THE ATTORSEY GESERAL OF TEXAS

April 12, 1989

Honorable Bob Bullock, Opinion No. JM-1040 Comptroller of PublicAccounts 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) DearMr. Bullock:

You ask anumber ofquestions .aboutstate regulation of bingo on Indian lands in light of a 1988 federal enactment, the Indian Gaming Regulatory Act. Rub. LawNo. 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, andbingo iscategorized as class IIgaming. 25 U.S.C. § 2703(6)-(a). Class IIgaming on Indian lands isunder the jurisdiction of the tribes, but subject to theprovisions of the Indian Gaming Regulatory Commission. 25 U.S.C. 5 2710(a)(2). States have noauthority 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 arole inthe regulation ofgaming on Indian lands is where atribe and a state enter intoacompact 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 IIIgaming). Therefore, your officemay not regulate bingo on Indian lands inTexas.

Your first question is whether certain land deeded to theUnited States Department of the Interior forthe benefit of the Texas Band ofKickapoo Indians is in fact Indian

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land. The Indian Gaming Regulatory Act defines "Indian lands" as follows:

(4)The term 'Indian lands' means--
(A)all landswithin the limits ofany Indian reservation; and

(B)any lands title towhich is either held intrust by theUnited States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by theUnited States against alienation and overwhich an Indian tribe exercises governmental power.

25U.S.C. S2703(4). The 1983 legislation bywhich Congress recognized the Texas Band ofKickapoo Indians as a subgroup of the Kickapoo Tribe ofOklahoma contains the following provisions governing acquisition of land for the benefit of the Texas Band ofKickapoo Indians:

(a)Se;&ins [4617479] of thist;21e are hereby applicable to Band: Provided, however, That the Secretary isonly authorized to exercise his authority under section 465 of this title with respect to lands located inMaverick County, Texas.
(b) The Secretary ' authorized and directed to accept no rno::than one hundred
acres of land inMaverick County, Texas which shall be offered forthe 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 (generalauthorization forthe Department ,of Interior to acquire land tobeheld intrust for Indians). You tell us that the Secretary of the Interior actually accepted 125
acres of land intrust forthebenefit of the Texas Band of Kickapoo Indians. Such a transaction maywell contravene the statute set out above. Neither this office nor your office, however, has authority tomake an administrative determination as to whether or not a particular piece of land is in fact Indian land. Such adetermination would have tobemade, inthe first instance, by the Department of the Interior. A challenge'to the department's acceptance of

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aparticular piece of land to beheld intrust for certain Indians would have tobe made inthe courts. See, e.a State of Florida Den't of Business Reuulation v. United States DeD't of Interior, 768 F.2d 1248 (11thCir. 1985), cert. denied, 475U.S. 1011 (1986) (challenge by various state agencies to Secretary of Interior's acceptance of tract of land to beheld intrust forbenefit of Seminole Indian Tribe ofFlorida). Inthe absence of a judicial determination about the land inquestion, 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 ofbingo on the Tribe's trust land, must such an agreement meet all requirements of Section 12 of IGRA [25U.S.C. 52711]?

An Indian tribemay enter intoamanagement contract for the operation andmanagement ofaclass IIgaming activity. 25 U.S.C. 5 2511. Such acontract is subject to the approval of the chairman ofthe 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, oroversee such contracts.

Younext ask:

Under the terms ofamanagement 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, insuch circumstances, no longer the entity operating thebingo games, my third question is whether bingo games conducted by themanagement contractor acting pursuant to such acontract are subject to the Texas Bingo Enabling Act?
Again, under the Indian Gaming Regulatory Act, a state has no authority to regulate class IIgaming on Indian lands, regardless ofwhether the games are conducted by the

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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 abingo 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 fora 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 orentity 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 lawgoverning similar gaming within the jurisdiction of the Statewithin which such Indian lands are located. No person or entity, other than the Indian tribe, shall-be eligible to receive atribal license to own a class IIgaming activity conducted on Indian landswithin the jurisdiction of the Indian tribe if suchperson orentity would not be eligible to receive a State license to conduct the same activity within the jurisdiction of the State.

25U.S.C. 5 27100) (4)(A)- In other words, the Indian Gaming Regulatory Act incorporates state-law standards to govern the conduct ofbingo by persons and entities other than an Indian tribe. Your office, however, has no authority to enforce those provisions.

You next ask:

Inthe event the Tribemay conduct bingo not subject to regulation under the Bingo Act, may manufacturers and distributors licensed to sell bingo cards, supplies,

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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 inpart:

Amanufacturer may not sell or supply to a person within this state or foruse within this state bingo cards, boards, sheets, pads, other iisigned tosupplies, devices, or equipment

be used in playing bingo or engage inany intrastate activities involving those items without holding a license from the comptroller ofpublic accounts.
Although the question is one of federal law, it is our opinion that regulation of the sale ofbingo equipment on Indian land ispart of the regulation ofbingo. 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 ofwhether **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. 43Gallons ofWhiskey, 93 U.S. 188 (1876) (holding that Congress **may** constitutionally forbid the sale of liquor inanarea adjoining an Indian reservation inorder that Indians will not be tempted by alcohol): see alsoJohnson v.Gearlds, 234U.S; 422, 436-39 (1914). However, "preemption of state laws outside of Indian country has notbeen extensive." F. Cohen, Handbook ofFederal Indian Law, ch. 6, 5Cl (1982ed.). The Indian Gamina Reaulatorv Act does not exnresslv preempt the application of state bingo regulations to Indians who are engaging in transactions relating tobingo 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 isnot exempt from state regulation. See Mescalero Anache Tribe v. Jones. N.M., 411U.S. 145 (1973) (stating that absent express federal lawto 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 inthree parts:

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First, inthe event the Tribemay conduct bingo not subject to regulation under the Bingo Act, may the Tribe legally advertise or promote itsbingo games?
Secondly, in the event the Tribe enters into a management contract such as * described in Section 12of IGRA, may tiZ management contractor advertise or promote the Tribe's bingo games?
Thirdly, ifthe answer topart 2of this question is yes, and assuming that the management contractor inquestion also holds
aTexas 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 inTexas?

Section 11(p) of the Texas Bingo Enabling Act, article 179d,provides:

No one other than a licensed authorized organization may advertise orpromote bingo. A licensed authorized organization may not include inanadvertisement orpromotion the amount ofaprize or series ofprizes offered at abingo occasion.

Section 11(g)provides:

A person other than abona fidemember of
a licensed authorized organization may not conduct, promote, administer, or assist in conducting, promoting, or administering, a bingo game.

See alsoV.T.C.S. art. 179d, § 19. Again, because the state cannot regulate bingo on Indian lands, these provisions do not apply to advertisements orpromotions on Indian land. As indicated, however, although itwould doubtless bewithin the authority of Congress topreempt application of those provisions toadvertisement orpromotion conducted pursuant to the Indian Gaming Regulatory Act, it isour 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 aperson licensed under the Bingo Enabling Act, V.T.C.S. art. 179d, 5 2(17),we must read "licensed

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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 isone 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 ofa legal activity raises questions under the FirstAmendment to theUnited States Constitution. See aenerallv Central Hudson Gas and Elec. Corn. v. Public Serv. Comm'n ofNew York, 447U.S. 557 (1980) (holding that a New York Public Service Commission order banning electric utilities fromadvertising violates the First and Fourteenth Amendments); posadas

> ismCo. of Puerto RiB, 478U.S. 328 (1986) (holding that Puerto Rico's restrictions on the advertising of legal gambling activities
are facially constitutional).

Also, we note inresponse to the third part of your question that a person who holds a commercial lessor's license has no authority topromote oradvertise bingo, even ifthebingo isconducted 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, anonprofit organization (otherthan an organization whose membership ispredominantly 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, oravolunteer firedepartment.

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 actuses the term "authorized organization" only to refer to entities authorized to conduct bingo. A licensed authorized organization may use thepremises ofan 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 notpermit a licensed commercial lessor to advertise orpromote bingo.

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SUMMARY

The state has noauthority to regulate bingo in Indian lands. This office cannot make a factual determination as towhat 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 isone 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

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