Texas moves to prohibit Tigua casino gambling in El Paso

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On the heels of a major victory in a decades-old dispute over gambling conducted by El Paso’s Tigua Indians, the Texas Attorney General’s Office is asking a federal judge for an injunction that would ban or greatly restrict the gaming now conducted at the tribe’s Ysleta del Sur Pueblo.

Such an injunction could lead to the closure or major downsizing of the Tigua peoples’ Speaking Rock Entertainment Center, the border tribe’s most lucrative enterprise and the focal point of a legal dispute with the state that dates to 1993.

The Texas Attorney General’s Office on Friday recommended that U.S. District Judge Philip Martinez issue an injunction that prohibits the Tigua “from engaging in, permitting, promoting, or operating gambling activities on the Ysleta del Sur Pueblo’s reservation that violate one or more of the following” Texas laws and regulations regarding gambling. “This includes, but is not limited to, the one-touch machines described in the (Feb. 14 order issued by Martinez) and the live-called bingo described in the order.”

The state’s latest lawsuit seeking to stop gambling on Tigua land was set to go to trial on March 4, but Martinez on Feb. 14 issued a summary judgment in favor of the state, a court order that essentially says the facts and legal arguments in a lawsuit are so one-sided that no trial is necessary.

In his summary judgment ruling, Martinez said he would issue a permanent injunction that would restrict gambling on Tigua tribal land, but he invited the state and tribe to submit suggested language for such an injunction by 5 p.m. Friday. The state submitted its suggested language through the attorney general, but the Tigua declined to do so.

“The pueblo defendants appreciate the court’s willingness to hear from the parties on this issue. Two reasons, however, have led the Pueblo Defendants to submit this response in lieu of proposed language for a permanent injunction: (1) the lack of need for a permanent injunction; and (2) the possibility that on appeal submission of proposed language could be interpreted as a waiver of objection to the injunction,” tribal attorney Randolph Barnhouse of Albuquerque said in a Friday filing with the court.

Martinez’s ruling did not give a timeline on when he might issue a permanent injunction after Friday’s deadline for the parties to submit ideas. If he adopts the state’s suggested language, an injunction would end all of the machine games at Speaking Rock and limit the tribe to no more than 12 hours of bingo games a week.

Barnhouse also filed a motion on Friday asking Martinez to reconsider his summary judgment ruling.

A Tigua statue greets visitors to Speaking Rock Casino in El Paso, which a federal judge has ruled is violating Texas gaming laws.

Reducing or eliminating gambling at Speaking Rock could have economic repercussions across El Paso. The Tigua have not released a recent employee count for Speaking Rock, but the tribe says it employs 1,200 people in its enterprises, one-third of whom are tribal members. The Tigua use revenue from Speaking Rock to fund health care, education and social welfare programs for 4,200 tribal members.

Speaking Rock also is a significant advertiser for El Paso media and a sponsor of the Thrifty Thursday promotion for the El Paso Chihuahuas baseball team, among other community promotional efforts.  

The Tigua and the state have engaged in numerous court battles over the past quarter century, with the state ultimately prevailing in two previous lawsuits. Speaking Rock operated for several years as a Las Vegas-style casino with slot machines, table games and bingo, but was shut down in 2002 after the 5th Circuit Court of Appeals upheld a trial judge’s ruling that the casino violated state law.

The tribe reopened a scaled-down gambling operation offering different games over the years, often triggering new legal fights with the state. Speaking Rock currently offers round-the-clock bingo and more than 2,500 slot machine-style games that the tribe says are electronic bingo machines, Martinez said in his ruling.

In his ruling, Martinez agreed with the Texas Attorney General’s Office that the Tiguas’ 24-hour-a-day, seven-days-a-week gambling operation far exceeds what is allowed by state law for charitable bingo or other forms of gaming.

Native American tribes across the country –including the Kickapoo in the Texas border city of Eagle Pass – legally operate casinos under the Indian Gaming Regulatory Act, a 1988 federal law that pushed states to negotiate gaming compacts with Native American tribes.

But the Tigua of El Paso and the Alabama-Coushatta of East Texas aren’t covered by the Indian Gaming Regulatory Act, federal courts have consistently ruled.

Instead, gambling on Tigua or Alabama-Coushatta land is limited by the Restoration Act, a 1987 federal law that for the first time gave them federal recognition as Native American tribes. The Restoration Act barred the two tribes from offering any gambling not authorized by state law.

U.S. Magistrate Judge Keith Giblin of Lufkin, Texas, last year ruled that the Alabama-Coushatta tribe was violating Texas law by offering gambling, but the tribe’s Naskila Gaming casino remains open while the tribe appeals his ruling. The 5th Circuit Court of Appeals heard oral arguments in the case in January and is expected to issue a ruling in coming weeks.

If Martinez declines the Tigua request to reconsider his summary judgment order, the tribe almost certainly will appeal to the 5th Circuit, which has twice ruled that Tigua gambling operations violated state law. The Supreme Court has declined to take up prior Tigua appeals of 5th Circuit rulings.

Congress or the Texas Legislature could pass laws that would authorize gambling for the Tiguas and Alabama-Coushatta, though previous efforts have failed. In his ruling, Martinez encouraged the tribes to try again with Congress.

“The court is cognizant than an injunction will have a substantial impact on the pueblo community. Accordingly, the court joins the refrain of judges who have urged the tribes bound by the Restoration Act to petition Congress to modify or replace the Restoration Act if they would like to conduct gaming on the reservation,” he wrote.

The last significant Tigua attempt to get Congress to reform gambling laws came in 2002, when notorious lobbyist Jack Abramoff convinced the tribe to pay him $4.2 million to slip gambling legalization into an unrelated voting reform measure.

At the same time, Abramoff and his associates were being paid by a Louisiana tribe to block expansion of Indian gambling in Texas because of fears it would reduce the number of Texans traveling to their Louisiana casino.

”I wish those moronic Tiguas were smarter in their political contributions. I’d love us to get our mitts on that moolah!! Oh well, stupid folks get wiped out,”Abramoff wrote to a colleague in 2002, just before approaching the El Paso tribe with his lobbying offer.

Abramoff’s efforts to sneak Tigua gambling legalization through Congress failed. He was later convicted in federal court of swindling the Tigua and other Native American tribes and sentenced to six years in prison.

In the most recent congressional effort to allow gaming by the two tribes, Rep. Brian Babin, a Texas Republican whose district includes the Alabama-Coushatta reservation, introduced the “Ysleta del Sur Pueblo and Alabama-Coushatta Tribes of Texas Equal and Fair Opportunity Settlement Act” in January. The bill has 20 co-sponsors, equally divided between Democrats and Republicans.

Texas Attorney General Ken Paxton, who has led the state’s latest lawsuit against the Tigua since 2017, opposed an identical bill when Babin introduced it last year.

“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,” Paxton wrote, without mentioning the separate gambling activity allowed for the Kickapoo. “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.”

 

 

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