THE ATTORSEY GESERAL 

OF TEXAS 

April 12, 1989 

Honorable Bob Bullock, Opinion No. JM-1040 

Comptroller of Public Accounts 

L.B.J. State Office Building Re: Whether an Indian 

Austin, Texas 78774 tribe is subject to the 

Texas Bingo Enabling Act, 

article 179d, V.T.C.S., 

and related questions 

(RQ-1577) 

Dear Mr. Bullock: 

You ask a number of questions .about state regulation of 

bingo on Indian lands in light of a 1988 federal enactment, 

the Indian Gaming Regulatory Act. Rub. Law No. 100-497, 102 

Stat. 2467, 25 U.S.C. §S 2701-2721. The act regulates 

1'gaming,11 including bingo, on Indian lands. 

The federal statute divides gaming into three classes, 

and bingo is categorized as class II gaming. 25 U.S.C. 

§ 2703(6)-(a). Class II gaming on Indian lands is under the 

jurisdiction of the tribes, but subject to the provisions of 

the Indian Gaming Regulatory Commission. 25 U.S.C. 

5 2710(a)(2). States have no authority to regulate bingo on 

Indian lands. Id.; see also S. Rep. (Indian Affairs 

Committee) No. 446, 100th Cong., 2d Sess. (1988) 

(accompanying bill S. 555, which became Indian Gaming 

Regulatory Act). The only situation in which a state may 

play a role in the regulation of gaming on Indian lands is 

where a tribe and a state enter into a compact regarding the 

conduct of class III aaming on Indian lands. 25 U.S.C. 

§ 2710(d). See aenerallv 25 U.S.C. 5 2703(a) (defining 

class III gaming). Therefore, your office may not regulate 

bingo on Indian lands in Texas. 

Your first question is whether certain land deeded to 

the United States Department of the Interior for the benefit 

of the Texas Band of Kickapoo Indians is in fact Indian 

p. 5394 
Honorable Bob Bullock - Page 2 (JM-1040) 

land. The Indian Gaming Regulatory Act defines "Indian 

lands" as follows: 

(4) The term 'Indian lands' means-- 

(A) all lands within the limits of any 

Indian 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. S 2703(4). The 1983 legislation by which Congress 

recognized the Texas Band of Kickapoo Indians as a subgroup 

of the Kickapoo Tribe of Oklahoma contains the following 

provisions governing acquisition of land for the benefit of 

the Texas Band of Kickapoo Indians: 

(a) Se;&ins [4617479] of thist;21e are 

hereby applicable to Band: 

Provided, however, That the Secretary is only 

authorized to exercise his authority under 

section 465 of this title with respect to 

lands located in Maverick County, Texas. 

(b) The Secretary ' authorized and 

directed to accept no rno:: than one hundred 

acres of land in Maverick County, Texas which 

shall be offered for the benefit of the Band 

with the approval of the Tribe. Nothing in 

this subsection shall be construed as 

limiting the authority of the Secretary under 

section 465 of this title. 

25 U.S.C. 5 1300b-14. See aenerally 25 U.S.C. § 465 

(general authorization for the Department ,of Interior to 

acquire land to be held in trust for Indians). You tell us 

that the Secretary of the Interior actually accepted 125 

acres of land in trust for the benefit of the Texas Band of 

Kickapoo Indians. Such a transaction may well contravene 

the statute set out above. Neither this office nor your 

office, however, has authority to make an administrative 

determination as to whether or not a particular piece of 

land is in fact Indian land. Such a determination would 

have to be made, in the first instance, by the Department of 

the Interior. A challenge'to the department's acceptance of 

p. 5395 
Honorable Bob Bullock - Page 3 (JM-1040) 

a particular piece of land to be held in trust for certain 

Indians would have to be made in the courts. See, e.a 

State of Florida Den't of Business Reuulation v. United 

States DeD't of Interior, 768 F.2d 1248 (11th Cir. 1985), 

cert. denied, 475 U.S. 1011 (1986) (challenge by various 

state agencies to Secretary of Interior's acceptance of 

tract of land to be held in trust for benefit of Seminole 

Indian Tribe of Florida). In the absence of a judicial 

determination about the land in question, we advise you that 

the determination of the Department of the Interior as to 

what land is Indian land should be observed. 

You also ask: 

Assuming that the Tribe enters into an 

agreement whereby another entity agrees to 

manage and operate the conduct of bingo on 

the Tribe's trust land, must such an agreement meet all requirements of Section 12 of 

IGRA [25 U.S.C. 5 2711]? 

An Indian tribe may enter into a management contract for the 

operation and management of a class II gaming activity. 25 

U.S.C. 5 2511. Such a contract is subject to the approval 

of the chairman of the National Indian Gaming Commission. 

Id. It is the responsibility of the chairman of the 

National Indian Gaming Commission to determine that the 

contract meets the requirements of the federal statute. 

Your office has no responsibility for or authority to 

approve, disapprove, or oversee such contracts. 

You next ask: 

Under the terms of a management contract 

entered into between the Tribe and 

management contractor, the contractor woul: 

assume responsibility for managing and 

operating the bingo games conducted on the 

Tribe's trust lands. In light of the fact 

that the Tribe is, in such circumstances, no 

longer the entity operating the bingo games, 

my third question is whether bingo games 

conducted by the management contractor acting 

pursuant to such a contract are subject to 

the Texas Bingo Enabling Act? 

Again, under the Indian Gaming Regulatory Act, a state 

has no authority to regulate class II gaming on Indian 

lands, regardless of whether the games are conducted by the 

P. 5396 
Honorable Bob Bullock - Page 4 (JM-1040) 

tribe or by another entity pursuant to a management 

contract. 

You next ask: 

In the event the Tribe elects to license 

another entity to own a bingo activity to be 

conducted on the Tribe's trust lands within 

the Tribe's jurisdiction, would the proposed 

licensee be required to be an organization 

eligible for a license to conduct bingo under 

the Texas Bingo Enabling Act? Would the 

bingo occasions conducted pursuant to the 

tribal license be subject to the Texas Bingo 

Enabling Act? 

The Indian Gaming Regulatory Act contains the following 

provision: 

A tribal ordinance or resolution may 

provide for the licensing or regulation of 

class II gaming activities owned by any 

person or entity other than the Indian tribe 

and conducted on Indian lands, only if the 

tribal licensing requirements . . . are at 

least as restrictive as those established by 

State law governing similar gaming within the 

jurisdiction of the State within which such 

Indian lands are located. No person or 

entity, other than the Indian tribe, shall-be 

eligible to receive a tribal license to own a 

class II gaming activity conducted on Indian 

lands within the jurisdiction of the Indian 

tribe if such person or entity would not be 

eligible to receive a State license to 

conduct the same activity within the 

jurisdiction of the State. 

25 U.S.C. 5 27100) (4) (A) - In other words, the Indian 

Gaming Regulatory Act incorporates state-law standards to 

govern the conduct of bingo by persons and entities other 

than an Indian tribe. Your office, however, has no 

authority to enforce those provisions. 

You next ask: 

In the event the Tribe may conduct bingo 

not subject to regulation under the Bingo 

Act, may manufacturers and distributors 

licensed to sell bingo cards, supplies, 

p. 5397 
Honorable Bob Bullock - Page 5 (JM-1040) 

devices, or equipment for use in Texas 

legally sell such items to the Tribe? 

Section 13a(a) of the Texas Bingo Enabling Act, article 

179d, V.T.C.S., provides in part: 

A manufacturer may not sell or supply to a 

person within this state or for use within 

this state bingo cards, boards, sheets, pads, 

other 

iisigned to 

supplies, devices, or equipment 

be used in playing bingo or 

engage in any intrastate activities involving 

those items without holding a license from 

the comptroller of public accounts. 

Although the question is one of federal law, it is our 

opinion that regulation of the sale of bingo equipment on 

Indian land is part of the regulation of bingo. Because the 

state has no authority to regulate bingo on Indian land, the 

Texas Bingo Enabling Act is inapplicable to a sale of bingo 

equipment that takes place on Indian land. 

Your question also raises the issue of whether a sale 

to a tribe that occurs off of Indian land is subject to the 

act.. Attempts by the federal government to control 

activities of Indians off Indian lands have been upheld. 

See, e.a., United States v. 43 Gallons of Whiskey, 93 U.S. 

188 (1876) (holding that Congress may constitutionally 

forbid the sale of liquor in an area adjoining an Indian 

reservation in order that Indians will not be tempted by 

alcohol): see also Johnson v. Gearlds, 234 U.S; 422, 436-39 

(1914). However, "preemption of state laws outside of 

Indian country has not been extensive." F. Cohen, Handbook 

of Federal Indian Law, ch. 6, 5 Cl (1982 ed.). The Indian 

Gamina Reaulatorv Act does not exnresslv preempt the 

application of state bingo regulations to Indians who are 

engaging in transactions relating to bingo off of Indian 

land. Rather, the act repeatedly refers to gaming on Indian 

lands. Therefore, we conclude that a sale of bingo 

equipment to an Indian tribe that occurs off of Indian land 

is not exempt from state regulation. See Mescalero Anache 

Tribe v. Jones. N.M., 411 U.S. 145 (1973) (stating that 

absent express federal law to the contrary, Indians going 

beyond reservation boundaries have generally been held 

subject to state laws applicable to all citizens of state). 

We caution, however, that the question is one of federal 

law. 

Your final question is in three parts: 

p. 5398 
1 

Honorable Bob Bullock - Page 6 (JM-1040) 

First, in the event the Tribe may conduct 

bingo not subject to regulation under the 

Bingo Act, may the Tribe legally advertise or 

promote its bingo games? 

Secondly, in the event the Tribe enters 

into a management contract such as * 

described in Section 12 of IGRA, may tiZ 

management contractor advertise or promote 

the Tribe's bingo games? 

Thirdly, if the answer to part 2 of this 

question is yes, and assuming that the 

management contractor in question also holds 

a Texas commercial lessor's license, may that 

contractor/lessor advertise or promote the 

Tribe's bingo games at the lessor's 

commercial hall(s) in Texas or any other 

location in Texas? 

Section 11(p) of the Texas Bingo Enabling Act, article 

179d, provides: 

No one other than a licensed authorized 

organization may advertise or promote bingo. 

A licensed authorized organization may not 

include in an advertisement or promotion the 

amount of a prize or series of prizes offered 

at a bingo occasion. 

Section 11(g) provides: 

A person other than a bona fide member of 

a licensed authorized organization may not 

conduct, promote, administer, or assist in 

conducting, promoting, or administering, a 

bingo game. 

See also V.T.C.S. art. 179d, § 19. Again, because the state 

cannot regulate bingo on Indian lands, these provisions do 

not apply to advertisements or promotions on Indian land. 

As indicated, however, although it would doubtless be within 

the authority of Congress to preempt application of those 

provisions to advertisement or promotion conducted pursuant 

to the Indian Gaming Regulatory Act, it is our opinion that 

Congress has not done so. Section 11(p) permits only 

"licensed authorized organizations' to advertise or promote 

bingo in Texas. Since the Bingo Enabling Act defines 

*11icensee8N as a person licensed under the Bingo Enabling 

Act, V.T.C.S. art. 179d, 5 2(17), we must read "licensed 

p. 5399 
Honorable Bob Bullock - Page 7 (JM-1040) 

authorized organizationl' to refer only to organizations 

licensed under the Texas statute. Therefore, the plain 

terms of section 11(p) would prohibit the advertisement or 

promotion off of Indian land of bingo conducted on Indian 

land. Again, however, we caution that the issue of 

preemption is one of federal law. Furthermore, although you 

have not asked about the constitutionality of applying the 

statute to bingo conducted pursuant to the Indian Gaming 

Regulatory Act, we note that a prohibition on the 

advertisement of a legal activity raises questions under the 

First Amendment to the United States Constitution. See 

aenerallv Central Hudson Gas and Elec. Corn. v. Public Serv. 

Comm'n of New York, 447 U.S. 557 (1980) (holding that a New 

York Public Service Commission order banning electric 

utilities from advertising violates the First and Fourteenth 

Amendments); posadas > ism Co. of 

Puerto RiB, 478 U.S. 328 (1986) (holding that Puerto Rico's 

restrictions on the advertising of legal gambling activities 

are facially constitutional). 

Also, we note in response to the third part of your 

question that a person who holds a commercial lessor's 

license has no authority to promote or advertise bingo, even 

if the bingo is conducted under the Texas statute. Article 

179d allows only "licensed authorized organizations" to 

advertise or promote bingo. The act defines l'authorized 

organizationl' as follows: 

'Authorized organization' means a 

religious society, a nonprofit organization 

(other than an organization whose membership 

is predominantly veterans or their dependents 

organized to advance the interests of 

veterans, active duty personnel, or their 

dependents) whose predominant activities are 

for the support of medical research or 

treatment programs, a fraternal or veterans 

organization, or a volunteer fire department. 

V.T.C.S. art. 179d, 5 2(11). Only "authorized 

organizationsl' may receive a license to conduct bingo under 

the Texas statute, and the act uses the term "authorized 

organization" only to refer to entities authorized to 

conduct bingo. A licensed authorized organization may use 

the premises of an authorized commercial lessor to conduct 

bingo. However, there is no requirement that a licensed 

commercial lessor be an "authorized organization," and a 

licensed commercial lessor is not itself authorized to 

conduct bingo. Therefore, section 11(p) would not permit a 

licensed commercial lessor to advertise or promote bingo. 

p. 5400 
Honorable Bob Bullock - Page 8 (JM-1040) 

SUMMARY 

The state has no authority to regulate 

bingo in Indian lands. This office cannot 

make a factual determination as to what land 

is in fact Indian land. The state has no 

authority to approve, disapprove, or oversee 

management contracts for the operation of 

bingo on Indian lands. 

Althoush the ouestion is one of federal 

law, it is 

preempted 

provisions 

activities 

land. 

our opi&on that Congress has not 

the state from applying state 

regulating bingo to Indian bingo 

that take place off of Indian 

Very truly yours, 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 5401