Law

Texas tribe presses Supreme Court on IGRA issue

Tuesday, April 22, 2008

As tribes prepare to mark the anniversary of the Indian Gaming Regulatory Act, the U.S. Supreme Court is being asked to consider one of the law's most contested provisions.

Congress passed IGRA in 1988, a year after the high court upheld a tribe's sovereign right to engage in gaming. Tribes have since turned their casinos into a $26 billion industry, employing more than 670,000 people, according to the National Indian Gaming Association.

Despite the success, tribes have faced numerous challenges, mainly from states that objected to gaming. While most have relented -- notably Florida and Oklahoma -- there are a handful that still won't agree to negotiate with tribes.

Texas remains the largest of these holdouts. The state has successfully blocked the Alabama-Coushatta Tribe and the Ysleta del Sur Pueblo, also known as the Tigua Tribe, from engaging in any form of gaming on their reservations.

A third tribe, meanwhile, is limited to Class II games like bingo and electronic bingo machines. The Kickapoo Tribe believes it is entitled to additional types of gaming but the state refuses to negotiate a Class III compact.

A provision in IGRA allows the Interior Department to step in when a state won't come to the table. The Bush administration issued Class III secretarial procedures in hopes of resolving the issue for the Kickapoos.

The 5th Circuit Court of Appeals, however, rejected the move.Last August, the court ruled that Secretary Dirk Kempthorne overstepped his bounds by cutting the state out of the process.

The court also invalidated the provision of IGRA that authorized Interior to step in. By a 2-1 vote, the judges said Texas was never found to be in "bad faith" as required by the law.

"The Secretary may not decide the state's good faith; may not require or name a mediator; and may not pull out of thin air the compact provisions that he is empowered to enforce," Chief Judge Edith H. Jones, a Reagan appointee, wrote in the 42-page opinion. "To infer from this limited authority that the Secretary was implicitly delegated the ability to promulgate a wholesale substitute for the judicial process amounts to logical alchemy."

After the 5th Circuit refused to rehear the case, the Kickapoo Tribe filed a petition for review by the Supreme Court. The tribe says the decision "will have wide ranging consequences" if it is not overturned.

"It will adversely impact the ability of all tribes in the Fifth Circuit to exercise their rights under IGRA to conduct gaming as a means of generating revenue where the state in which a tribe is located simply refuses to participate in the IGRA framework," the tribe's petition stated.

"It will adversely impact the relationships between states and tribes in other circuits by undermining the deliberate and careful balance of tribal rights and state authority crafted by Congress, creating confusion and sowing discord," the tribe said.

According to the tribe, the 5th Circuit's invalidation of the contested IGRA provision conflicts with decisions from the 9th Circuit and the 11th Circuit. The Supreme Court is often asked to resolve disputes among the lower courts.

Besides Texas, the 5th Circuit covers Mississippi and Louisiana, where tribes are already engaging in Class III gaming. Louisiana, however, has balked at efforts by the Jena Band of Choctaw Indians, a recently recognized tribe, to open a casino.

The 11th Circuit covers tribes in Florida and Alabama. In Florida, the Seminole Tribe recently negotiated a Class III compact after voters legalized slot machines.

Alabama, however, remains a holdout. The state recently filed suit against Interior to block Class III secretarial procedures for the Poarch Band of Creek Indians.

The Jena Band, along with seven other tribes, filed a brief with the Supreme Court, urging the justices to take the case. Some of the tribes that signed onto the brief are covered by the 9th Circuit, which upheld the secretarial procedures as valid.

The state of Texas won't be filing a brief in the case though. The state waived its right to do so, as it did in prior gaming cases involving the Tigua Tribe, none of which were accepted by the high court.

The Bush administration won't be filing either. The Department of Justice declined to file an appeal of the 5th Circuit decision on behalf of Interior.

Relevant Documents:
Docket Sheet No. 07-1109 | 5th Circuit Ruling (August 17, 2007) | Briefs and More