Selective Gambling in Texas

Pat Poland and Ernest Stevens

The Alabama-Coushatta Nation located on Federally held Alabama-Coushatta land near Livingston, Texas opened an Entertainment Center in November of 2001. The center contains a limited number of slot machines, poker tables and blackjack tables. It can accommodate up to 500 people, who eagerly stand in long lines to take a turn at trying their luck inside.

"We average seeing 3,000 to 4,000 on a daily basis," explained Sharon Miller, public relations person for the Alabama-Coushatta Nation. Miller is quick to correct, not to call it a casino. Alcohol is not sold at the center at the tribe's request and live performances are not available due to the small size of the new facility. "They (patrons) come from a 100 to 200 mile radius seven days a week. Right now, we don't advertise accept by word of mouth, because it operates at capacity." Miller contends the tribes right to keep the facility operational is based on its being located on federally owned land held in trust for the Alabama-Coushatta Nation which was recognized by Congress under the 1987 Restoration Act.

Located on existing land since the late 1700's and established as a reservation in 1854, they maintain it is their right as a sovereign nation to govern and dictate what is located on their land. That right was challenged by Texas Attorney General, John Cornyn during the April 1st court date held in Federal Court in Lufkin.

"During the preliminary hearing each side voiced their views during the four day hearing," commented Miller, and that no decision was made at that time. The battle will resume in a month on the right of the Alabama-Coushattas to retain their sovereign right to keep the casino open or the state of Texas will enforce their "no casino style gambling" within what the state considers, its state boundaries. Cornyn, who is vying for a Texas Senate position, contends that Texas is not a gaming state according to Texas law and plans to close the facility, as he recently did to the Tigua Tribe's "Speaking Rock" casino of El Paso. Lawyers representing El Paso's Tigua Indians had twenty minutes to make their final arguments to save the tribe's prosperous financial future.

"This was a very important step for us—an opportunity to better convey our client's position orally—an opportunity we're looking forward to," lawyer Norman Gordon said. He will represent the Tiguas before the U.S. 5th Circuit Court of Appeals in New Orleans, which heard oral arguments in the tribe's appeal of a ruling that its Speaking Rock Casino is illegal in Texas and must be closed. At stake was an estimated $60-million-a-year enterprise that employed about 800 people and added as much as $55 million into El Paso's economy. The Texas comptrollerestimated that Speaking Rock's closure would be an economic disaster for the city, costing as many as 2,200 jobs.

Cornyn insists what is at stake is adhering to state law. Lawyers for both sides argued points of law, such as the legal definition of the word "prohibit," and whether casino gambling is really different from a state lottery. "They spent two or three days flying to New Orleans for 10 or 20 minutes (of arguing). It's ridiculous," said Lonny Hoffman, a law professor at the University of Houston and an expert on the 5th Circuit Court. He said such abbreviated arguments probably won't make much difference to the three-judge panel, which has already reviewed hundreds of pages of legal briefs. "It's easier to lose a case in oral arguments than it is to win one," Hoffman said.

While the lawyers argued, Terry Lozano worried about her job at the Speaking Rock, her family's health, and the welfare of a formerly poor tribe that has offered jobs, health care, affordable housing and a $15,000 yearly bonus to all 1,200 members of Ysleta Del Sur Pueblo. "This job means everything to me," said Lozano, 30, a single mother of a 10-year-old girl. She has worked at Speaking Rock for eight years—since day one— and has worked her way up to internal promotions manager. "It's my only source of income. Without it, I won't have a way of providing anything for my daughter," she said.

The Attorney General's Office would not comment on the issue and stuck to the basics of the hearing, although in the past Cornyn has said the tribal officials were "lured" by the big money prospects of gambling and should find a way to diversify their legal revenue streams. "We believe this is a very clear-cut case," said Jane Shepperd, spokeswoman for Cornyn, who began the state's legal battle with the Tiguas after he took office in 1999.

The state had successfully argued in U.S. District Court that Speaking Rock Casino is illegal under Texas law, and that the Tiguas agreed to abide by state law when Congress granted the tribe status under the 1987 Restoration Act. The Tiguas saw it differently. They argue that as a sovereign nation, the tribe has the same rights as Texas, which now offers legal gambling in the state lottery. "What's sauce for the goose is sauce for the gander," Tigua lawyers stated in their brief to the 5th Circuit Court.

Shepperd said Texas law is very clear. "The state lottery is legal, and the types of gambling under way at Speaking Rock is illegal," she said. "Voters in Texas have never approved a constitutional amendment allowing slot machines, or blackjack, craps or ken —the types of games being offered at Speaking Rock."

Tigua Gov. Albert Alvidrez, 29, who was re-elected to his third term, agreed that the state's case against Speaking Rock Casino is clear-cut. Alvidrez thought the tribe would win the case. "They (panel judges) will recognize the merits of the case, and they will recognize that Texas is a gambling state." Alvidrez said that as a sovereign government, the Tiguas are entitled to pursue any gambling activities allowed in Texas. "This lawsuit threatened the sovereignty of all Indian tribes in the United States," he said.

In its legal briefs to the 5th Circuit Court, the state argues that to gain federal recognition under the 1987 Restoration Act, the Tiguas surrendered part of their sovereignty by agreeing not to allow commercial gambling on their reservation. Problematic precedent, One of the biggest legal hurdles for the Tiguas' appeal may be legal precedent, some experts said. In 1994, a different panel of the 5th Circuit Court rejected a Tigua lawsuit attempting to force the state to negotiate a gambling compact with the tribe. That lawsuit included many of the same issues being argued in the current case, and the U.S. Supreme Court declined to hear the Tiguas' appeal of the 5th Circuit Court ruling.

Hoffman, at the University of Houston, said it will be very difficult for Tigua lawyers to persuade the panel to overturn a ruling by the same court. "That would be extremely rare," Hoffman said. "They would have to persuade them (judges) that this case is very different. The rule of the circuit court is that one panel cannot overrule another."

Despite their losses in courts, the Tiguas and Speaking Rock have won support in the community. City, county and state government officials have backed the tribe. And more than two-thirds of El Pasoans who responded to a recent El Paso Times/KVIA-ABC 7 Poll said they would support a law that would legalize gambling for the Tiguas. "We anticipate legal problems as well," tribal Chairman Kevin Battise said. "But like Ysleta Del Sur, we believe the Restoration Act entitles us to any type of gambling that's allowed in Texas. We're not too different from Ysleta Del Sur in that our unemployment is high, we have medical needs, and we need more housing," Battise said. "With the casino and further development, we should be able to change that."

Alabama-Coushatta members staged a peaceful demonstration during their court session. held in Lufkin, Texas on April 1st. They had gathered some 50,000 plus signatures from citizens to show that the community agrees that they have the right to operate the facility on the federal land held in trust for them. Past efforts to operate an "Indian Village" tourist attraction saw only 100,000 visitors annually bringing in far less revenues than the newly opened Entertainment Center. Miller commented, "If we get the green light in court, we will go ahead with expanding the size of The Entertainment Center." They will appeal if it is not approved. The law contends that the facility must be on land held in trust before 1988. The 1,001 member Alabama-Coushatta Nation has acquired 4,000 acres added to the existing 4,600 acres held in trust. The new land will be used to build homes for tribal members. "We have a lot of our people returning back to the reservation as they retire and get older. We needed the land," she explained.

Revenues from the Entertainment Center are being used for education, scholarships, development, new homes and health. "We'd like to have a residential care facility for our elderly. Right now they have to be placed off the reservation in facilities too far for relatives to visit on a regular basis." Miller commented that the federal government has funds, but by the time it is divided between other 555 existing tribes, their portion is very small. Miller envisions the future hopes of building a hotel or perhaps a school as revenues increase. A twenty four hour store/ gas station is presently under construction located on highway 190. Other revenues are derived from gas, oil, smoke shops, and the store.

Although a survey recently completed showed most area residents are in favor of the Entertainment Center, objections have been voiced. Democratic Candidate for State Representative of District 3 voted against the bill that would have allowed casino style gaming to exist in Texas. He commented at a recent political gathering, "They don't need it. It will cause us to have traffic problems out there ( highway 190 east ) and we will have to hire more law enforcement and widen the highway."

Miller contended that the state would decide on whether the highway would need widening, and that at present it seemed to be a likely need.

"The Entertainment Center employees 271 people, 71 of which are tribal members. They come from Montgomery County, Polk, Walker, Liberty, Grimes , Harris.. all adding to the income of where they live. We are an equal opportunity employer, " Miller added. She continued to explain that a bill passed in the Texas State House in the last session that would have allowed the Tiguas, Kickapoos and Alabama-Coushattas to operate their casinos/ entertainment centers. "It was not forwarded for approval to the senate because at the time acting Governor, Bill Ratliff made the decision not to forward it because he didn't approve of gambling in Texas."

Indians' Sovereign Rights are spelled out in two areas signed in 1787. Excerpt from THE NORTHWEST ORDINANCE signed in July 13, 1787: "The utmost good faith shall always be observed toward Indians; their lands and property shall never be taken from them without their consent; their property, rights, and liberty, they shall never be invaded or disturbed by Congress; but laws founded in justice and humanity shall from time be made from preventing wrongs done to them, and preserving peace and friendship with them. And in The United States Constitution signed September 17, 1787.... `Article 1, Section 8, clause 3, commonly referred to as the Indian commerce clause. This clause states that " The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with The Indian Tribes."

Article VI, section 2 states: "this constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made , or shall be made under the authority of The United States shall be the Supreme law of the land, and the Judges in every state shall be bound thereby, anything in the Constitution or laws of the state to the contrary notwithstanding."

Tribes who are Federally recognized fall under the jurisdiction of Federal courts. Matters concerning federally held Indian lands fall in the Federal Court jurisdiction. In some cases where a decision for placement, adoption, or guardianship of a minor who is of native American descent...that jurisdiction also applies and must be held in the Federal Court or is decided by the Tribal Council of that Federally recognized tribe.

As in the case between The Alabama-Coushattas versus The State of Texas in the matter of lands legally owned by that tribe which were gradually and illegally taken from the tribe over the years. The Alabama-Coushattas won that case in Federal Court in which lands located in thirteen Texas counties were taken illegally from them. Although that case was won, Texas has yet to pay the bill on that one.

To Indians, the land is a part of them, handed from generation to generation. Sharon Miller recently returned from San Diego with a meeting of the Indian Gaming Commission which governs the casino style gaming which has become popular as a revenue making industry for many of the Indian tribes throughout the United States. Many tribes are seeing a rise in revenues from the casinos and are filling their tribal coffers with the money in order to bring health care, housing, and education to their tribal members.

There are 300,000 hard working Indian and non-Indian individuals that are employed due to Tribal government gaming. Indian gaming is a highly regulated industry, subject to regulation at the Tribal, State, and Federal government levels. After a year of studying this very issue, even one of Indian gaming's most ardent detractors, Paul Moore, Chairman of the Indian gaming subcommittee of the National Gambling Impact Study Commission, stated: "Native American gambling operations have two key hurdles to overcome in the perceptions of the American public: that they are unregulated and that they are making money hand over fist. Neither is true."

At the Tribal Government level, Indian Tribes invest $160 million annually to regulate Indian gaming through tribal gaming commissions and staff. "To us, self-regulation is self-government. At the same time that American patriots dumped tea in Boston Harbor to promote American self-government, our patriotic forefathers fought to preserve American Indian self-government. For its part, the United States guaranteed tribal self-government through treaties that involved the cession of millions of acres of land.

Moreover, Tribal gaming commissioners and regulators are highly educated professionals with exemplary qualifications and Indian Tribes have established world class, state of the art gaming operations and regulatory systems. For example, the Director of Security and Surveillance at one of Tribes in Minnesota is a 24-year veteran of the Minneapolis Police Force who served on the SWAT Team, the Homicide Unit, and Emergency Response Unit. The Executive Director of a California tribal gaming commission has over 30 years of law enforcement experience serving as Assistant Chief Inspector for the New Jersey Casino Control Commission for 11 years and as Vice Inspector for the Philadelphia Police for over 17 years. And there is a Louisiana Tribal Gaming Commission Chairman who has over 20 years of military experience, including serving as a Navy Military Policeman and a U.S. Coast Guard Port Security officer. And there are many more examples where these came from. The capability, qualifications, and dedication of Tribal operators, regulators and regulatory agencies are equal to their counterparts of the states and federal government and cannot be dismissed with the wave of a pen."

At the state level, the Indian Gaming Regulatory Act established a system of Tribal-State Compacts to govern Class III Indian Gaming. Thus, state government agencies participate in the regulation of Class III Indian gaming at levels negotiated at through compacts. For example, in New York, the Oneida and Mohawk Tribes work with the New York State Racing and Wagering Board in regulating their gaming facilities. In Connecticut, the Mashantucket Pequot Tribe has a State Police Office in their Indian gaming facility. Overall, Indian Tribes reimburse the States over $40 million annually for state regulation of Indian gaming.

At the federal level, Indian Tribes fund the National Indian Gaming Commission through fee assessments at a level of $8 million annually and the NIGC coordinates with the Tribal and state government agencies. In addition, through the Money Laundering Suppression Act, Congress involved the Department of Treasury in monitoring large cash transactions at Indian gaming facilities, just as it does for Atlantic City gaming facilities. Under Title 18 USC 1163, the FBI and the Justice Department have authority to prosecute anyone who would cheat, embezzle, or defraud an Indian gaming facility? that applies to management, employees, and patrons. In a July 2001 review of Indian gaming by the Justice Department's Office of Inspector General, the FBI reported that "none of their Indian country investigations of isolated allegations of organized crime have been substantiated." In other words, the FBI is watching out for organized crime, and the comprehensive network of Tribal, State, and Federal system of regulating Indian gaming has been remarkably effective.

Understand that the integrity of Indian gaming is something that Tribes take very seriously. Gaming is a resource for Indian Tribes to provide much needed services to their people, just like State lotteries. After standing by while the federal government failed to fulfill its treaty obligations for 500 years, gaming is finally a means for Tribes to re-build their economies.

Reservations that were once ruinous wastelands littered with dilapidated buildings and crushed by poverty, are finally getting those things that most Americans take for granted: schools, hospitals, roads, water and sewer systems, and police and fire protection. That we are finally achieving self-sufficiency is not something that we take lightly. Nor do we take lightly our obligation to maintain responsible gaming facilities.

Send Comments on this story to editor@thebulletin.com