On May 11, lawyers for the state of Texas came to federal court in Beaumont asking that the Alabama-Coushatta Indians be held in contempt of court for running the Naskila (“dogwood”) electronic bingo parlor on their reservation in East Texas.
Texas is asking that the Alabama-Coushattas be fined $10,000 for every day they offer electronic bingo because Texas claims the offer is in violation of an injunction the federal court entered in 2002 against casino (Class III) gambling.
The hearing before U.S. Magistrate Judge Keith Giblin appeared to clear the decks for a trial date in September unless Giblin picks a winner without having a trial, a procedure called summary judgment. Part of what happened on May 11 was to be certain the Alabama-Coushattas and Texas agreed on the pertinent facts.
“Electronic bingo” as Class II gaming has been fought over many times in other jurisdictions, but Texas chooses to go there again. Inside a box that is frankly made to look like a slot machine, a chip essentially calls an entire bingo game with each play. The algorithm that determines the winner is the same, but the game takes seconds rather than half an hour.
The Alabama-Coushattas come to federal court with a letter from the National Indian Gaming Commission approving the tribe for Class II gaming, which includes bingo, traditional or electronic. The case law appears to require the federal court to defer to the federal agency even if the 2002 case about Class III gaming applies.
The case Texas won in 2002 shut down the Alabama-Coushattas as well as Speaking Rock, the most lucrative Indian casino in Texas, operated by the Ysleta del Sur Pueblo. The Pueblo had the good fortune to own land near Interstate 10. The Alabama-Coushatta Reservation is in rural East Texas, where the $7.9 million economic footprint and 210 jobs provided by Naskila are a very big deal.
Tribal spokesman Carlos Bullock told ICMN that the tribe came away from the May 11 hearing “cautiously optimistic,” echoing the sentiments of Tribal Chairperson Jo Ann Battise expressed in a written statement: “The Tribal Council remains confident that the Tribe is legally operating Naskila Gaming under the authority of the National Indian Gaming Commission. We see the benefits daily and will continue to work to protect the 210 jobs that Naskila provides for our community.”
The 2002 injunction against Class III gaming was the culmination of a legal battle Texas has waged on Indian gaming without regard to which political party ruled in Austin. Like most Indian law cases, this latest fight with Texas over Class II gaming cannot be understood without a lot of history, and if you take the history back far enough, seeing the injustice in the current situation requires no law degree.
There are only three federally recognized tribes in Texas and the Texas crusade against Indian gaming while running a state lottery, dog and horse racing, and authorizing charitable gaming was a bit hypocritical. The ironic result was to shut down Ysleta del Sur and the Alabama-Coushattas, both of which occupied their current lands before Texas existed, leaving the Lucky Eagle, run by the Kickapoo Traditional Tribe of Texas.
The Kickapoos were first recognized by Texas in 1977 and by the federal government in 1983. They were of course present in Texas for much longer than that and they commonly traveled between Kickapoo reservations in Mexico and in Oklahoma.
Federal recognition of the Alabama-Coushattas was terminated in 1954 and of Ysleta del Sur in 1968. Administration of their affairs was turned over to the state of Texas, which abdicated that responsibility. The absurdity of Indian tribes having existed as tribes longer than Texas existed but having no legal standing as Indians was cured by federal re-recognition in 1987, but that law that brought them back from termination was written to ban gaming.
The previous round of the Indian gaming battle in Texas was won by Texas when the Fifth Circuit Court of Appeals decided that the case was controlled by the law that brought two Texas tribes back from legal limbo rather than by the Indian Gaming Regulatory Act.
That legal history shows how two tribes that antedate Texas are denied gaming while the tribe only recently recognized as a separate entity from the Kickapoos in Oklahoma or the Kickapoos in Kansas or the Kickapoos residing on the Nacimiento Reservation in the Mexican state of Coahuila successfully resisted the same efforts by Texas to shut them down.
The legal history is twisted enough, but it takes drilling down to the earliest relations between the Alabama-Coushattas and Texas to reach a full understanding of right and wrong, the morality hidden under the thicket of laws.
The Alabamas and Coushattas promised to stand neutral in the Texas Revolution in return for certain lands they never got. In fact, they did much more than stand neutral. The tribes took the side of the Texians (as they called themselves at the time) in full retreat before a Mexican army that greatly outnumbered the Texians commanded by a man who had promised—and delivered—bloody retribution.
In return for their services, the tribes got their lives, but they did not get the land promised and they wandered East Texas homeless for many years. The Alabamas received a fraction of what was promised from the state in 1854, and the feds purchased small parcels of land in trust in 1928 for both tribes.
Having risked their lives for Texas before it existed, all they are asking now is to keep a bingo parlor on their land in rural East Texas.
Legally, the Alabama-Coushatta case is complicated. Morally, it should be a slam dunk.