October 8, 2015 

Nita Battise, Chairperson 

Alabama-Coushatta Tribe of Texas 

571 State Park Road 56 

Livingston, TX 77351 

RE: Alabama-Coushatta Tribe of Texas Class II Tribal Gaming Ordinance and Resolution No. 

2015-038. 

Dear Chairperson Battise: 

This letter responds to the request by the Alabama-Coushatta Tribe of Texas July 10, 

2015, to the National Indian Gaming Commission to review and approve the Tribe's Class II 

gaming ordinance. The gaming ordinance was adopted by Resolution No. 2015-038 by the 

Alabama-Coushatta Tribal Council. 

Resolution No. 2015-038 adopts the Tribal gaming ordinance, which was created to 

govern and regulate the operation of Class II gaming on the Tribe's Indian lands. Because the 

Tribe's ordinance permits it to conduct gaming on its Tribal Indian lands, 1 

as defined by the 

Y sleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act 

(Restoration Act)2 

an analysis of whether the Tribe's lands are eligible for gaming was 

necessary. 

Analysis 

The Alabama-Coushatta's ordinance permits it to conduct gaming on its Tribal Indian 

lands.

3 It defines Indian Lands, Tribal Lands, or Tribal Indian lands as all lands within the limits 

of the Tribe's Reservation. It additionally defines Tribal Indian lands "as lands acquired by the 

Secretary in trust prior to October 17, 1988, or those lands acquired by the Secretary in trust after 

October 17, 1988, that meet one or more of the exceptions set forth in 25 U.S.C. § 2719. Finally, 

the Tribe defines Reservation as it is defined in the Tribe's Restoration Act. 

As discussed in greater detail below, the Tribal lands or Tribal Indian lands specified in 

the ordinance amendment are Indian lands as defined by IGRA and are eligible for gaming under 

1 Alabama-Coushatta Tribe of Texas II Tribal Gaming Ordinance § 5. 

2 25 U.S.C. §§ 731 et seq. 

' Alabama-Coushatta Tribe of Texas Class II Tribal Gaming Ordinance§ 5. 

NEW MAILING ADDRESS: NIGC/DEPARTMENT OF THE INTERIOR 1849 C Slreet NW, Mail Stop# 1621 Washington, DC 20240 Tel: 202.632.7003 Fax: 202.632.7066 

REGIONAL OFFICES Portland, OR; Sacramento, CA; Phoenix, AZ; St. Paul, MN; Tulsa OK; Oklahoma City, OK 

WWW.NIGC.GOV 
Chairperson Battise 

October 8, 2015 

Page 2of3 

the Act. The Restoration Act, however, provides a general grant of state jurisdiction over the 

Alabama-Coushatta's lands, through Public Law 280, and applies state gaming laws to the 

Tribe's lands, with a qualification. Accordingly, the Restoration Act must be taken into 

consideration as part of this ordinance review. 

Jurisdiction 

Because a similar question regarding the Ysleta del Sur Pueblo's Restoration act arose 

when the Pueblo submitted its ordinance to the NIGC for the Chairman's approval, and the 

Secretary of the Interior administers tribal restoration acts, the NIGC Office of General Counsel 

sought the Department of Interior, Office of the Solicitor's opinion as to whether under the 

Restoration Act the Pueblo can game pursuant to IGRA on its Indian lands; specifically, whether 

the Pueblo possesses sufficient jurisdiction over its Restoration Act lands for IGRA to apply and 

if so, how to interpret the interface between JGRA and the Restoration Act. 4 Because the Tribe 

and Pueblo share the same Restoration Act, with nearly identical language, that same 

jurisdictional analysis applies to the Alabama-Coushatta's portion of the Restoration Act. 

As a preliminary analysis, we must examine the scope of IGRA to determine whether the 

NIGC has jurisdiction over the Tribe's Restoration Act lands or phrased alternatively, whether 

the Tribe's Restoration Act lands are exempt from IGRA's domain. Nothing in the IGRA's 

language or its legislative history indicates that the Tribe is outside the scope ofNIGC's 

jurisdiction. As such, the NIGC has broad jurisdiction over the Tribe's land. 

Next, we must look to the Office of the Solicitor's opinion on the Ysleta del Sur Pueblo. 

On September 10, 2010, the Office of the Solicitor concurred with our conclusion that IGRA 

applies to the Pueblo and further opined the Pueblo possesses sufficient legal jurisdiction over its 

settlement lands for IGRA to apply, that IGRA governs gaming on the Pueblo's reservation, and 

IGRA impliedly repeals the portions of the Restoration Act repugnant to IGRA. 5 Again, because 

the Tribe and Pueblo share the same Restoration Act, with nearly identical language, the Office 

of the Solicitor's analysis applies to the Alabama-Coushatta. Therefore, the only remaining 

questions are whether those lands qualify as Indian lands as defined in IGRA and whether they 

are eligible for gaming. 

Indian Lands 

IGRA permits an Indian Tribe to "engage in, or license and regulate gaming on Indian 

lands with such Tribe's jurisdiction. '

6 It defines Indian lands as all lands with the limits of any 

4 May 29, 2015, Letter to Deputy Solicitor, Indian Affairs Venus Prince from NIGC General Counsel, Eric N. 

Shepard. 

5 September 10, 2015, Letter to NIGC General Counsel, Michael Hoenig, from Deputy Solicitor for Indian Affairs, 

Venus McGhee Prince. (Attachment A.) 6 25 u.s.c. § 2710(b)(l). 
Chairperson Battise 

October 8, 2015 

Page 3of3 

Indian Reservation. 7 In 1987, the Restoration Act established a reservation for the AlabamaCoushatta, 8 comprised of the Tribe's land holdings at that time. 9 Because the Tribe has a 

reservation- established a year before Congress passed IGRA-it has IGRA-defined Indian 

lands. Further, the Tribe identified in its ordinance that it authorizes gaming on its Tribal Indian 

lands - defined as all lands within the limits of its Reservation. The Alabama-Coushatta' s 

ordinance limits where it can operate a class II gaming facility to its Reservation. Accordingly, 

the Restoration Act lands qualify as Indian lands under IGRA. 

Finally, because the Tribe's Restoration Act which created the reservation, pre-dates 

IGRA, an after-acquired land analysis is not necessary.

10 

Conclusion 

In conclusion, because the Tribe possesses sufficient legal jurisdiction over its 

Restoration Act lands, IGRA applies. Further, because the lands qualify as Indian lands under 

IGRA, the lands are eligible for gaming under IGRA. 

Thank you for bringing the amended gaming ordinance to our attention. The ordinance is 

approved, as it is consistent with the requirements of IGRA and NIGC regulations. 

If you have any questions, please contact staff attorney Heather Corson at (202) 632-

7003. 

Sincerely 

onodev 0. Chaudhuri 

Enclosure 

cc: Fred Petti 

Petti and Briones (via email, only: fpetti@pettibriones.com) 

7 25 U.S.C. § 2703(4)(A); 25 C.F.R. § 502.12(a): "Indian lands means: (a) Land within the limits of an Indian 

reservation." 

8 25 U.S.C. § 736(a) 9 25 u.s.c. § 731(3). 10 See generally 25 U.S.C. § 2719. 
United States Department of the Interior 

OFFICE OF THE SOLICITOR 

Washington. D.C. 20240 

I'.\ Ul:l'I.\ lll'l'Ell n>: 

Michael Hoenig, General Counsel 

National Indian Gaming Commission 

90 K Street NE, Suite 200 

Washington, DC 20002 

SEP 1 0 2015 

Re: Y sleta de! Sur Pueblo Restoration Act 

Dear Mr. Hoenig: 

This letter responds to the National Indian Gaming Commission ( 'NIGC ')Office of General 

Counsel's letter dated May 29, 2015, 1 

requesting our opinion regarding whether, in light of the 

Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act 

("Restoration Act" or "Act"),2 and the Indian Gaming Regulatory Act ("IGRA"),3 the Ysleta del 

Sur Pueblo ("Tribe" or "Pueblo") can game pursuant to the IGRA on the Tribe's reservation and 

tribal lands. 

Applying the Department's expertise in the field oflndian affairs,4 this Office concludes that the 

Restoration Act did not divest the Tribe of jurisdiction over its reservation and tribal lands and, 

therefore, that the IGRA applies to such lands. In addition, we conclude that the IGRA impliedly 

repealed Section 107 of the Restoration Act, which concerns gaming. 

I. BACKGROUND 

In order to answer your question, we must interpret those provisions of the Restoration Act that 

concern jurisdiction, includingjurisdiction over gaming. The Restoration Act was enacted in the 

midst of a sea change in gaming Jaw; consequently, our analysis also considers the evolution of 

the Act's gaming provisions, the evolution of gaming law in the State of Texas ("Texas" or 

"State") between 1987 and 1991, and the enactment approximately one year after the Restoration 

Act of the IGRA. Finally, we evaluate the Tribe's current request in light of the long-running 

litigation between the State and the Tribe over the Tribe's attempts to game within the bounds of 

the Restoration Act. 

1 Letter from Eric Shepard, General Counsel, Nat' I Indian Gaming Comm 'n, to Venus Prince, Deputy Solicitor -

Indian Affairs (May 29, 2015) [hereinafter "2015 NIGC Letter"]. 

2 Pub. L. No. I 00-89, 10 I Stat. 666 (1987) (codified at 25 U.S.C. §§ 731 et seq. (Alabama and Coushatta Indian 

Tribes of Texas), §§ 1300g et seq. (Ysleta del Sur Pueblo)). Title I of the Restoration Act addresses the Pueblo; 

Title II of the Restoration Act restores the Federal trust relationship with the Alabama and Coushatta Indian Tribes 

ofTexas. Id 3 lndien Gaming Regulatory Act, Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701-2721). 

4 See, e.g., Cherokee Nation v. United States, 73 Fed. Cl. 467, 479 n.7 (2006) (observing that "the Secretary [of the 

Interior] certainly has vast expertise in interpreting Indian statutes"). 

Attachment A 
A. History of the Ysleta del Sur Pueblo 

The Pueblo ofYsleta del Sur was established in 1680 following the Pueblo Indian revolt against 

the Spanish.5 When the Spanish retreated from Santa Fe, New Mexico, to El Paso, Texas, they 

forced a large number of Tiwa Indians from Y sleta Pueblo to accompany them. 6 The Indians 

established a new Pueblo in Texas called Y sleta del Sur and, in 1682, built a church for their 

community.7 In 1751, Spain granted to the inhabitants of the Ysleta del Sur Pueblo land 

measuring one league in all directions from the church doors.8 However, in 1871, the Texas 

Legislature enacted a statute incorporating the Town of Ysleta in El Paso County, and 

subsequent actions by the town resulted in nearly all of the 23,000 acres of the Spanish land 

grant being patented to non-lndians.9 

From 1870 through the 1960s, the Tribe "continued to reside in the area and maintain their ethnic 

identification as well as their basic political system . . . . Also during this time there is a record 

of increasing interactions between the [Tribe] and both the U.S. Government and the State of 

Texas."10 In 1968, Congress passed An Act Relating to the Tiwa Indians of Texas,1 1 wherein 

Congress transferred all Federal trust responsibility for the Pueblo to the State ofTexas. 12 

B. The Restoration Act 

In the 1980s, the State of Texas concluded that its trust relationship with the Tribe constituted a 

violation of the Texas Constitution and determined that the State could not continue to provide 

trust services to the Tribe. 13 In light of this determination, Congress acted to restore the Federal 

trust relationship with the Tribe and passed the Restoration Act in 1987. 14 Through the 

Restoration Act, Congress provided that the Tiwa Indians of Y sleta, Texas, would thereafter "be 

known and designated as the Ysleta del Sur Pueblo,"15 and "restored" "(t]he Federal trust 

relationship between the United States and the tribe."16 In addition, the Restoration Act 

designated as "a Federal Indian reservation" those lands within El Paso and Hudspeth Counties 

in Texas that were held by the Tribe on the date of the Act's enactment, held in trust by the State 

or by the Texas Indian Commission for the benefit of the Tribe, or held in trust by the Secretary 

for the benefit of the Tribe, as well as subsequently acquired lands acquired and held in trust by 

'S. Rep. No. 100-90, at 6 (1987) (hereinafter, "1987 Senate Report"). 

6 Jd 

7 131 CONG. REc. Hl2012 (daily ed. Dec. 16, 1985)(statement of Rep. Coleman). 

8 1987 Senate Report, supra note 5, at 6. 9 Id at 7. 

10 131 CONG. REC. H 12012 (statement of Rep. Coleman). 11 Pub. L. No. 90-287, 82 Stat. 93 ( 1968), repealed by Restoration Act, supra note 2, § I 06. 

12 /d 

13 1987 Senate Report, supra note 5, at 7. 

14 Restoration Act, supra note 2. 

15 Id at§ 102 (codified at 25 U.S.C. § 1300g-I). 

16 Id at§ 103(a) (codified at 25 U.S.C. § 1300g-2(a)). 

2 

Attachment A 
the Secretary for the benefit of the Tribe, 17 and mandated that the Secretary take certain lands 

into trust for the benefit of the Tribe. 18 Furthermore, at Section 105(f) the Act incorporates 

Public Law 280, 19 as amended by the Indian Civil Rights Act, 20 by providing that the State has 

civil and criminal jurisdiction on the Tribe's reservation "as if such State had assumed such 

jurisdiction with the consent of the tribe under" 25 U.S.C. §§ 1321-1322.21 

The original version of the Restoration Act, introduced in February 1985, contained no specific 

references to gaming.22 However, the time between the bill's introduction and its final passage 

in 1987 was a period of great uncertainty surrounding Indian gaming. 23 The Act was amended 

multiple times to address gaming. 24 

17 Id at§ IOS(a) (codified at 25 U.S.C. § l300g-4(a)) (establishing a Federal Indian reservation); at§ 101(3) 

(codified at 25 U.S.C. § 1300g(3)) (defining "reservation"). 18 Id. at§ IOS(b)(l) (codified at 25 U.S.C. § 1300g-4(b)) (requiring that the Secretary (1) accept any offer by the 

State to convey to the United States land within the Tribe's reservation held in trust, and (2) hold such land in trust 

for the benefit of the Tribe). 

19 Pub. L. 83-280, 67 Stat. 588 (1953) 

20 Pub. L. 90-284, 82 Stat 77 (1968). 

21 Restoration Act, supra note 2, § IOS(f) (codified at 25 U.S.C. § 1300g-4(f)). 

22 H.R. 1344, 99th Cong. (1985). 

23 In February 25, 1986, the Ninth U.S. Circuit Court of Appeals held that the State of California and Riverside 

County could not enforce their gaming laws on the reservations of the Cabazon and Morongo Bands of Mission 

Indians. Cabazon Band of Mission Indians v. County of Riverside, 183 F.2d 900 ( 1986). One year later, the U.S. 

Supreme Court affirmed. California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) [hereinafter, 

"Cabazon"]. The Fifth Circuit subsequently observed that the Cabazon decision "led to an explosion in unregulated 

gaming on Indian reservations located in states that, like California, did not prohibit gaming." Ysleta de/ Sur Pueblo 

v. Texas, 36 F.3d 1325, 1330 (5th Cir. 1994) [hereinafter "Ysleta de/ Sur"]; accord Wisconsin v. Ho-Chunk Nation, 

784 F.3d 1076, !080 (7th Cir. 2015) ("The Court's decision in Cabazon led to a flood of activity, and states and 

tribes clamored for Congress to bring some order to tribal gaming."). 

24 Following a committee hearing on October 1985, the House passed an amended version of the bill that would 

have allowed the Tribe to enact a gaming ordinance, but only ifthat ordinance mirrored the laws of Texas. H. Rep. 

No. 99-440, at 2-3 (1985)(amendments to H.R. 1344); 131 CONG. REC. Hl2012 (daily ed. Dec. 16, 1985)(text of 

H.R. 1344 as passed by the House). Nonetheless, "various state officials and members of Texas' congressional 

delegation were still concerned that H.R. 1344 did not provide adequate protection against high stakes gaming 

operations on the Tribe's reservation." Ysleta de/ Sur, 36 F.3d at 1327. As a result, the Tribe enacted Resolution 

No. TC-02-86, which acknowledged the controversy over gaming and asked, in part, that the bill be amended to 

prohibit "all gaming, gambling, lottery, or bingo, as defined by the laws and administrative regulations of the State 

of Texas, ... on the Tribe's reservation or tribal land." Ysleta del Sur Pueblo Resolution No. TC-02-86, reprinted 

in Ysleta de/ Sur, 36 F.3d at 1328 n.2. 

In accordance with the Tribe's request, the bill was amended again to prohibit "[a]ll gaming, gambling, lottery or 

bingo as defined by the laws and administrative regulations of the State of Texas ... on the tribe's reservation and 

on tribal lands." 131 CONG. REC. 813635 (daily ed. Sept. 24, 1986) (text ofH.R. 1344, § 107(a) as passed by the 

Senate). That version passed the Senate. Id. However, the very next day, before it could be reconciled with the 

House version, the Senate vitiated its passage of the bill, effectively killing any restoration of the Ysleta del Sur 

Pueblo an.d the Alabama and Coushatta Tribes in the 99lh Congress. 131 CONG. REC. S13735 (daily ed. Sept. 25, 

1986). 

A new version of the bill was introduced in January 1987, and subsequently was passed by the House; it, like the 

earlier Senate bill, would have expressly prohibited all gaming on the Tribe's reservation and tribal lands. 133 

CONG. REC. H13735 (daily ed. Apr. 21, 1987). Later that year, the bill was amended again by the Senate, which 

deleted the express prohibition against gaming. 1987 Senate Report, supra note 5, at 3 (text ofH.R. 318, § 107(a) as 

amended by the Senate). The Senate's version of H.R. 318 ultimately was enacted, with the gaming provisions 

contained in Section I 07. See Restoration Act, supra note 2, § I 07. 

3 

Attachment A 
When the Restoration Act was enacted in 1987, Texas law generally prohibited gaming, with the 

exception of charitable bingo on a local-option basis.25 In the Restoration Act, the first sentence 

of Section 107(a) makes the State's substantive gaming laws applicable on the Tribe's lands. 

Similarly, the second sentence extends to the Tribe's lands the penalties provided in State law for 

engaging in prohibited gaming. The final sentence explains, at least in part, why Congress 

included gaming provisions in the Act. Thus, through Section 107(a), Congress provided for a 

limited application of State gaming law on the Tribe's lands: 

SEC. 107. GAMING ACTIVITIES 

(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 No. T.C.-02-

86 which was approved and certified on March 12, 1986.26 

Despite the application of Texas law, however, Section 107(b) expressly states that"[n]othing in 

this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of 

Texas. "

27 In other words, the Tribe retained civil and criminal regulatory jurisdiction over its 

reservation and tribal lands, except to the extent expressly divested by the following subsection 

of the Act. 

Finally, although another section of the Restoration Act generally ~ranted the State "civil and 

criminal jurisdiction within the boundaries of the reservation," 2 Section 107(c) expressly 

provides that federal courts, not state courts, are the forum in which the State may seek to 

enforce alleged violations of Section 107(a): 

(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. 29 

25 Tex. Const. art. 3, § 47(b)-(c) (as amended 1980). The Texas Constitution provided that "[t]e Legislature shall 

pass laws prohibiting the establishment of lotteries and gift enterprises in the State, as well as the sale of tickets in 

lotteries, gift enterprises, or other evasions involving the lottery principle, established or existing in other States." 

ld_at art. 3, § 47(a). In addition, wagering on dog and horse racing in Texas had been illegal since 1937. Texas 

Legislative Council, Info. Rep. No. 87-2: Analysis of Proposed Constitutional Amendments and Referenda 

Appearing on the November 3, I 987, Ballot, at 75 (Sept. 1987). 

26 Restoration Act, supra note 2, at§ l07(a) (codified at 25 U.S.C. § 1300g-6(a)). 

27 Id at§ 107(b) (codified at 25 U.S.C. § 1300g-6(b)). 

28 Id. at § 105(t) (codified at 25 U.S.C. § I 300g-4(t)) (granting Texas civil and criminal jurisdiction equivalent to 

that granted by Public Law 83-280, 67 Stat. 588 (1953), as amended by the Indian Civil Rights Act, Pub. L. 90-284, 

82 Stat 77 (1968). 29 Id at§ 107(c) (codified at 25 U.S.C. § 1300g-6(c)). 

4 

Attachment A 
C. Gaming in Texas 

Almost immediately after the Restoration Act was enacted, Texas began to open itself up to 

gaming. On November 3, 1987-less than three months after the Restoration Act was enactedthe people of Texas by referendwn ratified the Legislature's enactment of the Texas Racing Act, 

allowing for pari-mutuel dog and horse racing. 30 Two years later, the Texas Constitution was 

amended to allow for "charitable raffles. "31 A more momentous change occurred in 1991, when 

the Texas Constitution was amended to permit certain lotteries.32 Texas now offers a variety of 

lottery games, including national PowerbaJI and MegaMillions. 33 Thus, while charitable bingo 

was the only gaming permitted in Texas at the time the Restoration Act was enacted, a little more 

than four years later the State had dramatically expanded gaming to include raffles, pari-mutuel 

racing, and a state lottery. In Fiscal Year 2014, Texas Lottery sales totaled almost $4.4 billion, 

returning more than $1.2 billion to the State's coffers.34 In addition, races at Texas racetracks 

generated more than $438 million in wagers during calendar year 2014.35 

D. The Indian Gaming Regulatory Act 

The expansion of State-sanctioned gaming in Texas was not the only change to the legal 

landscape in the years immediately following enactment of the Restoration Act. On October 19, 

1988, a little more than one year after it enacted the Restoration Act, Congress enacted the 

IGRA. Among the IGRA's stated purposes were to establish a new nationwide regulatory 

framework for tribal gaming on Indian lands within a tribe's jurisdiction,36 and to promote "tribal 

economic development, self-sufficiency, and strong tribal govemments."37 

30 The Texas Racing Act ("Racing Act") was enacted by the Texas Legislature in 1986. Id However, the Racing 

Act provided that wagering could be conducted pursuant to its provisions only after it was ratified by the State's 

voters. Id On November 3, 1987, the voters in Texas approved the Racing Act by a wide margin. Bill Christine, 

Texas Voters Finally End a 50-year Ban Against Betting on Horse Races, L.A. TIMES, Nov. 5, 1987, available at 

http://articles.latimes.com/1987-11-05/sports/sp-18911 _I_ horse-racing-notes (last visited July 9, 2015). 

31 Tex. Const. art. 3, § 47(d) (as amended 1989). 32 Tex. Const. art. 3, § 47(3) (as amended 1991). 

33 See Texas Lottery, Play the Games of Texas, http://www.txlottery.org/export/sites/lottery/Oames/index.html (last 

viewed July 9, 2015). 

34 Texas Lottery Commission, Summary of Financial Information (undated; audited through FY2014, unaudited 

through March 2015), available at http://www.txlottery.org/export/sites/lottery/Documents/financial/MonthlyTransfer-Document.pdf (last visited July 9, 2015). 

3

' Texas Racing Commission, Texas Pari-Mutuel Racetracks Wagering Statistics Comparison Report on Total 

Wagers Placed in Texas & on Texas Races For the Period: 01101113- 12131/13 to 01101114- 12131114 at I 

(undated), available at http://www.txrc.texas.gov/agency/data/wagerstats/prevYr/20141231.pdf (last visited July 9, 

2015). 

36 See 25 U.S.C. §§ 2701-2702 (Congress's findings and declaration of policy),§ 2710 (governing tribal gaming 

ordinances); S. Rep. No. 100-446, at 6 ( 1988) [hereinafter" 1988 Senate IGRA Report"] (IGRA "is intended to 

expressly preempt the field in the governance of gaming activities on Indian lands"); see also Wells Fargo Bank v. 

Lake of the Torches, 658 F.3d 684, 687 (7th Cir. 2011) (finding that among the IGRA's "stated goals was "to create 

a comprehensive regulatory framework 'for the operation of gaming by Indian tribes"' (quoting 25 U.S.C. § 

2702(1)). Cf Rhode lslandv. Narragansett Indian Tribe, 19 F.3d 685, 689 (1st Cir. 1994) [hereinafter 

"Narragansett'] ("The Gaming Act is an expression of Congress's will in respect to the incidence of gambling 

activities on Indian lands.") 37 25 u.s.c. § 2702(1). 

s 

Attachment A 
The vast majority of tribal gaming in the United States is governed under the IGRA's 

framework, which has proven to be enormously successful. The IGRA helped spur dramatic 

growth in Indian gaming, from annual revenues of approximately $100 million in 1988 to 

approximately $28.5 billion in 2014.38 Recent scholarship demonstrates that, as Congress 

intended, Indian gaming has helped strengthen tribal economies, increase household income for 

reservation Indians, and reduce reservation poverty and unemployment rates. 39 

E. Gaming by the Y sleta del Sur Pueblo and Resulting Litigation 

Just as the public policy of the State of Texas with regard to gaming evolved in the years after 

the Restoration Act was enacted, so, too, did the public policy of Tribe. However, the Tribe's 

efforts to pursue gaming within the confines of the law have been thwarted at every tum by the 

State of Texas. 

1. Litigation over the Application of the IGRA 

On May 6, 1992, after Texas dramatically expanded the scope of gaming under State law, and 

after Congress ena9te<l the IGRA to provide a comprehensive regulatory scheme for tribal 

gaming, the Tribe adopted a bingo ordinance.40 The Tribe submitted Tribal Bingo Ordinance 

00492 to the NIGC for approval, and on October 19, 1993, the ordinance was approved by the 

Chairman of the NIGC.4 In February 1992, the Tribe petitioned the Governor of Texas, 

pursuant to the IGRA, to begin negotiations to enter a class III gaming compact.42 The 

Governor, however, refused on the grounds that the State's law and public policy prohibited her 

from negotiating such a compact.43 As a result, the Tribe sued to compel the State under the 

provision of the IGRA that allowed the Federal courts to order a state to the negotiating table.44 

The U.S. Court of Appeals for the Fifth Circuit held that the Restoration Act did not give the 

Tribe authority to bring such a suit and that the IGRA did not apply.45 

38 Compare 1988 Senate IGRA Report, supra note 36, at 22 (Indian gaming "generate[s] more than $100 million in 

annual revenues to tribes"), with Nat'I Indian Gaming Comm 'n, Gaming Revenue Reports, available at 

http://www.nigc.gov/Gaming_Revenue_Reports.aspx (last visited Aug. 21, 2015) {Indian gaming revenue $28.5 

billion in Fiscal Year 2014). 

39 Randall K.Q. Akee et al., The Indian Gaming Regulatory Act and Its Effects on American Indian Economic 

Development, 29 J. ECON. PERSPECTIVES 185, 185-87, 196-99 (2015). In addition, the growth of Indian gaming in 

the wake of the IGRA has also proved to be a boon to local and state governments. Id. at 199-203. 

40 Ysleta del Sur Tribal Bingo Ordinance No. 00492 (as amended on Oct. 16, 1992; April 15, 1993; July 22, 1993; 

and Oct. 5, 1993), available at 

http://www.nigc.gov/Portals/O/NIGC%20Uploads/readingroom/gamingordinances/ysletadelsurpueblotrbe/ordapprl0 

1993.pdf. 

41 Letter from Anthony J. Hope, Chainnan, NIGC, to Tom Diamond, counsel to the Ysleta del Sur Pueblo (Oct. 19, 

1993). 

42 Ysleta de/ Sur, 36 F.3d at 1331. 43 Id. 

44 25 U.S.C. § 2710(d)(7)(B)(iii), abrogated by Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). 

45 Ysleta de/ Sur, 36 F.3d 1325. The Fifth Circuit's opinion in Ysleta de/ Sur, which was filed approximately seven 

months after the First Circuit filed its opinion in Narragansett, is discussed in greater depth in Part II, infra. 

6 

Attachment A 
The question before the Fifth Circuit was whether the IGRA permitted the Tribe to sue the State 

for refusing to negotiate a Class III gaming compact.46 The Fifth Circuit held that the 

Restoration Act, and not the IGRA, governed the dispute and, finding nothing in the Restoration 

Act that waived the State's Eleventh Amendment immunity, the court reversed and remanded 

with instructions to dismiss the Tribe's suit.47 

First, after a lengthy review of the Restoration Act's legislative history and the Cabazon 

decision,48 the Fifth Circuit held that "Congress -- and the Tribe -- intended for Texas' gaminj 

laws and regulations to operate as surrogate federal law on the Tribe's reservation in Texas.' 

Next, after finding that the Restoration Act "establishes a procedure for enforcement of§ 107(a) 

which is fundamentally at odds with the concepts oflGRA," the Fifth Circuit held that the IGRA 

did not effect a partial repeal of the Restoration Act. so The court observed that the IGRA did not 

expressly repeal conflicting sections of the Restoration Act, and that "[t]he Supreme Court has 

indicated that 'repeals by implication are not favored."' 51 The court then observed that implied 

repeals are especially disfavored when it is suggested that a general statute has impliedly 

repealed a specific statute, 52 and opined that, with regard to gaming, the Restoration Act is a 

specific statute applying to two specific tribes in a particular state, while the IGRA is a general 

statute.53 The court further asserted that two provisions of the IGRA that reference existing 

federal law demonstrate that that the IGRA was not intended to trump statutes such as the 

Restoration Act.54 Finally, the court noted that Congress in 1993 expressly exempted the 

Catawba Tribe oflndians ("Catawba") in South Carolina from the IGRA, thereby "evidencing in 

our view a clear intension on Congress1 part that IGRA is not to be the one and only statute 

addressing the subject of gaming on Indian lands."ss Having concluded that the IGRA does not 

effect an implied repeal of contrary provisions of the Restoration Act, the Fifth Circuit wrote: 

"To borrow IGRA terminology, the Tribe has already made its 'compact' with the state of Texas, 

and the Restoration Act embodies that compact. "

56 The court suggested the only way for the 

Tribe to game under IGRA would be to petition Congress to amend or repeal the Restoration 

Act.s1 

46 Ysleta del Sur, 36 F.3d at 1327. 

47 Id at 1327, 1335-36. 

48 Id at 1327-31. 

49 Id at 1334 (emphasis added). 

so Id at 1334-35. 

si Id at 1335 (quoting Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 442 (1987)). 

s

2 Id (citing Crawford Fitting, 482 U.S. at 445). 

SJ Id 

54 Id. (citing 25 U.S.C. § 2701(5) (''the Congress finds that ... Indian tribes have the exclusive right to regulate 

gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law"); id § 

2710(b)(l)(A) (tribes may engage in Class II gaming if, inter alia, "such gaming is not otherwise specifically 

prohibited on Indian lands by Federal law"). 

SS Id. 

56 Id Having concluded that the IGRA did not apply, and that the Restoration Act contained no language abrogating 

the State's Eleventh Amendment immunity from suit, the Fifth Circuit held that the Eleventh Amendment barred the 

Tribe's suit and remanded to the district court with instructions to dismiss. Id at 1335-36. 

s

7 Id. at 1335. 

7 

Attachment A 
2. Litigation under the Restoration Act 

Meanwhile, the Tribe opened the Sf eaking Rock Casino and Entertainment Center ("Speaking 

Rock") on its reservation in 1993.5 Speaking Rock began as a bingo hall, but evolved into "a 

full-scale casino offering a wide variety of gambling activities played with cards, dice, and 

balls."59 In 1999, after Speaking Rock had been open and oferating for approximately six years, 

the State sued under Section 107(c) of the Restoration Act.6 On September 21, 2001, the district 

court issued an injunction that "had the practical and legal effect of prohibiting illegal as well as 

legal gaming activities by the [Tribe]."6 After an unsuccessful appeal, the Tribe in February 

2002 ceased operating those gaming activities prohibited by the injunction. 62 In May 2002, at 

the request of the Tribe, the district court modified its injunction to allow the Tribe to offer 

certain specified sweepstakes promotions, but denied the Tribe's request to offer its own 

sweepstakes. 63 The following year, the Tribe requested pennission to offer a sweepstakes 

promotion selling prepaid phone cards that provided patrons access to "sweepstakes validation 

tenninal[s]"; that request, too, was denied by the district court.64 

In 2008, upon discovering that the Tribe was operating devices at Speaking Rock that 

"resembled traditional eight-Jiner gambling devices and were operated by a card purchased with 

cash," the State accused the Tribe of violating the injunction and made a motion that the Tribe be 

held contempt of court. 65 The Tribe sought further clarification of the injunction and a 

declaration that its "Texas Reel Skill" sweepstakes game did not violate the injunction.66 In 

August 2009, the district court granted the State's motion, issued a contempt order, and refused 

to declare that the Tribe's "Texas Reel Skill" game was legal.67 A week later, the Tribe sought 

permission to operate yet another sweepstakes game, which the district court denied in October 

2010.68 The Tribe, however, did not cease operation of its sweepstakes games, and by 2012 it 

had opened a second sweepstakes operation at the Socorro Entertainment Center ("Socorro"). 69 

The State made another motion that the Tribe be held in contempt of court in September 2013, 

and amended that motion multiple times before withdrawing it in favor of a renewed motion for 

contempt made on March 17, 2014.70 After holding a two-day evidentiary hearing and accepting 

more than a 1.5 million pages of documents into evidence, 71 the district court on March 6, 2015, 

'

8 State v. Ysleta de/ Sur Pueblo, No. EP-99-CV-320-KC, 2015 U.S. Dist. LEXIS 28026, at *6 (W.D. Tex. Mar. 6, 

20 I 5) (hereinafter, "State v. Ysleta de/ Sur Pueblo"). 

'

9 Id. 60 Id at 3. 61 Id at *6-7 (internal quotation and citation omitted; alteration in original). 

62 Id at *8. 63 Id at •9-IO. 

64 Id at *11. 6

' Id at *11-12. 66 Id. at *12-13. 67 Id. at *12-14. 

68 Id. at *14-15. 69 Id at *15. 

70 Id at *15-16. 

71 Id at *16-17. 

8 

Attachment A 
held the Tribe in contempt and ordered that it cease all sweepstakes operations within sixty days 

or face civil penalties of $100,000 per day, unless the Tribe submitted "a firm and detailed 

proposal setting out a sweepstakes promotion that operates in accordance with federal and Texas 

law/' the submission of which would result in a stay of the contempt sanctions while the court 

considered the Tribe's proposal and the State's response. 72 On May 5, 2015, the Tribe submitted 

its proposal,73 which the State has opposed.74 

F. The Tribe's Amended Gaming Ordinance and the NIGC Request 

On August 17, 2015, the Tribe resubmitted75 to the NIGC an amendment to its gaming 

ordinance.76 The NIGC has asked the Solicitor's Office for clarification as to the Tribe's 

"eligibility to engage in Class II gaming under the [IGRA] in light of the [Restoration Act] and 

the Fifth Circuit Court of Appeal's interpretation of it in Ysleta de/ Sur Pueblo v. State of 

Texas."11 

II. ANALYSIS 

Congress has not spoken directly to the issue of whether the Restoration Act or the IGRA 

governs gaming on the Tribe's reservation and tribal lands. The Restoration Act neither 

expressly anticipates and provides for the possibility that subsequent legislation might render 

certain sections of it obsolete, nor does it expressly insulate its provisions from subsequently 

enacted contrary legislation. Likewise, the IGRA does not make any direct or indirect references 

to the Restoration Act, the Tribe, or the State. As explained in greater detail throughout our 

analysis, we recognize that the Fifth Circuit in Ysleta de/ Sur held that the Restoration Act, and 

not the IGRA, governs gaming on the Tribe's lands.78 However, the Department was not a party 

to the Ysleta litigation and is not bound by the Fifth Circuit's interpretation of the Restoration 

Act.'9 . 

72 Id at *118-20. 73 State v. Ysleta de/ Sur Pueblo, ECF Docket No. 513 (May 5, 2015). 

74 State v. Ysleta de/ Sur Pueblo, ECF Docket No. 514 (June 5, 2015). 

"The Pueblo previously submitted this amendment to the NIGC Chairman on March 21, 2014; June 6, 2014; 

August 29, 2014; November 24, 2014; February 24, 2015; and May 19, 2015. 2015 NIGC Letter, supra note 1, at I. 

76 Letter from Randolph H. Barnhouse, Counsel for Ysleta del Sur, to Jonodev Osceola Chaudhuri, Chairman, NIGC 

(Aug. 17, 2015). 

77 2015 NIGC Letter, supra note I, at I (footnotes omitted). 

78 See generally Ysleta del Sur, 36 F.3d 1325 (5th Cir. 1994). 

79 An agency charged with implementing a statute may "choose a different construction" of the statute than that 

embraced by a circuit court, "since the agency remains the authoritative interpreter (within the limits of reason) of 

such statutes. Nat'/ Cable & Telecomms. Ass 'n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005). With regard 

to the Restoration Act, the Department is the executive agency charged with administering the statute. Restoration 

Act, supra note 2, § 2 ("The Secretary of the Interior or his designated representative may promulgate such 

regulations as may be necessary to carry out the provisions of this Act."); cf. Passamaquoddy Tribe v. Maine, 15 

F.3d 784, 794 (1996) (holding that administration ofa tribe's settlement act is a "role that belongs to the Secretary 

of the Interior''). See also Northern Arapahoe Tribe v. Hodel, 808 F.2d 74 l, 749 (10th Cir. I 987)("Congress has 

delegated to the Secretary [of the lnterior] broad authority to manage Indian affairs" (citing 25 U.S.C. § 2)). 

Therefore, the Department may choose a different interpretation of the Restoration Act than the interpretation 

chosen by the Fifth Circuit. Here, the Department does so. 

9 

Attachment A 
In interpreting a statute that we are charged with administering, we seek to effect the intent of the 

Congress that enacted the statute. 80 Agency interpretation of a statute follows the same two-step 

analysis that courts follow when reviewing an agency's statutory interpretation. At the first step, 

the agency must answer "whether Congress has spoken directly to the precise question at issue" 

and, if the statute is clear, then the agency must give effect to "the unambiguously expressed 

intent of Congress."81 If, however, the statute is "silent or ambiguous," as are both the 

Restoration Act and the IGRA, then the agency must base its interpretation on a "reasonable 

construction'' of the statute. 82 

When confronted with a statute that was enacted for the benefit of Indians, as were both the 

Restoration Act and the IGRA, if that statute contains ambiguities we are guided by an additional 

principle:: "statutes passed for the benefit of ... Indian tribes ... are to be liberally construed, 

doubtful expressions being resolved in favor of the Indians."83 

Employing both the standard rules of statutory construction and the Indian canon, and applying 

the Department's expertise in the field oflndian affairs,84 the Department interprets the IGRA as 

impliedly repealing the gaming provisions of the Restoration Act. Therefore, we conclude that 

the IGRA, and not the Restoration Acl, governs iWiling on the Tri~'s reservation and tribal 

lands. 

Our interpretation contains four distinct subparts. First, having analyzed both the text and the 

legislative history of the IGRA, employing both the standard rules of statutory construction and 

the Indian canon, we concur in your conclusion85 that Congress intended for the IGRA to apply 

to the Tribe. Second, we conclude that the Tribe possesses jurisdiction over its reservation and 

tribal lands sufficient to trigger the operation of the IGRA and, therefore, that the IGRA governs 

gaming on the Tribe's reservation and tribal lands. Third, we conclude that Section 107 of the 

Restoration Act is repugnant to the IGRA and, therefore, that the statutes cannot be hannonized. 

Finally, we conclude that in this conflict the IGRA prevails and effects an implied repeal of 

Section 107 of the Restoration Act. 

A. Both the text of the IGRA and its legislative history demonstrated that Congress 

intended for the IGRA to apply to the Tribe. 

The IGRA "is an expression of Congress's wilJ in respect to the incidence of gambling activities 

on Indian lands."86 Among the IGRA's "stated goals [was] to create a comprehensive regulatory 

framework 'for the operation of gaming by Indian tribes as a means of promoting tribal 

80 Wyoming v. United States, 279 F.3d 1214, 1230 (10th Cir. 2002) ("The question whether federal law authorize[s] 

certain federal agency action is one of congressional intent."). 81 Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984). 

82 /d at 840. 83 Bryan v. Itasca County, 426 U.S. 373, 392 (1976). 

84 Cherokee Nation v. United States, 73 Fed. Cl. at 497 n.7 (2006) (observing that "the Secretary [of the Interior] 

certainly has vast expertise in interpreting Indian statutes"). 

as See 2015 NIGC Letter, supra note I, at 2. Although we have not seen your analysis, we reach the same 

conclusion and, therefore, concur. 86 Narragansett, 19 F.3d at689. 

10 

Attachment A 
economic development, self-sufficiency, and strong tribal governments. "'87 The text oflGRA, 

itself, contains no express exemption for the Tribe, or for any other tribe; rather, the IGRA is 

written broadly to encompass all federally recognized Indian tribes.88 Thus, "(b]y its own terms, 

the [IGRA], if taken in isolation, applies to any federally recognized Indian tribe that possesses 

powers of self-governance. "

89 Therefore, given I ORA' s broad purposes, and the fact that 

nothing in the plain language of IGRA expressly excludes the Tribe, we conclude that, on its 

face, IGRA applies to the Tribe. 

The Fifth Circuit, however, pointed to two sections of the IGRA that make reference to "other 

federal law," and that it believed demonstrated Congress's intent that the IGRA not supersede 

the gaming provisions of the Restoration Act and similar statutes. Noting that the IGRA was 

enacted scarcely a year after the Restoration Act, the court wrote that Congress "explicitly stated 

in two separate provisions of the IGRA that IGRA should be considered in light of other federal 

law,"90 the Fifth Circuit interpreted these two sections as providing that the IGRA does not apply 

where Congress had previously spoken to gaming, as it had in the Restoration Act91 

We interpret these provisions differently than the Fifth Circuit. The Senate Report on the IGRA 

~xplains that this lan_r,age instead "refers to gaming that utili~es m~ch~c~l devices .as defi.ned 

m 15 U.S.C. 1175."9 In other words, the language that the Fifth Cucu1t rehed upon m findmg 

that the text of the IGRA expressly exempted tribes for whom prior Federal law addressed 

gaming was, instead, intended to make clear that the IGRA did not legalize certain games that 

were already illegal as a matter of Federal law. 

The legislative history of the IGRA contains no specific evidence that Congress sought to 

exclude the Tribe from the IGRA's ambit. The 1988 Senate IGRA Report contains no specific 

17 Wells Fargo Bank, 658 F.3d at 687 (quoting 25 U.S.C. § 2702(1)). 

81 25 U.S.C. § 2703(5) ("The tenn 'Indian tribe' means any Indian tribe, band, nation, or other organized group or 

community of Indians which - (A) is recognized as eligible by the Secretary for the special programs and services 

provided by the United States to Indians because of their status as Indians, and (8) is recognized as possessing 

powers of self-government.") 89 Passamaquoddy, 15 F.3d at 788 (citing 25 U.S.C. § 2703(5)). 

90 Ysleta del Sur, 36 F.3d at 1335 (citing 25 U.S.C. § 2701(5) ("The Congress finds that-(5) Indian tribes have the 

exclusive right to regulate gaming activity on Indian lands if the gaming 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" (emphasis added)); and 25 U.S.C. § 270l(b)(l)(A) ("An Indian tribe may engage in, or license and 

regulate, class II gaming on Indian lands within such tribe's jurisdiction, if - (A) such Indian gaming is located 

within a State that pennits such gaming for any purpose by any person, organization or entity (and such gaming is 

not otherwise specifically prohibited on Indian lands by Federal law)" (parenthetical in original, emphasis added))). 

91 Id 

92 1988 Senate IGRA Report, supra note 36, at 12. The 1988 Senate IGRA Report also explains that the IGRA was 

not intended to "supersede any specific restriction or specific grant of Federal authority or jurisdiction to a State 

which may be encompassed in another Federal statute, including the Rhode Island Claims Settlement Act and the 

[Maine] Indian Claim Settlement Act (citations omitted). Id. This language does not change our analysis. The 

Restoration Act expressly provides that it is not a grant of Federal authority or jurisdiction with regard to gaming, 

but is instead merely an extension of the State's substantive gaming law with a specified federal court remedy. 

Restoration Act, supra note 2, at§ 107(a) (applying State's substantive gaming law),§ 107(b) (no grant of 

jurisdiction to the State},§ 107(c) (remedy in federal court). 

11 

Attachment A 
references to the Tribe, the State of Texas, or the Restoration Act.93 That Report does explain 

that Congress did not intend for the IGRA to "supersede any specific restriction or grant of 

Federal authority or jurisdiction to a State which may be encompassed in another Federal 

statute," citing as a specific example the Maine Indian Claims Settlement Act.94 However, the 

Restoration Act contains no "specific restriction ... of Federal authority," and although Section 

105(f) provides for a general grant of jurisdiction to the State, Section I 07( c) srecifically states 

that that grant of jurisdiction does not give the State jurisdiction over gaming.9 

The Fifth Circuit concluded that Congress's 1993 decision to exclude the Catawba in South 

Carolina from the IGRA's ambit was evidence of"a clear intention on Congress' part that IGRA 

is not to be the one and only statute addressing the subject of gaming on Indian lands. "

96 

However, the actions of the l 03d Congress shed no light whatsoever on the intentions of the 

lOOlh Congress at the time that it enacted the IGRA; rather, the fact that specific legislation was 

required to place the Catawba outside the IGRA's ambit in South Carolina strongly suggests that, 

absent an explicit act such as that taken with the Catawba, a tribe must be presumed to fall within 

the IGRA's ambit. Consequently, because no act of Congress expressly places the Tribe outside 

of the IGRA's scope, we interpret the IGRA as including the Tribe within its ambit. 

Therefore, we conclude that the gaming on the Tribe's reservation and Indian lands falls within 

the ambit of the IGRA. 

B. The Tribe possesses and exercises jurisdiction over Its reservation and tribal 

lands sufficient to trigger the operation of the IGRA. 

The IGRA is not applicable to all land owned by a tribe. First, the IGRA provides for gaming 

only on "Indian lands," a category which includes: (1) land located within the exterior 

boundaries of a tribe's reservation; and (2) trust land and restricted fee land over which a tribe 

exercises governmental authority.97 Second, the IGRA requires that a tribe possess legal 

93 See generally 1988 Senate IGRA Report, supra note 36. 

94 Id at 12 (citations omitted). The Maine Indian Claims Settlement Act provides in part that any subsequently 

enacted Federal laws "for the benefit oflndians, Indian nations, or tribes or bands oflndians, which would affect or 

preempt the application of the laws of the State of Maine, including application of the laws of the State to lands 

owned by or held in trust for Indians, or Indian nations, tribes, or bands of Indians, as provided in this subchapter 

and the Maine Implementing Act, shall not apply within the State of Maine, unless such provision of such 

subsequently enacted Federal law is specifically made applicable within the State of Maine." 25 U.S.C. § 1735. 

95 Compare Restoration Act, supra note 2, with Maine Indian Claims Settlement Act, 25 U.S.C. § 1735. The 

Restoration Act - enacted by the very same Congress that enacted the IGRA scarcely a year later - contains no 

language whatsoever that would preserve its gaming provisions in the face of subsequently enacted Federal law, 

such as the IGRA. 

96 Ysleta de/ Sur, 36 F.3d at 1135. 

97 The IGRA defines "Indian lands" as "all lands within the limits of any Indian reservation" and "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. § 2703(4). The NIGC's regulations further define "Indian lands" and 

specify that in order for land outside of a tribe's reservation to qualify as Indian lands the tribe must exercise 

governmental authority over that land. 25 C.F.R. § 502.12 (defining "Indian lands" as "land within the limits of an 

Indian reservation," "land over which an Indian tribe exercises governmental power ... [and is] [h]eld in trust by the 

United States for the benefit of any Indian tribe or individual," or "land over which an Indian tribe exercises 

12 

Attachment A 
jurisdiction over the land.98 There is a presumption that tribes possess legal jurisdiction over 

land located within the exterior boundaries of their own reservations. 99 Where there is a question 

as to the tribe's jurisdiction, courts have found that a tribe must meet two requirements100: First, 

the provisions of the IGRA related to Class I and class II gaming require that a tribe must have 

jurisdiction over the land; tot second~ the provision defining the elements of "Indian lands" 

requires that a tribe must exercise governmental power over the land. 102 

Courts have found that possession of legal jurisdiction over land is a threshold requirement to the 

exercise of governmental power required for trust and restricted fee land. 103 Whether a tribe 

possess legal jurisdiction over a particular parcel of land often hinges on construing settlement or 

restoration acts that limit the tribe'sjurisdict1on104 or on a determination of which tribe possesses 

jurisdiction over a particular parcel of land. ivs A showing of fovernmental power requires a 

concrete manifestation of authority and is a factual inquiry.

1

° For trust or restricted fee land to 

qualify as Indian lands over which a tribe possess jurisdiction, the two requirements of having 

jurisdiction and exercising governmental authority must both be met. Once a tribe has 

established that its land qualifies as Indian lands and that the tribe possesses jurisdiction over that 

governmental power ... [and is] [h]eld by an Indian tribe or individual subject to restriction by the United States 

against alienation"). 98 25 U.S.C. § 2710(b)(I) (providing that, subject to enumerated criteria, "[a]n Indian tribe may engage in, or license 

and regulate, class II gaming on Indian lands within such tribe's jurisdiction"); id at§ 2710(d)(I)(A)(i) (providing 

that, subject to enumerated criteria, "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"). 99 Letter from Michael J. Berrigan, Associate Solicitor, Division oflndian Affairs, to Jo-Ann Shyloski, Associate 

General Counsel, NIGC, at 4-5 n.26 and decisions cited therein (Aug. 23, 20 I 3) [hereinafter "2013 Wampanoag 

Opinion Letter"], available al 

http://www.nigc.gov/LinkClick.aspx?link=NIGC+Uploads%2findianlands%2f20130823AquinnahSettlementActlnte 

rpretationsigned.pdf&tabid= I 20&mid=957. 

100 Narragansett, 19 F.3d at 701. 

101 Id (citing 25 U.S.C. § 2710(b)(l)). 

102 Id (citing 25 U.S.C. § 2703(4)). 

103 See Kansas v. United States, 249 F.3d 1213, 1229 (10th Cir. 2001) ("[B]efore a sovereign may exercise 

governmental power over land, the sovereign, in its sovereign capacity, must have jurisdiction over that land."); 

Narragansett, 19 F.3d at 701-03 (1st Cir. 1994), superseded by statute, 25 U.S.C. § 1708(b), as stated In 

Narragansett Indian Tribe v. Nat'/ Indian Gaming Comm 'n, 158 F.3d 1335 (D.C. Cir. 1998); Miami Tribe of 

Oklahoma v. United States, 5 F. Supp. 2d 1213, 1217 (0. Kan. 1998) (stating that a tribe must have jurisdiction in 

order to exercise governmental power); Miami Tribe o/Oklahoma v. United States, 927 F. Supp. 1419, 1423 (D. 

Kan. 1996) ("[T]he NIGC implicitly decided that in order to exercise governmental power for purposes of25 U.S.C. 

§ 2703(4), a tribe must first have jurisdiction over the land."). 

104 See, e.g., Narragansett, 19 F.3d at 701-02 (finding that Narragansett Indian Tribe possessed the requisite 

jurisdiction to trigger the IGRA in light of the tribe's settlement act); 2013 Wampanoag Opinion Letter, supra note 

99, at 5 n.31 and authorities cited therein. 

105 Letter from Lawrence S. Roberts, General Counsel, NIGC, et al., to Tracie Stevens, Chairwoman, NIGC, at 10-

13 (May 24, 2012) (detennining that Muscogee (Creek) Nation had jurisdiction over land in question and that the 

Kialegee Tribal Town had not demonstrated that it had legal jurisdiction), available at 

http://www.nigc.gov/LinkClick.aspx?link=NIGC+Uploads%2freadingroom%2fgameopinions%2fkialegeetrlbaltown 

opinion52412.pdf&tabid=l20&mid=957; 2013 Wampanoag Opinion Letter, supra note 99, at 5-6 n.32 and 

authorities cited therein. 

106 Narragansett, 19 F.3d at 703. 

13 

Attachment A 
land-making it eligible for Indian gaming-the tribe has the exclusive right to regulate gaming 

on that land, and a state can extent its jurisdiction only through a tribal-state compact. 107 

Approximately twenty years ago, the First Circuit in Rhode Island v. Narragansett Indian 

Tribe 108 detennined whether a tribe's settlement act prohibited gaming. It created a two-step 

analysis, first asking whether the tribe possesses the requisite jurisdiction for the IGRA to apply 

to the tribe's lands; and next asking whether the tribe's settlement act and the IGRA can be read 

together, or whether the IGRA impliedly repealed the settlement act's gaming provisions. 109 

This office has since used the Narragansett framework to evaluate whether the Wampanoag 

Tribal C01mcil of Gay Head, Inc., Indian Claims Settlement Act of 1987 prohibited the 

Wampanoag Tribe of Gay Head (Aquinnah) from gaming. 110 Because the settlement act at issue 

in Narragansett and the Restoration Act at issue here raise similar questions with respect to 

gaming and the application of the IGRA, we employ that framework here. 111 

In applying the Narragansett court's framework to the present question, we begin by asking 

whether the Y sleta del Sur Tribe possesses jurisdiction over its reservation and tribal lands 

sufficient to trigger the application of the IGRA. 112 To determine whether the Tribe possesses 

lht: n:4l.1.i:>ite juri:>diction for the IGRA to apply, we must first determine what the IGRA's 

reference to '~urisdiction" means. 113 A basic tenet of Indian law dictates that tribes retain 

attributes of sovereignty, and therefore jurisdiction, over their lands and members. 114 In 

Narragansett, the court explained that the jurisdiction required for the IGRA to apply is derived 

from a tribe's retained righls flowing from lheir inherenl sovereignly. 115 Against that backdrop, 

we construe the IGRA's language. 

As noted above, statutory interpretation begins with the plain meaning of the language itself. 

With respect to class II gaming, the IGRA states that "[a]n Indian tribe may en~age in, or license 

and regulate, class II gaming on Indian lands within such tribe's jurisdiction."1 6 With regard to 

class III gaming, the IGRA explains that "[a]ny Indian tribe having jurisdiction over the Indian 

107 25 U.S.C. § 2701(5) ("The Congress finds that ... Indian tribes have the exclusive right to regulate gaming 

activity on Indian lands 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."). 

108 19 F.3d 685 (1st Cir. 1994 ). 

109 Id 

110 2013 Wampanoag Opinion Letter, supra note 99, at 4-5 n.26 and decisions cited therein. 111 See generally id. In Narragansett, the First Circuit held that the Narragansett Indian Tribe ("Narragansett Tribe") 

possessed and exercised jurisdiction under its settlement act that was sufficient to trigger the application of the 

IGRA. 19 F.3d at 700-03. Upon concluding that the IGRA was triggered, the court examined the interplay between 

the settlement act and the IGRA and concluded that the IGRA effected an implied partial repeal of portions of the 

settlement act. Id at 703-05. 

112 2013 Wampanoag Opinion Letter, supra note 99, at 7-15. 

113 Id at 7. 114 The U.S. Supreme Court has consistently recognized that Indian tribes retain "attributes of sovereignty over both 

their members and their territory." Cabazon, 480 U.S. at 207 (quoting United States v. Mazurie, 4 I 9 U.S. 544, 557 

(1975)). 

115 I 9 F.3d at 70 I ("We believe that jurisdiction is an integral aspect of retained sovereignty."). 

116 25 U.S.C. § 2710(b)(I) (emphasis added). 

14 

Attachment A 
lands upon which a class III gaming activity is being conducted" must enter into a compact with 

the state. 117 It further requires that a gaming ordinance authorizing class III gaming be "adopted 

by the governing body of the Indian tribe having jurisdiction over such lands."118 In each of the 

IGRA's three references to its jurisdictional requirement, the statute clearly states that a tribe 

must possess jurisdiction over its lands. 119 

We, like the First Circuit, also view as important the amount of jurisdiction a tribe must possess 

in order to trigger application of the IGRA. Tribes possess aspects of sovereignty not ceded by 

treaty or withdrawn by statute or by implication as a necessary result of their dependent status. 120 

In other words, tribes are presumed to have jurisdiction over their land unless it has been ceded 

or withdrawn. When Congress enacts a status depriving a tribe of jurisdiction, it must do so 

explicitly. 121 Furthermore, "acts diminishing the sovereign rights of Indian [tJribes should be 

strictly construed."122 This statutory rule is bolstered by the Indian canon of construction. 

We require Congress's explicit divestiture of tribal jurisdiction to avoid the IGRA's application 

to Indian lands, as did the Narragansell court. 123 In other words, unless a tribe has been 

completely divested of jurisdiction, the IGRA applies. A mere grant of state jurisdiction is not 

enough to find the State has exclusive jurisdiction over the land. 124 

Here, the Restoration Act does not confer upon the State jurisdiction over gaming on the Tribe's 

reservation and tribal lands, but instead merely provides that "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."125 This merely codified the distinction, set forth in Cabazon and affirmed in the 

IGRA, between regulated gaming activities, which a tribe may engage in pursuant to the IGRA, 

and prohibited gaming activities, which a tribe may engage in only under the terms of a compact 

117 Id. § 2710(d)(3)(A) (emphasis added). 

118 Id. § 2710(d)(l)(A)(i) (emphasis added). 

119 2013 Wampanoag Opinion Letter, supra note 99, at 8 n.57 and authorities cited therein. 

120 Narragansett, 19 F.3d at 701 (citing United States v. Wheeler, 435 U.S. 313, 323 (1978)). 

121 Id. at 702 ("Since the settlement Act does not unequivocally articulate an intent to deprive the Tribe of 

jurisdiction, we hold that its grant of jurisdiction to the state is non-exclusive" (emphasis added)); Letter from 

Michael J. Anderson, Acting Assistant Secretary- Indian Affairs, to Patricia A. Marks, Attorney, Wampanoag Tribe 

of Gay Head, at 3 (Sept. 5, 1997) [hereinafter "1997 AS-IA Letter"] (pointing to "long-standing Executive and 

Congressional policies favoring the strengthening of tribal self-government, and disfavoring the implicit erosion of 

tribal sovereignty" and explaining that "[i]n this context, the U.S. Supreme Court has held that Congressional intent 

to delegate exclusive jurisdiction to a state must be clearly and specifically expressed" (citing Bryan, 426 U.S. at 

392)). 

122 Narragansett, 19 F.3d at 702. 

123 Id at 702. The Assistant Secretary also has emphasized this point. 1997 AS-IA Letter, supra note 121, at 4 

("Had Congress desired to defeat concurrent tribal jurisdiction on lands located outside of the Town of Gay Head, it 

would have either provided for 'exclusive' state and local jurisdiction, or it would have included limitations on tribal 

jurisdiction."). 

124 2013 Wampanoag Opinion Letter, supra note 99, at 9; Narragansett, 19 F.3d at 702 (because the Settlement 

Act's "grant of jurisdiction to the state is non-exclusive," the NaJTagansett Tribe "retain[s] that portion of 

jurisdiction they possess by virtue of their sovereign existence as a people -a portion sufficient to satisfy the 

Gaming Act's 'having jurisdiction' prong."). 

125 Restoration Act, supra note 2, § I 07(a). 

IS 

Attachment A 
with a state. At most, Section 107(a) functions as a choice-of-law provision, employing the 

State's substantive gaming law to set the bounds of permissible gaming on the Tribe's 

reservation and tribal lands. Under either reading of the Restoration Act, Section 107(a) 

diminishes the Tribe's sovereign right to enact its own gaming laws; however, it does not 

diminish the Tribe's jurisdiction, on its reservation and tribal lands, to regulate gaming activities 

undertaken in accordance with the State's substantive gaming laws. 

In addition, the application of the State's gaming laws on the Tribe's reservation and tribal lands 

must be strictly construed, under basic tenets of Indian law and the Narragansett framework. No 

provision of the Restoration Act expressly, or even impliedly, divests the Tribe of regulatory 

jurisdiction over its reservation and tribal lands. In fact, Section l07(b) of the Act provides: 

"Nothing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction 

to the State of Texas." Moreover, Section 107(c) of the Restoration Act provides that Federal 

courts "have exclusive jurisdiction over" alleged violations of Section 107(a), thereby impliedly 

divesting the Tribe only of its adjudicatory jurisdiction over gaming disputes that arise under the 

Act. Therefore, the Tribe retains nearly complete civil and criminal regulatory jurisdiction over 

its reservation and tribal lands, except for the narrow exception for Federal court jurisdiction 

provided in Section 107(c), which means that the State does not and cannot have exclusive 

jurisdiction over those lands. 126 

In addition, the Restoration Act's only grant of jurisdiction to the State, contained in Section 

1 OS(f), does not suggest that such State jurisdiction is exclusive. Instead, it merely provides that 

the State has civil and criminal jurisdiction on the Tribe's reservation and Indian lands consistent 

with Public Law 280, as amended by the Indian Civil Rights Act, 127 which does not extinguish 

the Tribe's inherent jurisdiction, but instead merely authorizes the State to exercise jurisdiction 

concurrent with that of the Tribe. 128 Section I OS(f) does not use the words "exclusive" or 

126 Both the Assistant Secretary and this Office have observed that the gaming provisions of the Restoration Act 

differed markedly from those contained in the Massachusetts Indian Land Claims Settlement act. 20 I 3 Wampanoag 

Opinion Letter, supra note 99, at 12-13 n.95; 1997 AS-IA Letter, supra note 121, at 5. Neither letter contained an 

in-depth analysis of the Restoration Act, and neither concluded that the Restoration Act completely divested the 

Tribe of jurisdiction over gaming on its reservation and tribal lands; rather, both letters simply observed that the 

differences in the two statutes provided a reason not to follow the Fifth Circuit's Ysleta de/ Sur opinion in their 

respective analyses of the Massachusetts Indian Land Claims Settlement Act. Id. Even if those Letters had 

concluded that the Restoration Act completely divested the Tribe of jurisdiction over its reservation and tribal lands, 

they would not preclude us from reconsidering that opinion in this Memorandum. See Chevron, 461 U.S. at 863-64 

("An initial agency interpretation is not instantly carved in stone. On the contrary, the agency ... must consider 

varying interpretations and the wisdom of its policy on a continuing basis."). 

We are aware of the Assistant Secretary's statement that the Restoration Act "specifically prohibits all gaming 

activities which are prohibited by the laws of the State of Texas on the reservation and lands of the Ysleta del Sur 

Pueblo." 1997 AS-IA Letter, supra note 121, at 5; 2013 Wampanoag Opinion Letter, supra note 99, at 12-13 n.95 

(quoting AS-IA Letter). This statement was not made in a detailed analysis of the Restoration Act, itself, but rather, 

in the Assistant Secretary's analysis of the Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement 

Act of 1987, and therefore is not dispositive here. 

127 Restoration Act, supra note 2, § I 05(t). Nothing in Section I OS(f) suggests that the grant of jurisdiction to the 

State is exclusive. 

128 1-6 Cohen's Handbook of Federal Indian Law§ 6.04[3][c] (2012) ("The nearly unanimous view among tribal 

courts, state courts, lower federal courts, state attorneys general, the Solicitor's Office for the Department of the 

Interior, and legal scholars is that Public Law 280 left the inherent civil and criminal jurisdiction oflndian nations 

untouched" (internal citations omitted)). 

16 

Attachment A 
"complete" in describing the jurisdiction conferred upon the State in Section 105(f). 129 It does, 

however, use the word "exclusive" in Section 107(c) to describe the grant of jurisdiction to the 

federal courts for resolution of gaming disputes arising from the provisions of Section 107(a).130 

"Where 'Congress includes particular language in one section of a statute but omits it in another 

section of the same Act, it is generally presumed that Congress acts intentionally and purposely 

in the disparate inclusion or exclusion."'131 

In sum, the Restoration Act does not grant the State exclusive jurisdiction over the Pueblo's land 

and does not divest the Pueblo of its inherent jurisdiction. To the contrary, the Act specifically 

declares that it is not a grant of civil and criminal regulatory jurisdiction to the State. 132 

C. Section 107 of the Restoration Act and the IGRA are repugnant to each other. 

Because the Tribe possesses sufficient jurisdiction to trigger application of the IGRA, we must 

determine whether the I GRA effected an implied repeal of any portion of the Restoration Act. 

When two federal statutes touch on the same subject matter, courts should attempt to give effect 

to both if they can be harmonized. 133 Therefore, "so long as the two statutes, fairly construed, 

are capable of coexistence, courts should regard each as effective." 134 However, if portions of 

the statutes are repugnant to each other, one must prevail over the other. 135 Even where the two 

statutes are not outright repugnant, "a repeal may be implied in cases where the later statutes 

covers the entire subject 'and embraces new provisions, plainly showing that it was intended as a 

substitute for the first act."' 136 When a later statute impliedly repeals a former statute, a partial 

repeal is preferred and only the parts of the former statute that are in plain conflict with the later 

should be nullified. 137 

129 See Narragansett, 19 F.3d at 702 ("omission of words such as 'exclusive' or 'complete"' in statute assigning 

jurisdiction was "meaningful"); UniJed States v. Cook, 922 F.2d 1026, I 032-33 (2d Cir. 1991) (finding absence of 

tenns "exclusive" or "complete" in Federal statute's grant of jurisdiction over offenses committed by or against 

Indians meant the statute only extended to the state jurisdiction concurrent with that of the Federal government). 

13° Compare id § 105(f) (no use of"exclusive" or "complete"), wilh § 107(c) ("Notwithstanding section 105(f), the 

courts of the United States shall have exclusive jurisdiction over any offense in violation of subsection (a) .... "). 

Section 107(c), would have been particularly important in the pre-IGRA environment in which the Restoration Act 

was negotiated and ultimately enacted. Because we conclude that the IGRA effects a partial implied repeal of the 

Restoration Act's gaming provisions, Section l07(c) is less relevant today. 

131 Narragansett, 19 F.3d at 702 (quoting Rodriguez v. United States, 480 U.S. 522, 525 (1987)). 

132 The second part of the Indian lands determination, whether the tribe exercises governmental power, is a more 

fact-based detennination than the jurisdictional question, and does not require construction of the Restoration Act; 

therefore, we leave this determination to the NIGC. 2013 Wampanoag Opinion Letter, supra note 99, at 14-15. 

Nonetheless, we note that, unlike the settlement act at issue in Narragansett, which expressly limited the 

Narragansett's exercise of jurisdiction over its settlement lands, see 25 U.S.C. § 177le, the Restoration Act contains 

no language whatsoever limiting the Tribe's exercise of governmental power on its reservation or tribal lands. 

133 Narragansett, 19 F.3d at 703. 

134 Id at 703 (citing Traynor v. Tumoge, 485 U.S. 535, 547-48 (1988); Pipefitters Local 562 v. United States, 407 

U.S. 385, 432 n.43 (1972); United States v. Tynen, 78 U.S. (11 Wall.) 88, 82 (1871)). 

135 Id (citing Tynen, 78 U.S. (11 Wall.) at 92). 

136 Id at 703-04 (citing, inter olio, Posadas v. Not'/ City Bonk, 296 U.S. 497, 503-04 (1936); Tynen, 78 U.S. (11 

Wall.) at 92). 

137 Id at 704 n.19. 

17 

Attachment A 
We and the Fifth Circuit agree that the gaming provisions of the Restoration Act cannot be read 

in hannony with the IGRA. 138 

The Fifth Circuit concluded that, by enacting the Restoration Act, "Congress ... intended for 

Texas' gaming laws and regulations to operate as surrogate federal law on the Tribe's reservation 

in Texas."139 Approximately one year later, however, in enacting the IGRA, Congress 

"expressly preempt[ed] the field in the governance of gaming activities on Indian lands" 140 by 

creating a nationwide regulatory framework that "struck a 'finely-tuned balance between the 

interests of the states and the tribes' to remedy the Cabazon Band prohibition on state regulation 

oflndian gaming." 141 If, as the Fifth Circuit concluded, Section 107(a) was enacted to serve as 

surrogate federal law on the Tribe's reservation, and the IGRA was enacted to "expressly 

preempt the field" and to "str[ike] a 'finely-tuned balance between the interests of the states and 

the tribes,"' then Section 107(a) cannot be harmonized with the IGRA. 

Although the Department, too, concludes that the Restoration Act and the IGRA cannot be 

reconciled, we respectfully follow a different path than did the Fifth Circuit. We interpret 

Section 107(a) as codifying the distinction, set forth in Cabazon and enacted in the IGRA, 

between civil/regulatory laws and criminal/prohibitory laws. In Section I 07(a), Congress 

ensured that gaming prohibited by the State of Texas could not take place on the Tribe's 

resetvation and tribal lands. 142 Under this interpretation, Section I 07(a), in and of itself, is not 

repugnant to the IGRA. 

However, the Restoration Act and the IGRA provide for different remedies for gaming 

conducted in violation of their provisions. The Restoration Act provides that violations of 

Section 107(a) "shall be subJect to the same civil and criminal penalties that are provided by the 

laws of the State of Texas." 43 Furthermore, the Restoration Act provides the State with an 

independent avenue for enforcement of a violation of Section 107(a), to wit, an equitable action 

in Federal district court to enjoin gaming on the Tribe's resetvation or tribal lands that violates 

Section 107(a). 144 The IGRA and its im~lementing regulations, on the other hand, provide for an 

entirely different enforcement scheme. 1 

138 See Part II.A, supra. 

139 Ysleta def Sur, 36 F.3d at 1334. 

140 1988 Senate IGRA Report, supra note 36, at 6. 

141 Texas v. United States, 497 F.3d 491, 506-507 (5th Cir. 2007) (quoting United States v. Spokane Tribe of Indians, 

139 F.3d 1297, 1301 (9th Cir. 1988)); see also Cheyenne River Sioux Tribe v. South Dakota, 830 F. Supp. 523, 526 

(D.S.D. 1993) (citing 1988 Senate IGRA Report, supra note 36), ajf'd3 F.3d 273 (8th Cir. 1993). 

142 We are aware that the Fifth Circuit expressly rejected this interpretation. Ysleta def Sur, 36 F.3d at 1333-34. As 

set forth supra, the Department, as the agency with responsibility for implementing the Restoration Act, may adopt 

an alternative interpretation. 

143 Restoration Act, supra note 2, § 107(a). 

144 Id § 107(c). 

145 18 U.S.C. §§ 1166-1168 (IGRA criminal laws and penalties; 25 U.S.C. § 2706(b)(IO) (NIGC has authority to 

promulgate regulations for implementation of the IGRA; 25 U.S.C. § 2713 (civil penalties for violation of the 

IGRA); 25 C.F.R. Part 573 (Compliance and Enforcement); 25 C.F.R. Part 575 (Civil Fines). 

18 

Attachment A 
Because the enforcement regime provided in Section I 07 of the Restoration Act cannot be 

reconciled with the enforcement regime provided in the IGRA, we conclude that the two statutes 

are repugnant to one another. 

D. In the conflict between Section 107 of the Restoration Act and the IGRA, the 

IGRA prevails, thus impliedly repealing Section 107. 

As the Fifth Circuit noted in Ysleta del Sur, "repeals by implication are not favored. " 146 

Nonetheless, when two statutes cannot be reconciled, one must prevail over. the other. 147 Here, 

our analysis diverges more sharply from that of the Fifth Circuit. 

The general rule, as set forth by the Narragansell court, is that ''where two acts are in 

irreconcilable conflict, the later act prevails to the extent of the impasse."148 In the conflict 

between Section 107 of the Restoration Act and the IGRA, this general rule suggests, absent 

good cause to the contrary, that the IGRA prevails. In addition, in its analysis of the interplay 

between the Restoration Act and the IGRA, not only did the Fifth Circuit neglect to apply or 

even acknowledge the Indian canon, it also failed to employ or even acknowledge "the general 

rule ... that where two acts are in irreconcilable conflict, the later act prevails to the extent of the 

impasse."149 IGRA was enacted approximately one year after the Restoration Act. 

The Fifth Circuit held that the Restoration Act prevails because it, being applicable to only two 

tribes in a single state, is a specific statute and the IGRA, being of nationwide application, is a 

general statute. 150 However, the IGRA also is a specific statute because it is specifically directed 

to the issue of Indian gaming, while the Restoration Act is a general statute because its primary 

purpose is to restore the Federal trust relationship, with gaming constituting only one part of that 

statute. The district court in Narragansett concluded as much with respect to the Rhode Island 

Settlement Act. 151 Moreover, where "the enacting Congress is demonstrably aware of the earlier 

law at the time of the later law's enactment, there is no basis for indulging the presumption" that 

Congress did not intend its later statute to act upon the earlier one.

152 

In addition, our conclusion that the IGRA prevails preserves the core of both acts. The primary 

purpose of the Restoration Act was to restore the Federal trust relationship and Federal services 

and assistance to the Ysleta del Sur Pueblo and the Alabama and Coushatta Indian Tribes of 

Texas. 153 The Act's gaming provisions were enacted to fill a legal and jurisdictional void that 

existed at that time, before the IGRA was enacted. 154 Consequently, an interpretation of the two 

146 Ysleta de/ Sur, 36 F.3d at 1335 (quoting Crawford Filling, 482 U.S. at 442). 

147 Narragansett, l 9 F.3d at 703. 

148 Id at 704. 

149 Narragansett, 19 F.3d at 704 (citing Watt v. Alaska, 451U.S.259, 266 (1981)). 150 Ysleta de/ Sur, 36 F.3d at 1335. 

151 Rhode Island v. Narragansett Tribe of Indians, 816 F. Supp. 796, 804 (D.R.l. 1993) (holding that, for purposes of 

gaming, the IGRA is a specific act and the tribe's settlement act is a general act), ajj'd 19 F.3d 685. 

152 Narragansett, 19 F.Jd at 704 n.21. 

153 Restoration Act, supra note 2, Title. 

154 See Part 1.8, supra. 

19 

Attachment A 
statutes that finds that the IGRA impliedly repeals Section 107 of the Restoration Act 

nevertheless leaves the core of the Restoration Act intact. 155 Moreover, the IGRA filled the legal 

and jurisdictional gap that existed at the time the Restoration Act was enacted, further mitigating 

any harm from finding an implied repeal of Section 107. On the other hand, the IGRA by its 

plain language was intended to apply to all Indian tribes, 156 and one of its stated p~oses was "to 

expressly preempt the field in the governance of gaming activities on Indian lands"1 7 Although 

Congress has expressly exempted certain tribes from the operation of the IGRA, 158 to find such 

an exemption without any express statutory exemption would undermine the goal of a 

"comprehensive regulatory framework" 159 the IGRA. 

Finally, our conclusion that the IGRA effects an implied repeal of the gaming provisions of the 

Restoration Act is the only conclusion that is consistent with the Indian canon of construction. 

When choosing between two reasonable interpretations of a statute enacted for the benefit of 

Indians, the Indian canon itself is not dispositive of the issue, but rather, it is an essential lens 

through which statute's text, "the 'surrounding circumstances,' and the 'legislative history' are to 

be examined."160 The IGRA is a statute enacted for the benefit oflndians and Indian tribes. 161 

Although the Fifth Circuit had previously recognized the role that the Indian canon plays in 

interpreting statutes enacted for the benefit of Indian tribes, 1

62 it did not employ, or even 

acknowledge, the relevance of the Indian canon to the determination of whether the IGRA 

governs gaming on the Tribe's reservation and tribal lands. Therefore, we depart from the Fifth 

Circuit and apply the construction that favors the Tribe. 

We conclude that the IGRA effects an implied repeal of Section 107 of the Restoration Act. In 

doing so, however, we note that our opinion does nothing to undermine the gaming prohibitions 

that currently exist in Texas law. The State already provides for bingo, which is the functional 

equivalent of the Class II gaming governed by the gaming ordinance that the Tribe submitted to 

"'Cf. Narragansett, 19 F.3d at 704 (reading the IGRA and the settlement act at issue such that the IGRA prevailed 

"leaves the heart of the Settlement Act untouched"). 

" 6 25 U.S.C. § 2703(5) ("The tenn 'Indian tribe' means any Indian tribe, band, nation, or other organized group or 

community of Indians which-(A) is recognized as eligible by the Secretary 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" (emphasis added).). 1

" 1988 Senate IGRA Report, supra note 36, at 6. 

us See, e.g., 25 U.S.C. § 9411 (the IGRA does not apply to the Catawba Indian Tribe of South Carolina); 25 U.S.C. § 

1708(b) (Narragansett settlement lands are not "Indian lands" for purposes of the IGRA); see also Passamaquoddy, 

75 F.3d 784 (holding that savings clause in the Maine Indian Claims Settlement Act, paired with the IGRA's lack of 

any specific reference to any applicability in the State of Maine, effectively exempted tribes within the State of 

Maine from operation of the IGRA). 

1S9 Wells Fargo Bank, 658 F.3d at 687. 

160 Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586 (1977) (quoting Maltz v. Arnett, 412 U.S. 481, 505 (1973)). 

161 25 U.S.C. § 2702(1) (among purposes of the IGRA is to "promot[e] tribal economic development, selfsufficiency, and strong tribal governments"); see also Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 

730 (9th Cir. 2003) ("IGRA is undoubtedly a statute passed for the benefit oflndian tribes" (citing IGRA's 

declaration of policy contained in 25 U.S.C. § 2702(1))). 

162 Seminole Tribe of Fla. v. Butterworth, 658 F.2d 310, 316 (198l)("The Supreme Court ... has stated that statutes 

passed for the benefit of dependent Indian tribes ... are to be liberally construed, doubtful expressions being 

resolved in favor of the Indians" (quoting Bryan, 426 U.S. at 392)). 

20 

Attachment A 
the NIGC. Under the IGRA, the Tribe may not engage in Class III gaming unless it first reaches 

a compact with the State. In other words, our conclusion that the IGRA governs gaming on the 

Tribe's reservation and tribal lands preserves the authority of both the Tribe and the State to 

pursue their respective public policies toward gaming. 

Ill. CONCLUSION 

A comprehensive reading of the interplay between the Restoration Act and the IGRA leads us to 

conclude that the IGRA applies to the Ysleta del Sur Pueblo. The Restoration Act was enacted 

in order to restore the Federal trust relationship with the Ysleta del Sur Pueblo and the Alabama 

and Coushatta Tribes in Texas. Because it was enacted when there was a great deal of 

uncertainty concerning the law of Indian gaming, section 107 of the Act was drafted to fill any 

gap in the law. That gap, however, was subsequently filled by the enactment of the IGRA, 

scarcely one year after the Restoration Act. 

Because Section I 07 of the Restoration Act contains enforcement provisions that are at odds 

with the IGRA, the two statutes cannot be harmonized. In that conflict, the IGRA prevails and 

effects an implied repeal of Section 107 of the Restoration Act. Our conclusion is consistent 

with the rule that favors the later-enacted statute, which in this case is the IGRA. In addition, an 

implied repeal of Section I 07 leaves the core of the Restoration Act intact, while an implied 

exception to the IGRA would undermine the national regulatory scheme at that statute's core, 

and undermine its goal of providing opportunities for tribal economic development. This 

interpretation is consistent with the text of the IGRA, the legislative histories of both the 

Restoration Act and the IGRA, and the Indian canon of construction. 

Therefore, in answer to your question, we conclude that the Restoration Act does not prohibit the 

Ysleta del Sur Pueblo from gaming on its Indian lands under IGRA. 

Venus McGhee Prince 

Deputy Solicitor for Indian Affairs 

21 

Attachment A 
ALABAMA-COU~HATTA TRIBE OF T€XA~ 

Tribal Chiefs 

Principal Chief 

Chief Colabc Ill 

Clem F. Sylcstine 

July 10, 2015 

Tribal Council 

Nita Battisc, Chairperson 

Ronnie Thomas, Vice-Chairman 

Johnny Stafford, Secretary 

ALABAMA-COUSHATTA TRIBAL COUNCIL Pete Polite. Treasurer 

Second Chief Clint Poncho, Member 

ChicfSkalaaba ACITC Resolution #2015-38 Roland Poncho, Member 

l·lcrbcn G. Johnson, Sr. Maynard Williams, Member 

PERTAINING, to the Tribal Council exercising its delegated powers under Article VI, Section I -

Powers, Constitution and Bylaws of the Alabama-Coushatta Tribe of Texas: 

WHEREAS, the Tribal Council seeks to provide or assist in the provision of social, cultural, legal, 

economic and other needs for the Tribal members; and 

WHEREAS, the Tribal Council, as the governing body of the Tribe, has the power to exercise its full 

authority, rights and responsibilities available under the Tribe's sovereign nation status; and 

WHEREAS, the Tribal Council in exercising this authority, rights and responsibilities, establishes 

ordinances or otherwise act by resolution to promote and protect the health, peace, morals, 

education, sovereignty, jurisdiction, community, children, lands, resources, and general 

welfare of the Tribe and its members including but not limited to, the promotion and 

establishment of legal gaming operations within the Reservation Lands of the Tribe; and 

WHEREAS, the Tribal Council is empowered and authorized to enact Resolutions and Ordinances 

governing the order and the administration of justice; and 

WHEREAS, the Tribal Council created a Class II Gaming Ordinance, titled the Alabama-Coushatta 

Tribe of Texas Class II Tribal Gaming Ordinance for the purpose of establishing Gaming 

Operations on the Tribe's Indian lands and to govern and regulate the operation of Class II 

Gaming Operations on the Tribe's Indian lands. 

NOW THEREFORE BE IT RESOLVED, the Alabama-Coushatta Tribal Council hereby approves this 

Resolution and thereby authorizes the creation, funding, regulation, and establishment of 

the Tribe's Class II Gaming Operations on the Tribe's Indian lands. 

CERTIFICATION 

I, the undersigned, Chairperson of the Alabama-Coushatta Tribe of Texas, do hereby certify that 

the Alabama-Coushatta Tribal Council is composed of seven (7) members, of whom 1 were 

present at a specifically called meeting duly called in accordance with Article IV of the Tribal 

Bylaws on July 10, 2015 and that the Tribal Council adopted this Resolution by a vote of 1_ in 

favor, _Q_ opposed, and _Q_ abstained. 

Secretary, Tribal Council 
ALABAMA-COUSHATTA TRIBE OF TEXAS 

CLASS II TRIBAL GAMING ORDINANCE 
TABLE OF CONTENTS 

Page 

Section 1. Title ... .... ..... .... ........... .. .............. .. .................. ... ............... .... ............. ....................... 1 

Section 2. Purpose .................................................................................................................... 1 

Section 3. Applicability .............................. .... .. ............................... ........... ............................ . 1 

Section 4. Definitions ............................................................................................................... 1 

Section 5. Class II Gaming Authorization and Regulation ...................................................... 6 

Section 6. Exclusive Ownership by the Tribe .......................................................................... 6 

Section 7. Use of Revenue from Class II Gaming Activities ... .. .. ................ ........................... 6 

Section 8. Environmental and Public Health and Safety ......................................................... 6 

Section 9. Prizes; Assignments and Forfeiture ........................................................................ 7 

Section 10. Alabama-Coushatta Tribe of Texas Tribal Gaming Agency ("TGA") ................... 7 

Section 11. Licensing ................... ...................... ....... .......... ........................ ... .................... .. .... 12 

Section 12. Background Investigation of Gaming Employees ............................. ................... 16 

Section 13. Management Contracts ..... ... ................... ..... .. ... ..... ......... ............ ................. ..... .... 22 

Section 14. Class II Games Permitted ........... ................ ......................... .......... ... .. ................... 22 

Section 15. Hours of Operation; Approval by Regulatory Commission ................................. 22 

Section 16. Patron Disputes ........................................ ........................... ...... .. ................. ......... 22 

Section 17. Records Maintenance ............ ............. .... ..................... ....... .. ....... .. ............... .. ....... 22 

Section 18. Independent Audits ......................... ................................... ................. ... ............... 23 

Section 19. Crimes and Civil Penalties .................................... ...................... .. ........................ 23 

Section 20. Enforcement ....... ............. .. .......... ............ ............................ ................. ................. 25 

Section 21. Severability ............................ .. ..... ............. .................. ... .. .. ............ ............... ....... 25 

Section 22. Amendments .............. ............ ..................................... .............. .. .. ........... .......... ... 25 
Section 23. Effective Date of Ordinance ................................................................................. 25 

11 
Section 1. Title 

This Ordinance shall be known as the Alabama-Coushatta Tribe of Texas Class II Tribal Gaming 

Ordinance, or the Gaming Ordinance. 

Section 2. Purpose 

The Tribal Council of the Alabama-Coushatta Tribe of Texas ("Tribe"), empowered by the 

Tribe's Constitution, Article VI, Section I, Subsection h, enacts this Ordinance to promote and 

establish Gaming Operations on the Tribe's Indian lands and to govern and regulate the 

operation of Class II Gaming Operations on the Tribe's Indian lands. 

Section 3. Applicability 

Unless specifically indicated otherwise, all provisions of this Ordinance shall apply to Class II 

Gaming on the Tribe's Indian lands. 

I. PROVISIONS 

Section 4. Definitions 

Unless a different meaning is clearly indicated in this Ordinance, the terms used herein shall 

have the same meaning as defined in the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. 

§ 2701 et seq., and the NIGC's regulations, 25 C.F.R. § 500 et seq. Specifically: 

1. "Bingo" means the game of chance (whether or not electronic, computer or other 

technological aids are used) which is played for prizes, including monetary prizes, with cards 

bearing numbers or other designations; in which the holder of the card covers such numbers or 

designations when objects, similarly numbered or designated, are drawn or electronically 

determined; and in which the game is won by the first person covering a previously designated 

arrangement of numbers or designations on such cards. "Bingo" includes, if played at the same 

location, pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to Bingo. 

2. "Board of Directors" or "Board" means the governing body of TEDA. 

3. "Class I Gaming" shall have the same meaning as defined in the Indian Gaming 

Regulatory Act at 25 U.S.C. § 2703(6), and the NIGC's Regulations at 25 C.F.R. § 502.2. 

4. "Class II Gaming"' shall have the same meaning as defined in the Indian Gaming 

Regulatory Act at 25 U.S.C. § 2703(7) and the NIGC's Regulations at 25 C.F.R. § 502.3. 

5. "Director" means a member ofTEDA's Board of Directors. 

6. "Electronic, computer or other technological aid" shall have the same meaning as 

the NIGC's Regulations at 25 C.F.R. § 502.7. 

1 
7. "Equipment" means the receptacle and numbered objects drawn from it, the 

master board upon which such objects are placed as drawn; the cards or sheets bearing numbers 

or their designations to be covered and the objects used to cover them; the board or sign, 

however operated, used to announce or display the numbers or designations as they are drawn; 

the public address system; and other articles essential to the operation, conduct, and playing of 

Bingo or other Class II games. 

8. "Facility License" shall have the same meaning as defined in the NIGC's 

Regulations at 25 C.F.R. § 502.23. 

9. "Games Similar to Bingo" shall have the same meaning as defined in the NIGC's 

Regulations at 25 C.F.R. § 502.9. 

10. "Gaming Employee" means any natural person employed in the operation or 

management of the Gaming Operation, whether employed by or contracted with the TEDA or 

TGA, or by any person or enterprise providing on or off-site services to the TEDA, within or 

without the Gaming Operation, regarding any Class II Gaming activity, including, but not limited 

to, Primary Management Officials, Key Employees, Gaming Operation employees, and any 

other natural person whose employment duties require or authorize access to restricted areas of 

the Gaming Operation not otherwise opened to the public. 

11. "Gaming Operation" shall have the same meaning as defined in the NIGC's 

Regulations at 25 C.F.R. § 502.10. 

12. "Gaming Operation License" means a separate license issued by the TGA to each 

economic entity that operates the games, receives the revenues, issues the prizes, and pays the 

expenses. 

13. "Gaming Ordinance" means this Tribal Gaming Ordinance of the AlabamaCoushatta Tribe of Texas, as amended from time to time, and any rules and regulations 

promulgated thereunder. 

14. "Gaming Services" means the providing of any goods or services to the TEDA 

directly in connection with the operation of Class II Gaming in a Gaming Operation, including 

but not limited to, Equipment, maintenance, or security services for the Gaming Operation. 

15. "Gross Revenue" means the total revenue from the conduct of the Gaming 

Operation. 

16. "Indian" shall mean an individual as defined by 25 U.S.C. § 2201(2). 

17. "Indian Tribe" shall have the same meaning as defined by the NIGC's 

Regulations at 25 C.F.R. § 502.13. 

2 
18. "Indian Gaming Regulatory Act" or "IGRA" means the Indian Gaming 

Regulatory Act, Public Law 100-497 as codified in 25 U.S.C. § 2701 et seq. 

19. "Indian Lands," "Tribal Lands" or "Tribal Indian Lands" means all lands within 

the limits of the Alabama-Coushatta Tribe of Texas Reservation; and any land(s) title to which is 

either held in trust by the United States for the benefit of the Alabama-Coushatta Tribe of Texas 

subject to restriction by the United States against alienation and over which the Tribe exercises 

governmental power. For purposes of this Gaming Ordinance, Tribal Indian Lands only refers to 

lands acquired by the Secretary in trust prior to October 17, 1988 or those lands acquired by the 

Secretary in trust after October 17, 1988 that meet one or more of the exceptions set forth in 25 

U.S.C. § 2719. 

20. "Key Employee" shall have the same meaning as defined in the NIGC's 

Regulations at 25 C.F.R. § 502.14. 

21. "Licensee" means a tribally owned Class II Gaming Operation or a person 

licensed by the Tribal Gaming Agency as a Primary Management Official, Key Employee or 

other Gaming Employee under the provisions of this Ordinance. 

22. "Management Contract" shall have the same meaning as defined in the NIGC's 

Regulations at 25 C.F.R. § 502.15. 

23. "Minimum Internal Control Standards" or "MICS" means detailed procedural 

controls designed to protect the assets of the Gaming Operation, ensure the accuracy and 

reliability of accounting methods, and protect the integrity of gaming on Tribal Lands. 

24. "Net Revenues" shall have the same meaning as defined in the Indian Gaming 

Regulatory Act at 25 U.S.C. § 2703(9) and the NIGC's Regulations at 25 C.F.R. § 502.16. 

25. "NIGC" means the National Indian Gaming Commission established and existing 

pursuant to the Indian Gaming Regulatory Act. 

26. "Non-Banking Card Games" means any card game in which two or more players 

play against each other and the players do not wager against the house. 

27. "Operating Expenses" means expenses necessary for the Gaming Operation 

which include, but are not necessarily limited to, the following: 

a. The payment of salaries, wages and benefit programs for employees 

engaged at the Gaming Operation; 

b. Materials and supplies for the Gaming Operation; 

c. Utilities; 

3 
d. Routine remodeling, repairs and maintenance of the Gaming Operation; 

e. Interest on installment contract purchases by the Gaming Operation; 

f. Insurance and bonding; 

g. Advertising and marketing, including busing and transportation of 

employees to the Gaming Operation; 

h. Professional fees; 

1. Security costs; 

J. Reasonable and necessary travel expenses for employees of the Tribe, the 

TEDA and of a management company pursuant to a Management 

Contract, subject to an approved budget; 

k. Equipment which costs less than $500 per item or unit; 

1. Trash removal; 

m. Costs of goods sold; 

n. Cost depreciation as defined by Generally Accepted Accounting Principles 

("GAAP"); 

o. Other expenses designated as Operating Expenses in the annual budget of 

the Gaming Operation; 

p. Expenses specifically designated as Operating Expenses in a Management 

Contract and ordinarily considered as such in accordance with GAAP; 

q. Such other expenses which are determined by an annual audit to be 

Operating Expenses; and 

r. Any payments in lieu of taxes made to any governmental entity. 

28. "Person" means any individual, receiver, administrator, executor, assignee, trustee 

in bankruptcy, trust, estate, firm, partnership, joint venture, club, company, joint stock company, 

business trust, corporation, association, society, or any group of individuals acting as a unit, 

whether mutual cooperative, fraternal or nonprofit doing business within the Tribal Indian Lands. 

The Tribe, Tribal Council, TEDA, and the Tribal Gaming Agency is not within the definition of 

Person. 

4 
29. "Player" or "Patron" means any person who is a customer or guest of the Gaming 

Operation participating in Class II Gaming activities. 

30. "Primary Management Officials" or "PMO" shall have the same meaning as defined 

in the NIGC's Regulations at 25 C.F.R. § 502.19. 

31. "Principal" means with respect to any entity: (i) each of its officers and directors; 

(ii) each of its principal management employees, including any chief executive officer, chief 

financial officer, chief operating officer, or general manager; (iii) each of its owners or partners, 

if an unincorporated business; (iv) each of its shareholders who own more than ten percent of the 

shares of the corporation, if a corporation; (v) each person other than a banking institution who 

has provided financing constituting more than ten percent of the total financing of the Gaming 

Operation; and, (vi) any person or entity set forth and described in 25 C.F.R § 537.1. 

32. "Prize" means any U.S. currency, cash or other property or thing of value 

awarded to a Player or Patron, or received by a Player or Patron as a result of their participation 

in Class II Gaming activities. 

33. "Regulations" means Rules and Regulations promulgated from time to time by 

the NIGC pursuant to the Indian Gaming Regulatory Act and any regulations promulgated 

thereunder. 

34. "Tribal Regulations" means rules and regulations promulgated from time to time 

by the TGA, and this Gaming Ordinance, as amended, as the case may be. 

35. "Regulator" means a Tribal Gaming Agency Regulator. 

36. "Reservation" means Alabama-Coushatta Tribe of Texas lands as defined by 

25 U.S.C. § 731(3) (A), (B) and (C). 

37. "Secretary" shall have the same meaning as defined in the Indian Gaming 

Regulatory Act at 25 U.S.C. § 2703(10) and the NIGC's Regulations at 25 C.F.R. § 502.20. 

38. "State" means the State of Texas. 

39. "Tribal Council" or "Council" means the Tribe's governing body as established 

by Article V of the Constitution and Bylaws of the Alabama-Coushatta Tribe of Texas. 

40. "Tribal Court" means the Alabama-Coushatta Tribe of Texas Tribal Court. 

41. "Tribal Economic Development Authority" or "TEDA" means an economic entity 

authorized to conduct Class II Gaming Operations and related activities on the AlabamaCoushatta Tribe of Texas' Tribal Indian Lands pursuant to this Gaming Ordinance. TEDA may 

be operated by the Tribe directly or by a Person under a Management Contract. 

5 
42. "Tribal Gaming Agency" or "TGA" means such agency of the Tribe as the Tribe 

may from time to time designate as the single Tribal agency responsible for regulatory oversight 

of entertainment and gaming activities conducted by the TEDA. 

43. "Tribal Member" means an individual who is an enrolled member of the 

Alabama-Coushatta Tribe of Texas as determined by the Tribe. 

44. "Tribe" means the Alabama-Coushatta Tribe of Texas being duly recognized by 

the Secretary of the Department of the Interior, and other agencies of the United States of 

America, and having special rights of self-government as set forth in the Alabama-Coushatta 

Tribe of Texas Restoration Act, Public Law 100-89, 25 U.S.C. § 731 et seq., and its authorized 

officials, agents and representatives. 

Section 5. Class II Gaming Authorization and Regulation 

Operation of Class II Gaming is authorized on Tribal Indian Lands and shall be subject to the 

provisions of this Gaming Ordinance. All Class II Gaming shall be regulated by the Tribe 

through the Alabama-Coushatta Tribal Gaming Agency, and shall only be operated consistent 

with the provisions of this Gaming Ordinance. 

Section 6. Exclusive Ownership by the Tribe 

The Tribe shall be the primary beneficiary and have the sole proprietary interest in and 

responsibility for the conduct of any Gaming Operation pursuant to this Gaming Ordinance. 

Section 7. 

1. 

Section 8. 

Use of Revenue from Class II Gaming Activities 

Net Revenues from Class II Gaming activities shall be used by the Tribe to: 

a. Fund tribal government operations or programs; 

b. Provide for the general welfare of the Tribe and Tribal members; 

c. Promote tribal economic development; 

d. Fund operations of local government agencies; and 

e. Donate to charitable organizations. 

f. If the Tribe elects to make per capita payments to tribal members, it shall 

authorize such payments only upon approval by the Secretary of the 

Interior under 25 U.S.C. § 2710(b)(3) and 25 C.F.R. §§ 522.4(b)(2)(ii) and 

522.6(b). 

Environmental and Public Health and Safety 

Each Gaming Operation shall be constructed, maintained, and operated in a manner that 

adequately protects the environment and the health and safety of the public. 

6 
Section 9. 

1. 

Prizes; Assignments and Forfeiture 

Non Assignable, exception. 

a. The right of any person to a Prize shall not be assigned except that 

payment of any Prize may be made to the estate of a deceased Prize 

winner or to a person pursuant to an order of the Tribal Court. 

2. Forfeiture 

a. Any unclaimed Prize of the Gaming Operation shall be retained by the 

Gaming Operation for ninety (90) days after the Prize is available to be 

claimed. Any person who fails to claim a Prize during such time shall 

forfeit all rights to the Prize, and the amount of the Prize shall be awarded 

to the TEDA. 

b. Any Prize won by a person who is ineligible to game under this Ordinance 

or regulations promulgated thereunder, shall be forfeited. Any such Prize 

shall be awarded to the TEDA. 

c. Any Prize monies forfeited to the TEDA pursuant to this Section shall be 

paid into a fund at the direction of the Board and shall be treated as an 

expense of the Gaming Operation to the extent allowable under Generally 

Accepted Accounting Principles. 

II. ADMINISTRATION 

Section 10. Alabama-Coushatta Tribe of Texas Tribal Gaming Agency ("TGA") 

1. Establislunent, Composition, and Compensation of the TGA 

a. The Tribe hereby establishes a Tribal Gaming Agency ("TGA") to 

regulate the Tribe's Gaming Operations. The Tribe recognizes the 

importance of an independent Tribal Gaming Agency in maintaining a 

well-regulated Gaming Operation. The TGA shall be independent of, and 

act independently and autonomously from, the Tribal Council in all 

matters within its purview. No prior, or subsequent, review by the Tribal 

Council of any actions of the Tribal Gaming Agency shall be required or 

permitted except as otherwise explicitly provided in this Ordinance. 

b. The TGA's Board of Regulators shall consist of three members, including 

a Chair, Vice-Chair and Secretary/Treasurer. Terms of office for the Board 

of Regulators shall be as follows: the Chair shall serve an initial term of 

one (1) year, with subsequent Chairs serving 3-year terms; and the ViceChair and Secretary/Treasurer shall serve an initial term of two (2) years, 

with subsequent Vice-Chairs and the Secretary/Treasurer serving 3-year 

terms. A majority of the Board of Regulators shall constitute a quorum. 

7 
The concurrence of a majority of the Board of Regulators shall be required 

for any final determination by the Board of Regulators. The Board of 

Regulators may act in its official capacity, even ifthere are vacancies on 

the Board of Regulators. 

c. The Board of Regulators shall be compensated at a level determined by 

the Tribal Council. In order to ensure the Board of Regulators is not 

improperly influenced, a Regulator's compensation shall not be based on a 

percentage of Gaming Revenue. 

2. Purpose 

a. The TGA will conduct oversight to ensure compliance with Tribal and 

federal laws and regulations. It will serve as the licensing authority for 

individuals employed in the Gaming Operation and will administer 

background investigations as part of the licensing process. The TGA will 

also have a role in monitoring compliance with the Gaming Operation's 

internal controls and in tracking Gaming Revenues. In order to carry out 

its regulatory duties, the TGA shall have unrestricted access to all areas of 

the Gaming Operation and to all of its records. The TGA shall have 

authority to take enforcement actions, including suspension or revocation 

of an individual gaming license, when appropriate. 

3. Appointment and Eligibility 

a. Board of Regulator positions shall be filled through appointment by the 

Tribal Council. 

b. Nominees for Board of Regulator positions must satisfy the eligibility 

standards set forth for Primary Management Officials and Key Employees 

found in Section 11 ( 6) of this Ordinance. All requisite background 

investigations shall be performed under the direction of Tribal Council. 

The Tribal Council shall require a criminal history check for each Board 

of Regulator candidate; shall review the candidate's criminal history check 

results; and shall make an appropriate eligibility determination before 

appointing an individual to any position on the Board of Regulators. 

c. The following persons are not eligible to serve on the Board of Regulators: 

Tribal Council members, while serving as such; current employees of the 

Gaming Operation; gaming contractors (including any principal of a 

management, or other, contracting company); persons sharing a residence 

with any of the above; and persons ineligible to be Key Employees or 

Primary Management Officials. Non-tribal members previously convicted 

of any felony or misdemeanor offense of embezzlement, theft or any other 

money-related or honesty-related misdemeanor offense, such as fraud, 

cannot serve as a Board of Regulator member. Tribal members previously 

8 
convicted of any felony or misdemeanor offense of embezzlement, theft or 

any other offense related to money or honesty, such as fraud, will only be 

allowed to serve as a Board of Regulator member if the Tribal Council 

specifically finds that a significant amount of time has passed and the 

person is now of trustworthy character. 

d. To avoid potential conflicts of interest between the management and 

regulation of the Gaming Operation, the Tribe requires that, at a 

m1mmum: 

1. No present member of the Tribal Council or TEDA may be 

employed by the Tribal Gaming Agency; 

2. No one sharing a residence with a present Tribal Council member 

or TEDA Board of Directors' member may be employed by the 

Tribal Gaming Agency; 

3. Tribal Gaming Agency employees and Board of Regulator 

members are prohibited from gambling in the Gaming Operation; 

4. Tribal Gaming Agency employees and Board of Regulator 

members are prohibited from accepting complimentary items from 

the Gaming Operation, excepting food and beverages valued under 

twenty-five dollars ($25.00); and 

5. Board of Regulator members may only be removed from office by 

the Tribal Council, prior to the expiration of their respective terms, 

for neglect of duty, misconduct, malfeasance or other acts that 

would render a Board of Regulator Member unqualified for the 

position. 

4. Powers of the Tribal Gaming Agency 

The Tribal Gaming Agency shall administer the provisions of this Gaming Ordinance and shall 

have the power to: 

1. Conduct background investigations, or cause such investigations to be 

conducted, for Primary Management Officials and Key Employees; 

2. Review and approve all investigative work conducted in connection with 

the background investigations of Primary Management Officials and Key 

Employees; 

3. Create and maintain investigative reports based on the background 

investigations of Primary Management Officials and Key Employees; 

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4. Obtain and process fingerprints, or designate a law enforcement agency to 

obtain and process fingerprints; 

5. Make licensing eligibility determinations, which shall be signed by the 

Chair of the Board of Regulators; 

6. Submit a notice of results to the NIGC of the background investigations 

done for each Primary Management Official and Key Employee applicant; 

7. Issue gaming licenses to Primary Management Officials and Key 

Employees of the Gaming Operation, if warranted by the eligibility 

determination; 

8. Establish standards for licensing the Gaming Operation; 

9. Issue Facility License(s) to Gaming Operations; 

10. Inspect, examine and monitor all of the Tribe's gaming activities, and 

have immediate access to review, inspect, examine, photocopy and audit 

all records of the Gaming Operation; 

11 . Ensure compliance with all Tribal or federal laws, rules and regulations 

regarding Indian gaming; 

12. Investigate any suspicion of wrongdoing associated with any gaming 

activities; 

13. Hold hearings on patron complaints, in accordance with procedures 

established in this Ordinance and the Tribal gaming regulations; 

14. Comply with any and all reporting requirements under IGRA, the NIGC's 

regulations and any other applicable law; 

15. Promulgate and issue regulations necessary to ensure compliance with 

applicable minimum internal control standards for Class II Gaming 

activities; 

16. Promulgate and issue regulations on the levying of fees and/or taxes 

associated with gaming license applications; 

17. Promulgate and issue regulations on the levying of fines and/or the 

suspension or revocation of gaming licenses for violations of this 

Ordinance or any Tribal or federal gaming regulations, if applicable; 

18. Establish a list of persons not allowed to game in the Tribe's gaming 

facilities in order to maintain the integrity of the Gaming Operation; 

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19. Establish a list of persons who have voluntarily agreed to be excluded 

from the Gaming Operation, and create regulations for enforcing the 

exclusions; 

20. Provide referrals and information to the appropriate law enforcement 

officials when such information indicates a violation of Tribal or federal 

statutes, ordinances, regulations, codes or resolutions; 

21. Create a list of regulatory authorities that conduct background 

investigations of, and license, vendors who are recognized as trustworthy; 

22. Promulgate regulations exempting vendors from the licensing and/or 

background investigation requirements if they have received a license 

from a recognized regulatory authority; 

23. Perform such other duties the TGA deems appropriate for the proper 

regulation of the Gaming Operation; and 

24. Promulgate such regulations and guidelines as deemed appropriate to 

implement the provisions of this Ordinance, so long as they are in 

furtherance of, and not in conflict with, any provisions of this Ordinance. 

25. Except in emergency situations where comment and review is not 

practical, before adopting, amending and repealing regulations, the TGA 

shall give notice of any such proposed action to the Tribal Council, the 

Gaming Operation(s) and all other persons whom the TGA has reason to 

believe have a legitimate interest in the proposed action. The notice shall 

invite comments and describe the general nature of the proposed action 

and the manner in which comments on the proposed action shall be 

received by the TGA. In the rare circumstance that comment and review 

is not practical, such emergency regulation shall be in effect no longer 

than thirty (30) days, during which comment and review for a permanent 

regulation shall occur. 

5. Record Keeping Requirements 

a. The TGA shall ensure that all records and information obtained as a result 

of an employee background investigation shall remain confidential and 

shall not be disclosed to any persons who are not directly involved in the 

licensing and employment processes. Information obtained during the 

course of an employee background investigation shall be disclosed to 

members of management, human resource personnel and/or others 

employed by the Gaming Operation on a need-to-know basis, for actions 

taken in their official capacities. 

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b. The Board of Regulators shall keep a written record of all its meetings. 

Section 11. Licensing 

1. Authority to License 

The TGA shall have the sole and exclusive authority to grant, renew, deny, revoke, suspend, 

limit, or modify gaming licenses and regulate Class II Gaming activities on Tribal Lands as 

permitted by this Gaming Ordinance and applicable law. 

2. License Locations 

Each place, facility, or location on Tribal Lands where Class II Gaming is conducted under this 

Gaming Ordinance shall be issued a separate license. 

3. Types of Licenses to be Issued 

The TGA shall issue the following licenses for gaming on Tribal Lands: 

a. Facility License 

b. Key Employment I Primary Management Official Licenses 

c. Gaming Operation License 

d. Other Licenses necessary and appropriate 

4. License Fees~ Application Fees and Continuing Yearly Fees 

a. Any person applying for any gaming license pursuant to this Gaming 

Ordinance shall submit his or her application, and required forms and information, as set forth by 

the TGA, together with an application fee as determined by the TGA. The TGA may waive fees 

in its discretion if an applicant is unable to pay fees. 

b. A Licensee shall, at least sixty (60) days prior to the expiration of such 

license make an application for renewal, as required by the TGA, and shall submit the 

application, required forms, and information together with a renewal fee as determined by the 

TGA, if any. 

12 
5. License Validity; Effective Period and Place 

a. Period. Tribal gaming licenses shall be valid and effective for a period of 

one (1) year from the date of issue, unless same is sooner suspended or revoked for cause after 

notice and hearing, pursuant to this Gaming Ordinance. 

b. Place. A tribal gaming license shall be valid for any Gaming Operation 

located on Tribal Lands. 

6. License; Qualification and Requirements 

a. General 

(1) An application to receive a license or to be found suitable to 

receive a license shall not be granted unless the TGA is satisfied, after review of a background 

investigation that such applicant is: 

on Tribal Lands who: 

(a) A person of good character, honesty and integrity; 

(b) A person whose prior activities, criminal record, if any, 

reputation, habits and association do not pose a threat to the 

public interest of the Tribe, its members or to the effective 

regulation of gaming, or create or enhance the dangers of 

unsuitable, unfair or illegal practices and methods and 

activities in the conducting of gaming or the carrying on of 

the business and financial arrangements incidental thereto; 

( c) In all other respects is qualified to be licensed or found 

suitable consistent with the declared policy of the TGA; 

and, 

( d) An application to receive a license or to be found suitable 

constitutes a request for a determination of the applicant's 

general character, integrity and ability to participate or 

engage in, or be associated with gaming. Any written or 

oral statement made in the course of an official proceeding 

of the TGA or the NIGC established pursuant to 25 U.S.C. 

§ 2704, by any member thereof, or any witness testifying 

under oath, which is relevant to the purpose of the 

proceeding is absolutely privileged and does not impose 

liability or defamation constituting a ground for recovery in 

any civil action. 

(2) No Non-Tribal member shall be employed in a Gaming Operation 

13 
Tribal Lands who: 

(a) Has been convicted of or who has pled guilty or nolo 

contendere to any felony within ten (10) years, or has ever 

been convicted of or has ever plead no lo contendere to any 

gaming offense, or other offense involving moral turpitude; 

or, 

(b) Is under the age of eighteen (18), except that, no person 

shall be employed as a Primary Management Official or 

Key Employee, or in any position wherein the employee 

might be required to serve alcoholic beverages who is 

under the age of twenty one (21). 

(3) No Tribal member shall be employed in a Gaming Operation on 

(a) Has been convicted of or who has pled guilty or nolo 

contendere to any felony within ten (10) years, or has ever 

been convicted of or has ever plead nolo contendere to any 

gaming offense, or other offense involving moral turpitude; 

unless Tribal Council specifically finds that a significant 

amount of time has passed and the Tribal member is now of 

trustworthy character. 

(b) Is under the age of eighteen ( 18), except that, no person 

shall be employed as a Primary Management Official or 

Key Employee, or in any position wherein the employee 

might be required to serve alcoholic beverages who is 

under the age of twenty one (21). 

( 4) No person shall be employed as a Primary Management Official or 

Key Employee in a Class II Gaming activity who: 

(a) Has not first applied for and obtained a tribal gaming 

license, pursuant to this Gaming Ordinance, and, has been 

made the subject of a background investigation conducted 

by the TGA, its agents, or designee pursuant to the 

requirements of this Gaming Ordinance. 

(b) Is ineligible for fidelity bonding or similar insurance 

covering employee dishonesty. 

7. Primary Management Officials, Key and Other Employees: Identification 

Every person employed at a Gaming Operation operated on Tribal Lands shall wear an 

identification card issued by the TGA which conspicuously states the place of employment, the 

first name of the person and their position of employment. The card shall include a photo, first 

14 
name and four digit identification number unique to the individual which shall also include a 

Tribal seal or signature, and a date of expiration. 

8. License Suspension and Revocation 

a. Suspension and Revocation notices for Gaming Employees, Key 

Employees and Primary Management Officials shall be as follows: 

(1) The TGA reserves the right to suspend or revoke a gaming license 

issued to a Gaming Employee. 

(2) Any Key Employee or Primary Management Official gaming 

license issued by the TGA shall be suspended, without prior notice, if the NIGC, after 

notification by the Board of Regulators of the issuance of a license, and after appropriate review, 

indicates that a Primary Management Official or Key Employee does not meet the standards 

established and set forth herein, pursuant to 25 U.S.C. § 2710. 

(3) Upon receipt of such notification by the NIGC, the TGA shall 

immediately suspend the license and shall provide the Licensee with written notice of suspension 

and proposed revocation. 

(4) A Licensee, whose gaming license is suspended or terminated, 

shall be notified of the time and place for a hearing on the proposed revocation of a license. 

(5) A right to a hearing under this part shall vest only upon receipt of a 

license granted pursuant to an Ordinance approved by the Chair of the NIGC. 

9. Revocation Notice 

a. The Revocation Notice shall include: 

(1) The effective date of suspension and/or revocation; 

(2) The reason(s) for the suspension and/or revocation; 

(3) The right of the Licensee to appeal the suspension and/or 

revocation to the Tribal Court within ten (10) days of the 

Licensee's receipt of the revocation notice. 

b. A copy of any suspension and/or revocation notice for Key Employees or 

Primary Management Official licenses shall be sent to the NIGC. 

10. Revocation Hearing 

a. After a revocation hearing, the TGA shall decide to revoke or to reinstate a 

gaming license. In circumstances where the revocation is the result of receiving notification 

15 
from the NIGC pursuant to Section 11(8)(a)(2) of this Ordinance, the TGA shall notify the NIGC 

within forty-five (45) days, pursuant to 25 C.F.R. §558.4(e), of its decision regarding the 

revocation or reinstatement of a Key Employee or Primary Management Official license. 

b. A Licensee may appeal the suspension and/or revocation of his/her license 

to the Tribal Court by sending a written notice of appeal of the suspension and/or revocation to 

the Tribal Court and the TGA within ten (10) days after the Licensee receives notice that his/her 

license has been revoked. The notice of appeal shall clearly state the reason(s) why the Licensee 

believes his/her license should not be revoked. 

c. Upon receipt of the notice of appeal of the license revocation, the Tribal 

Court shall schedule a revocation hearing to be conducted within twenty (20) days of receipt of 

the Licensee's notice of appeal. Written notice of the time, date and place of the hearing shall be 

delivered to the Licensee no later than five days before the scheduled date of the hearing. 

d. The Licensee, at his/her own cost, and the TGA may be represented by 

legal counsel at the revocation hearing. The Licensee and the TGA may present witnesses and 

evidence and cross examine witnesses presented by the opposing side. 

e. The Tribal Court shall issue its decision no later than ten (10) working 

days following the revocation hearing. The decision of the Tribal Court shall be final and 

conclusive. 

f. A copy of the Tribal Court's decision regarding the revocation of a license 

shall be sent to the TGA and the NIGC. 

Section 12. Background Investigation of Gaming Employees 

11. Background Investigations Prior to Employment 

a. The TEDA, prior to hiring a prospective Gaming Employee (including 

Primary Management Officials and Key Employees), shall obtain sufficient information and 

identification from the applicant to permit a thorough background investigation of the applicant. 

The applicant shall provide to the TEDA a written release authorizing the TGA or its agents, to 

conduct a background investigation. 

b. Prior to providing such release, Key Employees and Primary Management 

Officials shall be notified of their rights under the Privacy Act of 1974 as specified in 25 C.F.R. 

§ 556.2 and as required by 25 C.F.R. § 522.2(b). The application shall state: 

In compliance with the Privacy Act of 1974, the following information is provided: Solicitation 

of the information on this form is authorized by 25 U.S.C. 2701 et seq. The purpose of the 

requested information is to determine the eligibility of individuals to be granted a gaming 

license. The information will be used by the Tribal gaming regulatory authorities and by the 

Commission members and staff who have need for the information in the performance of their 

official duties. The Information may be disclosed by the Tribe or the NIGC to appropriate 

Federal, Tribal, State, local, or foreign law enforcement and regulatory agencies when relevant to 

16 
civil, criminal or regulatory investigations or prosecutions or when pursuant to a requirement by 

a tribe or the NIGC in connection with the issuance, denial, or revocation of a gaming license, or 

investigations of activities while associated with a tribe or a gaming operation. Failure to 

consent to the disclosures indicated in this notice will result in a tribe's being unable to license 

you for a Primary Management Official or Key Employee position. 

The disclosure of your Social Security Number (SSN) is voluntary. However, failure to supply a 

SSN may result in errors in processing your application. 

c. Additionally, prior to filling out the application, Key Employees and 

Primary Management Officials shall be notified on the application of the following: 

A false statement on any part of your license application may be grounds for denying a license or 

the suspension or revocation of a license. Also, you may be punished by fine or imprisonment 

(18 u.s.c. § 1001). 

d. The TGA shall be responsible for the performance of such background 

investigations. The information shall be provided in writing to meet the requirements of 25 

C.F.R. § 556.4 and§ 537.1 as to background investigations. In conducting a background 

investigation, the TGA and its agents shall keep confidential the identity of each person 

interviewed in the course of the investigation. The information obtained shall include: 

(1) Full name, including any aliases or other names which the 

applicant has used or has ever been known whether oral or written; 

(2) Social Security number(s); 

(3) Date and place of birth; 

(4) Citizenship of the applicant; 

(5) Gender of the applicant; 

( 6) All languages spoken or written by the applicant; 

(7) Currently and for the previous five ( 5) years an itemization or 

description of all: 

(a) Business and employment positions held; 

(b) Any ownership interests in those businesses listed; 

( c) Business and residence addresses; and 

(d) Current driver's license number(s). 

17 
(8) Provide the names and current addresses of at least three (3) 

personal references, including one personal reference who was 

acquainted with the applicant during each period of residence 

listed under Subsection (7)( c ), above; 

(9) A current business and residence telephone number(s); 

( 10) A description of any current, as well as, previous business 

relationships with Indian tribes, including ownership interests in 

those businesses; 

( 11) A description of any existing and previous business relationships 

with the gaming industry generally, including ownership interests 

in those businesses; 

(12) The name and address of any licensing or regulatory agency with 

which the applicant has filed an application for a license or permit 

related to gaming, whether or not such license or permit was 

granted; 

( 13) A description of all criminal proceedings in which the applicant 

was or is currently involved, including the following: 

(a) for each felony for which there is an ongoing prosecution 

or a conviction, the charge, the name and address of the 

court involved, and the date and disposition thereof; 

(b) for each misdemeanor conviction or ongoing misdemeanor 

prosecution (excluding minor traffic violations) within ten 

(10) years as of the date of the application, the name and 

address of the court involved and the date and disposition 

thereof, and 

( c) for each criminal charge (excluding minor traffic charges) 

whether or not there is a conviction, if such criminal charge 

is within ten (10) years of the date of application and is not 

otherwise listed pursuant to the provisions of Subsection (a) 

and (b) above, the criminal charge, the name and address of 

the court involved and the date and disposition thereof. 

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(14) The name, address of any licensing or regulatory agency with 

which the applicant has filed an application for an occupational 

license or permit, whether or not such license or permit was 

granted; 

(15) A current photograph; 

(16) A set of fingerprints prepared by an authorized state, local, federal 

or tribal law enforcement agency; and 

(17) A statement as to any civil litigation involving fraud in which the 

applicant has been involved, and a statement as to any other civil 

litigation in which the applicant has been involved within ten (10) 

years of the date of application. 

e. A criminal history check conducted by a law enforcement agency shall 

include a check of criminal history records information maintained by the Federal Bureau of 

Investigation. 

f. When a Key Employee or Primary Management Official is employed, the 

TGA shall maintain a complete application file containing the information listed under 

Section 12(1 )( d)(l-17). 

g. Before issuing a license to a Key Employee or Primary Management 

Official, the TGA shall create and maintain an investigative report on each background 

investigation. An Investigative report shall include all of the following: 

(1) Steps taken in conducting a background investigation; 

(2) Results obtained; 

(3) Conclusions reached; and 

(4) The basis for those conclusions. 

h. When a Key Employee or Primary Management Official begins 

employment for the Gaming Operation, the TGA shall forward a completed application for 

employment to the NIGC. 

i. Within sixty ( 60) days after a Key Employee or Primary Management 

Official begins work for the Gaming Operation, the TGA shall submit a notice or results of the 

applicant's background investigation conducted and a copy of the eligibility determination to the 

NIGC. The notice of results shall contain: 

(1) The applicant's name, date of birth, and social security number; 

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(2) The date on which the applicant began or will begin work as a Key 

Employee or Primary Management Official; 

(3) A summary of the information presented in the investigative 

report, which shall at a minimum include a listing of: 

(a) Licenses that have previously been denied; 

(b) Gaming licenses that have been revoked, even if 

subsequently reinstated; 

( c) Every known criminal charge brought against the applicant 

within the last ten (10) years of the date of application; and 

( d) Every felony of which the applicant has been convicted or 

any ongoing prosecution. 

j. If within thirty (30) days, the NIGC provides the TGA with a statement 

itemizing objections to the issuance of a license to a Key Employee or to a Primary Management 

Official for whom the TGA has provided an application and notice of results, the TGA shall 

reconsider the application, taking into account the objections itemized by the NIGC. The TGA 

shall make the final decision whether to issue a license to such applicant. 

k. The TGA may license a Gaming Employee after any prospective Gaming 

Employee who represents, in writing, that he or she meets the standards set forth in this Section, 

until such time as the written report on the applicants' background investigation is completed. 

The TGA may also license a Primary Management Official or Key Employee, on a probationary 

basis, after the TGA has submitted a notice of results to the NIGC, but before receiving the 

NIGC's statement of objections, provided that notice and the Licensee's right to a hearing are 

provided to the Licensee, or the TGA shall notify the NIGC within thirty (30) days after a license 

is issued to a Primary Management Official or Key Employee. Additionally, the TEDA shall 

comply with the Tribal employment preference policy in effect, if any. 

1. If the TGA issues a Primary Management Official or Key Employee a 

gaming license and upon receiving the NIGC's statement of objections, notice and hearing shall 

be provided to the Licensee pursuant to Section 11(8)-(10) of this Gaming Ordinance. 

m. The TGA shall not license as a Gaming Employee, Primary Management 

Official or Key Employee and shall terminate any probationary employee, if: 

(1) An employee does not have a license after ninety (90) days; 

(2) The report on the applicant's background investigation finds that 

the applicant: 

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(a) Has been convicted of or has pled nolo contendere to any 

felony within the previous ten (10) years or has ever been 

convicted or has ever pled nolo contendere to any gaming 

offense; 

(b) Has knowingly or willfully provided materially important 

false statements or information on his employment 

application; or 

( c) Has been determined to be a person whose prior activities, 

criminal record, if any, or reputation, habits, and 

association pose a threat to the public interest or to the 

effective regulation and control of gaming, or create or 

enhance the dangers of unsuitable, unfair, or illegal 

practices, methods, and activities in the conduct of gaming 

or the carrying on of the business and financial 

arrangements incidental thereto. 

n. If the TGA does not license a Primary Management Official or Key 

Employee applicant, the TGA shall notify the NIGC and shall forward copies of its eligibility 

determination and notice of results to the NIGC for inclusion in the Indian Gaming individuals 

Record System. 

o. The TGA shall retain for Inspection by the NIGC Chair or his or her 

designee all applications for licensing, investigative reports and eligibility determination for 

Primary Management Official or Key Employee applicants for no less than three (3) years from 

the date of termination of employment. 

12. Background Investigation of Gaming Employee During Employment 

p. The TGA shall retain the right to conduct such additional background 

investigations of any Primary Management Official, Key Employee, or other Gaming Employee 

at any time during the term of that person's employment. Any Gaming Employee found to fall 

within the provision of Section 12(13)(a)-(c) above shall be immediately suspended and shall be 

dismissed, after notice to the employee and hearing pursuant to Section 11(8)-(10) of this 

Gaming Ordinance. 

13. Backgrmmd Investigation of any Principal 

q. The TGA shall retain the right to conduct background investigations of 

any Principal of an entity which provides management services to the Tribe or the Gaming 

Operation. 

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Section 13. Management Contracts 

The TEDA may enter into a Management Contract for the Gaming Operation and management 

of Class II Gaming activities. Each contract must comply with the provisions of this Gaming 

Ordinance, other applicable provisions of tribal law (including, but not limited to any tribal 

employment preference ordinance), and provisions of federal law (including, but not limited to, 

25 U.S.C. §§ 2710 and 2711). 

III. CLASS II GAMES GENERALLY 

Section 14. Class II Games Permitted 

1. The Gaming Operation may conduct Bingo, other games similar to Bingo, 

Class II Non-Banking Card Games or a combination of Bingo and Class II Non-Banking Card 

Games. 

2. The Gaming Operation shall conduct regular Bingo games and such other Class II 

games as are permitted by the TGA pursuant to the requirements of applicable law. 

Section 15. Hours of Operation; Approval by Regulatory Commission 

Class II Gaming may be conducted twenty-four (24) hours a day, seven days a week, subject to 

approval by the TGA. 

Section 16. Patron Disputes 

Patrons with complaints against the Gaming Operation shall have as their sole remedy the right 

to file a petition for relief with the TGA. Complaints shall be submitted in writing. The TGA 

shall hold a hearing within thirty (30) days ofreceipt of the petitioner's complaint. The 

petitioner may have counsel present at the hearing. The petitioner may be allowed to present 

evidence, at the discretion of the TGA. After the hearing, the TGA shall render a decision in a 

timely fashion. All such decisions will be final when issued. Any Patron complaint must be 

submitted to the TGA within thirty (30) days of the incident giving rise to the complaint. All 

claims by Patrons shall be limited to a maximum recovery of actual proven damages, except 

disputes relating to a Patron's entitlement to a game prize, which shall be limited to the amount 

of such prize. The TGA's decision shall constitute the complainant's final remedy. 

IV. RECORDS AND AUDITS 

Section 17. Records Maintenance 

1. Each Gaming Operation regulated by the TGA shall maintain accurate and up to 

date records for each gaming activity conducted. Records shall include: 

a. All financial transactions; 

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b. All gaming machine testing, malfunctions, maintenance and repairs; 

c. Personnel; 

d. Complaints of Patrons; 

e. Gaming Operation in house investigations of any kind; 

f. Incidents and accidents; 

g. Actions by the TGA against Players or Gaming Operation visitors; and 

h. Actions by TGA against or in reprimand of employees. 

Section 18. Independent Audits 

1. Gaming Operations Conducted by the Tribe 

The TGA shall require, and the Tribal Council shall cause, an audit to be conducted each 

year of all Class II Gaming Operations conducted on Tribal Lands. Such audit( s) shall be 

conducted by an Independent auditing firm, selected at the sole discretion of the Tribal Council, 

or by the TGA on its behalf. However, nothing in this Subparagraph shall prohibit the annual 

audit of Gaming Operations activities from being encompassed within the Tribe's existing audit 

system. 

2. Contracts for Supplies. Services or Concessions 

Each contract for supplies, services or concessions with a contract amount in excess of 

$25,000 annually, except contracts for professional legal or accounting services, shall be subject 

to the independent audit required by Section 1, Subparagraph (1 ), above. 

3. Annual Audit Report to be Provided to Commission 

The TGA shall furnish a copy of each annual gaming audit report to the NIGC. 

V. VIOLATIONS 

Section 19. Crimes and Civil Penalties 

1. It shall be unlawful for any person to: 

a. Operate or participate in gaming on Tribal Lands in violation of the 

provisions of this Gaming Ordinance, any rules and/or regulations promulgated by the TGA 

pursuant to the authority of this Gaming Ordinance; 

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b. Knowingly make a false statement in an application for employment with 

a Gaming Operation on the Tribe's Tribal Lands; 

c. Bribe or attempt to bribe, or unduly influence or attempt to unduly 

influence, any person who operates, conducts, assists, or is otherwise employed by the Gaming 

Operation. 

d. Alter or misrepresent the outcome or other event on which wagers have 

been made after the outcome is made sure but before it is revealed to the Players. 

e. Place, increase or decrease a bet or to determine the course of play after 

acquiring knowledge, not available to all Players of the outcome of the game or any event that 

affects the outcome of the game or which is the subject of the bet or to aid anyone in acquiring 

such knowledge for the purpose of placing, increasing, or decreasing a bet or determining the 

course of play contingent upon that event or outcome. 

f. Claim, collect or take or attempt to claim, collect, or take, money or 

anything of value in or from a gambling game, with the intent to defraud without having made a 

wager thereon or claim, collect, or take an amount greater than the amount won. 

2. Civil fines provided for in this Section may be imposed in addition to criminal 

penalties. 

3. Any Person or Licensee who violates any provisions of this Gaming Ordinance or 

any rule or regulation promulgated by the TGA, shall be punished by fine in the nature of a civil 

penalty, not to exceed an amount applicable under federal or tribal law for each violation or for 

each day the violation continues or by suspension of their license for a period not to exceed one 

year or by revocation of their license, or by both such fine and license suspension or revocation. 

4. Such fine may be assessed only after the Person or entity has been given notice 

and an opportunity to be heard before the Tribal Court. 

5. Any Person who violates any provision of this Gaming Ordinance or any rule or 

regulation promulgated by the TGA, shall also be guilty of a criminal offense punishable by 

imprisonment not to exceed an amount of time applicable under federal or tribal law. 

6. Any person who violates any provision of this Gaming Ordinance or any rule or 

regulation promulgated by the TGA may have their property, equipment, material and supplies 

used in conducting the unlawful activity seized and impounded by the TGA or their agents. The 

owner of the property shall be afforded an opportunity to object and be heard in accordance with 

the principles of due process. If no objection is raised, or the objection is not sustained, the TGA 

may dispose of the seized property. 

7. The Tribal Court shall have jurisdiction over all violations of the Gaming 

Ordinance. Nothing, however, in this Gaming Ordinance shall be construed to authorize or 

require a criminal trial and punishment by the Tribe of non-Indians except to the extent allowed 

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or required by any applicable present or future, federal law, act of Congress or any applicable 

federal court decision. 

8. TGA, in its sole discretion, has the authority to require licensing for any class of 

vendors it determines and to promulgate regulations regarding such licensure. The TGA shall 

retain the right to revoke the license of any vendor who engages in conduct not authorized by 

this Gaming Ordinance or the vendor's agreement with the TEDA which involves moral 

turpitude, dishonesty or any act which is punishable as a felony or misdemeanor involving moral 

turpitude under Tribal, State or Federal laws. 

9. Any non-member of the Tribe, including non-Indians, who violates a provision of 

this Ordinance may be excluded from the Tribal Lands within the jurisdiction of the AlabamaCoushatta Tribe of Texas. 

Section 20. Enforcement 

After any Person or entity fails or refuses to pay a final assessment levied pursuant to Section 22 

above, the Tribe or its agencies or economic entities may proceed to collect the assessment by 

initiating a civil action against the Person or entity in Tribal Court or in a federal court of 

competent jurisdiction. In such civil action, validity and amount of the assessment shall not be 

subject to judicial review. The Tribe or its agencies or economic entities shall be entitled to all 

remedies in law or in equity that are available to civil litigants generally and/or specially, by law. 

VI. VALIDITY OF ORDINANCE 

Section 21. Severability 

If any provision or provisions in this Gaming Ordinance are held invalid by the Tribal Court or a 

federal court of competent jurisdiction, this Gaming Ordinance shall continue in effect as if the 

invalid provision(s) were not a part hereof. 

Section 22. Amendments 

The Gaming Ordinance may be amended by action of the Tribal Council and documented by 

Tribal Council Resolution. Any proposed amendments must be presented for approval to the 

NIGC. 

Section 23. Effective Date of Ordinance 

This Gaming Ordinance, as amended, shall take effect after adoption by the Tribal Council and 

upon approval of the Chairman of the NIGC. 

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