As Texas goes, what for Indian country?
The aggressive Texas campaign against the economic opportunities of contemporary Indian sovereignty poses a potential danger for all nations. A second Indian tribe had its sovereignty dismissed and trampled in Texas on July 25, when the Alabama-Coushatta casino, situated ninety miles northeast of Houston, got shut down by court order. In February, the Tigua (Ysleta del Sur Pueblo) casino of El Paso, was also shut down.
This Texas attack on tribal casinos should concern all tribes. The elements are stark and a certain Texas official's attitude toward Indians ? call it dismissive denial of actual historical existence ? has the potential to spread wings on the argument that Indian tribal governments are not real and valid.
The de-legitimizing of these two tribal enterprises by Texas, led by unrelenting prosecution from Texas Attorney General John Cornyn, caused the direct loss of nearly 1,500 jobs and affected the employment of thousands of others in related industries. In both cases, the shutdowns were opposed by local chambers of commerce and governmental institutions. The Texas casinos, like so much of tribal gaming, were clearly welcome economic stimulants in their counties and home cities. They were not huge moneymakers, but employed many non-native neighbors. This, while the Texas unemployment fund is depleted by rising numbers of claims.
For the tribes, the casinos provided health, housing, education and other services. They provided hope of growth and security, potential recovery from severe relocation and dispossession over two centuries. The denial of sovereignty wreaks particular economic havoc on the two tribes, who now see a huge investment in time and resources severely damaged, if not destroyed. Politically created destitution looms for two Indian nations that had led their areas in economic recovery.
The 5th U.S. Circuit Court of Appeals denied the Alabama-Coushatta's appeal to keep the casino open after U.S. District Judge John Hannah, Jr. said the casino violated the Native American Restoration Act of 1987. In their agreement with the state during their recognition process, the two tribes allegedly agreed not to sponsor any gaming that was otherwise illegal in Texas. Since Texas does not specifically permit casino gaming, the tribe's casino is considered outside the law by the ruling. Judge Hannah sustained the intensely anti-tribal logic of Attorney General Cornyn, who convinced a judge in the Tigua case to consider tribal legal personality on a par with "an association," or a "sorority or fraternity." This arbitrary diminution of status carries a danger of its own for tribes throughout the U.S.
We believe both the Native American Restoration Act of 1987 and the harsh ruling were dismissive of any knowledge and understanding of the historical foundations of these tribes and their retained rights to determine and govern their own economic futures. While it is true that the language of the Restoration Act in Texas tends to compromise the case for casinos, the national covenant with tribes to have independently run gaming as economic development base has grown widely since that signing. Considering how many other states are presently upholding and, as in the case of New York, encouraging mutually beneficial Native economic development through gaming, it should not be so difficult to conceive of a different attitude toward the casino-based strategy for these Texas tribes. The Cabazon Supreme Court decision, which laid out the sovereignty framework for Indian gaming, emerged that same year. The following year, the Indian Gaming Regulatory Act (IGRA), established the procedural compromise between tribal and state governments. Gaming as a serious business that could fuel Indian prosperity was just around the corner.
The tribes contend the recognition agreement was fraught with duress; they also point to the changes in Texas law that fueled unmitigated growth for the state lottery, pari-mutuel horse racing, raffles, private club exemptions, and eight-liner machines, which are very much like slots. If the state can change its regulations on gaming, why not allow the tribes to amend the language of the Restoration Act, say as part of a compact agreement with the state? In any case, argue the tribes, their casinos are structured to meet the requirements of the state Lottery Act. They contend that the casino is legal as long as the state lottery is legal. However, the judges went very thin on the definition of what the state allows and opined that "Las Vegas-style" gaming was completely different from the games that the state runs. The legal stomping was not long in coming.
Why does the huge state of Texas, which runs a mammoth lottery and multiple gaming institutions grossing .7 billion annually, chose to put the boots to two fledgling tribal operations? In comparison to the state's gaming income, the shutdown Alabama-Coushatta casino, located on the tribe's 2,800-acre reservation, makes only some million per year. At last report, the Tigua casino was making only million a year. For a few short years, this was becoming an income with which to capitalize a people long assailed by and neglected by the state and the federal government. Consider that in 1955, at the height of the federal Termination era, the Alabama-Coushatta reservation was devolved to the State of Texas. All tribes involved were forced to relocate repeatedly throughout their history, yet never lost their cultural identity. For these tribes, it was a very hard-fought battle to achieve any kind of recognition at all, as Texas has contended that it does not have Indian tribes. The denial of the tribe's petition to keep the casino open pending appeal seems vindictive. It tends to destroy the operation, perhaps irrevocably, before the final verdict has been issued on the case.
Some trace the genesis of the hostility to bad blood with George W. Bush himself. The theory holds that the intense prosecutions are political paybacks for a contribution by the tribe to George W. Bush's opponent in the Texas race for governor of 1998. That particular Bush Texas administration initiated the campaign by Attorney General John Cornyn to outlaw the Indian casinos. As Bush moved on to the presidency and people in ascendancy behind him moved up the political ladder, the policy against Texas tribal casinos and their governments continued in stride. In the courts, Cornyn intensely pressed the case to shut them down, while at the Texas Senate, Lieutenant Governor Bill Ratliff, another Bush follower, reportedly killed the tribes' efforts to formalize their legal reality. It is unavoidable at this juncture to remember the worrisome Bush quote, on the presidential campaign trail (November 1999) that "state sovereignty reigns supreme" over Indian nations, "whether it be gambling or any other issue." Although several aids and allies came to the rescue, stating he didn't really mean what he said, Bush himself has never formally withdrawn the statement.
If the analysts who point to paybacks by Bush machine operatives against the tribes are right, that the attitude against tribal sovereignty is inherent in that political base, there is probably something serious to worry about. Texas itself is no friend of Indians and the insistence on the anti-gaming language of the Restoration Act is reprehensible. It behooves all tribes to be ever on guard against giving in on any inherent and retained sovereign right.
Perhaps the link to a Bush imperative is not quite structured but the appearance is more than pronounced in Texas. It is important to be aware at least that federal courts are increasingly issuing hostile interpretations of Indian law. These cases are among those, which, if appealed to the Supreme Court, could produce a very reduced understanding of American Indian governments and their recognition in the U.S. Constitution. Based on the Texas cases, will other states attempt a similar definition of tribal governments as mere associations or fraternities? Will the federal judiciary take up that line of interpretation? Will the Tribes accept such a strategically obvious and demeaning redefinition?
The whole campaign against Indian governments is controversial, even in Texas. The current Democratic candidate for governor, Tony Sanchez, has expressed outrage that the tribes have had to shut down their enterprises. The Texas tribes have strong backing from their local communities. The Democratic National Committee has declared in their favor. Many others as well are questioning the approach to the Indian nations within the state. We urge the Texas tribes to concentrate their efforts within the Texas legislative process. We urge all tribes to assist this political challenge in every way possible.