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State v. Pueblo

United States District Court, W.D. Texas, El Paso Division

March 26, 2018

STATE OF TEXAS, Plaintiff,



         On this day, the Court considered Defendants Ysleta del Sur Pueblo, the Tribal Council, and the Tribal Governor Carlos Hisa's [hereinafter collectively referred to as "Defendants"] "Motion to Dismiss First Amended Complaint" (ECF No. 13) [hereinafter "Motion"], filed on August 29, 2017, the State of Texas's [hereinafter "Plaintiff] "Response to Defendants' Motion to Dismiss First Amended Complaint" (ECF No. 15) [hereinafter "Response"], filed on September 11, 2017, and Defendants' "Reply in Support of Motion to Dismiss First Amended Complaint" (ECF No. 19) [hereinafter "Reply"], filed on September 25, 2017, in the above-captioned cause. After due consideration, the Court will deny Defendants' Motion for the reasons that follow.

         I. BACKGROUND

         This case is the latest iteration of a long-running dispute between Plaintiff and Defendants regarding enforcement of Texas gaming law on the Ysleta del Sur Pueblo [hereinafter "Pueblo" or "the Tribe"] reservation. While it is unnecessary to delve into a comprehensive history of the litigation and factual background, the Court will recite the facts relevant to determining this Motion.

         In 1987, the United States enacted the Restoration Act ("the Act"), which "restored trust responsibility for the Pueblo to the federal government" from the State of Texas. Mot. 4. The Act delineates the nature of the federal trust relationship and contains provisions regarding, inter alia, federal recognition of the Tribe, the rights and privileges of the Tribe (including eligibility for federal services and assistance), the relationship between federal, state, and tribal authority, and permanent physical improvements to the reservation. See generally Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act, Pub. L. No. 100-89, 101 Stat 666 (1987). Most importantly for purposes of this case, the Act governs "Gaming Activities" conducted on the reservation [hereinafter "Pueblo gaming"]. Id. at § 107.

         Section 107 of the Act contains two provisions relevant to deciding the Motion. Section 107(a), in pertinent part, provides that:

All gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation and on lands of the tribe. Any violation of the prohibition provided in this subsection shall be subject to the same civil and criminal penalties that are provided by the laws of the State of Texas.

Section 107(c) provides that "the courts of the United States shall have exclusive jurisdiction over any offense in violation of subsection (a) [i.e., the section prohibiting all gaming activities prohibited by the State of Texas]"

         The effect of subsections (a) and (c) of the Act is to federalize Texas gaming law, which currently operates "as surrogate federal law on the Tribe's reservation in Texas." Ysleta del Sur Pueblo v. State of Tex., 36 F.3d 1325, 1334 (5th Cir. 1994). Essentially, any activity prohibited pursuant to Texas law is prohibited pursuant to federal law. While Texas has many laws prohibiting gambling, the State does not consider all gaming activity to constitute unlawful gambling. Thus, "[n]ot all gaming activities are prohibited to the Tribe, only those gaming activities that are prohibited by Texas law to private citizens and other organizations. As such, the Tribe may participate in legal gaming activities." Texas v. del Sur Pueblo, 220 F.Supp.2d 668, 707 (W.D. Tex. 2001), modified (May 17, 2002), aff'd, 31 Fed.Appx. 835 (5th Cir. 2002), and aff'd sub nom. State of Texas v. Pueblo, 69 Fed.Appx. 659 (5th Cir. 2003), and order clarified sub nom. Texas v. Ysleta del Sur Pueblo, No. EP-99-CA-320-H, 2009 WL 10679419 (W.D. Tex. Aug. 4, 2009) [hereinafter "Judge Eisele Order"]. The current dispute involves whether Defendants' operation of "electronic bingo" machines violates Texas gaming law and, thus, whether it violates federal law pursuant to the Act. Original Compl. for Decl. and Inj. Relief 1, June 7, 2017, ECF No. 1.

         While Defendants make multiple arguments throughout their many filings in this case in favor of ultimately dismissing the cause, their Motion specifically concerns the Texas attorney general's ["AG"] capacity to sue Defendants in federal court for injunctive relief from their gaming activities. This issue has been thoroughly litigated in previous lawsuits involving the same parties. See Judge Eisele Order 691-95 (accepting and adopting two previous orders issued by Judge Hudspeth discussing the AG's capacity to sue to enforce the Restoration Act). In summary, both Judge Eisele and Judge Hudspeth concluded that the Texas AG lacks capacity to bring suit on behalf of the State unless an affirmative grant of statutory authority empowers him or her to bring that specific type of suit. See Judge Eisele Order 693 (citing Texas v. Ysleta del Sur Pueblo, 79 F.Supp.2d 708, 712 (W.D. Tex. 1999), affd sub nom. State v. Ysleta del Sur, 237 F.3d 631 (5th Cir. 2000)) ("The burden of proof rests with the AG to identify a source of power authorizing him to [bring suit] on behalf of the state.").

         However, both judges agreed that a suit to abate a common nuisance pursuant to Texas Civil Practice & Remedies Code § 125.002 provides a source of affirmative authority for the attorney general to sue on behalf of Texas. Id. Texas nuisance law provides that: "A suit to enjoin and abate a common nuisance .. . may be brought by an individual, by the attorney general, or by a district, county, or city attorney." Tex. Civ. Prac. & Rem. Code § 125.002. The nuisance statute provides that:

A person who maintains a place to which persons habitually go for the following purposes and who knowingly tolerates the activity and furthermore fails to make reasonable attempts to abate the activity maintains a common nuisance:
(5) gambling, gambling promotion, or communicating gambling information as prohibited by the Penal Code[.]

Id. at ยง 125.0015. Thus, both judges ultimately held that the AG retained capacity to sue provided that he or she sought relief pursuant to Texas's nuisance statute. ...

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