DAN MORALES Al-rORNEy GNERAL 

QBffice of tfie 5ZWmep Qikneral 

Btate of QCexaa 

August 6.1991 

Honorable James F. Hury 

Chairman 

Committee on Ways and Means 

Texas House of Representatives 

P. 0. Box 2910 

Austin Texas 78768-2910 

Opinion No. DM-32 

Re: Whether the enactment of a bill 

that would permit gambling within 

Texas waters would have the effect of 

permitting gambling on Indian lands 

(RQ-128) 

Dear Representative Hury: 

You ask whether the enactment of a bill that would permit gambling on 

Texas waters would have the effect of permitting gambling on Indian lands located 

within the state. Specifically, you ask: 

1. If the legislature enacts a bill that would permit gambling 

within Texas waters that would be regulated by the state, would 

such gambling activity also be permitted on Indian lands in 

Texas? 

2. If the legislature enacts a bill that would confer authority 

not on the state, but rather on either counties, cities or special 

districts to regulate such gambling activity, would such gambling 

activity also be permitted on Indian lands in Texas? 

3. If the answer to the first two questions is ‘Yes,’ would an 

Indian tribe or members of an Indian tribe that purchase ,real 

property that does not comprise part of Indian lands be 

permitted to conduct a gambling enterprise on that property? 

We conclude that, under the Indian Gaming Regulatory Act, 25 U.S.C. 

$5 2701 et seq., if the Texas legislature enacts a bill that would permit Class III 

gaming within Texas waters, such gaming activity could also be conducted on Indian 

lands located within the state, provided that there is compliance with the 

requirements of section 2710 of title 25 of the United States Code. If the Texas 

legislature enacted a bill that would delegate regulatory authority to units of local 

governments within the state, the statute would still satisfy the requirements of the 

federal statute and thereby permit such gaming activities to be conducted on Indian 

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Honorable James Hury - Page 2 (DM-32) 

lands within the state. If there is compliance with the requirements of section 2719 

of title 25 of the United States Code, then such gaming activities could also be 

conducted on lands acquired by Indian tribes after the effective date of the act. We 

turn to your first question. 

You first ask: 

If the legislature enacts a bill that would permit gambling 

within Texas waters’ that would be regulated by the state, would 

such gambling activity also be permitted on Indian lands in 

Texas? 

In 1987 the United States Supreme Court handed down California v. 

Cabazon Band of Mission Indians, 480 U.S. 202 (1987), which held that Indian tribes, 

in states that otherwise allow gaming, have a right to conduct gaming activities on 

Indian lands, unimpeded by state regulation. The court’s decision followed a long 

line of cases that began with the case of Seminole v. Bunenuorth, 658 F.2d 310 (5th 

Cir. 1981), cert. denied, 455 U.S. 1020 (1982). In that case, the United States 

Supreme Court held that Florida2 could not apply the state’s civil regulatory laws 

governing bingo to the Seminole Tribe’s bingo operations. See L&O Mmhantucket 

Pequot Tribe v. McGuigun, 626 F. Supp. 245 (D. COM. 1986); Barona Group of 

Capitan Grade Band of Mission Indians v. oUf&, 694 F.2d 1185 (9th Cir. 1982), cert. 

denied, 461 U.S. 929 (1983); Oneida Tribe of Indians v. Wirconsin, 518 F. Supp. 712 

(W.D. Wis. 1981). 

In response to concerns raised by various states to the Cubazon case, 

Congress enacted in 1988 the Indian Gaming Regulatory Act. See S. Rep. No. 446 

(Indian Affairs Committee), 100th Cong., 2nd Sess. reprinted in 1988 U.S. CODE 

1 Section Il.012 of tbe Natural Resowccs Code provides that the gulfward boundary of the 

State of Texas is the boundary determined by the United States Supreple Court in Tera v. hikma, 

426 U.S..465 at a.1 (1976), citing United S10tcs v. Louisiana, 363 U.S. 1 (1960). The court determined 

that the boomiary of Texas Iay three marine leagues (aproximately 10 miles) from its coastline. 

z Florida is a so-c&d Public Law 280 state. Public Law 83-280, wbicb is codified in title 18, 

section 1162, of the United States Code and title 28, se&on 1360, of the United States Code, 

authorized the transfer of crimii jmisdictioo over Indiaos sod Indian lands from the federal 

government to those state governments that choose to wert such jurisdiction. Tribes were free to 

continue to exercise civil jurisdiction over their members and their lands. The law was amended in 

1968 to require tribal consent before jurisdiction could be transferred to a state. Since the 1968 

amendment, no triis have granted consent and no additional states are permitted to faII within the 

statute. See S. Rep. No. 1004%. 

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CONG. & ADMIN. NEWS 3071 (accompanying bill S. 555, which became Indian 

Regulatory Act). The Indian Gaming Regulatory Act, 25 U.S.C. $8 2701 et seq., 

permits Indian tribes to conduct gaming activities under certain circumstances and 

creates the National Indian Gaming Commission whose responsibility it is to 

regulate such activity. The act provides that Indian tribes3 have the exclusive right 

to regulate gaming activity on Indian lands4 if the gaming activity is not specifically 

prohibited by federal law and is conducted within a state which does not, as a matter 

of criminal law and public policy, prohibit such gaming activity. 25 U.S.C. 5 2701(5). 

The act establishes three classes of gaming that are subject to differing 

degrees of federal, state, and tribal regulation. Class I gaming is limited to social 

games, either ceremonial or for nominal prizes, 25 U.S.C. $I 2703(6), and is free of 

all outside regulation. Id 9 2710(a)( 1). Class II gaming includes bingo and related 

games, i.e., games played against other players as opposed to the house. Id. 

$2703(7). These games are free of state regulation but are subject to some federal 

oversight by the National Indian Gaming Commission. Id. 5 2710(b), (c). All other 

forms of gaming are classified as Class III gaming. Id. 5 2703(S). Section 2710 

provides at subsection (d)(l) that: 

3 The act defmes “Indian t&e” for purposes of the au: 

The term ‘Indian tribe’ means any Indian tribe, band, nation, or other 

organized group or community of Indians which -- 

(A) is recogeized as eligible by the Secretary [of the Interior] for the 

special programs and services provided by the United States to Indians 

because of their status as Indians, and 

(B) is recognized as possessing powers of self-government. 

25 U.S.C. 5 2703(s). 

‘The act defines the phrase “Indian lands” in the following fashion: 

The term ‘Indiao lands’ means -- 

(A) a8 lands tithie the limits of any Indii reservation; and 

(B) any lands title to which is either held in trust by the United States 

for the benefit of any Indian tribe or individual or held by any Indian 

tribe or individual subject to restriction by the United States against 

alienation and over which an Indian tribe exercises governmental 

power. 

25 U.S.C. 5 2703(4). 

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Honorable James Hury - Page 4 (DM-32) 

Class III gaming activities shall be lawful on Indian lands 

only if such activities are - 

(A) authorized by an ordinance or resolution that -- 

(i) is adopted by the governing body of the Indian 

tribe having jurisdiction over such lands, 

(ii) meets the requirements of subsection (b) of this 

section, and 

(iii) is approved by the Chairman [of the National 

Indian Gaming Commission], 

(B) located in a State that permits such gaming for any 

purpose by any person, organization, or entity, and 

(C) conducted in conformance with a Tribal-State compact 

entered into by the Indian tribe and the State under paragraph 

(3) that is in effect. 

Thus, if a bill were enacted that would permit Class III gaming in Texas 

waters, by the clear terms of the federal statute those sorts of gaming activities that 

are permitted by the bill to be conducted within state waters could also be 

conducted by Indian tribes on their lands, provided that a tribal-state compact is 

effected.5 Or, to put it simply, if casino gambling is permitted anywhere in Texas, 

then casino gambling would also be permitted on Indian lands in Texas, so long as 

the requirements of section 2710 are met. 

It is important to note that state law does not determine the type of Class III 

gaming that may be conducted on Indian land. See Mmhunfuckef Pequot Tribe v. 

Connecticut, 913 F.2d 1024 (2nd Cir. 1990). Rather, state law must permit some 

type of Class III gaming before an Indian tribe and a state may enter into a compact 

sA state must negotiate io good faith to enter into such a compact. 25 U.S.C. 5 2710(d)(3)(A). 

In a lawsuit regarding such a compact, the state has the burden of showiog that it negotiated in good 

faith Id. P 2710(d)(7)(B)(G). In certaie circumstaoces, a court may appoint a mediator to select a 

compact. Id. 8 2710(d)(7)(B)(i); see Mashanlucket Pequot Tribe v. Connecticut, 9l3 F2.d 1024 (2nd 

cii. 1990). 

p. 149 
Honorable James Hury - Page 5 (DM-32) 

permitting Class III gaming activities on Indian lands. It is the compact, though, not 

state law, that determines the type of Class III gaming permitted on Indian lands. 

, The Indian Gaming Regulatory Act provides that in order for Class.111 

gaming to be permitted on Indian lands, those Indian lands must be “located in a 

State that permits such gaming for any purpose by any person, organization, or 

entity.” 25 U.S.C. 9 2710(d)(l)(B). It is suggested that a state law that limits the 

operation of Class III gaming in Texas to a specific geographical area would not be 

a law that “permits such gaming for any purpose by any person, organization, or 

entity” sufficient to satisfy the requirements of the Indian Gaming Regulatory Act. 

It is suggested that the Indian Gaming Regulatory Act should be construed to 

require that Indians be subjected to the same limitations on location, size of the pot, 

and size of the wager that are imposed by state law on that state’s citizens. 

In Mashantucket Pequof Tribe v. Connecticut, 913 F.2d 1024 (2nd Cir. 1990) 

(hereinafter Mushuntucket), a federal appeals court rejected a similar argument in a 

case involving a Connecticut statute that did not generally permit gaming but that 

authorized nonprofit organizations to conduct “Las Vegas nights.“6 An Indian tribe 

located in Connecticut sought a federal court order requiring the state of 

Connecticut to negotiate with the tribe for the purpose of concluding a tribal-state 

compact, that would permit the tribe to conduct casino-type gaming. Before the 

federal district court, the state argued, inter diu, that the sort of gaming activity that 

state law permitted nonprofit organizations to conduct in Connecticut was not 

comparable to casino-type gaming, and therefore, casino-type gaming was not a 

permissible Class III gaming activity for purposes of the federal act: 

The State argues that the use of the phrase ‘such gaming’ as 

opposed to ‘such type of gaming’ evidences the intent of 

Congress that, with regard to Class III gaming, only the actual 

forms of gambling which the State has legalized need to be the 

subject of compact negotiations.. . . The State argues that if the 

restrictions it has imposed on Las Vegas nights are removed, 

such gaming becomes professional gambling which is prohibited 

in Connecticut as a matter of criminal law and public policy. 

6 ‘The games of cbaoce that Connecticut permits at the ‘Las Vegas nights’ include blackjack, 

poker, dice, money-wheels, roulette, baccarat, chuck-a-luck, pan game, over and under, horse race 

gamy accy-ducey, beat the dealer, and bouncing ball.” hfe&zntucket at n-5, citing, Corn. Gee. Stat. 

55 7-&a to 7-186~ (1989). 

p. 150 
Honorable James Hury - Page 6 (DM-32) 

Mashantucket Pequot Tribe v. Connecticut, 737 F. Supp. 169, 173 (D. COM. 1990). 

The state made the identical argument before the federal appellate court. 

Mashantucket, 913 F.2d at 1029. 

. 

As noted earlier, federal law made Indian tribes subject to a state’s criminal 

laws, but not a state’s civil laws. In rejecting Connecticut’s argument, the federal 

appeals court noted that the United States Supreme Court in &baron set forth a 

civil/regulatory and criminal/prohibitory test prior to the enactment of the federal 

statute to determine whether Indians were subject to the state’s authority: 

[I]f the intent of a state law is generally to prohibit certain 

conduct, it falls within [the area] of criminal jurisdiction, but if 

the state law generally permits the conduct at issue, subject to 

regulation, it must be classified as civil/regulatory.. . . The 

shorthand test is whether the conduct as issue violates the 

State’s public policy. 

Id., citing California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209 (1987) 

(brackets in original). The court then relied on legislative history indicating that the 

intent of Congress in enacting the language governing Class II gaming was to 

preserve the Cabuzon test: 

(Tlhe Committee anticipates that Federal courts will rely on the 

distinction between State criminal laws which prohibit certain 

activities and the civil laws of a State which impose a regulatory 

scheme upon those activities to-determine whether Class II 

games are allowed in certain States. This distinction has been 

discussed by the Federal courts many times, most recently and 

notably by the Supreme Court in %iCabazon [sic]. 

Id, citing S. Rep. at 6, 1988 U.S. CODE CONG. & ADMIN. NEWS 3076 (brackets in 

original); see also United States v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358, 365 

(8th Cir. 1990) (construing title 25 of the United States Code section 2710(b)(l)(A) 

and Class II gaming: “[Tlhe legislative history reveals that Congress intended to 

permit a.particular gaming activity, even if conducted in a manner inconsistent with 

state law, if the state law merely regulated, as opposed to completely barred, that 

particular gaming activity.“). 

Noting that the language in the federal statute governing Class III gaming is 

identical to that governing Class II gaming, the Marhantucket court concluded that 

p. 151 
Honorable James Hury - Page 7 (DIG32) 

Connecticut regulated, rather than barred, the gaming activity at issue and rejected 

the state’s construction of the federal statute. Based upon the federal appellate 

courts’ construction of subsections (d)(l)(A) and (d)(l)(B) of section 2710, we think 

that the courts probably would hold that Texas regulates Class III gaming activity, 

rather than bars it. Thus, if a bill were enacted by the Texas legislature permitting 

Class III gaming activities anywhere within the state. such gaming activities could be 

conducted on Indian lands in Texas, provided that a tribal-state compact is effected. 

It has also been suggested that the federal bills that re-establish federal 

control over the three Indian lands in Texas would act to prevent any of the tribes 

from conducting Class III gaming activities on their lands. Congress restored a trust 

relationship between the United States and two of the tribes, the Alabama and 

Coushatta Indian Tribes of Texas and the Ysleta Del Sur Pueblo Indians, by statute 

after the issuance of Attorney General Opinion JM-17 (1983)’ and holds certain 

lands in trust for their benefit. See 25 U.S.C. subch. XXXI-A, $5 731 - 737, 25 

U.S.C. subch. LXXVIII, $9 1300g - 13OOg-7. Thus, those lands fall within the ambit 

of the definition of “Indian lands” set forth in section 2703(4). Both tribes are 

proscribed by the federal act restoring a federal trust relationship from engaging in 

any gaming activity that is prohibited by the laws of the state of Texas. See 25 

U.S.C. 83 737 (governing the Alabama and Coushatta Indian Tribes of Texas), 

13OOg-6 (governing the Ysleta Del Sur Pueblo Indians).* 

The Indian Regulatory Gaming Act was enacted in 1988 after the 1983 

enactment of the bill restoring the federal trust relationship with two of the three 

Indian tribes in Texas. The Indian Gaming Regulatory Act does not explicitly 

repeal those provisions of the federal act restoring a federal trust relationship that 

proscribe the tribes’ engaging in gaming activities that are not permitted by Texas 

law. However, the “last-in-time” rule, which provides that a statute enacted after the 

‘Attorney General Opinion JM-17 (1983) addressed the aulhority of the state of Texas to 

enforce its gaming laws on certain Indian lands wit&o the state. The opinion, infer ah, traced the 

hismy of federal and state legislation affecting Indians in Texas and noted that with the termination in 

1955 of the trust relationship between the federal government and the Indian tribes, the members of 

the tribe became subject to the laws of the state in the same manner as other citizens. As a result of 

the issuance of the opinion, Congress restored the federal trust relationship in 1983. 

*while the third tribe, the Texas Band of Kickapw Indians, does not have a trust relationship 

with the United States government, see 25 U.S.C. $5 l3GUb-11 - 13OOb-16, the tribe reportedly has 

entered into an agreement that provides, inter afiu, that Texas laws regarding gaming wiU be followed 

by the tribe. The Department of Interior, pursuant to general authority conferred by section 465 of 

title 2S of the United States Code, accepted land in trust for the benefit of the Texas Band of Kickapoo 

Indians. See gwwral~ Attorney General Opinion JM-1040 (1989). 

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passage of an earlier statute controls in the event of conflict, applies to statutes 

governing Indian tribes. See, e.g., Yankton Sioux Tribe v. United States, 623 F.2d 159 

(Ct. Cl. 1980); see ufso Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977). This rule 

would support a construction that Congress intended the Indian Gaming Regulatory 

Act to apply to all Indian tribes that would otherwise fall within the ambit of the 

act9 In light of that rule, we think that a court would conclude that the Indian 

Gaming Regulatory Act controls. 

Your second question asks: 

If the legislature enacts a bill that would confer authority 

not on the state, but rather on either counties, cities or special 

districts to regulate such gambling activity, would such gambling 

activity also be permitted on Indian lands in Texas? 

We answer your second question in the affirmative. Subsection (d)(l)(B) of 

section 2710 permits gaming on Indian lands only if such activities are, inter alia, 

“located in a State that permits such gaming for any purpose by any person, 

organization, or entity.” A statute that confers regulatory authority to units of local 

government would satisfy this requirement. 

Your third question is: 

If the answer to the first two questions is ‘Yes,’ would an 

Indian tribe or members of an Indian tribe that purchases real 

property that does not comprise part of Indian land be 

permitted to conduct a gambling enterprise on that property? 

We note at the outset that section 2710 permits Indian tibes, as defined in 

the act, to conduct certain gaming activities; it does not authorize individual Indians 

to do so. Therefore, with respect to individual members of tribes, we answer your 

third question in the negative. With respect to Indian tribes, however, we answer 

your question with a qualified “Yes.” The act does not permit gaming on lands 

g The rule has been applied to treaties with Indian tribes. The Cherokee Tobacco, 78 U.S. 616 

(1870). However, at issue here are federal statutes. See Newton, Federal Power over Indicms: It3 

Souses, Scope, and Limitatiwq l32 U. Pa. L. Rev. 195 (1984). See general& Comment, Statutory 

Consbuctibn - UUii~e Protection Venus Indian Treaty Hunting Rights, 57 Wash. L. Rev. 225 (1981); 

Willrinson & Volkman, Judicial F&view of Indian Treaty Abrogation: “As Lang as Water Flows, or Grass 

Gnnvs Upon the Earth” - How Long o Time ic That?, 63 Calif. L. Rev. 601(1975). 

P. 153 
Honorable James Hury - Page 9 (DM-32) 

purchased by Indian tribes, rather it permits gaming to be conducted on Indian 

lands acquired in a certain manner and before a certain date. 

Section 2719(a) of the act. generally prohibits gaming on lands acquired by 

the federal government in trust for the benefit of Indian+ after the effective date of 

the act, October 17,1988: 

(a) Prohibition on lands acquired in trust by Secretary 

Except as provided in subsection (b) of this section, gaming 

regulated by this chapter shall not be conducted on lands 

acquired by the Secretary in trust for the benefit of an Indian 

tribe after October 17,1988, unless -- 

(1) such lands are located within or contiguous to the 

boundaries of the reservation of the Indian tribe on October 17, 

1988, and -- 

(2) the Indian tribe has no reservation on October 17, 

1988, or -- 

. . . . 

(B) such lands are located in a State other than 

Oklahoma and are within the Indian tribe’s last recognized 

reservation within the State or States within which such Indian 

tribe is presently located. 

Sectiott 2719(b) of the act, however, provides certain exceptions to this general 

prohibition and provides in pertinent part: 

(b) Exceptions 

(1) Subsection (a) of this section will not apply when -- 

(A) the Secretary, after consultation with the Indian 

tribe and appropriate State, and local officials, including offkials 

of other nearby Indian tribes, determines that a gaming 

lo See gemnzUy 2.5 U.S.C. 9465 (general authorization for the Department of Interior to 

acquire land to hold in trust for Indiam). 

p. 154 
Honorable James Hury - Page 10 (DM-32) 

establishment on newly acquired lands would be in the best 

interest of the Indian tribe and its members, and would not be 

detrimental to the surrounding community, but only if the 

Governor 9f the State in which the gaming activity is to be 

conducted concurs in the Secretary’s determination; or 

(B) lands are taken into trust as part of -- 

(i) a settlement of a land claim, 

(ii) the initial reservation of an Indian tribe 

acknowledged by the Secretary under the Federal 

acknowledgment process, or 

(iii) the restoration of lands for an Indian tribe 

that is restored to Federal recognition. 

Thus, if the provisions of section 2719(b) are complied with, an Indian tribe would 

be able to conduct gaming activities on land acquired in trust subsequent to the date 

of the enactment of the statute. 

SUMMA&X 

Under the Indian Gaming Regulatory Act, 25 U.S.C. 

08 2701 et seq., if the legislature enacts a bill that would permit 

Class III gaming within Texas waters, such gaming activity could 

also be conducted on Indian lands located within the state. If 

the legislature enacted a bill that would delegate regulatory 

authority to units of local government, the statute would still 

satisfy the requirements of the federal statute and thereby 

permit such gaming activities to be conducted on Indian lands. 

If the requirements of section 2719 of title 25 of the United 

States Code are complied with, then such gaming activities could 

be conducted on land acquired by Indian tribes after the 

effective date of the act. 

Attorney General of Texas 

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Honorable James Hury - Page 11 (DM-32) 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 156