" with the State in order to obtain federal trust status).
The Tribe disavowed in its resolution, quoted supra, any interest in conducting any gambling operations on its reservation and stated its "commitment to prohibit outright any gambling or bingo in any form on its reservation."
And the Defendants are confronted by another insurmountable barrier because the Court concludes that the State cannot, under existing Texas law, lawfully engage in the gaming and gambling activities as they are conducted by the Tribe at the Speaking Rock Casino on its reservation. But, the Court goes further and concludes, as a matter of law, that even if the State's constitution and statutes did permit it, and it alone, to engage in such activities, thereby prohibiting it to others, then the Defendant Tribe, as one of those "others" could not lawfully engage in such gaming and gambling activities. The Tribe simply does not, as regards gambling, share a parallel sovereign status with the State of Texas. The laws may permit the State to engage in certain gaming activities without thereby opening the door for the Tribe or any other person to engage in such activities.
The Court concludes, as a matter of law, that the fact that the State of Texas is authorized to conduct a lottery does not in any way open the door for the Defendants to engage in such a lottery or any other gaming activities.
There are certain gambling activities that private citizens and/or certain organizations such as charities, may engage in lawfully in Texas if they comply with those State rules, regulations, and licensing requirements that pertain to such gambling activities. The State has acknowledged that the Tribe, if it qualified under such rules and regulations and, if it complied with those established rules and regulations, could participate in such limited gaming activities. The problem here is that the Defendant Tribe has not even attempted to qualify under the rules regulations or licensing requirements of the State of Texas with respect to any of the gaming activities presently being conducted at the casino on its Reservation. And, since the Cabazon criminal and prohibitory civil-regulatory distinction does not apply under the Restoration Act with respect to gambling, the Tribe cannot engage in these "regulated" gaming activities unless it complies with the pertinent regulations.
The Court, having found and concluded that the Texas Penal code applies to the Tribe and the other Defendants, it must now determine if the summary judgment record supports the State's position that the Tribe has been, and is, violating the specific provisions of that code. The answer is a clear "Yes." Indeed, as noted above, it does not appear that the Defendants would argue that if a person, partnership, corporation or association (other than the Tribe itself) engaged in the gaining and gambling activities as they are presently engaged in by the Tribe on its reservation, then such person, partnership, corporation, or association would be in violation of the provisions of the Penal Code. But; whether the Defendants would agree or not, the Court concludes that Defendants are operating the casino, or causing it to be operated, in violation of the Penal Code as follows,
The Court finds that the Tribe operates, inter alia, high-stakes bingo, keno games, a form of blackjack called Tigua 21, poker games, slot machines, crap games, a "Big-Six" wheel game, and off-track betting on horse and dog races, all as described in the State's Motion for Summary judgment under the heading "games at the Casino." Pp 10-17. And the Court notes that the summary judgment record cited therein fully supports this ending.
And the Court makes the following additional conclusions of law:
The Speaking Rock Casino and Entertainment Center is a building which has as one of its uses, the making or setting of bets, as defined by Section 47.01(3) of the Texas Penal code.
The Speaking Rock Casino and Entertainment Center is a place where, among other activities, one or more prizes are distributed by chance among persons who have paid or promised consideration for a chance to win anything of value, as defined by Section 47.01(7) of the Texas Penal Code.
The Speaking Rock Casino and Entertainment Center is a place where activities are conducted which include one or more of the activities described in Section 47.02(a), 47.03(a), 47.04(a), 47.05(a) and 47.06 (a) of the Texas Penal Code.
The Defendants knowingly maintain the Speaking Rock Casino as a place where persons repeatedly and habitually go for purposes of gambling and that these activities are frequent and continuous.
The Defendants habitually make the Speaking Rock Casino available to members of the general public for gambling, gambling promotion and the communication of gambling information, all of which are prohibited by law.
The Defendants operate the Speaking Rock Casino as a place where plays and bets are made upon games played with cards, dice and other gambling devises.
The Speaking Rock Casino is not a "private place" as defined by Texas Penal Code § 47.01(8). but rather is a public place to which the general public is invited and has ready access.
Remedy
So what is the appropriate remedy? Here it will be helpful to quote from Judge Hudspeth's decisions of December 3, 1999, and his follow-up opinion of January 13, 2000. First the pertinent part of Judge Hudspeth's opinion of December 3, 1999, dealing with the Defendants' Motion to Dismiss:
This is the case that asks the question: can the State of Texas enjoin gambling activities taking place on an Indian reservation located within its borders? (Fn.1)
(Fn. 1) Certain forms of gambling are prohibited in Texas. See Tex. Pen. code Ann. § 47.01 et seq.; see also Tex const. Art. 3 § 47(a) (directing state legislature to pass anti-gaming laws).
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The Restoration Act purported to prohibit gambling on the reservation by incorporating state law; however, the Tribe tried to compel Texas to negotiate a "Tribal-State compact" pursuant to the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701 et seq. (1987). See Ysleta del Sur Pueblo v. State of Texas, 852 F. Supp. 587, 588-89 (W.D.Tex. 1993). The Tribe hoped that an IGRA compact would result in federal authorization of reservation gambling. The Fifth Circuit Court of Appeals ultimately resolved the question in favor of the Stat. of Texas by holding that the Restoration Act, as opposed to IGRA, would govern the gambling question were a proper suit to arise. See Ysleta I. 36 F.3d at 1335-36.
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Having also determined that activities at Speaking Rock were in violation of the Restoration Act, the AG commenced the instant lawsuit. In their motion to dismiss, Defendants raise the following claims; (1) Congress never waived the Tribe's sovereign immunity, (2) the United States must be joined as an indispensable party before the AG can proceed, and (3) the AG lacks capacity to sue the Tribe on behalf of the State of Texas.B. Waiver of Sovereign Immunity
Defendants first argue that nothing in the Restoration Act constitutes a waiver of the Tribe's sovereign immunity. Alternatively, Defendants argue that the question of whether Plaintiff can bring suit should be governed by Public Law 280. (Fn.2)
(Fn. 2) Public Law 280 is codified at 18. U.S.C. § 1162(a) and 28 U.S.C. § 1360 (a). See Pub.L. No. 83-280, §§ 2, 4, 67 Stat. 588, 588-89 (1953). Under Defendants' theory, some of the language of Public Law 280 mirrors provisions of the Indian Civil Rights Act ("ICRA"), 25 U.S.C. § 1301 et seq. (1968), even though the former statute applies only to certain tribes outside of Texas. Compare 28 U.S.C. § 1360 and 18 U.S.C. § 1162 with 25 U.S.C. § 1321-22. By contrast, ICRA applies to all federally-recognized tribes. See 25 U.S.C. § 1301. Hence, Defendants argue, Public Law 280 jurisprudence should apply to tribes in Texas through ICRA.
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The Restoration Act provides 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 tribe." See 25 U.S.C. § 1300g-6 (a). All civil and criminal penalties relating to illegal gambling under state law apply on the reservation, and Congress granted exclusive jurisdiction to federal courts over actions involving gaming violations on the reservation. See 25 U.S.C. § 1300g-6 (a-c). Most importantly, the Restoration Act allows the State of Texas to bring suit in federal court to enjoin any such violations. See Id.
The court finds that § 1300g-6 does represent an unequivocal waiver of tribal immunity, and governs the sovereign immunity issue in this case.
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In addition, the Court finds that Defendants' argument regarding Public Law 280 and the ICRA fails since Congress clearly intended to abrogate the Tribe's immunity for purposes of prohibiting gambling. The Restoration Act is an act related to specific tribes, and was passed almost twenty yeas after ICRA.
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In addition, Public Law 280 does not apply to Texas tribes. More importantly, the Fifth Circuit Court of Appeals has made it clear that the analysis of gambling on the Tribe's reservation is to be governed exclusively by the Restoration Act. See Ysleta I, 36 F.3d 1325, 1332-35 (5th Cir. 1994) ("the Restoration Act. and not IGRA would govern the determination of whether gaming activities proposed by the Ysleta del Sur Pueblo are allowed under Texas law, which functions as surrogate federal law.") Moreover, the Fifth Circuit implicitly repudiated Public Law 280 jurisprudence in Ysleta I. (Fn. 4)
(Fn. 4.) The lower court determined that IGRA directed courts to adopt the analytical framework of the Supreme Court's ruling in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083 (1987) in assessing reservation gambling questions. See Ysleta del Sur Pueblo, 852 F. Supp. at 593. Cabazon was a Public Law 280 case. Thus, by ending that the Restoration Act, and not IGRA, governed a dispute involving the Tribe, it implicitly rejected the " Cabazon/Public Law 280" framework. See Ysleta I, 36 F.3d at 1335.
Furthermore, tribal immunity is not a defense to a claim for injunctive relief when brought. against tribal officials and the Tribe itself. See TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 680-681 (5th Cir. 1999); (Fn. 5)
(Fn. 5.) The suit in TTEA was brought against the Tribe, two tribal judges, and the Tribal Court.
See also Santa Clara Pueblo, 436 U.S. at 59, 98 S.Ct. at 1677. Thus, Plaintiff has established a prima facie basis to proceed.
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D. Capacity to Sue
In this case, the AG has cited no statute empowering him to sue the Defendants on behalf of the State of Texas, nor is any grant of authority found in the Texas Penal Code. (Fn. 12)
(Fn. 12) See Tex. Pen. Code Ann. § 47.01 et seq.; see also Lone Starr Multi Theaters, Inc. v. State, 922 S.W.2d 295, 298 (Tex.App. — Austin, 1996, no writ) (noting that authority to enforce Penal Code is vested exclusively in district and county attorneys, and that AG cannot initiate prosecutions.)
The AG's claim of authorization through this common Law power must be rejected in light of the preceding discussion. Although the AG attempts to characterize § 1300g-6(c) of the restoration Act as providing him with authority to sue, such a reading would in erect transform congress into the Texas legislature.
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The burden of proof rests with the AG to identify a source of power authorizing him to exercise this option on behalf of the state. Thus far, the AG has not met his burden.
Nonetheless, given the competing policy interests in this case, and in light of the fact that dismissal is generally disfavored under the federal Rules, the court will afford the AG an opportunity to amend his complaint to properly demonstrate his source of authority, under Texas law, to bring this suit (Fn. 13)
(Fn. 13) Arguably, the AG could characterize Speaking Rock as a "common nuisance" since it appears to be "a place to which persons habitually go for the purpose of . . . gambling in violation of the Texas penal code." See Tex. Div. Prac. Rem, code § 125.001. The AG has authority to bring suit to abate or enjoin such a nuisance. See Id. § 125.002 On their face, these statutes appear to confer the necessary authority.
Thereafter on January 13, 2000, Judge Hudspeth entered his order denying Defendants' second motion to dismiss, the pertinent part of which we now quote:
on December 16, 1999, the AG filed a first amended complaint alleging capacity to bring suit in the name of the state of Texas to enjoin and abate a public nuisance. See Tex. Civ. Prac. Rem. Code Ann. §§ 125.001-002 (Vernon's 1997) ("Civil Practice Code").(Fn. 1)
Fn.1: the statutes allow the AG to enjoin several public nuisances, including the "use of any place for . . . (1) gambling, gambling promotion, or communicating gambling information prohibited by law(.)" See Tex. Civ. Prac, Rem. Code Ann. § 125.021.A. Application of State Law Under Restoration. Act
Defendants request dismissal of this case for lack of subject matter jurisdiction or failure to state a claim on the basis that sections 125.001 and 125.002 of the civil Practice Code form part of a state regulatory scheme. Under section 107(b) of the Restoration Act, the State of Texas has no general civil or regulatory jurisdiction over the reservation; therefore, Defendants argue, the state public nuisance laws cannot apply on their reservation.
A brief review of the statutory scheme illustrates the flaw in Defendants' reasoning. Section 107(a) of the Restoration Act provides that all gambling activities prohibited under Texas law are also prohibited on the reservation. See 25 U.S.C. § 1300g-6 (a). Thus any state gambling law becomes federal law for purposes of reservation gambling. See Ysleta del Sur Pueblo v. State of Texas, 36 F.3d 1325, 1335 (5th Cir. 1994), cert. denied, 514 U.S. 1016, 115 S.Ct, 1358 (1995)("Ysleta I") ("Texas law . . . functions as surrogate federal law.") The reference in section 107(a) makes clear that "state law" encompasses both civil and criminal statutes. See 25 U.S.C. § 1300g-6 (a). Although federal courts maintain exclusive jurisdiction over cases involving violations of 107 (a), congress empowered the State of Texas to sue in federal court to enforce the civil and criminal provisions through an injunction. See 25 U.S.C. § 1300g-6 (c). (Fn. 4)
(Fn. 4) Moreover, other courts have determined that Congress is within its power in making state civil and criminal gambling laws applicable in Indian country. See United States v. Santa Ynez Band of Chumash Mission Indians, 983 F. Supp. 1317, 1324 (C.D. Cal. 1997) (applying 18 U.S.C. § 1166 (a) which incorporates state civil gambling provisions into federal law); United States v. E.C. Investments, Inc., 77 F.3d 327, 331 (9th Cir. 1996) (addressing 18 U.S.C. § 1955 which does the same for criminal statutes).
The only other provision in the Restoration Act pertaining to gambling provides that "[nothing in [the gambling] section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas." See 25 U.S.C. § 1300g-6 (b). (Fn. 5)
(Fn. 5) Section 1300g-6(b) appears to have been derived from two United States Supreme Court opinions. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083 (1987); Bryan v. Itasca Cty., Minnesota, 426 U.S. 373, 96 S.Ct. 2102 (1976). Although the Supreme Court in those cases determined that Public Law 280 ( 18 U.S.C. § 1162) did not grant to certain states general civil regulatory authority over tribal reservations, it also held that such authority could be granted where expressly provided by congress. See Cabazon, 480 U.S. at 214-15, 107 S.Ct. at 1091; Bryan, 426 U.S. at 383-85, 96 S.Ct. at 2108-09. These cases reinforce the notion that congress's grant to the State of Texas to exercise regulatory authority over gambling on the Tribe's reservation was valid. See Cabazon, 480 (U.S. at 207, 107 S.Ct. at 1087 (discussing plenary powers of Congress over tribes).
Thus, the plain wording of sections 107(a) and (c) evince Congress's clear intent to limit the Tribe's sovereign immunity by allowing the State of Texas to enjoin reservation gambling using state anti-gaming laws. Accord Ysleta I, 36 F.3d 1327-29 (reviewing legislative history of Restoration Act); Ysleta III, 1999 WL 1211427 at 2 (rejecting sovereign immunity defense).
Undeniably, sections 125.021 and 125.022 of the Civil Practice Code are state laws pertaining to gambling. In addition, there is no issue here regarding the propriety of using an injunction to stop a criminal violation. Courts may enjoin a potential criminal violation only (1) in cases of national emergency; (2) in cases involving a crime. See United States v. Santee Sioux Tribe of Nebraska, 135 F.3d 558, 565 (8th Cir. 1998), cert. denied, 119 S.Ct 48 (1998). In this case, there is (1) a statute defining as a public nuisance an establishment where state gambling laws are violated; and (2) federal and state statutes authorizing injunctions against stare gambling law infractions. Furthermore, as the Eighth Circuit Court of Appeals has made clear, federal courts should employ state remedies (and hence state injunction procedures) to enforce "surrogate" federal gambling laws against tribes. See Id. (determining that where Nebraska case law provided for injunctive relief against violations of State gaming laws, federal Court was required to enforce "surrogate" federal statute with reference to state law remedy).
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In this case, . . . the AG is only using the Civil Practice Code provisions as they pertain to gambling. Under the Restoration Act, these provisions function as federal laws; they empower the AG, as the representative of the State of Texas, to bring a suit in federal court to enjoin gambling on the reservation. See 28 U.S.C. § 1300g-6 (a) and (c). Consequently, the motion to dismiss under rules 12(b)(1) and 12(b)(6) should be denied.B. Lack of Capacity
Defendants' newest incarnation of its lack of capacity claim is premised on the notion that both state and federal law must explicitly empower the AG to bring suit on behalf of the State of Texas. This argument stems from Defendants' reading of State of Texas v. Scott Fetzer Co., a case concerning whether the AG was authorized under state law to bring a parens patriae action to recover for violations of federal antitrust law. See 709 F.2d 1024, 1024-25 (5th Cir. 1983).
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Defendants' contortion of Scott Fetzer fails for several reasons . . . [t]he Civil Practice Code authorizes the AG to sue anyone who runs a gambling casino within the state. Second, Defendants have cited no authority in support of the proposition that the state law allowing the AG to enjoin gambling must specifically refer to the Tribe or its reservation. The Restoration Act allows such suits, and only Congress can waive the Tribe's sovereign immunity; thus, there is no need for the State of Texas to also pass a statute authorizing suits against these particular Defendants. Similarly, the state is not obligated to amend its public nuisance statute to specifically mention the federal cause of action; the restoration Act solves the problem by "federalizing" all state anti-gaming law. See 25 U.S.C. § 1300g-6 (a). Accordingly, the motion to dismiss for lack of capacity should be denied.
The Court makes the following additional conclusions of law
1. It accepts and adopts Judge Hudspeth's interpretation of the pertinent law as set forth in his opinions of December 3, 1999, and January 13, 2000, as quoted above.
2. The Speaking Rock Casino is not a "Private Place" as defined by Texas Penal Code § 47.01(8) and the "social" gambling defense is unavailable unless the gambling is conducted on or at a place to which the public does not have access.
3. Any defenses stated in Texas Penal Code § 47.02(b); § 47.02 (c) or § 47.029(e), 47.04(b), 47.05(b). 47.06(d), are as a matter of law inapplicable and unavailable to the Defendants in this civil case under the undisputed facts of this case,
4. Any defenses stated in Texas Penal Code § 47.09 and all of its provisions are as a matter of law inapplicable and unavailable to the Defendants in this civil case under the undisputed facts of this case.
5. None of the definitions, exemptions, or defenses set out in the Texas Penal Code provide Defendants with any authority to engage in any of the gaming activities they presently engage in on the Pueblo's reservation.
6. The Defendants' gaming activities on its reservation violate the Texas Penal Code and the Restoration Act, 25 U.S.C. § 1300g-1, et seq.
7. The evidence in this case has established, and the court so ends, that the Defendants in this case have embarked upon a long-continued habitual course of conduct clearly violative of the Gambling Laws of the State of Texas and that such parties, unless enjoined, will continue such habitual illegal activities at Speaking Rock Casino. More specifically, such Defendants, YSLETA DEL SUR PUEBLO, TIGUA GAMING AGENCY, THE TRIBAL COUNCIL, TRIBAL GOVERNOR ALBERT ALVIDREZ, TRIBAL LIEUTENANT GOVERNOR FILBERT CANDELARIA, and GAMING COMMISSIONER FRANCISCO HERNANDEZ have habitually used and threatened or contemplated the continued habitual use of, a place located in El Paso County, Texas known as, referred to and advertised as the Speaking Rock Casino, which is geographically a pert of the Ysleta del Sur Pueblo Indian land and which has a street address of 122 S. Old Pueblo Rd., El Paso, Texas 79907 for the purpose of illegal gambling, gambling promotion and communicating gambling information prohibited by law by providing a place where Defendants charge and collect monetary fees from the public resulting in an economic benefit to them based upon patrons, guests and customers playing gambling games and betting money on games played with cards, dice and other gambling devices in violation of § 47 of the Texas Constitution; Chapter 47 of the Texas Penal Code; § 125.002 and § 125.021 of the Texas Civil Practice and Remedies Code and 25 U.S.C. § 1300-g-1 et seq. Ysleta Del Sur Pueblo Restoration Act.
8. The operation of all games played with dice, cards, wheels, slot machines, KENO board, off track betting and BINGO cards at Speaking Rock Casino are violations of Texas Penal Code § 47.02 and constitute both a common and public nuisance under Texas Civil Practice and Remedies Code § 125.001 Common Nuisance and § 125.021 Public Nuisance.
9. The State of Texas is entitled to the issuance of an injunction against the Defendants, their agents, employees, and attorneys pursuant to the Texas Civil Practice and Remedies Code § 125.002 and § 125.022 and Rule 65 of the Federal Rules of Civil Procedure requiring said Defendants to cease and desist from operating, conducting, engaging in or allowing others to conduct, operate or engage in gaming and gambling activities on the Pueblo's reservation held herein to be in violation of the Texas Penal Code and prohibited by the Restoration Act, 25 U.S.C. § 1300g-b. The Restoration Act makes it clear that the State of Texas may seek injunctive relief in federal courts to enforce the Act's gaming ban.
10. Under the Restoration Act "tribal council members are not entitled to tribal sovereign immunity" because "tribal officials are not immune from suits for declaratory and injunctive relief" Comstock Oil Gas, Inc. v. Coushatta Indian Tribes of Texas, No. 00-40088, 2001 WL 902139 (August 27, 2001) (citing TEEA v. Ysleta del Sur Pueblo, 181 F.3d 676-680 (5th Cir. 1999).
That the State of Texas, through its many prosecuting attorneys, may not have had a consistent and even handed approach to the enforcement of its gambling laws does not open the door to the Defendants to violate the State's Penal Code. Furthermore, this Court agrees with the State that the undisputed record does not sustain a claim by the Defendants of selective or discriminatory prosecution. The Court further notes this is a civil case. The State in socking injunctive relief is not required to meet criminal law standards or to negate the exceptions or defense referred to in the Penal Code.
The Defendants ask the Court to consider the "equities" and to refuse, in the exercise of its discretion, to enjoin the public and common nuisance the Tribe has crested and is maintaining by its conduct of gaming activities in violation of chapter 47 of the Texas Penal Code and also the Restoration Act. The Tribe points to the beneficial impact of the Pueblo's operation on the Pueblo and upon the El Paso community. It quantifies that "positive impact" at in excess of $800,000,000. And the Court is told that unemployment has been reduced to zero among the members of the Pueblo and that over 780 persons including minorities, are employed in good paying jobs with significant benefits.
The Court recognizes that the Pueblo and its members, and others, have benefited enormously from the Pueblo's illegal gambling operations, but this circumstance can not justify the clear violation of law. The fruits of this unlawful enterprise are tainted by the illegal means by which those benefits have been obtained.
Under the law the court believes it has no choice but to enjoin the continued operation of this widespread common and public nuisance. But, even assuming the court has some discretion in the matter, it concludes that it would be an abuse of that discretion not to enjoin the gaming and gambling activities under the circumstances of this case.
What the Defendants characterize as "equities" in this case are not such in the eyes of the law. They are matters which might, however, be brought to the attention of the Congress of the United States or the legislature of the State of Texas, for it is only through legislative change that the Defendants could possibly be permitted to carry on a casino operation of the type they presently conduct on the Pueblo's reservation. of course, the Court expresses no view on the policy and political issues with which such legislative bodies would be called upon to deal if such legislative initiatives were pursued.
The persons and parties to be enjoined are each and every named Defendant and the officers, agents, servants, employees, and attorneys of each of said Defendants and also any independent contractors and/or consultants employed by, or retained by, any of the Defendants, their officers, agents, attorneys, servants or employees who receive actual notice of this Court's Order and Injunction.
The persons and parties listed above will, by the Court's order and injunction, be required, inter alia, to, Cease, Desist, Terminate and Refrain From any involvement in any of the following activities at the Speaking Rock Casino and Entertainment Center or at any place on the Reservation of the Ysleta del Sur Pueblo or on any other property owned or controlled by said Pueblo, to-wit:
A. Gambling activities played with cards, dice balls or any other gambling device where some, any or all of the persons and parties enjoined receive an economic benefit other than personal winnings. Specifically prohibited are all card games; all dice or die games; all games using one or more balls and a spinning wheel (Roulette) and games involving a vertical spinning wheel, which require players to pay a monetary fee, which directly or indirectly benefits the Tribe, whether such fee is designated an "Ante," "Rake," Service Charge or otherwise.
B. Gambling activities played with cards, dice, balls or any other gambling device where some, any or all of the persons and parties enjoined, charge or collect or attempt to collect any monetary fee as a requirement for any person to bet on or play any game played with cards, dice, balls or any other gambling device, whether such fee is designated an "Ante," "Rake," Service Charge or otherwise.
C. Gambling activities played with cards, dice, balls or any other gambling device where some, any or all of the persons and parties enjoined act as the "house" or "banker" in the same fashion as the operator of a gambling casino and receive some economic benefit from so acting.
D. Providing to any person for their usage a slot machine, the operation of which is calculated to result in an economic benefit to the owner or lessor of the slot machine.
E. Conducting any gambling game from which any person or party enjoined herein is likely to receive any economic benefit other than personal winnings, including, but not limited to:
1. Bingo or any variation thereof;
2. Scratch tickets peel tickets, or pull tabs;
3. KENO or any variation thereof;
4. Tigua Dice, Craps or any variations thereof;
5. Slot Machines;
6. Poker card games;
7. Betting on horse races or dog races:
8. Tigua 21, Blackjack or any variations thereof;
9, Wheel of Fortune, Big Six Wheel, roulette or any variations thereof;
F. Allowing other persons or entities to engage in these enumerated activities on the premises of the Speaking Rock Casino.