Dancers from the Ysleta del Sur Pueblo, also known as the Tigua Tribe. Photo: Visit El Paso

Trump administration supports sovereignty for tribes in Texas

A bipartisan bill to recognize the sovereign rights of the two tribes whose casinos are being threatened in Texas has the support of the Trump administration.

The Alabama-Coushatta Tribe and the Ysleta del Sur Pueblo, also known as the Tigua Tribe, could be forced to shut down their Class II facilities due to ongoing litigation. Passage of H.R.4985, the Ysleta del Sur Pueblo and Alabama-Coushatta Tribes of Texas Equal and Fair Opportunity Settlement Act, would protect them and confirm that they can participate in the $32 billion Indian gaming industry just like their fellow sovereign nations.

"This bill is not asking for anything special or out of the ordinary," Rep. Brian Babin (R-Texas), the sponsor of H.R.4985, said at a legislative hearing on Thursday.

"In fact, it would simply ensure that the Alabama-Coushatta, as well as the Tiguas, receive the same treatment that the federal government extends to other tribes," he said.

Indianz.Com on SoundCloud: House Subcommittee on Indian, Insular and Alaska Native Affairs - H.R. 4985 - the Ysleta del Sur Pueblo and Alabama-Coushatta Tribes of Texas Equal and Fair Opportunity Settlement Act

The Bureau of Indian Affairs agrees with that assessment. Darryl LaCounte, the "acting" director of the agency, said the Trump administration believes Congress should clarify the sovereign rights of the two tribes by amending a federal law that has been the subject of litigation for nearly two decades.

"An amendment is important because it would restore the Alabama-Coushatta Tribe and the Ysleta del Sur Pueblo to the same footing as other federally recognized Indian tribes in the United States," LaCounte told the House Subcommittee on Indian, Insular and Alaska Native Affairs at the hearing.

Leaders of the tribes testified of the need to keep the operations open in light of the litigation. Chairwoman Jo Ann Battise of the Alabama-Coushatta Tribe said Naskila Gaming has helped improve economic, housing, health and other conditions in area near Houston where nearly a quarter of the population lives below the poverty line.

"This is something that the tribe needed for a very long time," Battise said. "What we have done for ourselves is brought forward projects and plans that had been put on the back burner, because we did not have the resources to do anything about it back then. We do now."

House Committee on Natural Resources on YouTube: Legislative Hearing on H.R. 4985 - the Ysleta del Sur Pueblo and Alabama-Coushatta Tribes of Texas Equal and Fair Opportunity Settlement Act

The Speaking Rock Entertainment Center in El Paso has brought similar benefits to the Tigua Tribe, Governor Carlos Hisa testified. But without certainty, he said his community cannot plan for its future.

"We never know when the judge is going to come down with a decision and ask us to shut down," Hisa told lawmakers. "We sort of limit the way we need to operate and the way we need to help our people."

Both tribes previously saw boosts in their economies when they opened casinos in the late 1990s. But they suffered incredible losses when the state of Texas went to court and forced the closure of both facilities in 2002.

LaCounte, in his testimony, highlighted the "large financial toll" imposed on the tribes as a result of the litigation.

The Speaking Rock Entertainment Center on the Ysleta Del Sur Pueblo in El Paso, Texas. Photo: Speaking Rock

New lawsuits threaten a return to those conditions. A federal judge has already ordered the closure of Naskila Gaming, though it remains open pending an appeal. Speaking Rock also has been told that it must abide by the results of the prior case.

At the heart of the dispute is Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act. The law, which was in enacted in 1987, restored the tribes to federal recognition -- they had been placed under the "supervision" of the state by Congress during the disastrous termination era.

"Like many other tribes, the Ysleta del Sur Pueblo and Alabama-Coushatta Tribe were both wrongly and unjustly terminated," said Rep. Ruben Gallego (D-Arizona), the top Democrat on the House Subcommittee on Indian, Insular, and Alaska Native Affairs. He is one of seven Democratic co-sponsors of H.R.4985, which also counts 11 Republicans as supporters.

A year after the tribes were restored, Congress enacted the Indian Gaming Regulatory Act, which established a framework for casinos on tribal lands. But the 1987 law contains a provision that has been interpreted by the 5th Circuit Court of Appeals as a ban on the types of gaming that are illegal in Texas, such as slot machines and card games

The Alabama-Coushatta Tribe owns and operates Naskila Gaming in Livingston, Texas. Photo: Naskila Gaming

The tribes and their supporters in Congress, however, point out that bingo isn't illegal in Texas. Naskila and Speaking Rock offer versions of that old standby, just with more modern touches.

"Throughout the years, we have gotten creative," Hisa said.

The tribes and lawmakers also note that the Kickapoo Tribe, offers those same types of Class II games at the Lucky Eagle Casino in Eagle Pass, not far from the U.S. border with Mexico. That facility is not being threatened with closure.

During the Obama administration, the Department of the Interior determined there was no reason for the Alabama-Coushatta and Tigua tribes to be treated differently. That led the National Indian Gaming Commission to approve Class II ordinances for the tribes in 2015.

But that pro-tribal interpretation has not been embraced so far by the courts, largely because of the prior 5th Circuit rulings.

A similar conflict arose in Massachusetts, where officials claimed the Aquinnah Wampanoag Tribe could not engage in any forms of gaming. For years, they asserted that a federal land claim settlement subjected the reservation to state and local laws.

In a landmark ruling, the 1st Circuit Court of Appeals held that they were wrong. The U.S. Supreme Court later subsequently declined to review April 2017 decision and the tribe is now working on a Class II facility on its homelands on the island of Martha's Vineyard.

The 1st Circuit's holding, though, does not carry any weight in the 5th Circuit, a historically more conservative court. So even though the Department of the Interior developed pro-tribal policies for tribes in Massachusetts and Texas, the tribes in Texas aren't fully seeing the benefits.

The disconnect led Rep. Doug LaMalfa (R-California), the chairman of the House Subcommittee on Indian, Insular and Alaska Native Affairs, to wonder whether the courts in Texas have arrived "at the wrong view" when it comes to the Alabama-Coushatta and Tigua tribes.

LaCounte, the BIA's director, declined to pass judgment on that issue.

"I will say we support this bill," he said. "I'd prefer, Mr. Chairman, that I not have to question the court's capabilities."

The Massachusetts Indian Land Claims Settlement Act incidentally, was enacted in 1987, the same year as the Texas restoration law. IGRA officially arrived in October 1988, and the NIGC will be hosting a panel at its headquarters in Washington, D.C., on October 16 in recognition of the 30-year anniversary of the law.

The next step for H.R.4985 would be a markup before the full House Committee on Natural Resources. From there it could go to the House for passage.

A companion bill has not been introduced in the Senate at this point. Notably, Sen. John Cornyn (R-Texas) , when he served as attorney general of Texas, was in charge of the litigation that led to the closure of the Alabama-Coushatta and Tigua casinos in 2002.

House Subcommittee on Indian, Insular and Alaska Native Affairs Notice
Legislative Hearing on Indian Affairs Bill (September 13, 2018)

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