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[Senate Hearing 107-571]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 107-571
 
              IMPLEMENTATION OF THE TEXAS RESTORATION ACT
=======================================================================

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                                   ON

    OVERSIGHT HEARING ON IMPLEMENTATION OF THE TEXAS RESTORATION ACT

                               __________

                             JUNE 18, 2002
                             WASHINGTON, DC

                       U. S. GOVERNMENT PRINTING OFFICE
80-743                          WASHINGTON : 2002
___________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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                      COMMITTEE ON INDIAN AFFAIRS

                   DANIEL K. INOUYE, Hawaii, Chairman
            BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

FRANK MURKOWSKI, Alaska              KENT CONRAD, North Dakota
JOHN McCAIN, Arizona,                HARRY REID, Nevada
PETE V. DOMENICI, New Mexico         DANIEL K. AKAKA, Hawaii
CRAIG THOMAS, Wyoming                PAUL WELLSTONE, Minnesota
ORRIN G. HATCH, Utah                 BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma            TIM JOHNSON, South Dakota
                                     MARIA CANTWELL, Washington

        Patricia M. Zell, Majority Staff Director/Chief Counsel
         Paul Moorehead, Minority Staff Director/Chief Counsel

                                  (ii)

                            C O N T E N T S

                              ----------                              
                                                                   Page
Statements:
    Battise, Kevin, tribal council chairman, Alabama Coushatta 
      Indian Tribe of Texas......................................     2
    Boylan, Virginia W., partner, Dorsey and Whitney.............     5
    Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, 
      vice chairman, Committee on Indian Affairs.................     1
    Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman, 
      Committee on Indian Affairs................................     1
    Skibine, Alex, professor of Law, University of Utah..........     7

                                Appendix

Prepared statements:
    Battise, Kevin...............................................    19
    Boylan, Virginia W...........................................    21
    Skibine, Alex................................................    25

              IMPLEMENTATION OF THE TEXAS RESTORATION ACT

                              ----------                              

                         TUESDAY, JUNE 18, 2002

                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10 a.m. in room 
485, Senate Russell Building, Hon. Daniel K. Inouye (chairman 
of the committee) presiding.
    Present: Senators Inouye and Campbell.

 STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII, 
             CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    The Chairman. The committee meets this morning to receive 
testimony on the implementation of the Texas Restoration Act. 
At issue is the Texas Restoration Act, a tribal resolution 
referenced in that act, and the interplay between that act and 
the Indian Gaming Regulatory Act [IGRA]. Also at issue are the 
laws of the State of Texas as they relate to gaming that is 
permitted to be played in the State.
    The committee looks forward to hearing from the witnesses 
this morning as to the chronology of the events that informed 
the substance of the Texas Restoration Act, both as enacted and 
as applied.
    Before we proceed, may I call upon the Vice Chairman.

 STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM 
      COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    Senator Campbell. Thank you, Mr. Chairman.
    Today's hearing is about a case that highlights one of the 
difficulties that occurs in a three branch system of 
government, such as we have in the United States. When statutes 
are vague or unclear, the Federal courts are asked to divine 
what is the Congressional intent. The best way to do that is to 
look at the plain language of the statute and to look at the 
legislative history of the statute, and finally, to look at the 
understanding given the words of the statute by its authors. 
Sometimes the courts get it right and sometimes they get it 
wrong.
    In the 1987 Cabazon case, the Supreme Court affirmed an 
Indian tribe's right to operate the same games that a State 
does. In 1988, the Congress passed IGRA, confirming this right, 
so long as it is not prohibited by State law. Under the Texas 
Restoration Act, when the legislation that became the 
Restoration Act passed Congress, Mo Udall, who was a great 
champion of Native American people and a person that many of us 
served with on the House side, shepherded it through while 
understanding that it would reflect the holding and rationale 
of the Cabazon case. Sometimes ambiguities in statute are 
benign and give no cause for concern. Other times, ambiguity 
can be devastating, as in the case of the Tigua Tribe, whose 
casino was shuttered by the decision of the Fifth Circuit Court 
of Appeals.
    Objective observers will admit that gambling in the United 
States has grown in the past 25 years by leaps and bounds. 
Lotteries, river boats, charity nights, and Indian casinos have 
all sprung up to respond to the huge demand by the American 
public and our visitors from overseas. In the same timeframe, 
most States have substantially liberalized the types of gaming 
within their jurisdiction and many have themselves become 
gaming operators by establishing lottery games. Yet some of 
those same States are unwilling to accept that Indian tribes 
can offer the same type of games that they do.
    Mr. Chairman, I don't want to re-litigate the Tigua case, 
but I do look forward to hearing the witnesses on this panel, 
particularly since Professor Skibine and Ginny Boylan have 
spent so much time with this committee in their previous lives. 
Nice to see both of you.
    The Chairman. Thank you very much.
    We have a panel of experts with us: The chairman of the 
Alabama Coushatta Indian Tribe of Texas, Kevin Battise; 
professor of law at the University of Utah, Salt Lake City, 
Alex Skibine; attorney at law, Dorsey and Whitney, Virginia 
Boylan.
    May I now call upon Chairman Battise.

 STATEMENT OF KEVIN BATTISE, TRIBAL COUNCIL CHAIRMAN, ALABAMA 
                COUSHATTA INDIAN TRIBE OF TEXAS

    Mr. Battise. Thank you, Mr. Chairman and members of the 
committee. Good morning. My name is Kevin Battise. I am the 
tribal council chairman of the Alabama Coushatta Indian Tribe 
of Texas.
    First, I would like to thank Chairman Inouye and Senator 
Campbell for providing us this opportunity today to appear 
before the committee and relate our story. Our story is a noble 
story, but all too often contains sad chapters, such as the 
historical interpretation of the Texas Restoration Act. We the 
Alabama Coushatta, along with our brothers the Tigua of El 
Paso, and the Kickapoo of Eagle Pass are all that is left of 
the federally-recognized Indian tribes in the State of Texas.
    I often hear the statement of people I encounter that they 
were unaware that there are any Indians in Texas. That is a 
very sad commentary, but it seems only to highlight America's 
historical illiteracy in the 21st century. America is losing 
its memory, a fact that has been highlighted in numerous 
American council of trustees and alumni surveys. In our 
historical story, chapters have been lost, and in the case of 
the Texas Restoration Act, have been rewritten.
    It is my role here today to relate to you a more personal 
historical chapter in our story. I will leave it to Mr. Skibine 
and Ms. Boylan to relate first-hand their stories and 
experiences as to what occurred or did not occur during 
Congressional debate and passage of the Texas Restoration Act. 
Therefore, our story begins with a simple question. I ask you 
today, where are my brothers, the Mescalero Apaches, the 
Karankawas, the Comanches, Wichitas, Wacos, Caddos? Their land 
in Texas, like their dreams, have been taken away.
    It should be noted at the outset that the Alabama Coushatta 
Tribe of Texas has a long history of living in harmony with the 
citizens of Texas. In fact, the Alabama Coushattas participated 
in the Mexican War of Independence in 1812. Their bravery and 
skill were mentioned by several chroniclers of the fighting 
around San Antonio during the rebellion against Spain. Early in 
1836, General Sam Houston's army was retreating eastward across 
Texas, pursued by the Mexican army under Santa Anna. As the 
revolutionary army marched toward San Jacinto, Houston received 
assistance from the Alabama Coushatta.
    Sam Houston would later tell my ancestors:

    You are now in a country where you can be happy; no white 
man shall ever again disturb you. The Arkansas will protect 
your southern boundary, you will be protected on either side. 
The white man shall never again encroach upon you, and you will 
have a great outlet to the West. As long as the water flows or 
the grass grows or the sun rises to show your pathway, or you 
kindle your camp fires, so long shall you be protected by this 
Government and never again removed from your present 
habitation.

    Unfortunately, the late 1800's brought rapid deterioration 
in the Alabama Coushatta culture. Less than 100 years after our 
tribe settled in Texas, our lands were reduced from over 9 
million acres to our current 4,600 acres. The influx of white 
settlers, the clearing of forests, the plowing of farm land 
nearly destroyed our hunting, fishing, and gathering practices. 
We were forced either to rely primarily on farming our limited 
reservation lands or to seek employment outside the 
reservation.
    In the late 19th century, the indifference of the United 
States toward Alabama Coushatta Indians was so complete that 
not only didn't we count as representatives of a sovereign 
nation, we weren't even counted. The Bureau of Indian Affairs, 
[BIA] saw no need even to make a census count of the Alabama 
Coushatta Indians in Polk County. The tribe reached the lowest 
point of our history in the 1800's when the State abolished the 
post of agent for us. We had in effect vanished, we became 
invisible to our so-called trustees.
    Over the next 100 years, the government-to-government 
relationship with the tribe shifted from the Federal Government 
to the State of Texas and then back to the Federal Government. 
During the time of our trusteeship under the State of Texas, we 
faced constant over-reaching by the State. This was 
demonstrated by the use of poll taxes, termination policies, 
edicts to cut our hair and to not speak our language or we 
would not receive an education.
    We were managed by the Board of Texas State Hospitals in 
Austin, TX. We were told by the Attorney General for the State 
of Texas that we had no reservation and we were nothing more 
than a loose association of individuals, much like a 
fraternity. Moneys appropriated were subject to severe 
fluctuations, and if that were not enough, the State of Texas 
then sought to tax what little if any was left. We were told of 
the need to protect charity bingo and we were told of the need 
to protect the lottery. We were even told by the Texas 
Comptroller that:

    Those Indians say they have a law, but that doesn't mean 
another Indian can't change it. You put a headdress on another 
Indian and you get another set of laws.

    Unfortunately, as you can see, this modern day story has 
been one of poverty and little hope. Many of my Indian brothers 
and their local communities in Texas live on the outskirts of 
hope, some because of their poverty, some because of their 
color, and all too many because of both. Our task today in this 
hearing room and in our hearts and in our minds is to begin to 
replace despair with opportunity.
    On our reservation, where we make our own war on poverty, 
the unemployment rate is 46 percent. Our median household 
income is 25 percent of what it is in the State of Texas. And 
only 1 percent of our tribal members have a four year college 
degree. We are once again facing the awesome weight of the 
State of Texas.
    This campaign by certain public policymakers not only seeks 
to ignore history but also perhaps more astonishingly, seeks to 
rewrite history. These individuals envision a public policy 
arena where Congressional committee chairmen have no role and 
have no voice. Specifically, this is demonstrated by their 
subscription to the following Fifth Circuit Court of Appeals 
judicial opinion that states:

    We cannot set aside this wealth of legislative history 
simply to give effect to the floor statement of just one 
Representative that was recited at the 12th hour of the Texas 
Restoration Act consideration.

    That one representative, Mr. Chairman, was none other than 
the chairman of the House Insular Affairs Committee, Mo Udall. 
This statement not only demonstrates enormous disrespect for 
Chairman Udall, but also displays an ignorance of the 
Congressional legislative process.
    We realize our war will not be won by one battle in 
Washington, DC. Rather, battles must be won in the hills of 
Austin, in the cactus-draped community of Eagle Pass, the 
plains of East Texas and the piney woods of East Texas. Such a 
battle does not seek untold riches; rather, we seek to 
eliminate poverty. We seek what all Americans seek: better 
schools, better health and better homes.
    You see before you today two possible futures that the 
attorney general for the State of Texas, John Cornyn, would 
allow us to pursue. As you can see, one future is another 
forced march to the unemployment line where Texas jobs and 
Texas benefits all too often today do not exist. Another is a 
future calling citizens to pursue the American dream, but the 
sign reads, ``Native Americans need not apply.'' This I might 
note is said to a people who defend the dream in higher 
percentages than any other segment of our community.
    Those who seek to deny us our American dream will tell us 
to diversify. I say, with what? They tell us to follow their 
law. I say, it is your view of law, not ours. They coerce a 
small, impoverished tribe into signing and agreement under 
duress, and they later enact perhaps the most sweeping lottery 
act in the country. In the summer of 2001, they stood in a U.S. 
District courthouse and stated to a U.S. District judge that 
Texas is not a gambling State. I say, I must live in another 
State, for what is a $2.7-billion lottery, where the State of 
Texas spends $40 million a year on marketing alone; horse 
racing, dog racing, charity bingo, 45,000 eight-liners, cruises 
to nowhere, and casino nights? If that were not enough, what is 
$2.5 billion annually which finds its way from Texas 
pocketbooks to Louisiana and Las Vegas?
    Unfortunately for the Alabama Coushatta Tribe of Texas and 
our surrounding communities, we are not part of the American 
dream mosaic. We have vanished once again.
    On February 14, 1854, a Senator told his colleagues in the 
U.S. Senate that they had to choose whether to:

    Deceive [the Indians] by promises or to confirm to them 
rights long promised. I am aware that in presenting myself as 
advocate of the Indians and their rights, I shall claim but 
little sympathy from the community at large, and that I shall 
stand very much alone pursuing the course which I feel it is my 
imperative duty to adhere to. [I]mplanted in me [is] a 
principle enduring as life itself. That principle is to protect 
the Indian against wrong and oppression, and to vindicate him 
in the enjoyment of rights which have been solemnly guaranteed 
to him by this Government.

    That man's name was Sam Houston.
    If our opponents are successful, the Alabama Coushatta 
Tribes of Texas and our local community face a future that does 
not include an appreciation of Native American history, 
Congressional legislative history or economic social justice. 
We know that the path we choose today is full of risk. But in 
the grand tradition of the State of Texas, we will take that 
risk as our ancestors did when they stood with Sam Houston. We 
will, as our friend, former Governor John Connally stated, take 
a risk for what we think is right. And for that, we will never 
quit taking risks.
    In the end, we believe that like the son of the man you see 
in a reservation photograph to my left, we must not become two 
societies, one that believes in the American dream and one that 
is without such hope.
    I would like to thank you once again, Mr. Chairman, 
committee members and staff, for this distinct honor. I will 
now make myself available for any questions from the committee. 
Thank you.
    [Prepared statement of Mr. Battise appears in appendix.]
    The Chairman. Thank you very much, Mr. Chairman.
    Now may I call upon Professor Skibine.
    Mr. Skibine. Out of deference for my former colleague in 
the Senate, I'm going to let Ginny Boylan go first.
    The Chairman. Ms. Boylan.

  STATEMENT OF VIRGINIA W. BOYLAN, PARTNER, DORSEY AND WHITNEY

    Ms. Boylan. Thank you, Mr. Chairman and members of the 
committee, for the opportunity to testify this morning on the 
implementation of the Texas Restoration Act of 1987.
    I have a prepared statement that I ask be made part of the 
record for this hearing.
    The Chairman. Without objection, so ordered.
    Ms. Boylan. Thank you.
    At the request of the Alabama Coushatta Tribes' attorney, I 
was pleased to testify on April 2, 2002 before the U.S. 
District Court for the Eastern District of Texas in the case of 
the Alabama Coushatta Tribes of Texas v. State of Texas. This 
pending case involves the efforts of the tribes to determine 
their rights under Federal law to conduct gaming in Texas, 
either under the auspices of the Indian Gaming Regulatory Act 
or under the Supreme Court's holding in the Cabazon case.
    In that court hearing my testimony was intended to shed 
light on the probable intent of the Congress with respect to 
the interconnection between the Texas Restoration Act, the 
Indian Gaming Regulatory Act, and the Cabazon decision. During 
the period when Congress was considering both the Restoration 
Act and the IGRA, I was privileged to serve on the staff of the 
Senate Committee on Indian Affairs and was assigned to the 
Indian Gaming Regulatory Act.
    During the 18 months following Cabazon when the final 
language of the IGRA was being developed, the holding in the 
Cabazon case was certainly uppermost in the minds of those of 
us who worked on both the House and Senate gaming bills. This 
is so because the Cabazon language was unexpectedly strong in 
favoring tribal regulation of their own gaming in those States 
that allowed gaming to be played by any person or entity for 
any purpose.
    The civil regulatory and criminal prohibitory tests had 
become mantra for those of us working on both sides of the 
Hill. I venture to guess the same is true for those staff who 
were responsible for the development of the language in the 
Texas Restoration Act, which was moving concurrently. I say 
this because the language of the sections of the Texas 
Restoration Act that were added at the end of the process 
reflects the Cabazon language and the language of IGRA that 
eventually passed 14 months later.
    To give a short chronology, the bill to restore Federal 
recognition to the Coushatta Tribe, the Alabama Coushatta 
Tribes of Texas, and the Isleta del Sur Pueblo Tribe of Texas 
was first considered in the 99th Congress. The House passed the 
bill in December 1985, and the Senate approved modified version 
in September 1986. These modifications were to sections 107 and 
207 and dealt with gaming by the two tribes. The Senate's 
action was vitiated the very next day after passage and the 
bill was returned to the Senate calendar. There was no further 
action in the 99th Congress.
    Representative Coleman of Texas reintroduced the Texas 
Restoration Bill very early in the 100th Congress, as H.R. 318. 
This version, which Alex will talk about at greater length 
here, was identical to the Senate version which was passed and 
vitiated in September 1986. The House passed the bill on April 
21, 1987, with further amendments that related to gaming and 
these came about no doubt because of the recently decided 
Cabazon case and concerns by Texas lawmakers about possible 
Indian gaming. The bill passed the Senate on July 23 and was 
signed into law on August 18, 1987. The Senate had again 
revised the gaming sections that came out of the House, 
sections 107 and 207, and the House concurred in those 
amendments. The language of these sections, while there is some 
ambiguity, I think clearly reflects the consideration by staff 
and members of the Cabazon decision and the civil regulatory-
criminal prohibitory language of that decision.
    Action on the Texas Restoration Act was, as I said, 
contemporaneous with consideration of S. 555, which you, Mr. 
Chairman, introduced on February 19, 1987, at the beginning of 
the 100th Congress. The Supreme Court handed down its Cabazon 
decision, you'll recall, just days later, on February 27, 1987. 
For some time, it's been my strong belief that the Federal 
courts were in grievous error in 1994 in holding that the 
Isleta del Sur Pueblo of Texas is not permitted to conduct 
gaming under IGRA. The Fifth Circuit Court of Appeals decision 
in the case of Isleta del Sur Pueblo reversed an opinion of the 
Western District Court for the State of Texas and held that the 
language of the Texas Restoration Act prohibits the tribe from 
gaming except as determined by Texas law.
    This decision, will no doubt impact the Eastern District 
Court's decision in a pending case with the Alabama Coushatta 
Tribes. I believe earlier cases are wrong on the facts and I 
believe they are wrong on the law. I have included in my 
written statement excerpts from a memorandum I prepared for the 
tribes' consultant that details my concerns about this bill in 
light of what I understood the language to mean at the time. 
Although I didn't work directly on the Restoration Act, I did 
work side by side with people who did. Mr. Taylor and Mr. 
Mahsetky I think were the two staff, and Ms. Zell as well.
    This memorandum was written in response to another case 
involving Isleta del Sur Pueblo that was decided just last 
year, which relied on the 1994 case for its holding. Suffice it 
to say that the Federal Courts in Texas have undermined the 
sovereignty of the tribes who are subject to the Restoration 
Act. They have completely ignored the full implications of what 
Federal recognition is all about. It doesn't matter whether a 
tribe is restored or recognized by Congress or by 
administrative action of the Department of the Interior. In 
this case, both Texas tribes were restored to Federal status by 
the Congress. And nothing in the act indicates that Congress 
intended them to have any lesser status than any other 
federally recognized tribe.
    There would be little point to restoration or recognition 
if courts can read into acts of Congress an intent to 
differentiate between tribes on basic matters like sovereignty 
or achievement of their full rights under Federal law, 
including the IGRA. In short, it is my view that the Federal 
courts cannot and should not differentiate among tribes based 
upon such flimsy reasoning as that of the 2001 decision which 
in turn relied on the 1994 case.
    It would seem to be a clear case of judicial revision and 
activism in which courts have effectively undermined the intent 
of this Congress and even the authority of this Congress under 
the Commerce Clause to determine Indian law and policy. I 
believe only the Congress can correct the court's errors in 
this case.
    Thank you, Mr. Chairman, and I'm happy to answer any 
questions.
    [Prepared statement of Ms. Boylan appears in appendix.]
    The Chairman. Thank you, Ms. Boylan.
    Professor Skibine.

STATEMENT OF ALEX SKIBINE, PROFESSOR OF LAW, UNIVERSITY OF UTAH

    Mr. Skibine. Thank you, Mr. Chairman, Senator Campbell. I 
was asked to summarize my written comments, which you have 
received, and I ask that they be made part of the record.
    What I am going to do is talk about three points. First, 
the history of the bill; second, the nature of the ambiguity; 
and finally, about the Indian liberal construction rule in 
statutory construction. Let me first start by the gaming 
section of this bill. There were in effect four versions of 
this bill.
    The first bill, introduced in the House, basically said 
that there would be no gaming unless the tribe changed its mind 
and submitted a resolution to the Secretary of the Interior, 
who if he approved, would submit it to the Congress, who then 
would have the power to disagree with the tribe. So that was 
the first scheme. It was no gaming, but. That's the version 
that passed the House. Then it went to the Senate.
    The second version was in effect a complete ban on gaming. 
The Senate vitiated action on this complete ban and nothing 
happened. So the next year, we reintroduced the bill on the 
House side. To my personal disappointment, Congressman Coleman 
decided to adopt the Senate version with the complete ban. I 
was disappointed because at that time we were working on the 
national Indian gaming bill. Chairman Udall was under great 
pressure to allow State jurisdiction over gaming on Indian 
reservations and Coleman's bill, in effect, forbade gaming.
    So in order to protect us, we devised an amendment to the 
bill which basically said that there would be a complete ban, 
but that was done pursuant to tribal resolution. We did this to 
protect ourselves because we did not want to be viewed as anti-
gaming or anti-Indian by the tribes and the people who were 
looking at us. So we said, listen, we're doing this, but it's 
because the tribes asked us.
    This bill then passed the House and was received by the 
Senate. The Senate then amended this language. The new language 
that the Senate put in was in effect a codification of the 
Cabazon case. It basically said that gaming is only banned if 
it's prohibited criminally by the laws of Texas. When that bill 
came back to the House, I met with Mo Udall and then wrote a 
statement for him on the floor that basically said that this 
was an endorsement of the Cabazon decision. Mo Udall could not 
make it on the floor of the House at that time and he appointed 
Congressman Vento to ask for unanimous consent to take the 
Senate bill and pass it.
    As you know, from your experience here in the Senate, when 
you ask for unanimous consent you have to clear this with a lot 
of people. Here we had to clear this with the Reagan 
administration, we had to clear that particular language with 
the Republican leadership on the House side, with the official 
objectors, and with Congressman Walker, who was pretty much an 
independent objector.
    So we had to clear that with everybody, it was not just Mo 
Udall's own thinking. Everybody agreed that this was a 
codification. Then the House agreed to the Senate version and 
the bill was eventually enacted like that into law.
    Is there an ambiguity in the bill? Yes, there is an 
ambiguity. What is the nature of the ambiguity? The nature of 
the ambiguity comes from the fact that when the Senate amended 
the bill to put in the Cabazon criminal prohibitory-civil 
regulatory test they did not take out the language that the 
House had put in concerning, the fact that this was done 
pursuant to the wish of the tribal resolution. The problem, of 
course, is that the tribal resolution endorsed a complete ban 
on gaming. So in effect, it's contradictory with the Cabazon 
thing. On one hand, under the resolution, there's a ban, and on 
the other hand, gaming is not banned unless it's prohibited by 
the laws of Texas.
    So the next question is, why is there an ambiguity? 
Basically, I think that it was just a staffing mistake. When 
everything else fails, Senator, just blame it on the staff. 
[Laughter.]
    I think this was just an omission. The reason I say that is 
because the Supreme Court last year in the Chickasaw v. United 
States case found a similar mistake made in the Indian Gaming 
Regulatory Act. The Chickasaw case had to do with freedom of 
taxation for Indian tribes. The Supreme Court said that in 
effect, that for purposes of taxation, tribes could not be 
considered as states.
    But there was language in IGRA that seems to indicate that 
they might be. The Court said, well, you know, that language 
was left by mistake. There was a drafting mistake here and 
really what we think is that they are not treated like States 
for the purpose of taxation, only for the purpose of reporting 
and withholding. Ultimately, I think that's what happened here 
also.
    So we have an ambiguity that is created by a mistake. What 
should the Court have done? Basically, in Indian law, there is 
a rule called the Indian liberal construction rule, under which 
statutes are supposed to be construed liberally to the benefit 
of the Indians, with all ambiguities resolved in their favor. 
This is the rule that this particular Court, the Fifth Circuit, 
completely ignored.
    Where does this rule come from? Some people think this is 
just like a canon of statutory construction, like those Latin 
canons, and that the Court can pick and choose which to use. 
But in effect, it's not. This rule was first devised by Justice 
Marshall, and it's tied to the incorporation of tribes into the 
political system of the United States. So in fact, it's a 
substantive rule of statutory interpretation. It does not come 
from the fact that we're only going to be nice to Indians 
because they are weak and defenseless. That's not the reason 
for the rule.
    Marshall in effect was not that nice to the Indians. First, 
he said they were not foreign nations, they could not sue 
directly in the Supreme Court, they were just domestic 
dependent nations. Previously, he had said that they were 
subject to the rule of discovery. The rule of discovery allows 
Congress to take the land of the tribes by conquest or purchase 
without being subject to either international law or 
constitutional constraints. So in effect, he gave it to the 
Indians: ``you're not sovereign and we can take your land if we 
want to.''
    In return, in Worcester v. Georgia, he said, ``but when 
Congress acts toward you, we are going to presume that it acts 
for your benefit.'' So in effect it was to counterbalance the 
harshness of the rule of discovery and the fact that Indian 
tribes were now domestic dependent nations. Marshall said, the 
reason we are going to assume they act for your benefit is 
because, Congress is your trustee: There is a trust 
relationship.'' So as a result of that, whenever Congress acts, 
it has plenary power, largely because of its commerce power and 
the trust relationship. This plenary power is a big deal for 
Congress.
    But to counterbalance the plenary power, the Court 
basically continues to say, ``whenever you act, we are going to 
surmise, or to presume that you act for the benefit of the 
Indians.'' So this is where the Indian liberal construction 
rule comes from. And if the Fifth Circuit had used this rule, 
it seems that there would be no question, given the ambiguity, 
that it could easily have resolved that ambiguity in favor of 
the tribe. But in effect, the Court didn't really cite the rule 
at all. There's one footnote in the opinion that refers to, 
when Congress acts, it has to be very clear about everything. 
But the Court never invoked the rule.
    Let me conclude by saying that, the other thing that 
worries me is that I think this case, the Fifth Circuit case, 
part of a trend led by the Supreme Court that whenever States' 
rights are infringed as a result of Congressional action, the 
Court somehow is going to demand more of Congress concerning 
why they are doing certain things. Those are the cases that 
you're familiar with involving federalism, the Lopez guns in 
school case, the Morrison case, were in effect Congress using 
its commerce power, interfering with States' rights. In those 
cases somehow the Court seems to treat Congress like an 
executive agency, basically demanding Congress, to establish a 
record. They're asking more of Congress.
    I think that's a dangerous trend, because Congress is a co-
equal branch. And Congress can do things the way that in effect 
executive agencies can. That's a political prerogative of 
Congress. I see this as, this case is part of that trend. For 
instance, this case involved, at first there is a bill that 
basically says, Texas law shall govern and gaming shall be 
prohibited. Then it's changed to this criminal prohibitory 
stuff. So ultimately, that's a gain for tribal jurisdiction, 
and it's perhaps a loss for the State of Texas.
    So just because there's that change, and the change was 
made really, we don't know why it was made, it was just made. 
But there's no record of why the Senate changed it. So it's 
like the Court saying, well, since we don't know, we're going 
to pretend that you just never did it. But in effect, that's 
not the right thing to do, because Congress can do things 
because of the political nature of the Senate and the House.
    Thank you very much. I'm available for questioning.
    [Prepared statement of Mr. Skibine appears in appendix.]
    The Chairman. Thank you.
    Let's start off with a technical question. When was the 
Texas Restoration Act enacted?
    Ms. Boylan. April 1987.
    The Chairman. And when did Texas enact laws to provide a 
wide array of gaming?
    Mr. Battise. In 1991.
    The Chairman. So the Restoration Act was passed before 
gaming was approved in Texas.
    Mr. Battise. Yes.
    The Chairman. In other words, the tribe adopted a 
resolution saying that they would not engage in gaming at a 
time when there was no gaming in Texas.
    Mr. Battise. Yes, sir; there was very little charity bingo 
at the time. There was some charity bingo, but there was no 
lottery, commercial bingo, horse racing, or dog racing. There 
was none of that activity allowed in Texas at the time.
    The Chairman. And now that the laws have changed, your 
tribe is the only one that's not conducting gaming?
    Mr. Battise. We are conducting gaming. We just opened a 
facility 6 months ago.
    The Chairman. Do you have a compact?
    Mr. Battise. We don't have a compact, no, sir.
    The Chairman. You do not have a compact. So under what law 
are you operating those casinos?
    Mr. Battise. I want to refer to my legal counsel, Scott 
Crowell.
    The Chairman. Please come forward.
    Mr. Crowell. Thank you, Mr. Chairman. I'm Scott Crowell, 
legal counsel for the tribes.
    The Fifth Circuit in the Tigua litigation ruled that the 
Restoration Act and not the Indian Gaming Regulatory Act 
governed gaming activities conducted by tribes in the State of 
Texas. The District Court in the Tigua litigation has ruled 
under the Indian Gaming Regulatory Act entirely in favor of the 
Tigua Tribe, saying that they're entitled to the full range of 
games. The Fifth Circuit said, well, that would have been nice 
under IGRA, but IGRA doesn't apply here, the Restoration Act 
applies.
    The Restoration Act provision for gaming adopted 1 year 
before the Indian Gaming Regulatory Act has two parts to it. 
The first part is that the tribe will not engage in those 
gaming activities that are prohibited by the laws of the State 
of Texas. The second part says that nothing herein is intended 
to be an infringement or a surrender of the tribe's civil 
regulatory jurisdiction over gaming activities.
    So it left open the question then of what governs the 
tribe's gaming activities. It's the tribe's position that the 
Cabazon civil regulatory-criminal prohibitory standard is what 
governs the activities. The tribe has asked the State to enter 
into negotiations for a compact. In fact, we have pointed out 
that the very first tribal-State compact between the Fort 
Mojave, I believe it was Fort Mojave in the State of Nevada, 
was negotiated prior to the passage of the Indian Gaming 
Regulatory Act. But the State says, no, we won't negotiate.
    So the tribe is operating under tribal law, in tribal 
regulation at the current time. And the State has filed a 
counterclaim against the tribe's action, seeking an injunction 
to shut the tribes down. That litigation is currently pending 
in Federal court.
    The Chairman. What relief do you hope to get from this 
committee?
    Mr. Crowell. I think that Professor Skibine answered the 
question very well. That is that there's the possibility that 
this is a situation to where the courts have over-reached and 
tried to interpret a statute differently than what the language 
of this committee did when it amended the Restoration Act in 
1987 to incorporate Cabazon. We believe that corrective 
amendments to the Restoration Act could provide the remedy that 
the tribe desires to basically make even more clear what the 
Senate intended to do in 1987, or a separate, standalone 
technical amendment that would subject the Alabama Coushatta 
Tribes to the Indian Gaming Regulatory Act and put us in the 
position of tribes in any other State in the country with the 
exception of Rhode Island and Maine.
    The Chairman. Do you have language prepared that we can 
study?
    Mr. Crowell. Yes; I believe that we have already submitted 
that to your staff.
    The Chairman. Mr. Vice Chairman.
    Senator Campbell. Thank you, Mr. Chairman.
    I have a couple of questions, but if I can just digress for 
a moment or two. I was particularly interested in the very 
poignant statement by Chairman Battise. I don't know if you've 
seen this book, Mr. Chairman, or if anybody in the audience 
has, it's the new book that was recently released by the Census 
Bureau. Believe me, every number you can possibly imagine about 
everything that is tracked by the Federal Government is in that 
book. In fact, I was amazed that there were so many different 
statistics. I just got this yesterday and I was looking through 
it last night at home and again this morning.
    What is interesting to me is that the places that it does 
track American Indians, such as American Indian-owned 
businesses or per capita income or household income, teen 
births, death rates by all kinds of things from diabetes to TB 
to so on, victims of high crime, things of that nature, they 
are listed in here in one place or another, and they're almost 
always somewhere near the top of any ethnic group. Any ethnic 
group, black, Hispanics, you name it, Indian are near the top.
    And yet other places in the book where you would like to 
find some information, they're not even listed, they're not 
even in there. Try to find something on adequate nutrition. 
There are sections in there dealing with every other ethnic 
group in the country, but not with Indians. Or home wealth, or 
the recipients of organ transplants, or the number of people in 
nursing homes or the number of substance abuse clinics for 
different ethnic groups in the country. Or national spending on 
different forms of education.
    I guess the point I'm making is that for a long time, 
Indians weren't counted at all numerically. Now, unfortunately, 
they're not counted from a standpoint of fairness in the 
country yet. And yet, if you look at it compared to just 10 
years ago, in 1990, the jump in Indian population has been 
huge, as you know, as everybody in the room knows. So I just 
point that out to re-emphasize that very often, the Federal 
Government still isn't listening to Native peoples.
    Let me ask you a couple of things, Chairman Battise, or 
perhaps for your attorney there, dealing with gaming in Texas. 
As I understand it, Texas allows private clubs, private clubs, 
to offer gambling for money. I also note the Texas Attorney 
General's opinion of 1983 that the Alabama Coushatta Tribe was 
a private association, like a country club. Does that mean that 
if you called yourselves a private club, would it enable you to 
offer casino card games for money? If you were a club instead 
of a tribe?
    Mr. Crowell. That's an argument that has been addressed in 
the litigation. The State statutes of Texas do have penal 
provisions regarding gaming, and then they have defenses. One 
of those defenses, if it's gaming operated at a private place, 
where the house does not have a stake in the outcome of the 
game, it's kind of contradictory, because it is clear that we 
invite the public or the people of the State of Texas to come 
to the reservation. But we still maintain that it's a private 
place, it's a privilege to be there. In fact, we have a policy 
of requiring everybody to show i.d. and if they don't meet 
minimum qualifications, they're excluded from the facility.
    The State also has dry counties where liquor cannot be 
served in public establishments. But these public restaurants 
have their private clubs to where you simply sign up at their 
public restaurant----
    Senator Campbell. Yes; I lived in Texas for a while. The 
only county that's a dry county is the name, Dry County. 
[Laugher.]
    Mr. Crowell. And that's really the source, it's not our 
major legal argument. But what we say is, State, you can't be 
contradictory, or you can't say that that's a private place 
where you buy liquor, but this is not a private place in the 
way the tribe excludes people from its gaming operation. It 
can't be a double standard. If that's private, then so is the 
tribe's operation. Clearly, as games that have been programmed 
for compacts, and the Pals band in California before the 
constitutional amendment there, and tribes in the State of 
Washington, the games can be programmed to take the house's 
stake.
    Senator Campbell. There's a lot of different kinds of 
gambling in Texas, I assume, they have a State lottery.
    Mr. Crowell. It's one of the largest gaming operations in 
the world.
    Senator Campbell. What are some of the other things? They 
have river boats in Texas?
    Mr. Crowell. They have cruises to nowhere, they have 45,000 
eight-liner games around the State, the State says that some of 
those are illegal because they pay out too much in prizes, but 
they don't contest that the game itself is illegal. There's a 
huge charitable bingo operation. There's carnival nights that 
are operated where you bet money at the carnival nights, but 
what you do then is use that play money to auction off prizes 
at the end of the evening.
    Senator Campbell. Do non-profits use those, and churches, 
too?
    Mr. Crowell. Extensively.
    Mr. Battise. As a matter of fact, Senator Campbell, we 
printed up this button that says, since Texas is not a gambling 
State, I just play bingo, lottery, eight-liners, go to dog 
races, horse races, and so forth, and pass it out. [Laughter.]
    Senator Campbell. That re-emphasizes the vagueness of the 
statute.
    Well, it seems to me that much vagueness in the statute is 
a result, more often than not, in favor of the tribes. The 
Federal court agreed that there was some ambiguity in the 
Restoration Act language. Under that scenario, usually Federal 
courts apply the doctrine called the Indian Canon of 
Construction. Are you familiar with that? That basically says 
that the ambiguity should be resolved in favor of the tribe.
    How did the court explain that the Indian canon did not 
apply in this case?
    Mr. Crowell. I believe Professor Skibine answered that 
question quite clearly. The court did, it dropped in a footnote 
regarding the expectation that Congress be clear about 
expressing its intent. The Indian Canon of Construction was 
never even addressed in either the Fifth Circuit Court opinion 
in 1994 or in the more recent District Court opinion that led 
to the injunction against the Tigua El Paso. It's as if it 
didn't even exist.
    We think that was a serious error.
    Senator Campbell. Are you one of the attorneys that argued 
before that Court?
    Mr. Crowell. No; that was Tom Diamond's firm out of El 
Paso. I believe that they currently do have a petition for 
certiorari pending to the Supreme Court to address that issue.
    We make very clear to Judge Hannah the pending litigation 
involving the Alabama Coushatta tribe that that canon of 
construction is out there, and should, if there is any doubt 
left in his mind as to what Congress intended. We think it 
would create a pretty good record that it was clear what 
Congress intended, and that that doubt should be resolved in 
favor of the tribes.
    Senator Campbell. A few years ago in Florida, a Florida 
State court found that the Florida lottery machines were 
actually slot machines and would be illegal if operated by 
anyone else in the State. What kinds of machines were the tribe 
offering? Were they designated as lottery machines or slot 
machines? I guess it's a matter of semantics.
    Mr. Crowell. Actually, it is a matter of semantics. Slot 
machine is one of those terms that's defined differently in 
different States. The State lottery statute says that the State 
lottery can use any gambling device, which, if you're using a 
Johnson Act definition is any device that is a slot machine, 
the lottery can use any gambling device subject only to the 
restriction that it not use a video display. Hence, the 
majority of the machines operated by the tribe are the 
traditional spinning reel type of machines.
    Senator Campbell. And coins or something comes out, rather 
than redeemable chips?
    Mr. Crowell. That's right. I believe that the tribe has a 
dollar token, but other than that, quarters in, quarters out, 
nickels in, nickels out.
    The tribe does have some video machines, but the State 
eight-liner exception allows for truck stops, et cetera, to 
offer video slot machines, where the restriction is on the size 
of the prize that's allowed. But we believe that that's a 
regulatory restriction that is subject to the governance of the 
tribe and not the prerogative of the State.
    Also, I think in understanding that question, you should 
look to, the machines again, the Pala device that was 
negotiated in California before the constitutional amendment, 
the x game operated by the tribes pursuant to compacts in 
Washington State, the machines operated by the Eastern Cherokee 
of South Carolina, they're all programmed so that they are not 
``slot machines'' under those State laws. It's just a question 
of programming those machines.
    If the State were to engage us in discussions and come up 
with some parameters on where they see the line between a legal 
lottery machine and an illegal slot machine, we'd be more than 
happy to engage that discussion.
    Senator Campbell. Well, in effect the same machine could be 
called a slot machine in one State and not in another State, 
the same machine?
    Mr. Crowell. That's correct.
    Senator Campbell. Holy smoke.
    The Federal court seemed to think the tribal gaming 
resolution passed by the tribe was significant. Senator Inouye 
might have asked this, or very similar, but perhaps I wasn't 
listening. So refresh my memory, was that resolution intended 
to mean the tribe agreed to have no gaming whatsoever? Or did 
it mean the tribe agreed to not have gaming that was not 
allowed by the State of Texas?
    Mr. Battise. I have researched this decisionmaking process 
back in 1986, when the resolution 86-05 was passed. The 
chairman at the time, Morris Bullock, who signed the 
resolution, clearly stated to me that there was no gambling in 
Texas at the time. And as a matter of fact, there's a paragraph 
in the resolution that says that, this resolution is passed by 
the tribe thinks we're unfavorably forced to pass this 
resolution, that the Texas Comptroller at the time, Bob 
Bullock, was forcing the Texas delegation in Washington not to 
pass the bill unless we passed that resolution.
    The decision to pass the resolution was clearly because 
Texas was not allowing gaming at the time. We were always under 
the impression that we would change, it was our sovereign right 
to do in the future what we wanted to do if situations changed.
    Senator Campbell. Is it open or closed now?
    Mr. Battise. We are still open.
    Senator Campbell. But you're in litigation?
    Mr. Battise. Yes; we are. Matter of fact, Judge Hannah gave 
us a stay to remain open until a decision is made.
    Senator Campbell. Could you just give the committee a 
little short capsule--I happen to be supportive of gaming and I 
know that all tribes don't make a lot of money, but in some 
cases they provide jobs and services and so on.
    Mr. Battise. Yes; exactly.
    Senator Campbell. Give a little capsule to the committee 
about what your benefits were, what was the tribal situation in 
terms of unemployment or something of that nature before and 
after.
    Mr. Battise. We opened our small casino, we only have a 
12,000-square foot facility. We have approximately 340 machines 
in the facility. We are running 24 hours a day. We have hired 
300 people.
    Senator Campbell. How many of those are tribal members?
    Mr. Battise. With approximately 80 who are tribal members. 
The rest of them are from the surrounding community.
    Senator Campbell. About two-thirds?
    Mr. Battise. Yes; about two-thirds.
    In the four county region around us, we hired people who 
were, I guess, minimum wage employees at the time. We pay 
considerably higher. Our unemployment rate as we took those 80 
off the unemployment rate has dropped to around 20 percent, 15, 
to 20 percent.
    Senator Campbell. What is your tribal enrollment?
    Mr. Battise. Our tribal enrollment is right at 1,000 tribal 
members.
    Senator Campbell. So you have about one-third of the number 
of people working for the casino of your tribal enrollment.
    Mr. Battise. Yes; our funding for the functions of tribal 
government, roads, housing, all the other projects or the 
departments that our tribe funds, we were in the red. Without 
this revenue coming in from this entertainment center, we would 
have had to cut back or curtail a lot of these projects.
    Senator Campbell. Last question. Since you were able to 
provide jobs and help members of the tribe, were there benefits 
paid in any form through any social service program by the 
State of Texas that you have been able to take yourself off of 
now? What I'm trying to find out is, does it benefit Texas also 
to have this casino in operation?
    Mr. Battise. We think it does. We think there's a trickle 
down effect. Like I said, most of the employees we've hired 
were employees that were on the fringes of society, minimum 
wage and so forth. A survey we took, we took approximately 80 
or 90 people off of welfare rolls in the four county region, 
made them our employees.
    Senator Campbell. I have no further questions, Mr. 
Chairman. I guess I'm still trying to figure out what Texas is 
complaining about. Thank you.
    The Chairman. Before I proceed with questioning, at the 
request of the Isleta del Sur Pueblo of Texas, the resolution 
adopted by the Pueblo is made part of the official record of 
this hearing.
    When the Texas Restoration Act was considered on the floor 
of the House of Representatives, was it under the consent 
calendar?
    Mr. Skibine. The last time?
    The Chairman. Yes.
    Mr. Skibine. The last time I think the bill just came from 
the Senate and we just had to go and make unanimous consent to 
pass the bill. I think the previous time it was under 
suspension of the rules, the first time it passed. But it came 
back from the Senate and we just stopped the bill at the desk, 
asked unanimous consent to just pass it with the Senate bill.
    The Chairman. And there was no objection to that?
    Mr. Skibine. No; if there is, then we have to proceed.
    The Chairman. I presume it was cleared by all relevant 
committees and leaders?
    Mr. Skibine. Yes.
    The Chairman. Was there a committee report accompanying 
this bill?
    Mr. Skibine. There was no committee report on the last 
action. There was a committee report the first time we passed 
the bill. But there was no committee report on the very last 
action, which was just a unanimous consent to stop the bill on 
the floor and pass it. There was the speech by Mo Udall, by 
Bruce Vento and by others.
    The Chairman. Did anyone object to the first committee 
report?
    Mr. Skibine. No.
    The Chairman. Did anyone object to the Senate committee 
report?
    Mr. Skibine. No.
    The Chairman. And it passed without objection?
    Mr. Skibine. That's right.
    The Chairman. Did anyone object to the statement made by 
Mr. Udall?
    Mr. Skibine. No.
    The Chairman. Did anyone speak in opposition?
    Mr. Skibine. No.
    The Chairman. And the courts say that this does not 
constitute legislative intent?
    Mr. Skibine. Well, the court just dismissed what happened 
as the 12th hour impression of a minor Congressman, which was 
unfortunate.
    Senator Campbell. Mr. Chairman, Mo Udall was no minor 
Congressman in this institution.
    The Chairman. What do they consider to be legislative 
intent?
    Mr. Skibine. I don't know.
    The Chairman. Did the Court advise the parties as to what 
would constitute legislative intent?
    Ms. Boylan. I think essentially what the Court said was, 
you know, here's this language, it's here. However, the 
language also refers back to a tribal resolution enacted in 
1986 and that's what prevails. The language in the statute that 
Alex mentioned, was probably put in in error, but the Court 
used that as the entire basis for its argument, instead of 
looking at what else Congress had done. It didn't even address 
the issue.
    The Chairman. So it completely disregarded the action taken 
by the Congress?
    Mr. Crowell. Right.
    Ms. Boylan. It gave it validity whatsoever.
    The Chairman. And I presume there were hearings on the 
measure before it got to the floor?
    Ms. Boylan. I don't recall. There were hearings in the 99th 
Congress. But I think after the Senate vitiated the action, I 
don't think there were any hearings in the 100th Congress when 
the bill actually passed.
    The Chairman. And I presume the bills were introduced by 
someone?
    Ms. Boylan. Representative Coleman of Texas, El Paso, TX. 
Texas Congressman. And Charles Wilson, also, from the region 
where the Alabama Coushatta Tribe reside.
    The Chairman. And Ms. Boylan, you consider the statement of 
Representative Udall at the time the measure was adopted as 
constituting legislative intent?
    Ms. Boylan. I would absolutely say that, Mr. Chairman.
    The Chairman. Well, I can assure you that we will study 
your language very carefully. But I presume the Texas 
delegation would be against the passage of this measure. The 
Texas Attorney General is against it. But we will do our best. 
There are many ways to do things around here. We will do it 
legitimately.
    Well, do you have any further questions?
    Senator Campbell. No further questions, Mr. Chairman. Thank 
you.
    The Chairman. Well, I thank you all very much. It was 
almost like going back to law school. [Laughter.]
    [Whereupon, at 11:26 a.m., the committee was adjourned, to 
reconvene at the call of the Chair.]
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                            A P P E N D I X

                              ----------                              

              Additional Material Submitted for the Record

=======================================================================

Prepared Statement of Kevin Battise, Chairman, Alabama-Coushatta Indian 
                            Tribes of Texas

    Mr. Chairman and members of the committee, good morning. My name is 
Kevin Battise, chairman of the Alabama-Coushatta Indian Tribes of 
Texas. I would like first to thank Chairman Inouye and Senator Campbell 
for providing us this opportunity today to appear before the committee 
and relate our story. It is a noble story but which all too often 
contains sad chapters such as the historical interpretation of the 
Texas Restoration Act. We, the Alabama Coushatta, along with our 
brothers the Tiguas of El Paso and the Kickapoo of Eagle Pass, are all 
that are left of the federally recognized Indian tribes in the state of 
Texas.
    I often hear the statement from people I encounter that they were 
unaware there were ANY Indians in Texas. That is a very sad commentary 
but it seems to only highlight America's historical illiteracy in the 
21st century. America is losing it's memory, a fact which has been 
highlighted in numerous American Council of Trustees and Alumni 
surveys. In our historical story chapters have been lost and in the 
case of the Texas Restoration Act have been rewritten. I do not suggest 
today that we should be imprisoned by our history but we should use it 
to be informed, for to do otherwise is to always remain a child.
    It is my role here today to relate to you a more personal 
historical chapter in our story. I will leave it to Mr. Skibine and Ms. 
Boyland to relate firsthand, their stories and experiences as to what 
occurred or did not occur during Congressional debate and passage of 
the Texas Restoration Act.
    Therefore our story begins with a simple question. I ask you today, 
where are my brothers the Mescalero Apaches? The Lipan Apaches? The 
Karankawas? The Comanches? The Wichitas? The Taovayas? The Tonkawas? 
The Bidais? The Tawakonis? The Wacos? The Kiowas? The Cherokees? The 
Shawnees? The Caddos? The Delawares? The Anadarkos? The Hainais? The 
Kichais? The Biloxis? Their land in Texas, like their dreams, has been 
taken away--it is a modern day story of Exodus.
    But I believe also in the power of reconciliation. St. Thomas 
Aquinas wrote that dialog is the struggle to learn from each other. Our 
struggle is like Jacob wrestling the angel--it leaves one wounded and 
blessed at the same time. So, let us begin to learn.
    It should be noted at the outset that the Alabama-Coushatta Indian 
Tribes of Texas has a long history of living in harmony with the 
citizens of Texas. In fact, the Alabama-Coushattas participated in the 
Mexican War of Independence in 1812; their bravery and skill were 
mentioned by several chroniclers of the fighting around San Antonio 
during the rebellion against Spain. Early in 1836 Gen. Sam Houston's 
army was retreating eastward across Texas, pursued by the Mexican army 
under Santa Anna. As the revolutionary army marched toward San Jacinto, 
Houston received assistance from the Alabama-Coushatta.
    Sam Houston would later tell my ancestors, ``you are now in a 
country where you can be happy; no white man shall ever again disturb 
you; the Arkansas will protect your southern boundary when you get 
there. You will be protected on either side; the white man shall never 
again encroach upon you and you will have a great outlet to the West. 
As long as water flows, or grass grows upon the earth, or the sun rises 
to show your pathway, or you kindle your camp fires, so long shall you 
be protected by this Government, and never again removed from your 
present habitation.'' [Writings of Sam Houston, 1854]
    Unfortunately, the late 1800's brought a rapid deterioration in the 
Alabama-Coushatta culture, less than a hundred years after our tribe 
settled in Texas our lands were reduced from over 9 million acres to a 
now existing 4,600 acres. The influx of white settlers, the clearing of 
forests, and the plowing of farmland nearly destroyed our hunting, 
fishing, and gathering practices. We were forced either to rely 
primarily on farming our limited reservation lands or to seek 
employment outside the reservation.
    In the late nineteenth century, the indifference of the United 
States toward the Alabama Coushatta Indians was so complete that not 
only didn't we count as representatives of a sovereign nation, we were 
not even counted--the Bureau of Indian Affairs saw no need even to make 
a census count of the Alabama Coushatta Indians in Polk County, Texas 
The Tribe reached the lowest point of our history in the 1800's when 
the state abolished the post of agent for us. We had in effect 
vanished--we became invisible to our so-called trustees.
    Over the next 100 years, the government-to-government relationship 
with the tribe shifted from the Federal Government to the State of 
Texas and then back to the Federal Government. During the time of our 
trusteeship under the State of Texas we have faced constant 
overreaching by the state. This was demonstrated by the use of poll 
taxes, termination policies, edicts to cut our hair and to not speak 
our language or we would not receive an education. We were managed by 
the Board for Texas State Hospitals in Austin Texas. We were told by 
the Attorney General for the state of Texas that we had no reservation 
and we were nothing more than loose association of individuals much 
like a fraternity. Monies appropriated when they even were appropriated 
were subject to severe fluctuations and if that were not enough--the 
State of Texas then sought to tax what little if any was left and if 
the taxes were not paid the reservation would be sold to pay its debts. 
We were told of the need to protect charity bingo and we were told of 
the need to protect the lottery. We were even told by the Texas 
Comptroller that ``[those Indians] say they have a law, but that 
doesn't mean another Indian can't change it--you put a headdress on 
another Indian and you get another set of laws.''
    Unfortunately as you can see his modern day story has been one of 
poverty and little hope. Many of my Indian brothers and their local 
communities in Texas live on the outskirts of hope. Some because of 
their poverty, some because of their color, and all too many because of 
both. Our task today in this hearing room and in our hearts and minds 
is to begin to replace despair with opportunity.
    On our reservation where we make our own war on poverty the 
unemployment rate is 46 percent, our median household income is 25 
percent of the State of Texas average and only 1 percent of us have a 
4-year college degree, we are once again facing the awesome weight of 
the state of Texas. This campaign by certain public policymakers not 
only seeks to ignore history but also perhaps more astonishingly seeks 
to rewrite history. These individuals envision a public policy arena 
where Congressional Committee Chairman have no role and have no voice.
    Specifically this is demonstrated by their subscription to the 
following Fifth Circuit Court of Appeals judicial opinion that states 
and I quote ``we cannot set aside this wealth of legislative history 
simply to give effect to the floor statement of just one representative 
that was recited at the twelfth hour of the [Texas Restoration Act] 
consideration.'' That one representative Mr. Chairman and committee 
members, was none other than the Chairman of the House Insular Affairs 
Committee--Mo Udall.
    This statement not only demonstrates enormous disrespect for 
Chairman Udall but also displays an ignorance of the Congressional 
legislative process which would embarrass a first year law student.
    We realize our war will not be won by one battle in Washington DC. 
Rather, battles must be won in the hills of Austin, in the cactus-
draped community of Eagle Pass, and the plains of West Texas. Such a 
battle does not seek untold riches rather we seek to eliminate poverty. 
We seek what all Americans seek--better schools, better health, and 
better homes.
    You see before you today two possible futures that the attorney for 
the Texas Lottery, John Comyn, would allow us to pursue. As you can 
see, one future is another forced march to the unemployment line where 
Texas jobs and Texas benefits all too often today do not exist. Another 
is a future calling us to pursue the American dream, but the sign 
reads, ``Native Americans Need Not Apply.'' This I might note is said 
to a people who defend it in higher percentages than any other segment 
of our society.
    Those who seek to deny us our American dream tell us to diversify. 
I say with what? They tell us to follow their law. I say it is your 
view of the law, not ours. They coerce a small impoverished tribe into 
signing agreement under duress and then later enact perhaps the most 
sweeping lottery act in the country. In the summer of 2001 they stood 
in a United States District Courthouse and stated to a United States 
District Court Judge that ``Texas is not a gambling State.'' I say I 
must live in another State, for what is a $2.7-billion dollar lottery 
where the State of Texas spends $40 million dollars a year on marketing 
alone; horse racing; dog racing; charity bingo where the grand prize 
one night was a picture of former Governor George W. Bush and Laura 
Bush; 45,000 eight-liners--10,000 more than Atlantic City; cruises-to-
nowhere and casino nights at Texas A&M? If that were not enough what is 
$2\1/2\ billion annually which finds its way from Texas pocketbooks to 
Louisiana and Las Vegas?
    The attorney for the Texas Lottery through his litigation seeks to 
bring the full weight of the State of Texas against a people who the 
President's United States Advisory Board on Race stated and I quote 
``on virtually every indicator of social and economic progress, the 
[Native American] people of this Nation continue to suffer 
disproportionately in relation to any other group. They have the lowest 
incomes, the highest unemployment, the lowest percentage of people who 
receive a college degree, the highest percentage of people living below 
the poverty level, and the highest suicide rate.'' In fact earlier this 
year a United States Center for Disease Control and Prevention study 
found that health care indicators improved for all segments of the U.S. 
population in the last 10 years save one--Native Americans.
    Unfortunately for the Alabama-Coushatta Tribes of Texas, and our 
surrounding communities we are not part of the American dream mosaic. 
We have vanished but once again. This is especially sad given that 
recently over 2,000 people in our local community participated in a 
Celebration of Cultural Diversities which sought to honor the memory of 
Martin Luther King. It is worth noting that in the twilight of his 
struggle Rev. King stated and I quote ``there are few things more 
thoroughly sinful than economic injustice.'' On February 14, 1854 a 
Senator told his colleagues in the U.S. Senate that they had to choose 
whether to, ``deceive [the Indians] by promises, or to confirm to them 
rights long promised. I am aware that in presenting myself as the 
advocate of the Indians and their rights, I shall claim but little 
sympathy from the community at large, and that I shall stand very much 
alone, pursuing the course which I feel it my imperative duty to adhere 
to. [I]mplanted in me [is] a principle enduring as life itself. That 
principle is to protect the Indian against wrong and oppression, and to 
vindicate him in the enjoyment of rights which have been solemnly 
guaranteed to him by this Government.'' That man's name was--Sam 
Houston.
    If our opponents are successful the Alabama-Coushatta Indian Tribes 
of Texas and our local community face a future that does not include an 
appreciation for Native American history, Congressional legislative 
history, or economic social justice. We know that the path we choose 
today is full of risk but in the grand tradition of the State of Texas 
we will take that risk as our ancestors did when they stood with Sam 
Houston.
    We will, as our friend former Governor John Connally stated, take a 
risk for what we think is right and for that, we will never quit taking 
risks. In the end we believe that like the son of the man you see in a 
reservation photograph to my left, we must not become two societies--
one that believes in the American dream and one that is without such 
hope.
    I would like to thank you once again Mr. Chairman, committee 
members and staff for this distinct honor. I now make myself available 
for any questions and or comments you might have.

 Prepared Statement of Virginia W. Boylan, Partner, Dorsey and Whitney

    Thank you Mr. Chairman and members of the committee for the 
opportunity to present testimony this morning on the implementation of 
the Texas Restoration Act of 1988. I was pleased to testify on April 2, 
2002, before the U.S. District Court for the Eastern District of Texas 
in the case of the Alabama-Coushatta Tribes of Texas v. the State of 
Texas [9:01CV299-JH]. This pending case involves the efforts of the 
tribes to determine their rights under Federal law to conduct gaming in 
Texas, either under the auspices of the Indian Gaming Regulatory Act or 
under the Supreme Court holding in the case of California v. Cabazon 
Band of Mission Indians, 480 U.S. 202 (1987).
    My testimony before the Court was requested by the tribes' 
attorney, Scott Crowell, and was intended to shed light on the probable 
intent of the Congress with respect to the interconnection between the 
Texas Restoration Act (``Act''), the Indian Gaining Regulatory Act 
(``IGRA'') and the Cabazon decision.
    During the period when Congress was considering both the 
Restoration Act and the IGRA, I was privileged to serve on the staff of 
the Senate Indian Affairs Committee and was assigned to the Indian 
Gaming Regulatory Act. During the 18 months following Cabazon when the 
final language of the IGRA was being developed, the holding in the 
Cabazon case was certainly uppermost in the minds of those of us who 
worked on both the House and Senate bills. This is so because the 
Cabazon language was unexpectedly strong in favoring tribal regulation 
of their own gaming operations in those states that allow gaining to be 
played by any person or entity for any purpose. The civil regulatory/
criminal prohibitory test had become a mantra for those of us working 
on both sides of the Hill and I venture to guess that the same is true 
for those staff who were responsible for the development of the 
language of the Texas Restoration Act which was proceeding in the 
Congress during the same period as the IGRA was moving. I say this 
because the language of the sections of the act that was added actually 
reflects the Cabazon language and the language of IGRA that passed just 
14 months after the Texas Restoration Act.
    To give a short chronology, the bill to restore Federal recognition 
to the Alabama-Coushatta Tribes of Texas and the Isleta del Sur Pueblo 
Tribe of Texas (also referred to as the Texas Tiwas) was first 
considered in the 99th Congress. The House passed the bill on December 
16, 1985. The Senate approved a modified version on September 24, 1986. 
These modifications were to the sections 107 and 207 dealing with 
gaining by the two tribes. The Senate's action was vitiated the next 
day and the bill was returned to the Senate calendar. There was no 
further action in the 99th Congress.
    Rep. Coleman reintroduced the Texas Restoration bill in the 100th 
Congress as H.R. 318. This version was identical to the Senate version 
that was passed and vitiated in September 1986. The House passed the 
bill on April 21, 1987 with amendments related to gaining, no doubt 
because of the holding in the recently decided Cabazon case and 
concerns by Texas lawmakers about Indian gaming. The bill passed the 
Senate on July 23 and was signed into law on August 18, 1987, as Public 
Law 100-89. The Senate had revised the gaming sections of the bill 
(sections 107 and 207) and the House concurred in the amendments. The 
language of these sections of the statute clearly reflect consideration 
of the Cabazon decision and the civil regulatory/criminal prohibitory 
language of that decision. These sections read:
    ``(a) In General.--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. The 
provisions of this subsection are enacted in accordance with the 
tribe's request in Tribal Resolution R.C.-02-86 which was approved and 
certified on March 12 1986.
    ``(b) No State Regulatory Jurisdiction.--Nothing in this section 
shall be construed as a grant of civil or criminal regulatory 
jurisdiction to the State of Texas.
    ``(c) Jurisdiction Over Enforcement Against Members.--
Notwithstanding section 105(f), the courts of the United States shall 
have exclusive jurisdiction over any offense in violation of subsection 
(a) that is committed by the tribe, or by any member of the tribe, on 
the reservation or on lands of the tribe. However, nothing in this 
section shall be construed as precluding the State of Texas from 
bringing an action in the courts of the United States to enjoin 
violations of the provisions of this section.'' 25 U.S.C. 13000g-6; see 
also: 25 U.S.C. 737.
    Action on the Texas Restoration Act was contemporaneous with 
consideration of the bill, S. 555, titled the Indian Gaming Regulatory 
Act. Chairman Inouye introduced this bill on February 19, 1987, at the 
beginning of the 100th Congress. The Supreme Court handed down the 
Cabazon decision just days later on February 27, 1987.
    For some time, it has been my strong belief that the Federal courts 
were in grievous error in 1994 in holding that the Isleta del Sur 
Pueblo of Texas is not permitted to conduct gaming under IGRA. The 
Fifth Circuit Court of Appeals decision in the case of Ysleta del Sur 
v. Texas, 36 F.3d 1325 (1994) upheld an opinion of the Western District 
Court for the State of Texas that the language of the Texas Restoration 
Act prohibits the tribe from gaming except as determined by Texas law. 
This decision will no doubt impact the Eastern District Court's 
decision in the pending Alabama Coushatta Tribes' case.
    I believe this case is wrong on the facts and wrong on the law. I 
am including here excerpts from a memorandum I prepared for the tribes' 
consultant that details some of my concerns. This memorandum was 
written in response to another case involving Ysleta del Sur Pueblo 
that was decided on September 27, 2001 and relied on the 1994 decision 
for its holding. See: State of Texas v. Ysleta del Sur Pueblo et al, 
No. EP-99-CA0320-GTE 9 (hereinafter (``Decision'').
    Introduction: The Decision presents a virtual panoply of questions 
and concerns I will attempt to address singly, with the understanding 
that there will be inevitable overlap in the discussions. At the 
outset, I would say that in the Decision the Court ignores many well-
established principles in Indian law, particularly vis a vis the 
relationship of federally recognized Indian tribes and the United 
States, and places too much emphasis on facts that are not relevant. I 
cannot say whether that is because of the way the cases were briefed 
and argued or whether the Court relied much too heavily on a previous 
decision of the Fifth Circuit Court of Appeals which is faulty at best. 
See, Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325 (5th Cir. 1994); 
hereinafter ``Ysleta I.''
    Federal/State Jurisdictional Issues: All federally recognized 
tribes are treated the same as a matter of Federal law unless Congress 
expressly provides otherwise. As a general rule, states and state 
courts have no jurisdiction over civil and criminal matters tribal 
lands absent express congressional delegation of such jurisdiction, 
mostly under PL 280 and similar statutes. Thus, crimes and civil 
controversies that arise on Indian lands or reservations are generally 
subject to the jurisdiction of the United States and concurrently to 
tribal laws and their courts. The jurisdiction of the Federal 
Government and PL 280 States goes to individuals and the crimes or 
transgressions they commit; it does not go to the tribal governments 
with whom the United States has a government-to-government 
relationship.
    In this case, the Ysleta Tribe's Restoration Act basically applied 
a PL 280-like jurisdictional structure for the State of Texas to 
exercise jurisdiction over crimes and some civil matters on tribal 
lands. See: Restoration Act, sec. 1300g-4(f). This jurisdiction is no 
more and no less than any other PL 280 state. Thus, State of Texas laws 
apply and its courts have jurisdiction over individuals who commit 
crimes on tribal lands. That fact, however, does not mean the State has 
civil or criminal jurisdiction over the tribal government itself. There 
was never any intent expressed by Congress in the Restoration Act to 
establish the tribe in the Federal family of tribes in any way that is 
different from all other federally recognized tribes despite the 
statement on page 27 of the Decision that the ``tribe waived any 
parallel sovereign status claim'' it may have had. There is no 
distinction in law between the sovereign powers (and sovereign 
immunity) as between some federally recognized tribes and other 
federally recognized tribes. Absent a clear and unambiguous indication 
of an intent on the part of the Congress to treat a particular tribe 
differently than all other tribes for purposes of sovereignty, a 
contrary decision is invalid.
    PL 280 Jurisdiction and the Cabazon decision: Tribes in PL 280 
States are able to conduct gaming under IGRA, even though these States 
have concurrent criminal jurisdiction with tribes over crimes on the 
reservations. In the case of the Ysleta Tribe, there was a clear intent 
on the part of Congress that the State of Texas was not to have any 
special jurisdiction related to gaming. See 1300g-6(b). I am quite 
certain that because the gaming bill, S. 555, was making its way 
through the Congress at the same time that the Restoration Act was 
under consideration, both sections 1330g-6(a) and 1330g-6(b) were 
drafted by the lawmakers to insure that the tribe was treated the same 
as other tribes, particularly since the Cabazon case had been decided 
in favor of tribes just months before the Restoration Act was passed in 
August 1987.
    The Supreme Court decided the case of California v. Cabazon in 
February 1987. The State of California is a PL 280 State and the Court 
found that since California did not criminally prohibit the gaming in 
question [bingo] but merely regulated that game, tribes were free to 
operate that game without regulation by the State. Thus, tribes could 
conduct ``high stakes'' bingo on their lands free of state regulation. 
That is the essence of Cabazon. It is also the essence of the language 
in IGRA to the effect that gaming on Indian lands is valid as a matter 
of Federal law when the gaining is allowed to be played in the state by 
any person for any purpose.
    IGRA and the Restoration Act: The Court basically finds that 
because of certain language in the Restoration Act, IGRA does not apply 
to the Ysleta del Sur Pueblo (``Tribe''). (See: Decision, p. 6 and 
infra, relying on Ysleta I.) That simply cannot be the case, regardless 
of the Ysleta I finding. IGRA was enacted in October 1988, over 14 
months after the Restoration Act of August 1987. Had the Congress 
intended that the tribe not be subject to the provisions of IGRA, it 
would have said so. There are numerous specific instances in IGRA where 
Congress treated certain tribes, and tribes in certain States, 
differently from all the other tribes covered by IGRA. See: 25 USC 
2703(7)(C)(D)(E) and (F).
    The decision in the Cabazon case set the stage for the language in 
both the Restoration Act and in IGRA. The revision of section 1300g-
6(a) from the original Restoration bill that was introduced in the 
100th Congress, is directly attributable to the language and the 
holding the in Cabazon case where the court found that even though 
California's criminal laws stated that bingo was ``criminally 
prohibited,'' it was in fact for some purposes permitted to be played 
and regulated (``civil regulatory'' or ``permitted''). This was so 
because the State made exceptions for charitable gaming purposes.
    Both the Restoration Act and IGRA provide that tribes cannot engage 
in gaming that is truly prohibited in the State. See: Restoration Act, 
1300g-6 [``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.''] and IGRA, 2710(b)(1) [``An Indian tribe may 
engage in...class II gaining on Indian lands...if--(a) such Indian 
gaining is located within a State that permits such gaining for any 
purpose by any person, organization, or entity (and such gaming is not 
otherwise specifically prohibited on Indian lands by Federal law)...).] 
and 2710(d)(1)(B) [class III gaming is lawful when ``located in a State 
that permits such gaming for any purpose by any person, organization, 
or entity...''].
    The reverse of ``permits such gaining for any purpose'' would be 
``prohibits such gaming for all purposes.'' In fact, they mean the same 
thing. Thus, the question is whether Texas law permits the kind of 
class III gaming for any entity (including the State) that the tribe 
seeks to operate. If it does, IGRA requires the State to negotiate a 
compact with the tribe for that gaming. The law of the State in which 
the tribe happens to be located governs what type of gaining, if any, a 
tribe can operate. Under IGRA, all tribes are prohibited from engaging 
in gaming that a state prohibits as a matter of State law; however, if 
the State merely regulates certain gaming and allows any person or 
entity to engage in that gaming for any purpose, the State must 
negotiate a compact with the tribe for those games and may not impose 
the same regulatory restrictions on the tribe that it does on the other 
entities. For example, the State of Utah completely prohibits all 
gaming of any kind for all purposes. Tribes in that State therefore 
have no opportunity to do any forms of gaining.
    IGRA is a Federal Preemption Statute: IGRA is a Federal preemption 
statute and thus controls all gaining on lands of federally recognized 
Indian tribes. See: Section 23 of Public Law 100-497; codified at 18 
USC 1166, 1167 and 1168; also See, Gaming Corp. of American v. Dorsey & 
Whitney, C.A.8 (Minn.) 1996, 88 F.3d 536.
    Section 23 provides that for purposes of Federal law, all State 
laws pertaining to gaming apply on Indian lands except when the gaming 
on Indian lands is conducted under IGRA. Thus, if gaining is conducted 
on Indian lands that does not meet the requirements of IGRA, the 
State's laws will be used to prosecute. Under 18 USC 1166(d): ``The 
United States shall have exclusive jurisdiction over criminal 
prosecutions of violations of State gambling laws that are made 
applicable under this section to Indian country, unless an Indian 
tribe--has consented to the transfer to the State--jurisdiction with 
respect to gambling on the lands of the Indian tribe.'' In this case, 
the Tribe (and the United States) have consented to have the laws of 
the State of Texas apply to gambling on the Ysleta Tribe's reservation 
lands. However, under IGRA, those laws govern what gaming is prohibited 
and if prohibited gaining is being conducted by persons (other than the 
tribe) the State may prosecute. Neither the Tribe nor the United States 
has consented to the jurisdiction of the State over the tribe's own 
government.
    IGRA--which passed 14 months after the Restoration Act--preempts 
all actions related to gaining against all federally recognized tribes 
and provides that only the U.S. Department of Justice may prosecute 
Indian tribes for alleged violations of state law. The act makes no 
distinction between tribes in Texas and tribes anywhere else. Had it 
intended that the provisions of IGRA not apply to Texas tribes, 
Congress would have so stated.
    Sovereign Immunity: The Court's holding that the State of Texas has 
jurisdiction over the tribe is not correct. Neither IGRA nor the 
Restoration Act affirmatively give the State the right to bring any 
lawsuit against the tribe in any court of law, State or Federal. All 
federally recognized tribes are governments and as such enjoy the full 
immunity of the law. See discussion on Jurisdiction, supra.
    Section 1300g-6 of the Restoration Act says that ``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'' is decidedly not the same as a waiver of the tribe's 
sovereign immunity. That waiver must be explicit. The 1300g-6 language 
only says that violations of the State's gaming law are subject to the 
``same civil and criminal penalties'' as provided by Texas law; it does 
not say that the State of Texas is authorized to enforce those 
penalties against the tribe.
    So while the United States may look to Texas law to see what 
gaining is or is not prohibited (or permitted, as the case may be), 
there is nothing to support the Court's conclusion that Texas can sue 
the tribe.
    Tribes are Governments, Not Associations: Despite the Court's 
findings in the Decision at page 24, there is simply no support in 
Federal Indian case law or in any Act of Congress for the proposition 
that any federally recognized tribe is anything other than a tribal 
government, with governmental responsibilities for the welfare of their 
citizens. They are not clubs or associations.
    Statutory Interpretation: If the words in a statute are unclear, 
courts may find an ambiguity and will look to legislative history for 
enlightenment. If the words are clear, as they surely are in the 
Restoration Act, the courts will implement the intent of the law as 
written. In the Restoration Act, all gaming that is prohibited by the 
State of Texas is prohibited by the tribe; the reverse is also true: 
All gaming that is permitted, therefore, is permitted to the tribe. In 
that way, the Restoration Act and IGRA are not mutually exclusive. They 
can and should be read together but also read in the context of the 
whole of Federal Indian law.
    Summary: Tribes, like the Ysleta del Sur Pueblo, seek Federal 
recognition in order to enjoy the governmental status that all other 
federally recognized Indian tribes enjoy. The Ysleta Tribe was 
successful in achieving that status and that is why they are the same 
as other tribes. While the State of Texas does have limited civil 
jurisdiction over events that occur on reservation lands, it is 
indistinguishable from--and is in fact akin to--the jurisdiction of 
other states with jurisdiction under PL 280 or other statutory grants 
of authority by the U.S. Congress. In the Ysleta's Restoration Act, 
Congress granted the tribe recognition as a Federal tribe with all the 
privileges and obligations that come with that recognition. In Federal 
Indian law, some tribes simply are not more sovereign--or less 
sovereign--than other tribes. They have the same status, no matter how 
large or small, how many members they have, how big their reservations 
are, or how or why they became recognized. They each have a government-
to-government relationship with the United States; the United States 
has trust obligations to them, and each enjoys the same immunity and 
other sovereign attributes as the others.
    Suffice it to say that the Federal courts in Texas have undermined 
the sovereignty of the tribes subject to the Texas Restoration Act by 
completely ignoring the full implications of what Federal recognition 
is all about. It does not matter whether a tribe is restored or 
recognized by the Congress or by Administrative action of the 
Department of the Interior. Both Texas Tribes were restored to Federal 
status by the Congress and nothing in the act indicates that the 
Congress intended to have a lesser status than all other federally 
recognized tribes. There would be little point to restoration or 
recognition if courts can read into Acts of Congress an intent to 
differentiate between tribes on basic matters like sovereignty or 
achievement of their full rights under Federal law, including IGRA.
    In short, it is my view that the Federal courts cannot and should 
not differentiate among tribes based on such flimsy reasoning as that 
of the 2001 Decision and that which it cites from the 1994 case. It 
would seem to be a clear case of judicial activism in which the courts 
have effectively undermined the intent of the Congress and even the 
authority of the Congress under the Commerce Clause to determine Indian 
law and policy. Only the Congress it can correct the courts' errors.
                                 ______
                                 

  Prepared Statement of Alex Skibine, Professor of Law, University of 
                                  Utah

    Mr. Chairman, members of the committee, thank you for scheduling 
this hearing and allowing me to testify on this important matter. 
Although I am currently a professor of law at the University of Utah 
and have been so for the last 12 years, I was deputy counsel for Indian 
Affairs for the House Interior Committee from 1981 to 1989. As such, I 
was the counsel assigned with the primary responsibility of overseeing 
passage on the House side of the bill restoring Federal recognition to 
the Ysleta del Sur Pueblo and the Alabama & Coushatta Tribes of Texas 
(hereinafter, the Texas legislation). Set forth below are my thoughts 
and recollection about what Congress did at the time the legislation 
was passed as well as my analysis of the subsequent court decisions.
1. Chairman Udall's role and my own interpretation.
    An important and controversial part of the legislation recognizing 
the tribe were the sections dealing with gaining on the reservation. 
The original bill as passed by the House in the 99th Congress provided 
that gaming on the reservation shall be conducted pursuant to tribal 
gaming laws which shall be identical to the gaming laws of the State of 
Texas. However there was an important caveat: Such gaming laws could be 
amended by the tribe if the changes were approved by the Secretary of 
the Interior and upon such approval, submitted to Congress which was to 
have 60 days to disapprove such amendments by enactment of a joint 
resolution.
    That bill was referred to the Senate Select Committee on Indian 
Affairs which made further amendments to the bill to satisfy the 
concerns the state of Texas had expressed about the House passed 
version. These amendments in effect stated bluntly that gaming as 
defined by the laws of Texas was hereby prohibited on the tribe's 
reservation. Action on the Senate bill, however was vitiated by the 
Senate and as a result, the Texas legislation died in the 99th 
Congress.
    I clearly remember how disappointed I was when the Senate first 
amended H.R. 1344, the bill I had worked on in the House. I was also 
disappointed when Congressman Coleman in the following Congress, the 
100th Congress, decided to introduce a new bill, H.R. 318, which 
adopted the language passed but not enacted by the Senate in its 
previous session. This time, no hearings were held on that legislation 
but it was favorably reported by the House on March 11, 1987 and passed 
under suspension of the rules on April 21.
    During the period the bill was pending in the House, one major 
event happened: The Supreme Court handed down its landmark decision in 
Cabazon v. California on February 25, 1987. This decision denied the 
State of California any jurisdiction over Indian gaming and therefore 
was considered a major victory for tribal gaming interests. However, 
the favorable decision also made it virtually certain that the Congress 
was going to proceed with the enactment of a comprehensive Indian 
gaming legislation. It is with that understanding that the Texas 
recognition bill was taken up one more time by the Senate Indian 
Affairs Committee. This time, the bill was reported out of the Indian 
Affairs Committee with an amendment in the nature of a substitute. The 
bill passed the Senate on July 23 and the House concurred with the 
Senate amendments on August l8, 1987.
    I remember how relieved I was upon being informed that the Senate 
had amended the House passed bill. I interpreted the change to be a 
meaningful one. One which would allow the tribe to enter into any form 
of gaming not prohibited by the laws of Texas. The change was 
meaningful because the previous version would have prohibited on the 
reservations any form of gaming as defined by the laws of Texas even if 
Texas allowed some forms of gaining outside the reservations.
    I told Chairman Udall about my understanding and because he agreed 
with me, he decided to include that interpretation as part of his final 
remarks on the floor of the House. More importantly, Chairman Udall is 
not the only person who had to agree with this interpretation. That 
language had to be cleared by the minority, by Congressman Coleman, by 
the official Republican objectors on the floor which meant that the 
Reagan administration also had to give it its blessing, and finally by 
Congressman Vento who had been appointed by Chairman Udall to go to the 
floor of the House for the purpose of asking the House for unanimous 
consent to agree to the Senate amendments and send the bill to the 
President. To ascribe this statement as the last minute opinion of a 
minor congressman, as stated by the court is ludicrous and show a 
complete ignorance (or disregard) about how business is conducted by 
the House of Representatives.
2. The meaning of section 107: Plain meaning vs legislative history.
    The legislation finally enacted by the Senate moved away from 
prohibiting all ``gaming'' as defined by the laws of Texas to only 
forbidding games ``prohibited by the laws of the State of Texas.'' 
Although the plain meaning of the crucial sentence is clear and is 
almost identical to the language used by the Supreme Court in Cabazon, 
if there are any ambiguities, it comes from the last sentence of 
section 107 which mentions that the provision of this subsection are 
enacted in accordance with the tribal resolution of March 12, 1986. The 
problem comes from the fact that the tribal resolution purports to 
endorse a complete ban on all gaming on the reservation. Furthermore, 
the Senate Report contains language asserting that ``the central 
purpose of the bill was still to ban gaming on the reservations as a 
matter of Federal law.'' So what we have here is an ambiguity. Yet, the 
Fifth Circuit Court of Appeals in litigation involving the Ysleta del 
Sur Pueblo but based on the same language decided to ignore the changes 
made by the Senate. In fact the court decided to pretend that the 
Senate had just approved the same bill passed earlier that year by the 
House. With all due respect, Mr. Chairman, this takes judicial activism 
to a whole other level.
    The change made by the Senate cannot be ignored or considered 
meaningless. While the reference to the tribal resolution makes the 
sentence ambiguous, it cannot just be coincidental that the language 
used ended up being almost identical to the Court's reasoning in 
Cabazon and what eventually would become IGRA. It seems to me that the 
Senate realized that it was eventually going to enact a comprehensive 
gaming bill partly codifying Cabazon and attempted to make the Texas 
bill conform to what such a bill would eventually look like.
    While the Fifth Circuit decided to focus on extraneous materials 
such as the Senate report to support its conclusion that gaming was 
still prohibited under the final version of the bill, it decided to 
totally dismiss other extraneous materials such as the fact that the 
Cabazon decision came down while the Texas legislation was being 
considered by the Congress, and more importantly from my perspective, 
Chairman Udall's own words to the effect that the bill as finally 
enacted was a codification of the civil/regulatory, criminal/ 
prohibitory test endorsed by the Supreme Court in Cabazon.
    I do not know why exactly the Senate left the language relative to 
the tribal resolution. If I had to make an educated guess, I think it 
was just a drafting mistake. Staff just forgot to take the language 
out. Such mistakes happen. In last year's decision in Chickasaw Nation 
v. United States, the Supreme Court concluded that a similar mistake 
actually occurred during the passage of IGRA when the Senate took out 
the words providing for an outright tax exemptions to Indian tribes but 
kept in a parenthesis, references to chapter 35 of the Internal Revenue 
Code which is all about exemptions from taxation. The Court concluded 
that the Senate had left the language within the parenthesis by mistake 
and denied the tribes the tax exemption. I think a similar mistake can 
be inferred here. The Senate took away the words providing for an 
outright prohibition of gaming but inadvertently left the language 
referring to the tribal resolution. Following the methodology used by 
the Supreme Court in Chickasaw should lead courts to the conclusion 
that the Senate just forgot to take out the reference to the tribal 
resolution. There is one thing, however, that the Supreme Court was not 
willing to do in Chickasaw and that was to pretend that later 
amendments made to IGRA had no effect on the meaning of the legislation 
as finally enacted. Mr. Chairman, the same thing should have occurred 
here, yet the Fifth Circuit decided to ignore the later amendment.
    Finally in defense of the staff, it is perhaps not irrelevant that 
there was a change in the leadership of the 100th Congress with the 
Democrat regaining control of the Senate. Perhaps the mistake is just 
the result of different staff being assigned to handle the bill from 
one Congress to another.
3. The Indian liberal construction rule.
    Perhaps the biggest omission in both the district court and the 
Fifth Circuit opinions is the absence of any reference to the canon of 
statutory interpretation according to which statutes enacted for the 
benefit of Indians are to be liberally construed and any ambiguities 
resolved in their favor. While the Supreme Court has at times refused 
to extend application of the rule to statutes of general 
applications\1\ or to statute which may not have been enacted ``for the 
benefit'' of Indians,\2\ there is no doubt that the Texas legislation 
is a specific statute concerning Indians and enacted for their benefit. 
While the liberal construction rule should not be used to distort the 
plain meaning of otherwise unambiguous words and while other 
substantive canons of statutory construction may displace the rule,\3\ 
none of these exceptions are present here. This case in fact is exactly 
the kind of case which calls for the application of the Indian liberal 
construction rule.\4\
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    \1\ See Chickasaw Nation v. United States (2001)
    \2\ See Negonsott v. Samuels, 507 U.S. 99 (1993).
    \3\ By substantive canons I mean such canons as the Chevron 
doctrine or the rule asking courts to interpret a statute so as to 
avoid raising serious questions concerning the constitutionality of the 
statute.
    \4\ Another mistake made by the Fifth Circuit was to hold that 
gaming on the Texas tribes' reservations was controlled by the 
restoration act and not by IGRA. I think a good argument can be raised 
that IGRA supplanted the Texas legislation. On this issue, I found the 
reasoning of the First Circuit in Rhode Island v. Narragansett Indian 
Tribe, 19 F.3d 685 (First Cir. 1994), to be more persuasive than the 
rather summary analysis given by the Fifth Circuit in the Ysleta del 
Sur case. As stated by the first circuit, IGRA is the later act and 
while the Fifth Circuit's asserted that the Texas Act is the more 
specific statute, this is only correct when it comes to determining the 
political relation ship between the Texas tribes and the Federal 
Government. When it comes to gaming, a good argument can be made that 
both acts are equally specific and therefore the later in time should 
govern, especially since it adopts a national policy governing gaming 
on Indian reservation.
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 4. Why Congress is right to pay attention to these issues.
    Court decisions such as the one made by the Fifth Circuit on this 
issue should be scrutinized by Congress because they are part of a 
larger trend, led by the Supreme Court itself, which is to assert what 
we in academia call judicial supremacy in areas which should be 
reserved to the legislature. Thus there has been a slew of court 
decisions, especially in the area of federalism, which for some reason 
or another, either struck acts of Congress as being unconstitutional or 
seemed to disregard the will of Congress. Scholars have been perplexed 
by such decisions and have proposed various theories. While some 
scholars have taken the position that the Court as an institution is 
just more pro state rights than the Congress and that the Court no 
longer believes that the rights of the states are adequately protected 
in Congress,\5\ others see ideological and political motivation 
underneath the theoretical veneer of federalism.\6\ Yet other scholars 
such as Phillip Frickey at Berkeley, a noted expert on the Legislative 
Process and Federal Indian Law, believe that rather than a love of the 
states, it is more a mistrust of Congress which leads the Court to 
appoint itself as the ultimate arbiter of power between the States and 
the Congress.\7\ These scholars believe that this mistrust has made the 
Court eager to require more procedural safeguards on the Congress\8\ 
Yet most of these scholars also believe that the Court's decisions are 
raising Separation of Power concerns and come from a misunderstanding 
about how Congress really works as well as a misconception about the 
proper role of the judiciary.\9\
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    \5\ See Mitchell Lustig, Rhenquist Court Redefines the Commerce 
Clause, N.Y.L.J. 1 (Aug. 28, 2000).
    \6\ See Eskridge and FereJohn, The Elactic Commerce Clause: A 
Political Theory of American federalism, 47 Vand. L. Rev. 1355 (1994), 
Rubin and Feeley, Federalism: Some Notes on a national Neurosis, 41 
UCLA L. Rev. 903 (1994).
    \7\ Philip Frickey and Steven Smith, Judicial Review, The 
Congressional Process, and the federalism Cases: An Interdisciplinary 
Critique, 111 Yale L. J. 1707 (2002).
    \8\ See William Buzbee and Robert Schapiro, Legislative Record 
Review, 54 Stan. L. Rev. 87 (2001).
    \9\ See Frickey, above at note 8. See also Larry Kramer, Putting 
the Politics Back into the Political Safeguard ofFederalism, 100 Colum. 
L. Rev. 215 (2000), and Frank Cross, Realism About Federalism, 74 
N.Y.U. L. Rev. 1304 (1999).
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    Whatever the real reason, the decision by the Fifth Circuit in the 
Ysleta case fits such cases. Thus the decision involves an Act of 
Congress which at the last moment was amended in a manner which in 
retrospect turned out to be detrimental to State power.
    Here, you also have the lack of an adequate record explaining why 
the amendment was adopted. If the thesis proposed by my colleague 
Phillip Frickey in his recent Yale Law Review article is correct, this 
is exactly the kind of scenario which have irked federalist courts in 
the past. Nevertheless, the amendment was appropriately made and it is 
not the role of the courts to require more explanation from the 
Congress just as they would be right to expect, for instance, from an 
administrative agency.
Conclusion
    In conclusion, the actual words of the act with its emphasis on 
only preventing gaming prohibited by the law of Texas, the fact that 
the Senate amended what had previously been an unambiguous gaming ban, 
the similarities between the words used and the reasoning of the 
Cabazon case, and the House's understanding as reflected by Mo Udall's 
final words, all point to the fact that the District Court and the 
Court of Appeals were mistaken. However, to the extent that there is an 
ambiguity due to the mentioning of the tribal resolution endorsing a 
ban on gaming, the Indian liberal construction rule should have been 
used to resolve any ambiguities to the benefit of the tribes. As some 
scholars have remarked, in some of those cases, the Court seems to be 
``dissing'' Congress.\10\ I think this is what may be happening here. 
Thank you.

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    \10\ See Ruth Colker & James Brudney, Dissing Congress, 100 Mich. 
L. Rev. 80 (2001).

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