Two Native American tribes find themselves increasingly desperate in their long-running efforts to legalize gambling on their Texas lands—a source of revenue they claim as vital to caring for their people. Courts continue to rule against them, and Congress has shown little interest in stepping into a decades-old conflict.
A three-judge panel of the Fifth Circuit Court of Appeals on March 14 upheld a trial court ruling that the Alabama-Coushatta tribe violated state law by offering bingo-based games in their Naskila Gaming facility near Livingston in East Texas. U.S. District Judge Philip Martinez issued an injunction on Thursday that limited the Ysleta del Sur Pueblo in El Paso to offering only bingo, and not more than three days a week. Martinez stayed the injunction pending appeal to the Fifth Circuit, which has repeatedly ruled in favor of the state and against the tribes. The Supreme Court has so far declined to take up the issue. Naskila and the Tigua Speaking Rock Entertainment Center in El Paso remain open—for now.
“There are 371 full-time jobs at stake, and we have a moral obligation to fight for every one of the people working at Naskila Gaming,” Alabama-Coushatta chairwoman Cecilia Flores said in a prepared statement after the tribe’s most recent loss before the Fifth Circuit, vowing to ask the full court to review the panel decision. “Our alcohol-free facility is making a significant difference in the lives of East Texans, and we will continue to pursue every legal avenue to continue operating Naskila Gaming on our tribal lands.”
The battle revolves around the 1987 federal Restoration Act, which reinstated the U.S. government’s responsibility for Tigua and Alabama-Coushatta lands. Most Native American land is officially owned by the federal government but held for the benefit of a particular tribe, in what’s known as a trust relationship. From the 1940s through the 1960s, federal policy sought to assimilate Native Americans by eliminating recognition of many tribes and dissolving the trust relationships. That’s what happened to the Tigua (in 1968) and the Alabama-Coushatta (in 1954), when trusteeship of their lands was transferred to the state of Texas. However, in 1985, Texas attorney general Jim Mattox ruled that this trust relationship violated a 1972 state constitutional amendment, which left the tribes without any recognized legal status. Without a trust relationship with either the state or federal government, the tribes said, they faced bankruptcy or other financial challenges. So the Tigua and Alabama-Coushatta sought to reinstate their federal recognition—and the access to federal services for tribes that accompany it—via the Restoration Act.
Pivotally, a provision of the act precluded the tribes from offering gambling that wasn’t legal elsewhere in Texas. A year later, Congress passed the Indian Gaming Regulatory Act, known as IGRA, which allowed Native American tribes to operate bingo games and seek compacts with state governments to run other forms of gambling. The courts have repeatedly ruled that the Restoration Act prevents the Tigua and Alabama-Coushatta from offering high-stakes bingo beyond the limits of state law. In a 1994 ruling cited in each subsequent court case, the Fifth Circuit said if the Tigua or Alabama-Coushatta want to permit gambling on their land, they “will have to petition Congress to amend or repeal the Restoration Act.”
Despite previous injunctions, the tribes have continued running traditional bingo as well as bingo-based slot machines—arguing that the games comply with either state or federal law. That’s led to repeated litigation, and the state is now asking courts to find the tribes in contempt and levy substantial fines that could shut down these operations for good.
The most recent court battle began in 2015 when the chairman of the National Indian Gaming Commission wrote a letter saying the Tigua and Alabama-Coushatta could offer what is known as Class II gaming—variants of high-stakes bingo—under IGRA. The state objected, citing previous rulings that the tribes weren’t subject to IGRA. Federal courts on both sides of Texas, and now the Fifth Circuit in New Orleans, have sided with the state.
The Tigua and Alabama-Coushatta are caught in a battle over tribal sovereignty that dates to the founding of the United States. While most Native American tribes are allowed to offer gambling on their land, several other tribes across the nation are blocked from doing so by legislation or agreements with state or federal governments. “The short and straightforward answer is that tribal sovereignty is whatever Congress says it is,” said Kathryn Rand, co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota. “I think that that strikes a lot of people, not just tribal folks, as not only unfair but nonsensical in some ways—that you’d have federally recognized tribes, but some of them have this set of rights and others have this other set of rights, just depending on not only what the federal legislation says but the tribe’s political influence in Congress and with their congressional delegations.”
Texas’s other Native American tribe, the Kickapoo in Eagle Pass, is subject to IGRA. Its Lucky Eagle Casino in Eagle Pass offers bingo-based games legal under IGRA. But the state of Texas has refused to enter into compact negotiations with the Kickapoo over so-called Class III gaming: full-fledged Las Vegas–style casino gambling featuring table games. Texas is the only state that has refused to negotiate such a compact with a tribe within its borders, Rand said.
The tribes have gone to Congress to seek a solution repeatedly without success, most notably in 2002, when lobbyist and later-convicted grifter Jack Abramoff scammed the Tigua for $4.2 million by promising to slip gambling legalization language into the Help America Vote Act. Since 2012, several members of Congress, including former Senate Majority Leader Harry Reid of Nevada, have introduced legislation to amend the Restoration Act to allows the tribes to offer gambling. Such legislation has never gotten so much as a committee vote.
Representative Brian Babin, a Republican whose East Texas district includes the Alabama-Coushatta reservation, has again this year introduced a bill that would make the two tribes subject to IGRA, which would allow them to operate bingo-based games. He introduced an identical bill in 2018.
“This is an economic development issue here. And this is a fairness issue,” Babin said of the Alabama-Coushatta. “They have had this gaming operation now, and it is only bingo. I want you to be aware of that; it is not full Class III gaming. This is a bingo operation is what this is.” Babin’s bill has 21 cosponsors—10 Democrats and 11 Republicans, including Rep. Will Hurd, a Helotes Republican whose district includes the Tigua reservation.
In September 2018, Babin’s bill came before the House Natural Resource Committee’s Subcommittee on Indian, Insular, and Alaska Native Affairs. It appears to be the first time the Tigua and Alabama-Coushatta have gotten a congressional hearing about their gambling issues. “The closure of our facility will impact not only our tribal members but El Paso County as a whole. We employ over a thousand people in the area, and that’s just direct jobs,” then-Tigua governor Carlos Hisa testified.
A few months later, Texas attorney general Ken Paxton wrote to Babin to express his opposition to the bill. “Over several decades, the state has invested an almost immeasurable amount of time and money to settle this question and establish a consistent and uniform rule of law over gambling in Texas. The proposed congressional legislation seeks to undo those efforts. Importantly, if enacted, it will not fully resolve all questions of law surrounding what types of gambling would be allowed on lands owned by the Ysleta del Sur Pueblo and Alabama-Coushatta tribes. In short, it would inject uncertainty into the legal clarity that has come at great cost to the taxpayers of Texas,” the attorney general wrote.
Contrary to Paxton’s assertion in his letter, Texas doesn’t have a “consistent and uniform rule of law over gambling.” Since 1996, the Kickapoo have conducted gambling that isn’t permitted for the state’s two other Native American tribes or for any other Texans. Paxton’s office didn’t respond to requests for comment.
Gov. Greg Abbott and Lt. Gov. Dan Patrick also didn’t respond to requests for comment. Both have said in the past that they oppose any expansion of gambling in the state, a position that Republican leaders in Texas have maintained for two decades. “State laws on gaming are to be viewed strictly as prohibitive to any expansion of gambling. This statutory framework is properly intentioned to protect our citizens, and I support it wholeheartedly,” Abbott said in 2015. Texas’ two Republican senators, John Cornyn and Ted Cruz, didn’t respond to requests for comment on Babin’s bill. As Texas attorney general from 1989 to 2003, Cornyn led efforts to block tribal gaming that conflicted with state law.
When asked if he’s talked to Abbott or Patrick about the issue, Babin said “not in a while, probably not in several years. We’re hoping that, you know, that they will see that this is good for East Texas.” He acknowledged that some people are opposed in principle to gambling, but he sees something basic at stake. “This is a fairness issue: why one tribe in Texas would be allowed to do something, and the other tribes would not,” Babin said. “And that simply does not sit well with me, and I think it doesn’t sit well with a lot of people. Even folks who may be opposed to gaming feel like there should be fairness here, and everybody should be treated equally.” Rand, the Indian gaming legal expert, said Congress is unlikely to approve gaming legislation for the Tigua and Alabama-Coushatta as long as the state government remains opposed.
Tigua and Alabama-Coushatta leaders say gambling revenue is crucial for providing services for their tribal members, who have long battled poverty. “Last year we provided propane, because we heard winter was going to be hard, to 75 or 78 tribal elders. We are trying to rebuild our community, and that’s where (the bill) will help us. We can do it. We have the strength, we have the know-how, we have the knowledge, we have education, to move us forward,” then-Alabama-Coushatta chairwoman JoAnn Batisse said at last year’s House hearing.
