Untitled Texas Attorney General Opinion ( 1991 )

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August 6.1991
DAN MORALES
Al-rORNEy
GENERAL
Honorable James F. Hury Opinion No. DM-32
Chairman
Committee on Ways and Means Re: Whether the enactment of a bill
Texas House of Representatives that would permit gambling within
P. 0. Box 2910 Texas waters would have the effect of
Austin Texas 78768-2910 permitting gambling on Indian lands
(RQ-128)
Dear Representative Hury:
You ask whether the enactment of a bill that would permit gambling on
Texas waters would have the effect of permitting gambling on Indian lands located
within the state. Specifically, you ask:
1. If the legislature enacts a bill that would permit gambling
within Texas waters that would be regulated by the state, would
such gambling activity also be permitted on Indian lands in
Texas?
2. If the legislature enacts a bill that would confer authority
not on the state, but rather on either counties, cities or special
districts to regulate such gambling activity, would such gambling
activity also be permitted on Indian lands in Texas?
3. If the answer to the first two questions is ‘Yes,’would an
Indian tribe or members of an Indian tribe that purchase ,real
property that does not comprise part of Indian lands be
permitted to conduct a gambling enterprise on that property?
We conclude that, under the Indian Gaming Regulatory Act, 25 U.S.C.
$5 2701 et seq., if the Texas legislature enacts a bill that would permit Class III
gaming within Texas waters, such gaming activity could also be conducted on Indian
lands located within the state, provided that there is compliance with the
requirements of section 2710 of title 25 of the United States Code. If the Texas
legislature enacted a bill that would delegate regulatory authority to units of local
governments within the state, the statute would still satisfy the requirements of the
federal statute and thereby permit such gaming activities to be conducted on Indian
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Honorable James Hury - Page 2 (DM-32)
lands within the state. If there is compliance with the requirements of section 2719
of title 25 of the United States Code, then such gaming activities could also be
conducted on lands acquired by Indian tribes after the effective date of the act. We
turn to your first question.
You first ask:
If the legislature enacts a bill that would permit gambling
within Texas waters’ that would be regulated by the state, would
such gambling activity also be permitted on Indian lands in
Texas?
In 1987 the United States Supreme Court handed down California v.
Cabazon Band of Mission Indians, 480 U.S. 202 (1987), which held that Indian tribes,
in states that otherwise allow gaming, have a right to conduct gaming activities on
Indian lands, unimpeded by state regulation. The court’s decision followed a long
line of cases that began with the case of Seminole v. Bunenuorth, 658 F.2d 310 (5th
Cir. 1981), cert. denied, 455 U.S. 1020 (1982). In that case, the United States
Supreme Court held that Florida2 could not apply the state’s civil regulatory laws
governing bingo to the Seminole Tribe’s bingo operations. See L&OMmhantucket
Pequot Tribe v. McGuigun, 626 F. Supp. 245 (D. COM. 1986); Barona Group of
Capitan Grade Band of Mission Indians v. oUf&, 694 F.2d 1185 (9th Cir. 1982), cert.
denied, 461 U.S. 929 (1983); Oneida Tribe of Indians v. Wirconsin, 518 F. Supp. 712
(W.D. Wis. 1981).
In response to concerns raised by various states to the Cubazon case,
Congress enacted in 1988 the Indian Gaming Regulatory Act. See S. Rep. No. 446
(Indian Affairs Committee), 100th Cong., 2nd Sess. reprinted in 1988 U.S. CODE
1 Section Il.012 of tbe Natural Resowccs Code provides that the gulfward boundary of the
State of Texas is the boundary determined by the United States Supreple Court in Tera v. hikma,
426 U.S..465 at a.1 (1976), citing United
S10tcs v. Louisiana,363 U.S. 1 (1960). The court determined
that the boomiary of Texas Iay three marine leagues (aproximately 10 miles) from its coastline.
z Florida is a so-c&d Public Law 280 state. Public Law 83-280, wbicb is codified in title 18,
section 1162, of the United States Code and title 28, se&on 1360, of the United States Code,
authorized the transfer of crimii jmisdictioo over Indiaos sod Indian lands from the federal
government to those state governments that choose to wert such jurisdiction. Tribes were free to
continue to exercise civil jurisdiction over their members and their lands. The law was amended in
1968 to require tribal consent before jurisdiction could be transferred to a state. Since the 1968
amendment, no triis have granted consent and no additional states are permitted to faII within the
statute. See S. Rep. No. 1004%.
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CONG. & ADMIN. NEWS 3071 (accompanying bill S. 555, which became Indian
Regulatory Act). The Indian Gaming Regulatory Act, 25 U.S.C. $8 2701 et seq.,
permits Indian tribes to conduct gaming activities under certain circumstances and
creates the National Indian Gaming Commission whose responsibility it is to
regulate such activity. The act provides that Indian tribes3 have the exclusive right
to regulate gaming activity on Indian lands4 if the gaming activity is not specifically
prohibited by federal law and is conducted within a state which does not, as a matter
of criminal law and public policy, prohibit such gaming activity. 25 U.S.C. 5 2701(5).
The act establishes three classes of gaming that are subject to differing
degrees of federal, state, and tribal regulation. Class I gaming is limited to social
games, either ceremonial or for nominal prizes, 25 U.S.C. $I2703(6), and is free of
all outside regulation. Id 9 2710(a)( 1). Class II gaming includes bingo and related
games, i.e., games played against other players as opposed to the house. Id.
$2703(7). These games are free of state regulation but are subject to some federal
oversight by the National Indian Gaming Commission. Id. 5 2710(b), (c). All other
forms of gaming are classified as Class III gaming. Id. 5 2703(S). Section 2710
provides at subsection (d)(l) that:
3 The act defmes “Indian t&e” for purposes of the au:
The term ‘Indian tribe’means any Indian tribe, band, nation, or other
organized group or community of Indians which --
(A) is recogeized as eligible by the Secretary [of the Interior] for the
special programs and services provided by the United States to Indians
because of their status as Indians, and
(B) is recognized as possessing powers of self-government.
25 U.S.C. 5 2703(s).
‘The act defines the phrase “Indian lands” in the following fashion:
The term ‘Indiao lands’ means --
(A) a8 lands tithie the limits of any Indii reservation; and
(B) any lands title to which is either held in trust by the United States
for the benefit of any Indian tribe or individual or held by any Indian
tribe or individual subject to restriction by the United States against
alienation and over which an Indian tribe exercises governmental
power.
25 U.S.C. 5 2703(4).
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Class III gaming activities shall be lawful on Indian lands
only if such activities are -
(A) authorized by an ordinance or resolution that --
(i) is adopted by the governing body of the Indian
tribe having jurisdiction over such lands,
(ii) meets the requirements of subsection (b) of this
section, and
(iii) is approved by the Chairman [of the National
Indian Gaming Commission],
(B) located in a State that permits such gaming for any
purpose by any person, organization, or entity, and
(C) conducted in conformance with a Tribal-State compact
entered into by the Indian tribe and the State under paragraph
(3) that is in effect.
Thus, if a bill were enacted that would permit Class III gaming in Texas
waters, by the clear terms of the federal statute those sorts of gaming activities that
are permitted by the bill to be conducted within state waters could also be
conducted by Indian tribes on their lands, provided that a tribal-state compact is
effected.5 Or, to put it simply, if casino gambling is permitted anywhere in Texas,
then casino gambling would also be permitted on Indian lands in Texas, so long as
the requirements of section 2710 are met.
It is important to note that state law does not determine the type of Class III
gaming that may be conducted on Indian land. See Mmhunfuckef Pequot Tribe v.
Connecticut, 913 F.2d 1024 (2nd Cir. 1990). Rather, state law must permit some
type of Class III gaming before an Indian tribe and a state may enter into a compact
sA state must negotiate io good faith to enter into such a compact. 25 U.S.C. 5 2710(d)(3)(A).
In a lawsuit regarding such a compact, the state has the burden of showiog that it negotiated in good
faith Id. P 2710(d)(7)(B)(G). In certaie circumstaoces, a court may appoint a mediator to select a
compact. Id. 8 2710(d)(7)(B)(i); see Mashanlucket Pequot Tribe v. Connecticut, 9l3 F2.d 1024 (2nd
cii. 1990).
p. 149
Honorable James Hury - Page 5 (DM-32)
permitting Class III gaming activities on Indian lands. It is the compact, though, not
state law, that determines the type of Class III gaming permitted on Indian lands.
, The Indian Gaming Regulatory Act provides that in order for Class.111
gaming to be permitted on Indian lands, those Indian lands must be “located in a
State that permits such gaming for any purpose by any person, organization, or
entity.” 25 U.S.C. 9 2710(d)(l)(B). It is suggested that a state law that limits the
operation of Class III gaming in Texas to a specific geographical area would not be
a law that “permits such gaming for any purpose by any person, organization, or
entity” sufficient to satisfy the requirements of the Indian Gaming Regulatory Act.
It is suggested that the Indian Gaming Regulatory Act should be construed to
require that Indians be subjected to the same limitations on location, size of the pot,
and size of the wager that are imposed by state law on that state’s citizens.
In Mashantucket Pequof Tribe v. Connecticut, 913 F.2d 1024 (2nd Cir. 1990)
(hereinafter Mushuntucket), a federal appeals court rejected a similar argument in a
case involving a Connecticut statute that did not generally permit gaming but that
authorized nonprofit organizations to conduct “Las Vegas nights.“6 An Indian tribe
located in Connecticut sought a federal court order requiring the state of
Connecticut to negotiate with the tribe for the purpose of concluding a tribal-state
compact, that would permit the tribe to conduct casino-type gaming. Before the
federal district court, the state argued, inter diu, that the sort of gaming activity that
state law permitted nonprofit organizations to conduct in Connecticut was not
comparable to casino-type gaming, and therefore, casino-type gaming was not a
permissible Class III gaming activity for purposes of the federal act:
The State argues that the use of the phrase ‘such gaming’as
opposed to ‘such type of gaming’ evidences the intent of
Congress that, with regard to Class III gaming, only the actual
forms of gambling which the State has legalized need to be the
subject of compact negotiations.. . . The State argues that if the
restrictions it has imposed on Las Vegas nights are removed,
such gaming becomes professional gambling which is prohibited
in Connecticut as a matter of criminal law and public policy.
6 ‘The games of cbaoce that Connecticut permits at the ‘Las Vegas nights’ include blackjack,
poker, dice, money-wheels, roulette, baccarat, chuck-a-luck, pan game, over and under, horse race
gamy accy-ducey, beat the dealer, and bouncing ball.” hfe&zntucket at n-5, citing, Corn. Gee. Stat.
55 7-&a to 7-186~ (1989).
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Mashantucket Pequot Tribe v. Connecticut, 737 F. Supp. 169, 173 (D. COM. 1990).
The state made the identical argument before the federal appellate court.
Mashantucket, 913 F.2d at 1029.
.
As noted earlier, federal law made Indian tribes subject to a state’s criminal
laws, but not a state’s civil laws. In rejecting Connecticut’s argument, the federal
appeals court noted that the United States Supreme Court in &baron set forth a
civil/regulatory and criminal/prohibitory test prior to the enactment of the federal
statute to determine whether Indians were subject to the state’s authority:
[I]f the intent of a state law is generally to prohibit certain
conduct, it falls within [the area] of criminal jurisdiction, but if
the state law generally permits the conduct at issue, subject to
regulation, it must be classified as civil/regulatory.. . . The
shorthand test is whether the conduct as issue violates the
State’s public policy.
Id., citing California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209 (1987)
(brackets in original). The court then relied on legislative history indicating that the
intent of Congress in enacting the language governing Class II gaming was to
preserve the Cabuzon test:
(Tlhe Committee anticipates that Federal courts will rely on the
distinction between State criminal laws which prohibit certain
activities and the civil laws of a State which impose a regulatory
scheme upon those activities to-determine whether Class II
games are allowed in certain States. This distinction has been
discussed by the Federal courts many times, most recently and
notably by the Supreme Court in %iCabazon [sic].
Id, citing S. Rep. at 6, 1988 U.S. CODE CONG. & ADMIN.NEWS 3076 (brackets in
original); see also United States v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358, 365
(8th Cir. 1990) (construing title 25 of the United States Code section 2710(b)(l)(A)
and Class II gaming: “[Tlhe legislative history reveals that Congress intended to
permit a.particular gaming activity, even if conducted in a manner inconsistent with
state law, if the state law merely regulated, as opposed to completely barred, that
particular gaming activity.“).
Noting that the language in the federal statute governing Class III gaming is
identical to that governing Class II gaming, the Marhantucket court concluded that
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Honorable James Hury - Page 7 (DIG32)
Connecticut regulated, rather than barred, the gaming activity at issue and rejected
the state’s construction of the federal statute. Based upon the federal appellate
courts’construction of subsections (d)(l)(A) and (d)(l)(B) of section 2710, we think
that the courts probably would hold that Texas regulates Class III gaming activity,
rather than bars it. Thus, if a bill were enacted by the Texas legislature permitting
Class III gaming activities anywhere within the state. such gaming activities could be
conducted on Indian lands in Texas, provided that a tribal-state compact is effected.
It has also been suggested that the federal bills that re-establish federal
control over the three Indian lands in Texas would act to prevent any of the tribes
from conducting Class III gaming activities on their lands. Congress restored a trust
relationship between the United States and two of the tribes, the Alabama and
Coushatta Indian Tribes of Texas and the Ysleta Del Sur Pueblo Indians, by statute
after the issuance of Attorney General Opinion JM-17 (1983)’ and holds certain
lands in trust for their benefit. See 25 U.S.C. subch. XXXI-A, $5 731 - 737, 25
U.S.C. subch. LXXVIII, $9 1300g - 13OOg-7.Thus, those lands fall within the ambit
of the definition of “Indian lands” set forth in section 2703(4). Both tribes are
proscribed by the federal act restoring a federal trust relationship from engaging in
any gaming activity that is prohibited by the laws of the state of Texas. See 25
U.S.C. 83 737 (governing the Alabama and Coushatta Indian Tribes of Texas),
13OOg-6(governing the Ysleta Del Sur Pueblo Indians).*
The Indian Regulatory Gaming Act was enacted in 1988 after the 1983
enactment of the bill restoring the federal trust relationship with two of the three
Indian tribes in Texas. The Indian Gaming Regulatory Act does not explicitly
repeal those provisions of the federal act restoring a federal trust relationship that
proscribe the tribes’ engaging in gaming activities that are not permitted by Texas
law. However, the “last-in-time”rule, which provides that a statute enacted after the
‘Attorney General Opinion JM-17 (1983) addressed the aulhority of the state of Texas to
enforce its gaming laws on certain Indian lands wit&o the state. The opinion, infer ah, traced the
hismy of federal and state legislation affecting Indians in Texas and noted that with the termination in
1955 of the trust relationshipbetweenthe federalgovernmentand the Indiantribes,the membersof
the tribebecamesubjectto the lawsof the state in the samemanneras other citizens.As a resultof
the issuance of the opinion, Congress restored the federal trust relationship in 1983.
*while the third tribe, the Texas Band of Kickapw Indians, does not have a trust relationship
with the United States government, see 25 U.S.C. $5 l3GUb-11 - 13OOb-16,the tribe reportedly has
entered into an agreement that provides, inter afiu, that Texas laws regarding gaming wiU be followed
by the tribe. The Department of Interior, pursuant to general authority conferred by section 465 of
title 2S of the United States Code, accepted land in trust for the benefit of the Texas Band of Kickapoo
Indians. See gwwral~ Attorney General Opinion JM-1040 (1989).
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passage of an earlier statute controls in the event of conflict, applies to statutes
governing Indian tribes. See, e.g., Yankton Sioux Tribe v. United States, 623 F.2d 159
(Ct. Cl. 1980); see ufso Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977). This rule
would support a construction that Congress intended the Indian Gaming Regulatory
Act to apply to all Indian tribes that would otherwise fall within the ambit of the
act9 In light of that rule, we think that a court would conclude that the Indian
Gaming Regulatory Act controls.
Your second question asks:
If the legislature enacts a bill that would confer authority
not on the state, but rather on either counties, cities or special
districts to regulate such gambling activity, would such gambling
activity also be permitted on Indian lands in Texas?
We answer your second question in the affirmative. Subsection (d)(l)(B) of
section 2710 permits gaming on Indian lands only if such activities are, inter alia,
“located in a State that permits such gaming for any purpose by any person,
organization, or entity.” A statute that confers regulatory authority to units of local
government would satisfy this requirement.
Your third question is:
If the answer to the first two questions is ‘Yes,’would an
Indian tribe or members of an Indian tribe that purchases real
property that does not comprise part of Indian land be
permitted to conduct a gambling enterprise on that property?
We note at the outset that section 2710 permits Indian tibes, as defined in
the act, to conduct certain gaming activities; it does not authorize individual Indians
to do so. Therefore, with respect to individual members of tribes, we answer your
third question in the negative. With respect to Indian tribes, however, we answer
your question with a qualified “Yes.” The act does not permit gaming on lands
g The rule has been applied to treaties with Indian tribes. The Cherokee Tobacco, 78 U.S. 616
(1870). However, at issue here are federal statutes. See Newton, Federal Power over Indicms: It3
Souses, Scope, and Limitatiwq l32 U. Pa. L. Rev. 195 (1984). See general& Comment, Statutory
Consbuctibn - UUii~e Protection Venus Indian TreatyHunting Rights, 57 Wash. L. Rev. 225 (1981);
Willrinson & Volkman, Judicial F&viewof IndianTreatyAbrogation: “AsLang as WaterFlows, or Grass
Gnnvs Upon the Earth”- How Long o Time ic That?, 63 Calif. L. Rev. 601(1975).
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Honorable James Hury - Page 9 (DM-32)
purchased by Indian tribes, rather it permits gaming to be conducted on Indian
lands acquired in a certain manner and before a certain date.
Section 2719(a) of the act. generally prohibits gaming on lands acquired by
the federal government in trust for the benefit of Indian+ after the effective date of
the act, October 17,1988:
(a) Prohibition on lands acquired in trust by Secretary
Except as provided in subsection (b) of this section, gaming
regulated by this chapter shall not be conducted on lands
acquired by the Secretary in trust for the benefit of an Indian
tribe after October 17,1988, unless --
(1) such lands are located within or contiguous to the
boundaries of the reservation of the Indian tribe on October 17,
1988, and --
(2) the Indian tribe has no reservation on October 17,
1988, or --
....
(B) such lands are located in a State other than
Oklahoma and are within the Indian tribe’s last recognized
reservation within the State or States within which such Indian
tribe is presently located.
Sectiott 2719(b) of the act, however, provides certain exceptions to this general
prohibition and provides in pertinent part:
(b) Exceptions
(1) Subsection (a) of this section will not apply when --
(A) the Secretary, after consultation with the Indian
tribe and appropriate State, and local officials, including offkials
of other nearby Indian tribes, determines that a gaming
lo See gemnzUy 2.5 U.S.C. 9465 (general authorization for the Department of Interior to
acquire land to hold in trust for Indiam).
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Honorable James Hury - Page 10 (DM-32)
establishment on newly acquired lands would be in the best
interest of the Indian tribe and its members, and would not be
detrimental to the surrounding community, but only if the
Governor 9f the State in which the gaming activity is to be
conducted concurs in the Secretary’s determination; or
(B) lands are taken into trust as part of --
(i) a settlement of a land claim,
(ii) the initial reservation of an Indian tribe
acknowledged by the Secretary under the Federal
acknowledgment process, or
(iii) the restoration of lands for an Indian tribe
that is restored to Federal recognition.
Thus, if the provisions of section 2719(b) are complied with, an Indian tribe would
be able to conduct gaming activities on land acquired in trust subsequent to the date
of the enactment of the statute.
SUMMA&X
Under the Indian Gaming Regulatory Act, 25 U.S.C.
08 2701 et seq., if the legislature enacts a bill that would permit
Class III gaming within Texas waters, such gaming activity could
also be conducted on Indian lands located within the state. If
the legislature enacted a bill that would delegate regulatory
authority to units of local government, the statute would still
satisfy the requirements of the federal statute and thereby
permit such gaming activities to be conducted on Indian lands.
If the requirements of section 2719 of title 25 of the United
States Code are complied with, then such gaming activities could
be conducted on land acquired by Indian tribes after the
effective date of the act.
Attorney General of Texas
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Honorable James Hury - Page 11 (DM-32)
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 156