Texas v. Pueblo

• Decision Date: 27 May 2016
• Docket Number: EP-99-CV-320-KC
• Parties: STATE OF TEXAS, Plaintiff, v. YSLETA DEL SUR PUEBLO, et al., Defendants.
• Court: U.S. District Court — Western District of Texas

STATE OF TEXAS, Plaintiff, v. YSLETA DEL SUR PUEBLO, et al., Defendants.

EP-99-CV-320-KC

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION

May 27, 2016

ORDER

On this day, the Court considered Defendants Ysleta del Sur Pueblo, Tigua Gaming Agency, The Tribal Council, and Tribal Governor Carlos Hisa or his successor's (the "Pueblo Defendants")Motions to Vacate Injunction and Dismiss Case for Failure to Name Indispensable Parties and Lack of Subject Matter Jurisdiction, or in the Alternative, to Modify Injunction to Allow Class II Gaming and Stay Further Proceedings ("Motion to Vacate"), ECF No. 531.For the reasons set forth herein, the Motion to Vacate is DENIED.

Furthermore, and fundamental to the ongoing administration of this case, the Court sua sponte reconsiders the current arrangement, which the Court articulated in its August 4, 2009, Order requiring "Defendants to petition the Court directly to make an exception to the overall prohibition of gaming contained in the [Original Injunction] in this case."SeeOrder Regarding Defs.' Third Mot. for Clarification("Order Regarding Third Clarification Motion") 7, ECF No. 282.The Court sets out a new procedure, herein, for enforcing the Order Granting Summary Judgment and Injunction ("Original Injunction"), ECF No. 115, the Order Modifying September 27, 2001, Injunction ("2002 Order"), ECF No. 165, and the Memorandum Opinion and Order Granting Motion for Contempt ("2009 Order"), ECF No. 281(collectively, the "Injunction").

As explained in detail below, the Court eliminates the requirement that the Pueblo Defendants submit proposals to the Court seeking prior authorization for the Ysleta del Sur Pueblo of the Tigua Indian tribe (the "Tribe") to engage in any gaming activity, whether the gaming activity be permitted under the Restoration Act, 25 U.S.C. § 1300g, or not.Requiring the Pueblo Defendants to seek this pre-approval from the Court to engage in any gaming activities violates the spirit, if not the letter, of the Restoration Act, and has improperly contorted this Court's role of arbiter into that of a regulatory body overseeing a segment of the affairs of a sovereign tribal nation.The Court should not, and will not, undertake this role any longer.Instead, the Restoration Act provides a mechanism for addressing violations of its provisions.That mechanism requires Texas to bring suit in this Court to challenge alleged violations of the Act, and allows this Court to enter an injunction, if warranted.Additionally, the Court eliminates the requirement that the Pueblo Defendants"allow the designated representatives of the State of Texas access on a monthly basis to . . . any . . . location at which gaming activities are conducted by the Defendants, and access to the records maintained by the Defendants."SeeOrder Regarding Defs.' Mot. to Modify Previous Order("2010 Order") 3, ECF No. 324.

Finally, because the Court no longer requires the Pueblo Defendants to seek prior authorization, the Court refrains from reviewing the Pueblo Defendants' Proposed Use of Sweepstakes to Promote Economic Activity on the Ysleta del Sur Pueblo ("Proposal"), ECF No. 513.Instead, the Court proceeds to resolve Plaintiff State of Texas's ("Texas") Fifth Amended Motion for Contempt ("Motion for Contempt"), ECF No. 423, based on the facts and evidence before the Court at the time it issued its Order on March 6, 2015, ("March 6, 2015, Order"), ECFNo. 510.In resolving the Motion for Contempt, the Court determines whether the Pueblo Defendants' activities were in violation of Texas gaming law, and therefore in violation of the Injunction.As explained in detail below, the Court finds that such activities were in violation.

I.BACKGROUND

The present Motion to Vacate"is only the most recent tangle in a protracted saga" between Texas and the Tribe.March 6, 2015, Order 1.The Court previously set out the factual and procedural background of this lengthy and contentious case in great detail in its March 6, 2015, Order.Thus, the Court does not reiterate the extensive factual and procedural background.Instead, the Court recites only the most significant factual and procedural background, and outlines the pertinent developments since the March 6, 2015, Order.

As the Court previously explained, for more than fifteen years the Tribe has sought to institute various forms of gaming on its reservation, while Texas has sought to enjoin those operations as violations of Texas gaming laws.Seeid. at 1-2.To provide context regarding the restrictions the Tribe is subject to with respect to their gaming activities, and to set out the development of the case as it relates to the current state of affairs, the Court begins by recounting the evolution of the Injunction.

A.Evolution of the Injunction

1.Original Injunction

The Court issued the Original Injunction in this case on September 27, 2001.See Original Inj.The Original Injunction stated:

The persons and parties enjoined and listed as being subject of injunction are hereby ORDERED to CEASE, DESIST, TERMINATE AND REFRAIN FROM engaging in, permitting, promoting, and conducting activities at the Speaking Rock Casino in violation of Chapter 47 of the Texas Penal Code, and25 U.S.C. § 1300-6 of [the]Restoration Act, including but not limited to the following activities:

A.Gambling activities played with cards, dice, balls, or any other gambling device where some, any or all of the persons and parties enjoined receive an economic benefit.Specifically prohibited are all card games; all dice games; all games using one or more balls and or a spinning wheel and gaming involving a vertical spinning wheel, which require players to pay a monetary fee, whether such fee is designated as "Ante,""Rake," Service Charge or otherwise.

B.Gambling activities played with cards, dice[,] balls, or any other gambling device where some, any or all of the persons and parties enjoined, charge or collect or attempt to collect any monetary fee as a requirement for any person to bet on or play any game played with cards, dice, balls or any other gambling device, whether such fee is designated by "Ante,""Rake," Service Charge or otherwise.

C.Gambling activities played with cards, dice, balls, Keno tickets, bingo cards, slot machines, or any other gambling device where some, any or all of the persons and parties enjoined act directly or indirectly as the "house" or "banker" in the same fashion as the operator of the gambling casino.

D.Providing to any person for his/her use a slot machine, the operation of which results in or is calculated to result in an economic benefit to the owner or lessor of the slot machine.

E.Conducting any gambling game from which any person or party enjoined herein is likely to receive any economic benefit other than personal winnings, including, but not limited to:

1.Bingo or any variation thereof;

2.Scratch tickets, peel tickets, or pull tabs;

3.Keno or any variation thereof;

4.Tigua Dice, Craps, or any variations thereof;

5.Slot Machines;

6.Poker card games;

7.Betting on horse races or dog races;

8.Tigua 21, Blackjack, or any variations thereof;9.Wheel of Fortune, Big Six Wheel, or any variations of wheel games;

F.Allowing other persons or entities to engage in any of the above activities on the premises of Speaking Rock Casino or anywhere upon the reservation lands of the Ysleta del Sur Pueblo or upon any other lands of said Tribe.

Id. at 3-5.

2. 2002 Order

In the 2002 Order, the Court observed that the Original Injunction "enjoined the [Pueblo]Defendants from operating the Casino, having the practical and legal effect of prohibiting illegal as well as legal gaming activities by the [Pueblo]Defendants."2002 Order 3;seeid. at 6-7("As noted, the legal and practical effect of the Court's [Original Injunction] was to cease all gaming activities by the Defendants.").On its face, however, the Original Injunction does not enjoin all gaming activity, regardless of legality.See Original Inj.Instead, as detailed above, it enjoins "activities at the Speaking Rock Casino in violation of Chapter 47 of the Texas Penal Code, and25 U.S.C. § 1300-6 of [the]Restoration Act, including but not limited to [a list of specific activities]."Id. at 3-5.

Nonetheless, in the 2002 Order, the Court interpreted the Original Injunction to mean that "the Tribe would ultimately be permitted to participate in legal gaming activities under Texas law, if it so qualified," but that in the interim the Original Injunction enjoined all gaming activities on the reservation as a means of ensuring the illegal gaming activities would cease.See2002 Order 7.Further, the Court stated that "[o]nce in compliance, the [Original Injunction] provided that the Defendants could petition the Court for a modification . . . that would permit the Tribe to conduct legal gaming operations if it otherwise qualified under Texas law."Id.

The Court then proceeded "to consider the Defendants' request for declarations that various proposed activities do not violate the injunction, or, if any activity does violate theinjunction and is a legal activity the Tribe is otherwise qualified to participate in under Texas law, that the injunction be modified to permit said activity."Id.The Court reviewed details of seven proposed activities, and modified the Original Injunction to permit three activities: (1)"[s]tate lottery activities as an agent of the State of Texas"; (2)"[a]musement devices, but only to the extent the Tribe adheres to all the provisions of Tex. Penal Code Ann. § 47.01(4) and other relevant Texas law"; and (3)"[t]hird-party giveaway contests conducted by national vendors."Id. at 7-20.

3. 2009 Order

On August 3, 2009, the Court modified the Original Injunction again, upon finding Defendants in civil contempt for violating Texas law in a manner prohibited by the Original Injunction.See2009 Order 8.The Court ordered the Defendants to:

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