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Texas files response in Indian gaming case
Wednesday, July 23, 2008
Filed Under: Law | Politics

The state of Texas is urging the U.S. Supreme Court against hearing a case that tests a long-contested provision of the Indian Gaming Regulatory Act.

Twenty years after IGRA's passage in 1988, tribes have created a $28 billion industry in their communities. But some tribes are still being left out and Texas wants to keep it that way.

The Kickapoo Tribe has tried to negotiate a Class III compact but Texas officials -- including former governor and current president George W. Bush -- have repeatedly refused, citing a ban on casino-style gaming in the state. Two other tribes have been rebuffed for similar reasons.

The Bush administration entered the dispute on behalf the Kickapoos and invoked a provision in IGRA that allows the Interior Department to issue "procedures" for Class III gaming even if a state doesn't agree. Regulations implemented in 1999 describe the rarely-used yet controversial process.

The 5th Circuit Court of Appeals invalidated the regulations, concluding that IGRA requires a state to be held in bad faith in a judicial forum before the Secretary of the Interior can intervene on behalf of a tribe. That never happened in the Texas case.

"The court of appeals correctly concluded that by permitting gaming in Texas without either the state's consent or a judicial finding of bad faith, the Secretary's 1999 regulations 'violate the unambiguous language of IGRA and congressional intent,'" the state's July 16 brief stated.

The brief also notes that the Department of Justice declined to appeal the 5th Circuit decision. As a result, the state claims the Kickapoo Tribe lacks standing to address regulations that the government won't defend, according to Texas attorney general Greg Abbott.

DOJ's stance is just one of several unusual aspects about the case. In their April 28 brief, government lawyers argued that the 5th Circuit "erred" by invalidating the regulations yet they urged the Supreme Court not to hear the tribe's appeal.

The case was due for resolution in late May but the justices decided they wanted to hear from Texas, which has previously declined to file briefs in Indian gaming disputes. The move came near the end of the court's October 2007 so the tribe's petition won't be addressed until the new term starts up this October.

In the meantime, the state of Alabama filed a similar lawsuit against the regulations. Interior was moving to issue Class III procedures for the Poarch Band of Creek Indians, whose leaders have tried to negotiate a compact for more than a decade.

Texas and Alabama are among the few holdouts when it comes to Indian gaming. Oklahoma and Florida finally agreed to Class III compacts after years of battles with tribes.

Nebraska also remains opposed to casino-style gaming in Indian Country. The state's attorney general is currently trying to prevent the Ponca Tribe from operating a casino across the border in Iowa.

Relevant Documents:
Docket Sheet No. 07-1109 | 5th Circuit Ruling | Briefs and More