Texas v. Ysleta Del Sur Pueblo

• Decision Date: 03 December 1999
• Docket Number: No. EP-99-CA-320-H.,EP-99-CA-320-H.
• Citation: 79 F.Supp.2d 708
• Parties: State of TEXAS, Plaintiff, v. YSLETA DEL SUR PUEBLO, Tigua Gaming Agency, the Tribal Council, Tribal Acting Governor Filbert Candeleria, and Gaming Commissioner Francisco Hernandez, Defendants.
• Court: U.S. District Court — Western District of Texas

79 F.Supp.2d 708

State of TEXAS, Plaintiff, v. YSLETA DEL SUR PUEBLO, Tigua Gaming Agency, the Tribal Council, Tribal Acting Governor Filbert Candeleria, and Gaming Commissioner Francisco Hernandez, Defendants.

No. EP-99-CA-320-H.

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

December 3, 1999.

John Cornyn, Atty. General, State of Texas, for Plaintiff.

Tom Diamond, Diamond Rash Gordon & Jackson, P.C., El Paso, TX, for Defendants.

ORDER REGARDING DEFENDANTS' MOTION TO DISMISS

HUDSPETH, District Judge.

This is the case that asks the question: can the State of Texas enjoin gambling activities taking place on an Indian reservation located within its borders?¹ On September 27, 1999, the Attorney General of the State of Texas ("AG") commenced this action to enjoin Defendants from operating a gaming facility called "Speaking Rock Casino," located on the Ysleta del Sur Pueblo Tribe ("Tribe") reservation. In response, the Defendants, a group which includes the Tribe itself along with two tribal officials and the Tribal Council, filed a motion to dismiss pursuant to Federal Rules of Civil Procedure ("F.R.C.P.") 12(b)(1), 12(b)(6), and 12(b)(7). On November 12, 1999, Plaintiff responded. This case is now ripe for decision.

A. Background

The members of the Tribe are descendants of Indians who fled from New Mexico in the Pueblo Revolt of 1680. See W.H. TIMMONS, EL PASO: A BORDERLANDS HISTORY 17-24 (1990). After following the defeated Spaniards south, the Indian refugees, composed of members of several tribes, settled near what is now San Elizario, Texas, and formed what came to be known as the Ysleta del Sur Pueblo. See id. Throughout the eighteenth and nineteenth centuries, the Tribe retained a kinship-based tribal government. See id. at 181. In 1895, the Tribe adopted a constitution and by-laws to protect its traditions and culture from "Mexicanization." See id. In 1967, the State of Texas recognized the Tribe, and established the present reservation. See id. at 260. The following year, the federal government also recognized the Tribe, but delegated all its administrative responsibilities to the State of Texas. See Ysleta del Sur Pueblo v. State of Texas, 36 F.3d 1325, 1327 (5th Cir.1994) ("Ysleta I").

In the mid-1980s, amidst concerns regarding the constitutionality of the arrangement, Congress established a new federal trust with the Tribe. See Ysleta I, 36 F.3d at 1327-28; Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act, 25 U.S.C. § 1300g et seq. (1987) ("Restoration Act"). The Restoration Act purported to prohibit gambling on the reservation by incorporating state law; however, the Tribe tried to compel Texas to negotiate a "Tribal-State compact" pursuant to the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701 et seq. (1987). See Ysleta De Sur Pueblo v. State of Texas, 852 F.Supp. 587, 588-89 (W.D.Tex.1993). The Tribe hoped that an IGRA compact would result in federal authorization of reservation gambling. The Fifth Circuit Court of Appeals ultimately resolved the question in favor of the State of Texas by holding that the Restoration Act, as opposed to IGRA, would govern the gambling question were a proper suit to arise. See Ysleta I, 36 F.3d at 1335-36.

Despite the implications of the Fifth Circuit's holding, the Speaking Rock Casino began operating in 1993. In 1998, however, the Tribe commenced a suit against the State of Texas for declaratory and injunctive relief to validate reservation gambling after the Governor of Texas opined that the Tribe was violating the Restoration Act. See Ysleta del Sur Pueblo v. Bush, No. P-98-CA-47, (W.D.Tex.Aug.7, 1998) ("Ysleta II"). The district court found that Texas had not waived its Eleventh Amendment immunity, and dismissed the case. See id. The Fifth Circuit affirmed, and the Tribe is now petitioning for a writ of certiorari from the United States Supreme Court. (Def. Mot. to Abate.)

Having also determined that activities at Speaking Rock were in violation of the Restoration Act, the AG commenced the instant lawsuit. In their motion to dismiss, Defendants raise the following claims: (1) Congress never waived the Tribe's sovereign immunity, (2) the United States must be joined as an indispensable party before the AG can proceed, and (3) the AG lacks capacity to sue the Tribe on behalf of the State of Texas.

B. Waiver of Sovereign Immunity

Defendants first argue that nothing in the Restoration Act constitutes a waiver of the Tribe's sovereign immunity. Alternatively, Defendants argue that the question of whether Plaintiff can bring suit should be governed by Public Law 280.² The Supreme Court has determined that Public Law 280 does not constitute a waiver of tribal sovereign immunity. See Three Affiliated Tribes of Fort Berthold Reserv. v. Wold Eng'g, 476 U.S. 877, 892, 106 S.Ct. 2305, 2314, 90 L.Ed.2d 881 (1986). Consequently, Defendants maintain, under either theory the Tribe is immune from suit, and the action should be dismissed.

Indian tribes enjoy common-law immunity from suit traditionally enjoyed by sovereign powers. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978). Although tribes have the power to regulate internal matters, make their own substantive laws, and enforce laws in their own forums, Congress can "limit, modify or eliminate the powers of local self-government which the tribes otherwise possess." See id. at 55-57, 98 S.Ct. at 1676-77 (citing Talton v. Mayes, 163 U.S. 376, 384, 16 S.Ct. 986, 989, 41 L.Ed. 196 (1896)). Consequently, Congress may waive tribal immunity, provided that the waiver is "unequivocally expressed." See id. at 58-59, 98 S.Ct. at 1677.

The Restoration Act provides that "[a]ll 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." See 25 U.S.C. § 1300g-6(a). All civil and criminal penalties relating to illegal gambling under state law apply on the reservation, and Congress granted exclusive jurisdiction to federal courts over actions involving gaming violations on the reservation. See 25 U.S.C. § 1300g-6(a-c). Most importantly, the Restoration Act allows the State of Texas to bring suit in federal court to enjoin any such violations. See id.³

The Court finds that § 1300g-6 does represent an unequivocal waiver of tribal immunity, and governs the sovereign immunity issue in this case. This holding is reached even though tribal immunity waivers are to be strictly construed, with all ambiguous provisions interpreted in favor of the tribe. See Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247, 105 S.Ct. 1245, 1258, 84 L.Ed.2d 169 (1985); Montana v. Blackfeet Tribe, 471 U.S. 759, 766, 105 S.Ct. 2399, 2403-04, 85 L.Ed.2d 753 (1985). In addition, the Court finds that Defendants' argument regarding Public Law 280 and the ICRA fails since Congress clearly intended to abrogate the Tribe's immunity for purposes of prohibiting gambling. The Restoration Act is an act related to specific tribes, and was passed almost twenty years after ICRA. See Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974) ("[Absent clear intent by Congress], a specific statute will not be controlled or nullified by a general one.") In addition, Public Law 280 does not apply to Texas tribes. More importantly, the Fifth Circuit Court of Appeals has made it clear that the analysis of gambling on the Tribe's reservation is to be governed exclusively by the Restoration Act. See Ysleta I, 36 F.3d 1325, 1332-35 (5th Cir.1994) ("the Restoration Act ... and not IGRA would govern the determination of whether gaming activities proposed by the Ysleta del Sur Pueblo are allowed under Texas law, which functions as surrogate federal law.") Moreover, the Fifth Circuit implicitly repudiated Public Law 280 jurisprudence in Ysleta I.⁴ Furthermore, tribal immunity is not a defense to a claim for injunctive relief when brought against tribal officials and the Tribe itself. See TTEA v. Ysleta Del Sur Pueblo, 181 F.3d 676, 680-681 (5th Cir.1999);⁵ see also Santa Clara Pueblo, 436 U.S. at 59, 98 S.Ct. at 1677. Thus, Plaintiff has established a prima facie basis to proceed.

C. Indispensable Party

Defendants' next argument is that the case should be dismissed, pursuant to F.R.C.P. 12(b)(7), unless the United States is joined as an indispensable party. Defendants claim that the United States may eventually bring its own action against the Tribe concerning the same gaming activities, even if Defendants prevail in this case; thus, the potential exists for "inconsistent obligations." (Def. Mot. at 9.) See F.R.C.P. 19(a)(ii). The cases cited by Defendants for the proposition that the United States must be joined in every suit involving a federally-recognized tribe are inapposite. The United States was never joined in California v. Cabazon Band of Mission Indians, nor did the Supreme Court express any opinion on joinder in that case. See 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). In Carlson v. Tulalip Tribes of Washington, the Tenth Circuit Court of Appeals held that the United States was an indispensable party only because that case involved a boundary dispute on lands to which the United States possessed fee title. See 510 F.2d 1337 (10th Cir.1975). In this case, federal law incorporates state law for purposes of gambling violations. See Ysleta I, 36 F.3d at 1335. Thus, legally there should be no inconsistent obligations, since the causes of action are the same. Furthermore, the threat of multiple litigation does not, by itself, necessitate joinder. See Boone v. General Motors Acceptance Corp., 682 F.2d 552, 554 (5th Cir.1982); Delgado v. Plaza Las Americas, Inc., 139 F.3d 1, 3 (1st Cir.1998). Accordingly, Defendant's Rule 12(b)(7) claim should be denied.

D. Capacity to Sue

Defendants' last contention is that the Attorney General lacks the capacity...