WHY THE ALABAMA-COUSHATTA TRIBE CANNOT GAME

            The Indian Gaming Regulatory Act provides that federally recognized Indian Tribes can game on their reservations if gaming is not specifically prohibited by in the state by criminal law or public policy.  Because Texas law permits gaming, the question is why the Alabama-Coushatta Tribe is not allowed to offer gaming on its reservation.  The answer is that Texas’ State Comptroller at the time of the passage of the Restoration Act, Bob Bullock, was concerned that once the Tribe received federal recognition, it would compete with the Texas charitable bingo. 

            When the original Restoration Act was introduced by Congressman Coleman and Wilson, federally recognized tribes in Florida and California were offering high stakes bingo and it was unclear whether states had the ability to regulate such gaming.  Comptroller Bullock, whose office regulated Texas charitable bingo, pressed Texas’ congressional delegation not to allow the Restoration Act to pass unless it provided for the state regulation of bingo.  The issue was further complicated when the United States Supreme Court issued its seminal opinion in California v. Cabazon Band of Mission Indians, while the Restoration Act was pending before Congress.  In the Cabazon decision, the Court found that California state law permitted gaming, subject to regulation, rather than prohibiting it.  Therefore, the Court ruled California could not prohibit tribes from offering gaming activities on tribal lands.

            Congress was not sure how it was going to react to the Cabazon decision, and it inserted language into the Restoration Act that according to the Chairman of the House Committee on Interior and Insular Affairs, Morris K. Udall, was designed to ensure that the Cabazon holding applied to the Alabama-Coushatta and Tigua Tribes.  On August 3, 1987, Congressman Udall stated:

It is my understanding that the Senate amendments to [the Restoration Act] are in line with the rationale of the recent Supreme Court decision in the case of Cabazon Band of Mission Indians versus California.  This amendment in effect would codify for these tribes the holding and rational adopted in the Court’s opinion in the case.

            When Texas amended its State Constitution to expressly authorize a State Lottery, the Tigua Tribe decided it wanted to offer gaming on its reservation.  Texas Governor Ann Richards opposed the Tigua’s plan, and the Tribe sued to be permitted to game on its reservation.  Although the Tribe won in the Federal District Court, the Fifth Circuit Court of Appeals overturned the District Court’s ruling.  The Fifth Circuit found that rather than preserving the Cabazon ruling for the Tribes, the Restoration Act instead delegated the question of whether the Tribes could game to the Texas legislature.  Accordingly, the Fifth Circuit ruled that the Tigua Tribe was not permitted to offer gaming under the Indian Gaming Regulatory Act, a right enjoyed by virtually every other federally recognized tribe in the United States.

            In 2001, the Alabama-Coushatta Tribe decided to challenge the Fifth Circuit ruling, and it opened a gaming operation on its reservation.  Although the Federal District Court found that the Tribe made a compelling case, it ruled that it was bound by the earlier Fifth Circuit decision and enjoined the Tribe from gaming.  The Tribe appealed that decision to the Fifth Circuit, and it affirmed its earlier decision in the Tigua case.  The Alabama-Coushatta Tribe then appealed to the United States Supreme Court, but the Court declined to hear the matter.

            As it stands now, the only way that the Alabama-Coushatta Tribe will be able to game is if Congress amends its Restoration Act to make it clear that the Tribe can game under the Indian Gaming Regulatory Act or if the Texas legislature passes a law permitting the Tribe to game.