Tribes with special acts of Congress face hurdles for gaming

Tuesday, November 24, 2015

A welcome sign on the Alabama-Coushatta Reservation in Texas. Photo from Alabama-Coushatta Tribe

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Tribes in Massachusetts and Texas are facing huge legal hurdles as they attempt to enter or, in some instances, re-enter the gaming industry.

Two years ago this month, the Aquinnah Wampanoag Tribe vowed to be the "first to game" in Massachusetts after winning a favorable decision from the Obama administration. The National Indian Gaming Commission determined that the Indian Gaming Regulatory Act of 1988 applied to the reservation.

That conclusion, however, is being tested in federal court. Although the NIGC isn't involved in the lawsuit, which was filed by the state of Massachusetts, Judge F. Dennis Saylor IV determined that the tribe remains bound by a special act of Congress -- the Massachusetts Indian Land Claims Settlement Act of 1987 -- that subjects the reservation to state law.

Two tribes in Texas are in a similar situation. The NIGC also said that IGRA applied to the Alabama-Coushatta Tribe and the Tigua Tribe despite special acts of Congress that place them under state law.

The state hasn't revealed whether it will contest that determination but has fought both tribes in the past. The 5th Circuit Court of Appeals agreed that the Alabama-Coushatta Restoration Act and the Ysleta del Sur Pueblo Restoration Act, which became law in 1987, barred the tribes from engaging in gaming and they were forced to shut down their casinos.

Leaders of the Aquinnah Wampanoag Tribe, meanwhile, are planning to take their case to the 1st Circuit Court of Appeals. The court previously determined that IGRA applied to the Narragansett Tribe in neighboring Rhode Island, whose reservation is also subject to a special act of Congress.

The victory, however, was short-lived because the state's Congressional delegation secured passage of an appropriations rider that explicitly bars the tribe from following IGRA.

The Aquinnah Wampanoag Tribe also might ask for a reconsideration of Judge Saylor's November 13 decision, an attorney told The Cape Cod Times.