Litigation | NIGC | Openings & Closings

Tigua Tribe loses decision to offer Class II games on reservation

Thursday, June 2, 2016

The Ysleta Del Sur Pueblo owns and operates the Speaking Rock Entertainment Center in El Paso, Texas. Photo from Facebook

A federal judge has cast significant doubt on the Obama administration's interpretation of the Indian Gaming Regulatory Act and whether two tribes in Texas can follow the law.

Last fall, the National Indian Gaming Commission approved Class II gaming ordinances for the Ysleta del Sur Pueblo, also known as the Tigua Tribe, and the Alabama-Coushatta Tribe. The approval was based on a new analysis from the Office of the Solicitor at the Interior Department that said both tribes can follow IGRA even though the federal courts have concluded otherwise.

Since the courts have already ruled, Judge Kathleen Cardone said she was bound by those precedents. The 5th Circuit Court of Appeals has previously upheld a gaming prohibition in the Ysleta del Sur Pueblo Restoration Act, a decision that forced the Tigua Tribe to shut down its casino in 2002.

"To the extent the Pueblo defendants argue that the relevant issues include whether IGRA repealed any part of the Restoration Act and that therefore IGRA, and not the Restoration Act, applies to the tribe’s gaming activities, the Fifth Circuit has already spoken to the issue, and this court is bound by that decision," Cardone wrote in the 54-page ruling on May 27.

The Alabama-Coushatta Tribe opened the Naskila Entertainment gaming facility in Livingston, Texas, on May 17, 2016. Photo from Alabama Coushatta Tribe of Texas / Facebook

But even if she didn't follow that decision, Cardone wasn't persuaded by the NIGC's and DOI's analyses of the situation. She said both agencies went beyond their expertise when they determined that IGRA repealed the Restoration Act because that issue required interpretations of case law, a task that is reserved to the courts.

"The court should not defer to the NIGC’s and DOI’s respective interpretations of the interplay among several statutes and case law," Cardone wrote as she said the agency's interpretations are not entitled to "deference."

Cardone's ruling came in a case involving the Tigua Tribe. But the Alabama-Coushatta Tribe could be impacted because the 5th Circuit also forced the closure of its casino in 2002 based on a gaming prohibition in the Alabama-Coushatta Restoration Act.

The Alabama-Coushatta Tribe has since opened a Class II gaming facility on its reservation. The state has not said whether it will seek to have it closed.

The clay cliffs in Aquinnah, Massachusetts, the home of the Aquinnah Wampanoag Tribe. Photo from Wikipedia

The Ysleta del Sur Pueblo Restoration Act and the Alabama-Coushatta Restoration Act became law in 1987. Both laws contain provisions that read:

All gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation and on lands of the tribe.

The 5th Circuit interpreted the provision to bar nearly all forms of gaming for both tribes. The U.S. Supreme Court declined to take up the matter when the Tigua Tribe filed appeals.

A similar situation has arisen in Massachusetts, where the Aquinnah Wampanoag Tribe wants to open a Class II gaming facility after securing approval from the DOI and the NIGC. A federal judge declined to grant deference to the two agencies and the tribe has taken the case to the 1st Circuit Court of Appeals.

Cardone cited that case in making her decision last week. The Massachusetts Indian Land Claims Settlement Act of 1987 grants the state jurisdiction over the Aquinnah Wampanoag Tribe's reservation.

IGRA became law in 1988, a year after all three of the special acts of Congress affecting the tribes in Texas and Massachusetts.

Get the Story:
Federal ruling puts Alabama-Coushatta bingo hall in jeopardy (The Beaumont Enterprise 6/2)
Electronic bingo game hall prepares for grand opening in Livingston (12 News 6/1)

Relevant Documents:
National Indian Gaming Commission Letter to Ysleta del Sur Pueblo (October 5, 2015)
Office of The Solicitor Letter to National Indian Gaming Commission (September 10, 2015)