indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
The University of Tulsa College of Law - Master's in Indian Law
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
Appeals court blocks Class III gaming for Texas tribe
Tuesday, August 21, 2007
Filed Under: Law

A federal appeals court on Friday handed the state of Texas another win in the state's long-running campaign against Indian gaming.

Texas officials -- including former governor George W. Bush -- have repeatedly refused to negotiate with tribes even though certain types of Class III games are legal in the state. The stalemate led the Kickapoo Tribe to petition the Interior Department, as its trustee, for help.

Acknowledging the roadblock, Interior Secretary Dirk Kempthorne in May moved to issue procedures to allow the tribe to offer some Class III games. Slot machines, which are the most lucrative form of gaming, were not included.

Despite the restriction, the 5th Circuit Court of Appeals ruled that the Bush appointee overstepped his bounds. In a 2-1 decision, the court said Kempthorne went against the Indian Gaming Regulatory Act by cutting the state out of the Class III compacting process.

"The Secretary may not decide the state's good faith; may not require or name a mediator; and may not pull out of thin air the compact provisions that he is empowered to enforce," Chief Judge Edith H. Jones, a Reagan appointee, wrote in the 42-page opinion. "To infer from this limited authority that the Secretary was implicitly delegated the ability to promulgate a wholesale substitute for the judicial process amounts to logical alchemy."

The holding drew a critical response from Judge James L. Dennis. In a 31-page dissent, the Clinton appointee said Congress gave the Interior Department broad authority to ensure tribes can conduct Class III gaming in states where such gaming is legal.

"The purpose of the IGRA is not simply to establish a neutral bargaining forum; IGRA’s purpose is to affirmatively help Indian tribes enter and conduct the business of gaming, where gaming is not prohibited by state laws of general application, as a means of 'promoting tribal economic development, self-sufficiency, and strong tribal governments,'" Dennis wrote, citing a key provision of IGRA.

And despite agreeing with the outcome of the case, another member of the 5th Circuit expressed concerns that the decision gives states like Texas "leverage to block gaming on Indian land under IGRA in a manner wholly contrary to Congress's intent." Judge Carolyn Dineen King, a Carter appointee, said "the situation clearly calls for congressional action."

Tribes have repeatedly asked Congress to address the situation at issue in the case. In 1996, the U.S. Supreme Court in Seminole Tribe v. Florida said states can invoke their sovereign immunity to block lawsuits over their failure to negotiate Class III compacts.

But attempts to amend IGRA in a manner seen as favorable to Indian Country have failed amid conflicting tribal, state and federal interests. Most recently, Sen. John McCain (R-Arizona) cast the deciding vote against a proposal to "fix" the Seminole decision when the issue came before the Senate Indian Affairs Committee last year.

That leaves tribes like the Kickapoo unable to realize the full intent of IGRA. The tribe, which operates a Class II facility on its reservation, has been asking for Class III gaming since 1995, when President Bush first served as governor.

Two other Texas tribes -- the Tigua and the Alabama-Coushatta -- defied the state and offered Class III games after their requests for compacts were rejected. But in lawsuits initiated under Bush, the 5th Circuit ordered the tribes to close their casinos, sending both into financial difficulties.

The Kickapoo appeared to have a stronger case because the Tigua and the Alabama-Coushatta are subject to special acts of Congress that limit their ability to engage in gaming. But the 5th Circuit -- a heavily conservative court that has consistently ruled against tribal interests -- said the state has the upper hand.

As tribal casinos have exploded into a $23 billion industry, most states have agreed to Class III compacts in exchange for a share of the revenues and regulatory considerations. But a handful -- notably Oklahoma, Wyoming, Florida Texas and Nebraska -- refused to play along.

Oklahoma shifted its stance after state voters approved a Class III compact at the polls three years ago. In a slew of decisions, the 10th Circuit Court of Appeals found Wyoming to be negotiating in "bad faith" under IGRA.

And Florida Gov. Charlie Crist (R) is reportedly close to a deal to the Seminole Tribe, whose leaders sought help from the Interior Department in the same way the Kickapoos in Texas did.

That leaves Texas -- which operates a lottery and allows some types of electronic gaming machines -- and Nebraska as the main holdouts. The Santee Sioux Tribe in Nebraska has petitioned the Interior Department for Class III games though the issue has been tied up in the courts for several years.

Get the Decision:
Texas v. US (August 17, 2007)

Relevant Links:
Kickapoo Lucky Eagle Casino - http://www.kickapooluckyeaglecasino.com
National Indian Gaming Commission - http://www.nigc.gov
National Indian Gaming Association - http://www.indiangaming.org
Senate Indian Affairs Committee - http://indian.senate.gov

Related Stories:
Florida close to compact with Seminole Tribe (8/20)
Senate panel holds first hearing on gaming in 110th Congress (6/29)
Sen. Cornyn asks DOI to delay Kickapoo gaming (6/29)
IGRA amendments pass first major Senate test (3/30)

Copyright © Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Tribes rest easy as Supreme Court wraps up a surprising session (6/24)
Tribes in northern California take action to protect salmon runs (6/24)
Aaron Payment re-elected as chairman of Sault Ste. Marie Tribe (6/24)
Gun Lake Tribe hosts annual Sweet Grass Moon Powwow in July (6/24)
Native Sun News: First Native hockey referee 'Butchy' passes on (6/24)
Delphine Red Shirt: Lakota people denied voting rights on our land (6/24)
Ruth Hopkins: Saving sacred Bear Butte from a massive biker bar (6/24)
Terese Mailhot: Becoming a better ally after the Orlando shooting (6/24)
April Youpee-Roll: Elizabeth Warren owes more to Indian Country (6/24)
Another land-into-trust fix reportedly being drafted in the Senate (6/24)
Federal charges filed in kidnapping of girl on Fort Peck Reservation (6/24)
Non-Indian charged for trespassing at Nambe Pueblo in New Mexico (6/24)
St. Croix Chippewa Tribe warned not to launch marijuana operation (6/24)
Eastern Shawnee Tribe breaks ground on $34M expansion at casino (6/24)
Non-Indian gaming firm loses challenge to law for new tribal casino (6/24)
Grand Ronde Tribes to finish demolition work at site of old racetrack (6/24)
Supreme Court deadlocks in closely-watched tribal jurisdiction case (6/23)
Matthew Fletcher: 'Huge win' for Mississippi Choctaw court system (6/23)
Native American Basketball Invitational draws top talent to Arizona (6/23)
Cheyenne River Sioux Tribe almost done with long-awaited theater (6/23)
Susanville Rancheria thanks lawmakers for help with land-into-trust (6/23)
Senate Committee on Indian Affairs schedules hearing on three bills (6/23)
Supreme Court backs affirmative action policy in long-running case (6/23)
Native Sun News: Senate committee takes on Indian Health Service (6/23)
Mark Trahant: A Republican plan to terminate Indian Health Service (6/23)
James Giago Davies: Welfare for corporations but nothing for tribes (6/23)
Peter d'Errico: Justice Clarence Thomas critiques federal Indian law (6/23)
Two charged for beating and setting woman from Crow Tribe on fire (6/23)
White House defends fracking regulation imposed on Indian lands (6/23)
Mescalero Apache woman hosts fundraiser for Miss United States (6/23)
Standing Rock Sioux Tribe to collect sales tax on entire reservation (6/23)
Seneca-Cayuga Nation ordered to conduct another council election (6/23)
Poarch Creek land-into-trust bill could help casino effort in Florida (6/23)
Cherokee Nation enters deal to run commercial casino in Arkansas (6/23)
Tohono O'odham Nation told to turn over casino-related documents (6/23)
Senate Indian Affairs Committee debates marijuana & sovereignty (6/22)
Major trust reform bill supported by Indian Country signed into law (6/22)
President Obama signs land-into-trust bill for Susanville Rancheria (6/22)
Chairman Jim Boyd from Colville Tribes passes away at age of 60 (6/22)
Tribes take more control of their land with HEARTH Act regulations (6/22)
Shakopee Mdewakanton Sioux Community adds another 128 acres (6/22)
Lakota Country Times: Pine Ridge Reservation graduates celebrate (6/22)
Native Sun News: Year of Reconciliation sees another anniversary (6/22)
Former Fond du Lac Band chairman Peter Defoe passes on at 77 (6/22)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.