State of Texas v. Ysleta Del Sur Pueblo et al

Filing 176

ORDER GRANTING 147 Motion for Summary Judgment Signed by Judge Philip R. Martinez. (dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
STATE OF TEXAS,
Plaintiff,
v.
YSLETA DEL SUR
PUEBLO, the TRIBAL
COUNCIL, and the
TRIBAL GOVERNOR
MICHAEL SILVAS or his
SUCCESSOR,
Defendants.
-----------------------YSLETA DEL SUR
PUEBLO, the TRIBAL
COUNCIL, and the
TRIBAL GOVERNOR
MICHAEL SILVAS or his
SUCCESSOR,
Counter-Plaintiffs,
v.
KEN PAXTON, in his
official capacity as Texas
Attorney General,
Counter-Defendant.

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EP-17-CV-179-PRM

MEMORANDUM OPINION AND ORDER GRANTING
COUNTER-DEFENDANT KEN PAXTON’S MOTION FOR
SUMMARY JUDGMENT
On this day, the Court considered Counter-Defendant Ken Paxton,

in his official capacity as the Attorney General’s [hereinafter “Paxton”]
“Motion for Summary Judgment” (ECF No. 147) [hereinafter “Motion”],
filed on November 14, 2018; Counter-Plaintiffs Ysleta del Sur Pueblo,
the Tribal Council, and Tribal Governor Michael Silvas or his
Successor’s [hereinafter, collectively, “Pueblo” or “the Tribe”] “Response
in Opposition to Counter-Defendant Ken Paxton’s Motion for Summary
Judgment on Defendants’ Counterclaim” (ECF No. 153) [hereinafter
“Response”], filed on December 5, 2018; and Counter-Defendant
Paxton’s “Reply in Support of Counter-Defendant Ken Paxton’s Motion
for Summary Judgment” (ECF No. 158) [hereinafter “Reply”], filed on
December 14, 2018, in the above-captioned cause. After due
consideration, the Court is of the opinion that Paxton’s Motion should
be granted, for the reasons that follow.
I.

FACTUAL AND PROCEDURAL BACKGROUND
This case is the most recent chapter of a decades-long dispute

between the State of Texas and the Tribe regarding gaming activities
on Pueblo tribal land. In 1987, the Restoration Act restored a federal
trust relationship and federal assistance to the Tribe. See generally
Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of
2

Texas Restoration Act, Pub. L. No. 100-89, 101 Stat. 666 (1987). In
relevant part, § 107(a) of the Restoration Act provides that “[a]ll 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.” After
the Restoration Act was enacted, litigation regarding the Tribe’s
gaming activities and the Restoration Act’s meaning began quickly and
has continued for more than twenty-five years.1
The current dispute involves bingo activities on the Tribe’s
reservation. Am. Compl., Aug. 15, 2017, ECF No. 8. According to the
State, “[t]he Pueblo currently operates several thousand one-touch
‘electronic bingo’ slot machines, as well as an unlicensed 24/7 bingo
operation, on its El Paso reservation.” Id. at 1. The State asserts that
the Tribe’s activities violate Texas law and the Restoration Act;
therefore, the State seeks to enjoin the Tribe’s operations. Id. The
Tribe, however, avers that its gaming operations are permissible forms
of bingo. Pueblo Defs.’ First Am. Counterclaim 18 [hereinafter
“Counterclaim”], Sept. 7, 2018, ECF No. 121.

Prior litigation occurred under cause numbers EP-93-CA-29 and EP99-CV-320.
1

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The Texas Constitution provides that “[t]he Legislature by law
may authorize and regulate bingo games conducted by a church,
synagogue, religious society, volunteer fire department, nonprofit
veterans organization, fraternal organization, or nonprofit organization
supporting medical research or treatment programs.” TEX. CONST. Art.
3 § 47(b). The Bingo Enabling Act is the operative statute that enables
charitable bingo in Texas. See TEX. OCC. CODE § 2001. The Bingo
Enabling Act defines which types of organizations are allowed to
conduct charitable bingo, provides parameters for bingo occasions, and
discusses bingo licensing requirements. Id.
In its Counterclaim, the Tribe contends that the Texas
Constitution and Bingo Enabling Act2 violate the Equal Protection
Clause “by allowing certain organizations the right to conduct bingo,
but omitting Indian nations and their members from that list.”
Counterclaim 20. Additionally, the Tribe asserts that Paxton has

The Bingo Enabling Act implements the provision in the Texas
Constitution involving charitable bingo. Thus, for purposes of the
Tribe’s Equal Protection claims, their charitable bingo provisions rise
and fall together. Hereafter, in the interest of brevity, the Court will
refer to the list of charitable organizations as that found in the Bingo
Enabling Act. The Court’s discussion regarding the Bingo Enabling Act
is duly applicable to the Texas Constitution.
2

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enforced Texas’s gaming laws in a discriminatory manner. Specifically,
the Tribe contends that Paxton “has never brought suit against nonIndians” to enforce gaming violations pursuant to the Texas Civil
Practice and Remedies Code but “has worked for years to stop bingo on
the Ysleta del Sur Pueblo” reservation. Id. at 21–22. Thus, the Tribe
seeks a declaration that Texas’s Bingo Enabling Act and/or enforcement
of its gaming laws violate the Equal Protection Clause. Id. at 23.
II.

LEGAL STANDARD
A.

Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56(a), a court “shall
grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” A genuine dispute exists “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.”
Rogers v. Bromac Title Servs., LLC, 755 F.3d 347, 350 (5th Cir. 2014)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“Under Federal Rule of Civil Procedure 56(c), the party moving for
summary judgment bears the initial burden of . . . ‘identifying those
portions of [the record] which it believes demonstrate the absence of a
5

genuine issue of material fact.’” Norman v. Apache Corp., 19 F.3d 1017,
1023 (5th Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). “Rule 56(c) mandates the entry of summary judgment . . .
upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and
on which the party will bear the burden of proof at trial.” Celotex Corp.,
477 U.S. at 323. Where this is the case, “there can be ‘no genuine issue
as to any material fact,’ since complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all
other facts immaterial.” Id. (quoting Rule 56(c)).
In adjudicating a motion for summary judgment, a court
“consider[s] evidence in the record in the light most favorable to the
non-moving party and draw[s] all reasonable inferences in favor of that
party.” Bluebonnet Hotel Ventures, LLC v. Wells Fargo Bank, N.A., 754
F.3d 272, 276 (5th Cir. 2014).
III. ANALYSIS
In his Motion, Paxton seeks summary judgment on the Tribe’s
Counterclaim. Specifically, Paxton asserts that 42 U.S.C. § 1983 is the
appropriate vehicle for alleging a constitutional claim and that the
6

Tribe is not a proper claimant pursuant to § 1983. Mot. 6, Reply 2.
Additionally, Paxton contends that the Tribe’s claims fail on their
merits because the Bingo Enabling Act is not unconstitutionally written
or enforced. Mot. 9–10.
A.

Whether the Tribe has a cause of action apart from
§ 1983

According to the Tribe, its Counterclaim “does not include a claim
under 42 U.S.C. § 1983” and, therefore, whether the Tribe is a proper
claimant pursuant to § 1983 is irrelevant. Resp. 7. The Tribe presents
two theories regarding how this case might be properly brought without
invoking § 1983. First, the Tribe asserts that its claim is brought as
“Declaratory Judgment Act litigation.” Id. at 8. Second, the Tribe
contends that “even if this were a ‘stand alone’ constitutional claim, it
would be proper.” Id. For the following reasons, the Court is of the
opinion that the Declaratory Judgment Act does not provide an
independent cause of action and that the Tribe’s claim may not be
brought as a freestanding constitutional claim. Accordingly, § 1983 is
the proper vehicle for the Tribe’s claim.

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1.

The Declaratory Judgment Act does not provide a
cause of action.

The Declaratory Judgment Act provides no independent cause of
action. The operation of the Declaratory Judgment Act is “only
‘procedural’ . . . leaving ‘substantive rights unchanged.’” Medtronic, Inc.
v. Mirowski Family Ventures, LLC, 571 U.S. 191, 199 (2014) (quoting
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937) and then
Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 509 (1959)). Therefore,
the Act “is not an independent source of federal jurisdiction; the
availability of such relief presupposes the existence of a judicially
remediable right.” Schilling v. Rogers, 363 U.S. 666, 677 (1960)
(internal citation omitted). Because the Declaratory Judgment Act
provides no independent cause of action, the Tribe may not use the Act
alone as a vehicle to bring its Equal Protection claim into federal court.3

The Tribe contends that “the Court has confirmed” that this claim may
be brought pursuant to the Declaratory Judgment Act. Resp. 8.
Apparently, the Tribe believes that the Court determined that the
Declaratory Judgment Act provides the Court with jurisdiction to hear
an Equal Protection claim when the Court granted the Tribe leave to
amend its Counterclaim. See Order Denying Defs.’ Mot. to Dismiss and
Granting in Part and Denying in Part Pl.’s Mot. to Dismiss 33–35, Aug.
27, 2018, ECF No. 115 (granting leave to amend). To the contrary, the
Court specifically declined to discuss whether the Declaratory
Judgment Act could be an appropriate vehicle for the Tribe’s Equal
3

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Rather, the Tribe must identify a substantive source.
2.

The Tribe cannot bring a standalone Equal Protection
claim.

Further, the Tribe asserts that bringing this suit as a standalone
constitutional claim is proper. Thus, the Court considers whether
federal common law provides a cause of action for freestanding Equal
Protection claims and determines that it does not.4
Courts have determined that “[t]he Equal Protection clause of the
Fourteenth Amendment is not self-enforcing but requires application
through some legislative act.” Zentgraf v. Texas A & M Univ., 492 F.
Supp. 265, 270 (S.D. Tex. 1980) (citing Katzenbach v. Morgan, 384 U.S.
641, 649 (1966) and Ex parte Virginia, 100 U.S. 339, 345 (1880)); see

Protection claim. Id. at 34 n.16. Now, having fully considered the
issue, the Court determines that the Declaratory Judgment Act does not
supply a cause of action.
Some scholars have argued that federal question jurisdiction should be
understood to include the implied power to issue injunctive relief in
constitutional cases, even without Congressional action. See, e.g., John
F. Preis, In Defense of Implied Injunction Relief in Constitutional Cases,
22 WM. & MARY BILL RTS. J. 1, 39 (2013). Nonetheless, even if courts
could decide some constitutional questions based on an implied
equitable power, case law supports that the Equal Protection Clause is
not self-enforcing. Thus, it appears that courts would not have the
authority to issue injunctive relief in this circumstance.
4

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also Johnson v. Sutter Delta Med. Ctr., No. C 11-03628 SI, 2011 WL
5444319, at *2 (N.D. Cal. Nov. 9, 2011) (“[T]he Fourteenth Amendment
is not self-enforcing. Rather, § 5 of the Fourteenth Amendment grants
Congress the power to enact legislation with the purpose of enforcing
the Fourteenth Amendment.” (citing City of Boerne v. Flores, 521 U.S.
507, 518–19 (1997))). Thus, an Equal Protection claim must be
authorized by legislation and cannot be derived from the common law.
Notwithstanding case law to the contrary, the Tribe believes that
the Court may decide its constitutional claim without Congressional
authorization. To support its contention, the Tribe cites Village of
Willowbrook v. Olech, 528 U.S. 562 (2000) and Davis v. Passman, 442
U.S. 228 (1979). Resp. 8. It appears that the Tribe presumes these
cases were brought as standalone constitutional claims; however, this
belief is mistaken. Olech was filed pursuant to § 1983, and Davis was
brought under Bivens,5 a federal common law analogue to § 1983. See
Br. for Resp. at 1–2, Olech, 528 U.S. 562 (stating that “Mrs. Olech

Bivens provides an implied right of action for damages against federal
officials that is similar but not identical to § 1983. See Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389
(1971). This case is against a state—not federal—officer, so Bivens is
not relevant here. Rather, case law regarding § 1983 applies.
5

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brought the lawsuit under 42 U.S.C. § 1983 to redress the violation of
her rights under the Equal Protection Clause”); Davis, 442 U.S. at 248
(asserting that “as in Bivens, if petitioner is able to prevail on the
merits, she should be able to redress her injury”). Thus, these cases do
not support the Tribe’s contention that courts may decide a standalone
Equal Protection claim.
In sum, the Court is of the opinion that it has no authority to
decide the Tribe’s Equal Protection claim absent a legislative act.
Accordingly, the Court must consider whether the Tribe may bring its
claim pursuant to § 1983, which is the relevant statute that authorizes
persons to bring a claim against a state actor who has violated their
constitutional rights. Without such legislative authorization, the Court
lacks authority to hear the claim.
B.

Whether the Tribe may proceed pursuant to § 1983

Having determined that § 1983 is the proper method of alleging
an Equal Protection claim, the Court must determine whether the Tribe
may proceed pursuant to § 1983.6 Section 1983 “permits private

Although the Tribe does not identify § 1983 as the source of its cause
of action, the Court is of the opinion that § 1983 is the correct vehicle for
6

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individuals to sue state actors to enforce constitutional rights as well as
rights created by federal statutes.” Anderson v. Jackson, 556 F.3d 351,
356 (5th Cir. 2009). Section 1983 provides that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress. . . .
42 U.S.C. § 1983 (emphasis added). The key question here is whether
the Tribe is a “person” who may bring a claim pursuant to § 1983.
According to the State, the Tribe is not a proper claimant based on the
Supreme Court’s decision in Inyo County, a case which considers when
an Indian tribe is a proper claimant pursuant to § 1983. Mot. 6–7.
In this section, the Court discusses Inyo County and circuit court
cases interpreting it. Then, the Court determines that the Tribe may
proceed on two of its three theories regarding why the State’s action
violates the Tribe’s constitutional rights.

an Equal Protection claim. Accordingly, the Court analyzes this claim
pursuant to § 1983.
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1.

The Supreme Court’s decision in Inyo County

In Inyo County, the Supreme Court determined that the PaiuteShoshone Indian Tribe “does not qualify as a ‘person’ who may sue
under § 1983.” Inyo Cty., Cal. v. Paiute-Shoshone Indians of the Bishop
Cmty. of the Bishop Colony, 538 U.S. 701, 704 (2003). There, the local
district attorney’s office obtained a search warrant to secure payroll
records of employees who worked at a casino run by the Tribe as part of
a welfare fraud investigation. Id. at 705. The Tribe sued in federal
court and alleged, among other things, that the search violated the
Tribe’s right to self-governance because the Tribe, as a sovereign, is
immune from state processes. Id. at 706.
In determining that the Tribe could not bring a § 1983 suit, the
Supreme Court reasoned that § 1983 “was designed to secure private
rights against government encroachment, . . . not to advance a
sovereign’s prerogative to withhold evidence relevant to a criminal
investigation.” Id. at 712 (internal citation omitted). Accordingly, the
Court determined that “the Tribe may not sue under § 1983 to vindicate
the sovereign right it here claims.” Id.
In some circumstances, a sovereign may qualify as a person. In
13

reaching its decision, the Supreme Court considered cases regarding
when a sovereign is a “person” able assert a claim pursuant to a federal
statute. Id. at 711. Specifically, a sovereign acting as a purchaser may
qualify as a “person.” See State of Ga. v. Evans, 316 U.S. 159, 162
(1942) (determining that a state acting as a purchaser is a “person” for
purposes of the Sherman Act); Pfizer, Inc. v. Gov’t of India, 434 U.S.
308, 320 (1978) (determining that a foreign nation is a “person” who
may seek treble damages as afforded by federal antitrust laws).
Accordingly, the Supreme Court’s reasoning suggests that a sovereign
may qualify as a “person” if the sovereign is asserting a right that a
nonsovereign entity could have asserted.
2.

Cases Interpreting Inyo County

The Fifth Circuit has not yet addressed Inyo County’s scope or
application. The Sixth, Ninth, and Tenth Circuits have had the
opportunity to consider the scope of Inyo County and determine whether
a Tribe’s § 1983 claim should be barred.
a.

Sixth Circuit: Keweenaw Bay Indian Community

“[W]hether a sovereign entity may be considered a ‘person’
depends on the specific rights that it is asserting.” Keweenaw Bay
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Indian Cmty. v. Rising, 569 F.3d 589, 595 (6th Cir. 2009). In Keweenaw
Bay, the Indian Community asserted that Michigan had violated its
constitutional rights when the State “offset” federal funds that the
Community was entitled to in order to collect back taxes that the State
asserted the Community owed. Id. The district court had determined
that the Community could not proceed based on the Supreme Court’s
decision in Inyo County. The Sixth Circuit stated that:
There are at least two plausible ways to interpret the Court’s
Inyo County decision. First, it could be that a tribe is not a
“person” within the meaning of § 1983 whenever it sues to
vindicate rights that are rooted in its status as a sovereign, or
have some connection to its sovereignty. Second, it could be
that a tribe is not a “person” only when it sues to vindicate its
sovereign immunity specifically, as in Inyo County.
Id. at 596. The Sixth Circuit did not decide which of its articulated
interpretations was best but determined that “the District Court erred
under either reading.” Id. The Sixth Circuit remanded the case for the
district court “to determine whether the Community was entitled to the
federal funds (a) only as a result of its sovereignty, or (b) simply because
it provides certain social services.”7 Id. According to the Sixth Circuit,

On remand, the case settled before the district court had the
opportunity to further consider the issue. See generally 2:05-CV-224
(W.D. Mich).
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if the Community was entitled to funds simply because it provides
social services, then a Ҥ 1983 suit would not be in any way dependent
on its status as a sovereign, and it should be considered a ‘person’
within the meaning of that statute, so long as other private,
nonsovereign entities could likewise sue under § 1983.” Id.
b.

Ninth Circuit: Skokomish Indian Tribe

In Skokomish Indian Tribe v. United States, the Ninth Circuit
determined that the Skokomish Tribe could not bring an action against
a public utility company pursuant to a treaty regarding tribal lands and
§ 1983. 410 F.3d 506 (9th Cir. 2005). The Ninth Circuit reasoned that
“the Tribe is attempting to assert communal fishing rights reserved to
it, as a sovereign, by a treaty it entered into with the United States.”
Id. at 514–15. Thus, the Tribe was not acting in any capacity
resembling a “private person.” Id. at 515 (citing Inyo County, 538 U.S.
at 712). Instead, because the Tribe was asserting treaty-based rights,
the rights at issue could not “give rise to individual actions,” and the
Ninth Circuit asserted that the Tribe could not sue to “vindicate
communal, rather than individual rights.” Id. at 515–16.

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c.

Tenth Circuit: Muskogee (Creek) Nation

In Muskogee (Creek) Nation v. Oklahoma Tax Commission,
Muskogee (Creek) Nation—an Indian Nation—sued Oklahoma after
Oklahoma’s tax commission directed the state highway patrol to stop
Muskogee vehicles in order to inspect cigarettes and seize any
cigarettes that did not bear a tax stamp in compliance with a state
statutory scheme. 611 F.3d 1222, 1225–25 (10th Cir. 2010). The
Nation asserted that its Fourth Amendment rights were violated by the
highway patrol because of its sovereign immunity. Id.
The Tenth Circuit reasoned that the Supreme Court suggested
“that an Indian tribe’s status as a sovereign entity did not per se
foreclose its ability to bring suit as a ‘person’ under § 1983. Instead, the
viability of a tribe’s § 1983 suit depended on whether the tribe’s
asserted right was of a sovereign nature.” Id. at 1234 (citing Inyo
County, 538 U.S. at 711). Because “[n]o exemption from the state’s
statutory scheme based on Indian commerce would be available to [the
Tribe] suing as a non-sovereign ‘person,’” the Tenth Circuit determined
that the claim was one seeking to vindicate sovereign rights. Id. at
1235–36. Thus, the Tribe was unable to proceed pursuant to § 1983.
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3.

Application of Inyo County to this Case

After considering Inyo County and the case law interpreting it, the
Court concludes that the following test should be applied: If a Tribe
could not bring its claim if it were not a sovereign, then the claim
should be barred by Inyo County. Thus, claims that are based on Tribal
treaties, sovereign immunity, or other privileges granted only to
sovereigns should be barred. On the other hand, if the claim is one that
nonsovereign entities in similar situations could bring—even if the
claim has some relation to the Tribe’s sovereignty—then Inyo County
should not preclude the claim.
Even if Inyo County does not bar the Tribe’s claims outright, Inyo
County does affect how the Tribe may support its claims. That is, the
Tribe may not rely on any alleged sovereign rights in proving its claims
because the Tribe would effectively be suing to vindicate sovereign
rights. See Inyo Cty., 538 U.S. at 712 (determining that although “a
tribal member complaining of a Fourth Amendment violation would be
a ‘person’ qualified to sue under § 1983,” the tribal member—“like other
private persons”—could not assert a right to immunity). In this case,
the Tribe contends that it has a “fundamental sovereign right to engage
18

in gaming on the reservation.” Resp. 8. However, Inyo County makes
clear that Indian tribes may not use § 1983 to enforce sovereign rights.
Therefore, the Court declines to determine whether any enforceable
sovereign right to engage in gaming exists.8
Below, the Court considers whether the Tribe’s theories regarding
Texas’s alleged Equal Protection violations assert sovereign or
nonsovereign rights. Ultimately, the Court concludes that two of the
Tribe’s theories—that the Bingo Enabling Act is discriminatory and
that the State has enforced its gaming law in a discriminatory way—
could plausibly be asserted by a nonsovereign entity. Thus, the Court
determines that these theories should be evaluated on their merits. On
the other hand, the Court determines that the Tribe’s assertion that the
State has unlawfully expanded its regulatory reach is inextricably tied
to the Tribe’s sovereignty and that the Tribe may not pursue this claim.

The Court expresses no opinion regarding whether Indian tribes have
a fundamental right to engage in gaming. Because Inyo County
commands that a § 1983 suit brought by a Tribe may not be used to
vindicate sovereign rights, the Court believes that whether the Tribe
could assert a fundamental right to engage in gaming is irrelevant.
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i.

Claim that the statutory scheme is discriminatory

First, the Tribe contends that “[t]here is no legitimate reason for
excluding Indian Tribes from the Texas constitutional and statutory
classification of entities allowed to conduct the gaming activity of
bingo.” Resp. 10. Thus, according to the Tribe, the State unlawfully
discriminated against Indians when it drafted the charitable bingo
exemption. Id. at 11. A nonsovereign charitable entity could plausibly
assert that it was discriminated against when the Texas legislature did
not include it in the list of organizations authorized to conduct bingo.
Accordingly, the Court believes that this claim may be decided on its
merits.
ii.

Claim regarding discriminatory enforcement

Next, the Tribe asserts that the State’s enforcement scheme is
discriminatory. Resp. 14–15. The Tribe contends that Paxton “has
never brought suit against non-Indians” to enforce gaming violations
but “has worked for years to stop bingo on the Ysleta del Sur Pueblo”
reservation. Counterclaim 21–22. Further, the Tribe avers that the
State has discriminated against Indian tribes because Texas’s Office of
the Attorney General initiates suits against Indian tribes, whereas
20

“everyone else in the state is subject to the legal oversight of local
district attorneys.” Resp. 14.
A district court in California has considered whether a tribe could
bring an Equal Protection claim against a state regarding the state’s
enforcement of gaming laws. In Fort Independence Indian Community
v. California, the Community alleged that California violated the Equal
Protection Clause by denying the Community “special privileges and/or
immunities” that the State had extended other tribes. No.
CIVS08432LKK/KJM, 2008 WL 6137129, at *5 (E.D. Cal. Sept. 10,
2008). The court determined that the tribal plaintiff asserted an
interest “that a similarly situated private party would not enjoy” and
that its Equal Protection claim was thus outside the scope of § 1983. Id.
In this case, the Tribe asserts that it is being treated differently
than other, nontribal entities that offer gambling. Thus, the Tribe’s
claims are distinguishable from the claims at issue in Fort
Independence. A nonsovereign entity could bring a similar claim
alleging that the State’s enforcement structure violated its rights and
singled it out for special treatment. Thus, the Court is of the opinion
that the Tribe’s claim regarding enforcement should also be considered
21

on its merits.
iii.

Claim regarding the State’s regulatory reach

Finally, the Tribe contends that its Equal Protection rights are
violated because Congress has the “plenary power . . . to deal with the
unique issues concerning Indian nations” and because Texas “seeks to
unlawfully expand [its] regulatory reach.” Resp. 12–14. The Tribe
further asserts that Texas’s allegedly expansive reach prohibits the
Tribe from “exercising a fundamental right”—that is, the right to
engage in gaming—“guaranteed to them by Congress.” Id. at 14.
Whether the Tribe could allege any Equal Protection theory based
on this point is not entirely clear, as its claim appears to be rooted in
preemption. At any rate, to the extent that any cognizable Equal
Protection theory exists regarding Congress’s plenary power to regulate
Indian tribes, the claim is based in the Tribe’s belief that it, as a
sovereign, has a right to engage in gaming. The Tribe has not alleged
any Equal Protection claim that a nonsovereign entity could bring
regarding the State’s regulatory reach. Thus, the Court concludes that
Inyo County bars the Tribe from pursuing a § 1983 claim based on this
theory.
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C.

Evaluation of the Tribe’s Equal Protection Claims
1.

Claim that the Bingo Enabling Act is discriminatory

The Tribe asserts that the Bingo Enabling Act violates the Equal
Protection Clause because the State has allowed some charitable
entities to conduct bingo but declines to include Indian tribes on the
list. For the reasons discussed below, the Court is of the opinion that
rational basis scrutiny applies and that a rational basis exists for the
Bingo Enabling Act’s charitable exception. Thus, the Bingo Enabling
Act’s charitable exception does not violate the Equal Protection Clause.
a.

Rational basis scrutiny applies.

“The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall ‘deny to any person within its jurisdiction
the equal protection of the laws,’ which is essentially a direction that all
persons similarly situated should be treated alike.” City of Cleburne,
Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v.
Doe, 457 U.S. 202, 216 (1982)). When determining whether legislation
violates the Equal Protection Clause, “[t]he general rule is that
legislation is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a legitimate
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state interest.” Id. at 440. However, some exceptions to the general
rule exist, and statutes that fall under one of the exceptions are
afforded a heightened standard of review.
Heightened scrutiny will be applied if a statute facially
discriminates against a suspect class—i.e., if the statute discriminates
on the basis of race, national origin, or sex. See id. (“[W]hen a statute
classifies by race, alienage, or national origin,” the law should be
“subjected to strict scrutiny and will be sustained only if [it is] suitably
tailored to serve a compelling state interest.”); Lewis v. Ascension Par.
Sch. Bd., 806 F.3d 344, 354 (5th Cir. 2015) (“‘Laws that explicitly
distinguish between individuals on racial grounds fall within the core of
that prohibition,’ and are subject to strict scrutiny.” (quoting Hunt v.
Cromartie, 526 U.S. 541, 546 (1999)). Further, a law that is facially
neutral may be subject to strict scrutiny, but “only if the neutral law
has a ‘disproportionately adverse effect’ that ‘can be traced to a
discriminatory purpose.’” Id. (quoting Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256, 272 (1979)).
Here, the Tribe asserts that, because legislation that singles out
Native Americans or relies on classifications based on Native American
24

heritage is analyzed based on a strict scrutiny level of review, the Bingo
Enabling Act’s charitable exception should be afforded strict scrutiny.
Resp. 4. However, the Bingo Enabling Act does not single out Native
Americans (or any other suspect class) for special treatment. See
generally TEX. CONST. Art. 3 § 47(b) (providing that “bingo games
conducted by a church, synagogue, religious society, volunteer fire
department, nonprofit veterans organization, fraternal organization, or
nonprofit organization supporting medical research or treatment
programs”); TEX. OCC. CODE § 2001. Rather, the law is facially neutral.
Thus, in order to establish that strict scrutiny applies, the Tribe
must show that the statute has a disproportionate effect on Native
Americans and that the adverse effect can be traced to a discriminatory
purpose. Yet, the Tribe has failed to put forward any evidence showing
that the Bingo Enabling Act has a discriminatory purpose.
Additionally, the Court notes that charitable organizations on tribal
lands are permitted to apply for a license to conduct charitable bingo,
just like a charitable organization in any other community is able to
apply for a license to conduct bingo. In fact, the Pueblo volunteer fire
department has obtained a bingo license from Texas. Mot. Ex. A (Hisa
25

Dep. Tr. 49:2–3). Thus, it appears that the State did not leave tribes off
the list in order to prevent tribal organizations from engaging in
fundraising. To the contrary, tribal entities that meet the State’s
facially neutral criteria may conduct charitable bingo. Accordingly, the
Tribe has not shown that Texas’s laws regarding bingo discriminate
against a suspect class.
In addition to applying strict scrutiny when a statute
discriminates against a suspect class, courts have found that statutes
impinging on certain fundamental rights—e.g., interstate travel,
parental rights, and marriage—may be subject to strict scrutiny. See,
e.g., Shapiro v. Thompson, 394 U.S. 618 (1969) (interstate travel),
M.L.B. v. S.L.J., 519 U.S. 102 (1996) (parental rights), Loving v.
Virginia, 388 U.S. 1 (1967) (marriage). Jurisprudence regarding
fundamental rights “specially protects those fundamental rights and
liberties which are, objectively, deeply rooted in this Nation’s history
and tradition.” Washington v. Glucksberg, 521 U.S. 702, 703 (1997).
The Tribe asserts that it possesses a sovereign right to engage in
gaming. Resp. 8. However, as previously discussed, the Court declines
to consider whether Indian tribes enjoy any fundamental right to
26

engage in gaming, as this alleged right is rooted in sovereignty and is
not a right that may be enforced pursuant to § 1983. Significantly, the
Tribe does not contend that the Bingo Enabling Act violates any
traditionally recognized fundamental right. Accordingly, the Court is of
the opinion that the Bingo Enabling Act does not impinge on an
enforceable fundamental right and should not be subject to strict
scrutiny on this basis.
In sum, the statute does not classify on the basis of race, and the
Tribe has not shown that it otherwise has a discriminatory purpose.
Further, the Tribe has not alleged that the statute impinges upon any
enforceable fundamental right. Accordingly, the Court is of the opinion
that a rational basis standard of review should apply.9

The Tribe points out that, in a different context, the Fifth Circuit
considered a provision in the Bingo Enabling Act and applied a strict
scrutiny standard of review. Resp. 3 (citing Dep’t of Texas, Veterans of
Foreign Wars of U.S. v. Texas Lottery Comm’n, 760 F.3d 427, 433 (5th
Cir. 2014)). Thus, according to the Tribe’s logic, strict scrutiny should
apply here as well. However, the Fifth Circuit considered whether a
political advocacy restriction regarding the use of funds raised during
the course of bingo games violated the First Amendment. 760 F.3d at
430–31. Having determined that the restrictions burdened political
speech and were afforded strict scrutiny pursuant to First Amendment
case law, the Fifth Circuit determined that the provision violated the
First Amendment. Id. at 438–39. The legal framework for analyzing
First Amendment claims is distinct from the framework for analyzing
9

27

b.

A rational basis exists for the charitable bingo
exception.

When a rational basis standard of review applies,
courts have been very reluctant, as they should be in our
federal system and with our respect for the separation of
powers, to closely scrutinize legislative choices as to whether,
how, and to what extent those interests should be pursued. In
such cases, the Equal Protection Clause requires only a
rational means to serve a legitimate end.
City of Cleburne, 473 U.S. at 441–42. Thus, having determined that a
rational basis standard of review applies, the Court considers whether
the bingo exception is rationally related to a legitimate state interest.
The purpose of the Bingo Enabling Act is to increase charities’
ability to raise revenues “so that [charities] can assist and provide much
needed services in our communities.” STATE OF TEXAS, REPORT OF THE
SENATE INTERIM COMM. ON CHARITABLE BINGO, 75th Sess., at 21 (1996).
Thus, it appears that the Texas legislature determined that religious
groups, volunteer fire departments, nonprofit veterans’ organizations,
fraternal organizations, and nonprofit organizations supporting medical
research or treatment are charities that provide important services in

Equal Protection claims. Thus, the Fifth Circuit’s decision has little to
do with the case at hand.
28

Texas communities. Promoting private charitable giving is a legitimate
government interest, and allowing community organizations to raise
funds via bingo is a rational means to achieve that end.
To be clear, the list of organizations authorized to conduct bingo
may not be an exhaustive list of all types of charities that provide
services to a community. The Tribe appears to believe that, because the
State did not include Indian tribes on the list of organizations that may
conduct bingo, the Bingo Enabling Act does not serve a legitimate
purpose. Resp. 10 (stating that “[t]here is no legitimate reason for
excluding Indian Tribes from the Texas constitutional and statutory
entities allowed to conduct the gaming activity of bingo”). However, the
Court is not tasked with determining whether the State drafted the
best, or most inclusive, list of organizations that support and provide
services to communities. Instead, the Court considers whether a
rational basis exists for the State’s decision. Since the exempted
organizations are charitable organizations that provide services to a
community, a rational basis for the list of organizations exists.
Accordingly, the Court is of the opinion that summary judgment should
be granted in the State’s favor on this claim.
29

2.

Claim regarding discriminatory enforcement

Further, the Tribe avers that the State’s enforcement of the Bingo
Enabling Act is discriminatory. Specifically, the Tribe asserts that
similarly situated entities are not prosecuted for gaming violations.
Resp. 18. Additionally, the Tribe contends that, while Paxton’s
centralized office—the Office of the Attorney General—has initiated
litigation against Indian tribes, “everyone else in the state is subject to
the legal oversight of local district attorneys.” Resp. 14. For the
reasons provided below, the Court is of the opinion that summary
judgment should be granted in the State’s favor regarding the Tribe’s
discriminatory enforcement claims.
a.

The Tribe has not put forward evidence that a
similarly situated comparator exists.

The Equal Protection Clause protects the right to be free from
discriminatory enforcement of the law. In order to prove
discrimination, a litigant must show that they have been treated
differently than others who are similarly situated. Zayre of Georgia,
Inc. v. City of Marietta, 416 F.2d 251, 254 (5th Cir. 1969) (“The federal
courts have no general supervisory power over the operation of state
and local governments. . . . A showing of discrimination rests, in turn,
30

on a difference in treatment as between those similarly situated.”). “To
be a ‘class of one,’10 the plaintiff must establish (1) he was intentionally
treated differently from others similarly situated and (2) there was no
rational basis for any such difference.” Wilson v. Birnberg, 667 F.3d
591, 599 (5th Cir. 2012) (internal quotation marks and citations
omitted). “[A]t a minimum,” a plaintiff must “show he ‘has been
intentionally treated differently from others similarly situated.’”
Williams v. Riley, 275 F. App’x 385, 390 (5th Cir. 2008) (quoting Olech,
528 U.S. at 564).
The Tribe has not put forward any evidence demonstrating that a
similarly situated comparator exists. In its Counterclaim, the Tribe
identifies entities that the Tribe believes operate gaming rooms.
Counterclaim 15–18. However, the Tribe has failed to produce any
summary judgment evidence supporting its averments that these
entities operate gaming rooms.11

When a litigant asserts that he has been singled out for
discriminatory treatment, courts refer the claim as a “class of one”
Equal Protection claim.
10

Further, the Tribe contends that the size of other entities’ operations
should not matter for an Equal Protection analysis. Specifically, the
Tribe contends that “bigger bingo is not more of a gaming activity than
11

31

The Tribe appears to believe that it need not produce evidence
showing that other entities have engaged in gaming. Instead, the Tribe
attempts to shift the burden of producing evidence regarding its claims
to the State. Resp. 19. The Tribe contends that the State has offered
“not a single piece of evidence to contradict the averments in the
Counter Claim setting forth in detail the operation of bingo halls
throughout Texas that go unchallenged.” Id.
Nonetheless, the Tribe cannot shift the burden of production to
the State. In this case, “[t]he ‘burden of production at trial ultimately
rests on the [Tribe;]’” thus, “the movant12 must merely show an ‘absence
of evidentiary support in the record for the nonmovant’s case.’” Sanchez
v. Young Cty., Texas, 866 F.3d 274, 279 (5th Cir. 2017) (quoting Cuadra
v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010)), cert.
denied sub nom. Sanchez v. Young Cty., Tex., 139 S. Ct. 126 (2018).

is little bingo. . . . Size does not matter.” Resp. 20. The Court disagrees
and notes that the scope of an alleged violation would be relevant in
determining whether entities were similarly situated. Nonetheless,
regardless of whether the operations are similar in scope, the Tribe has
not produced any evidence demonstrating that other entities are
violating the State’s gaming laws.
12

The State is the movant, and the Tribe is the nonmovant.
32

“The nonmoving party must [] come forward with specific facts showing
that there is a genuine issue for trial. And though we draw justifiable
inferences in favor of the nonmovant, the nonmovant must put forward
sufficient evidence to enable us to draw this inference.” Id. (internal
citation omitted). Parties may not rely on bare factual averments in
their pleadings as evidence, as “unsubstantiated assertions are not
competent summary judgment evidence.” Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
Here, the Tribe has not provided any evidence that would tend to
show that other, similarly situated entities are violating the State’s
gaming laws without being prosecuted for the violation. Thus, the Tribe
fails to identify a genuine issue of fact for trial, and the Court
determines that summary judgment should be granted in the State’s
favor on this issue.
b.

A rational basis exists for the State’s decision to
have the Attorney General—rather than local
prosecutors—file this action against the Tribe.

Finally, the Tribe asserts that Paxton has violated the Tribe’s
constitutional rights because the Office of the Attorney General
prosecutes the Pueblo’s gaming violations, whereas local district
33

attorneys’ offices prosecute nontribal entities’ gaming violations. Resp.
14. On the other hand, the State contends that the reason that the
Attorney General bring suits against Indian tribes, is “embedded in the
structure of the Texas Constitution.” Resp. 12. According to the State,
gaming violations are typically prosecuted as criminal actions initiated
by local county or district attorneys. Id. at 13. However, pursuant to
the Restoration Act, “Texas has limited authority to halt violations of
gaming laws on the Tribe’s reservation, with this suit being the
primary, if not sole, method of doing so.” Id. at 13–14.
Considering the limitations imposed by the Restoration Act, it
appears that the State’s county and district attorneys could not pursue
an action against the Tribe in the manner that they typically pursue
actions against other entities—that is, via a state-court criminal action.
See Restoration Act § 107(c) (providing that “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”). It is unclear to the
Court whether the State’s local criminal prosecutors have the authority
to file civil actions in federal court on behalf of the State. However,
34

even if local attorneys do possess the authority to file suits on the
State’s behalf in federal court, the Restoration Act precludes the State
from bringing this suit in the way that it typically pursues lawsuits
regarding gaming violations. Specifically, Texas may not pursue a
state-court criminal action regarding the Tribe’s gaming operations.
Thus, a rational basis exists for prosecuting actions against the Pueblo
differently than actions against other entities.
Additionally, the Tribe contends that Paxton has determined that
local officials should not initiate actions against Indian tribes because of
a lack of political will from local leaders. Resp. 15. Thus, it appears
that the Tribe believes that the State has no legitimate reason for
determining that the Office of the Attorney General should initiate
these suits. To support its point, the Tribe relies on oral argument that
occurred in a prior hearing in this litigation. During argument, in
response to a question posed by the Magistrate Judge regarding
whether a civil suit in federal court is the sole remedy allowed by
Restoration Act, Texas’s attorney stated,
I think there’s a reason that Congress set it up this way.
I think that you might have a situation – and I’m not
specifically saying that it’s happening here or not happening
here.
35

But you might have a situation where you have within
a local community the elected district attorneys and county
attorneys may be hesitant to enforce these provisions against
tribes which are important members of those communities
and that there may be some political will there, and that
Congress was hoping to reserve to the State of Texas, an
independent sovereign, the right to have its laws enforced
regardless of what local elected officials choose to do.
Resp. Ex. E (Prelim. Inj. Hearing Tr. 37:20–38:11). Statements made
by an attorney who is not under oath are arguments, not evidence.
Thus, the Tribe has not proffered any admissible evidence to support its
contention that Paxton is making decisions based on political will. In
addition, the attorney was offering a hypothetical reason regarding why
Congress may have drafted the Restoration Act in the fashion that it
did, and the attorney was not offering a statement regarding why
Texas’s Office of the Attorney General has chosen to bring this action
against the Tribe.
Moreover, even if the Tribe offered admissible evidence showing
that the State considers political aims in determining who should
prosecute an action, the Tribe has failed to provide any authority
suggesting that it would be constitutionally improper for the State to
consider local officials’ political will. Rather, it appears that the State’s
policy would further the legitimate governmental interest of ensuring
36