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updated 7:27 PM UTC, Sep 16, 2018

Tribe suffers setback on gaming issue

By Greg Peak and Valerie Reddell
Polk County Publishing Company

BEAUMONT — Although a trial dealing with the Alabama-Coushatta Tribe of Texas's gaming operation is still set for Feb. 28, the tribe suffered a major setback Feb. 8 when the federal magistrate in Beaumont sided with the state on which law will apply.

The issue addressed Tuesday as part of the pretrial procedures was whether the Indian Restoration Act of 1987 or the Indian Gaming Regulatory Act of 1988 would apply during the trial. The two federal measures conflict in that the Indian Restoration Act — which created the Alabama-Coushatta federal reservation — prohibits gaming while the Indian Gaming Regulatory Act allows it.

Rep. Brian Babin (R-Woodville) appeared before Congress on Feb. 9, representing several other members to file HR 4985, a bill that puts the Alabama-Coushatta and the Ysleta del Sur Pueblo tribes on equal standing with other Native American tribes who operate Class II gaming businesses.
The bill would make the two Texas tribes subject to the Indian Gaming Regulatory Act (25 U.S.C. et seq), and legalizes the electronic bingo games played at Naskila Entertainment Center.

"I was surprised by the ruling last week against the Alabama-Coushatta tribe and their ability to continue operating their Naskila Gaming Center," Babin said Tuesday. "This decision has put hundreds of jobs in jeopardy. I have introduced legislation, along with several other Members of Congress, to resolve the issue created by conflicting statutes and provide full relief for the Alabama-Coushatta tribe so that they can continue their operations. This is a fairness issue as this bill would ensure the Alabama-Coushatta tribe receives the same treatment that the federal government extends to other tribes under the Indian Gaming Regulatory Act. I will continue working with the tribe to address this issue and am hopeful that Congress will soon take action on this legislation."

As to whether this bill can make its way to President Donald Trump's desk before Texas Attorney General Ken Paxton takes action to close Naskila, only time will tell.
Judge Keith F. Giblin is hearing the state's challenge to the Native American tribe's legal right to operate under the Class II gaming license issued by the National Indian Gaming Commission (NIGC).

Calling it an "unjust" situation, Giblin ruled that the Indian Restoration Act requires the tribe to obey state law on gaming issues and supersedes the Indian Gaming Regulatory Act. Because of this, the court could not defer to the NIGC's 2015 decision to authorize a Class II gaming license to the tribe.

Based on the NIGC's decision, the Tribe opened the Naskila Entertainment Center on the reservation in 2016. The Class II NIGC license authorized the Tribes to operate bingo or electronic bingo machines, such as the ones now in use at the Naskila facility.

While Tuesday's order does not immediately impact the operation of the Naskila gaming facility located near Livingston, tribal leaders have already filed a notice of appeal and are asking that Giblin's order be placed on hold until the matter can be taken to the U.S. 5th Circuit Court of Appeals, a process that can take a year or more.

"We are very disappointed with the ruling issued by the U.S. Federal District Court today," Tribal Council Chairperson Jo Ann Battise said last week. "The Alabama-Coushatta Tribe remains confident in its legal position and has already filed a notice of appeal. The Tribe has also filed a motion with the court requesting the ability to stay open pending the appeal process in order to protect the 330 jobs that the Tribe provides as the third largest employer in Polk County.

"These jobs represent an annual payroll and benefits of almost $17 million, they significantly contribute to the economies of Polk and Tyler Counties, and are vital to the greater Deep East Texas economy," she added.

"The conflicting regulatory scheme is unjust," Battise said. "We will continue to fight this injustice by working closely with our elected officials."
In his 26-page order issued Tuesday, Giblin almost apologized to the Tribe for the decision.

"Given the complex history of this matter and its importance to the Tribe, the undersigned must take the time to express the court's understanding and sympathy for the Tribe's position," Giblin wrote. "The Tribe is bearing the brunt of a conflicting statutory scheme, the result of which is arguably undesirable to its interests and, many would say, unjust.

"Counsel for both sides have done a thorough and excellent job in advocating for their clients and presenting the best case possible, especially given the context and the complicated historical, legal, social and economic issues at stake. The fact remains, however, that the Tribe submitted itself to the gaming laws of the state when it certified Tribal Resolution No. T.C. -86-07 in exchange for passage of the Restoration Act.

"This may have indeed taken effect under duress, but that issue is not up for consideration by this court 30 years after the fact. The plain language of the Restoration Act stands, as does the Fifth Circuit's undisturbed interpretation of the application of that act to the restoration tribes of Texas.

"Until Congress can be persuaded to amend or repeal the Restoration Act, the court is obligated to abide by the plain language of the statute and the Tribe must conform to the gaming laws and regulations of Texas as provided by the Restoration Act," he added.

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