By Ricky Sylestine
In 1987, the United State Supreme Court issued its seminal decision in California v. Cabazon Band of Mission Indians, in which the Court found that because California state law regulated but did not prohibit gaming, tribes in California could offer gaming on their lands free from the state’s regulatory scheme. In response to the Cabazon decision, in 1988, the United States Congress passed the Indian Gaming Regulatory Act (“IGRA”), the regulatory structure under which nearly 240 tribes in 28 states have been offering gaming on their federal trust lands for over 35 years.
Although the traditional Kickapoo Tribe of Texas has operated a gaming facility in Eagle Pass under IGRA since the mid-1990s, a 1994 decision of the Fifth Circuit Court of Appeals found that the other two federally recognized tribes in Texas, the Alabama-Coushatta Tribe of Texas and the Ysleta del Sur Pueblo (Pueblo), were not permitted to game under IGRA and the two Nations could only offer gaming that strictly followed Texas’ gaming laws and regulations.
Last June, the United States Supreme Court found that Congress intended to only bar the Pueblo from offering gaming activities Texas fully prohibited. Where Texas merely regulates a game, like it does with bingo, the Court ruled that the Pueblo – and therefore the Alabama-Coushatta Tribe of Texas – could offer the game. Further, the Court determined that Congress did not provide for state regulatory jurisdiction over tribal gaming. This was a massive victory for our tribe because the Supreme Court affirmed our right to offer electronic bingo – the game we have offered at Naskila Casino for seven years.
What the Supreme Court left unclear is whether that gaming is subject to regulation under IGRA. Legislation clarifying once and for all that we are under IGRA has passed the House of Representatives twice unanimously, but Texas Senator John Cornyn has blocked passage of the legislation, asserting that he is doing so at the behest of Texas Governor Greg Abbott. It is disappointing that Cornyn and Abbott, both former state attorneys general, cannot see that our tribe should be under the same regulatory framework as others.
In fact, last November Governor Abbott sent a letter to Senators Chuck Schumer and Mitch McConnell asking that they not permit the Senate to vote on the legislation placing the Nations under IGRA. Abbott asserted that placing the Nations under IGRA will lead to expansion of gaming in Texas, an expansion that would violate the right of Texas to determine the scope of gaming within its borders. Such a claim is misleading at best. If the Nations were placed under IGRA, we would be permitted to offer the same electronic bingo they are currently offering, which is the same form of bingo the Kickapoo Tribe has offered in Eagle Pass since 1994. Under IGRA, the only way that the Nations can offer any other form of gaming, for example Las Vegas style gaming, is pursuant to a Tribal/State gaming compact. So long as Texas is unwilling to negotiate such a gaming compact, we will be limited to playing electronic bingo.
The governor knows this to be true since he and his predecessors in the governor’s mansion have steadfastly refused to negotiate a gaming compact with the Kickapoo Tribe for decades. Unfortunately, we cannot get a fuller explanation from him because for years he has refused to meet with our tribal leaders in person.
If the governor is sincere in his concern that the current gaming footprint in Texas does not expand, he should want to ensure that the tribe and Pueblo are covered under IGRA. Under the decisions in the Eastern District of Texas and the Supreme Court, we can offer any gaming that is not otherwise strictly prohibited under Texas law. If Texas permits the expansion of gaming in the future under the current state of the law, the Nations will be free to offer that same gaming and to do so without regard to state regulation. Additionally, it is IGRA that limits tribes to gaming on land it held in trust prior to Oct. 17, 1988. If the Nations are not subject to that restriction, we will be able to offer gaming on any land held in trust. For example, we have land in Leggett that is presently eligible for gaming purposes but would not be eligible if we were under IGRA.
In asking to be placed under IGRA, we are willingly surrendering some of our sovereign rights regarding gaming. Further, such legislation ensures that Texas will have a say if the Nations wish to expand the type of games they offer and IGRA will limit the location of that gaming. If Abbott continues his unprincipled opposition to legislation clarifying that the Nations are eligible to game under IGRA, there may come a time when the tribe and Pueblo decide to fully exercise our gaming rights as established by the federal courts.
Ricky Sylestine is Chairman of the Tribal Council of the Alabama-Coushatta Tribe of Texas.