State of Texas v. Ysleta Del Sur Pueblo et al
Filing
183
MEMORANDUM OPINION AND ORDER GRANTING 146 Motion for Summary Judgment. IT IS FURTHER ORDERED that the March 4, 2019, trial setting in this matter is VACATED. IT IS FINALLY ORDERED that, in light of this Memorandum Opinion, each party may draft and submit a proposed permanent injunction, if it so chooses, by March 1, 2019, at 5:00 p.m. Mountain Time. 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
On this day, the Court considered Plaintiff State of Texas’s
“Motion for Summary Judgment and Permanent Injunction” (ECF No.
146) [hereinafter “Motion”], filed on November 14, 2018; Defendants
Ysleta del Sur Pueblo, the Tribal Council, and the Tribal Governor
Michael Silvas or his Successor’s [hereinafter “Pueblo” or “the Tribe”]
“Response to Texas’ Motion for Summary Judgment and Permanent
Injunction” (ECF No. 154) [hereinafter “Response”], filed on December
5, 2018; and Plaintiff State of Texas’s “Reply in Support of Texas’s
Motion for Summary Judgment and Permanent Injunction” (ECF No.
157) [hereinafter “Reply”], filed on December 14, 2018. After due
consideration, the Court is of the opinion that the Motion should be
granted, for the reasons that follow.
I.
BACKGROUND
A.
History of the Restoration Act
In 1968, the United States Congress simultaneously recognized
the Pueblo as a tribe and transferred any trust responsibilities
regarding the Tribe to the State of Texas. S. Rep. No. 100-90 (1987), at
7. After the trust relationship was created, Texas held a 100-acre
reservation in trust for the Tribe. Id. However, in 1983, Texas
Attorney General Jim Mattox issued an opinion in which he concluded
that the State may not maintain a trust relationship with an Indian
2
Tribe. Jim Mattox, Opinion Re: Enforcement of the Texas Parks and
Wildlife Code within the Confines of the Alabama-Coushatta Indian
Reservation, No. JM-17 (March 22, 1983). Mattox opined that a trust
agreement with Indian tribes discriminates between members of a tribe
and other Texas citizens on the basis of national origin in violation of
the Texas Constitution. Id. Therefore, Mattox determined that no
proper public purpose existed for the trust. Id. Accordingly, the Pueblo,
alongside the Alabama-Coushatta Tribe in East Texas, sought to
establish a federal trust relationship with the United States
government. See S. Rep. No. 100-90 (1987), at 7.
In 1985, the House of Representatives, seeking to establish a
federal trust relationship with the Tribe, passed House Resolution 1344
(“H.R. 1344”). Section 107 provided that:
Gaming, lottery or bingo on the tribe’s reservation and tribal
lands shall only be conducted pursuant to a tribal ordinance
or law approved by the Secretary of the Interior. Until
amended as provided below, the tribal gaming laws,
regulations, and licensing requirements shall be identical to
the laws and regulations of the State of Texas regarding
gambling, lottery and bingo.
131 Cong. Rec. H12012 (daily ed. Dec 16, 1985) (H.R. 1344 as passed by
the House). However, several Texas officials remained concerned that
3
the bill would allow high-stakes gaming on the Tribe’s reservation.
Thus, in 1986, the Tribe enacted Tribal Resolution No. TC-02-861
which, in relevant part, provided:
WHEREAS, the Ysleta del Sur Pueblo has no interest in
conducting high stakes bingo or other gambling operations on
its reservation, regardless of whether such activities would be
governed by tribal law, state law or federal law; and,
...
WHEREAS, the Ysleta del Sur Pueblo remains firm in
its commitment to prohibit outright any gambling or bingo in
any form on its reservation; and,
...
WHEREAS, although the Tribe, as a matter of principle,
sees no justification for singling out the Texas Tribes for
treatment different than that accorded other Tribes in this
country, the Tribe strongly believes that the controversy over
gaming must not be permitted to jeopardize this important
legislation, the purpose of which is to ensure the Tribe’s
survival, protect the Tribe’s ancestral homelands and provide
the Tribe with additional tools to become economically and
socially self-sufficient;
NOW, THEREFORE, BE IT RESOLVED, that the
Ysleta del Sur Pueblo respectfully requests its
representatives in the United States [Senate] and House of
Representatives to amend [§ 107] by striking all of that
section as passed by the House of Representatives and
substituting in its place language which would provide that
all gaming, gambling, lottery, or bingo, as defined by the laws
and administrative regulations of the State of Texas, shall be
prohibited on the Tribe’s reservation or on tribal land.
A Tribal Resolution appears to be a way for a Tribe to communicate
official opinions on political or public matters.
1
4
Thereafter, H.R. 1344 was introduced in the Senate, and the Senate
modified § 107 to provide that “[g]aming, gambling, lottery or bingo, as
defined by the laws and administrative regulations of the State of Texas
is hereby prohibited on the tribe’s reservation and on tribal lands.” 132
Cong. Rec. S13634 (daily ed. Sept. 25, 1986) (H.R. 1433 as passed by the
Senate). Thereafter, the bill died. See 132 Cong. Rec. S13735 (daily ed.
Sept. 25, 1986).
A new bill was introduced, and in 1987, Congress enacted the
Restoration Act to restore a federal trust relationship and federal
assistance to the Tribe.2 See generally Ysleta del Sur Pueblo and
Alabama and Coushatta Indian Tribes of 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.” Subsection (a) also
incorporates the aforementioned Tribal Resolution by reference, adding
that the statute’s gaming provisions are drafted “in accordance with the
For a more detailed account of the Restoration Act’s legislative history,
see Ysleta del Sur Pueblo v. State of Texas, 36 F.3d 1325 (5th Cir. 1994).
2
5
tribe’s request in Tribal Resolution No. T.C.-02-86.” Subsection (b)
provides that “[n]othing in [§ 107] shall be construed as a grant of civil
or criminal regulatory jurisdiction to the State of Texas.” Finally,
subsection (c) describes the Act’s enforcement mechanisms and gives
the “United States . . . exclusive jurisdiction over any offense in
violation of subsection (a).” Further, it provides that “nothing in [§ 107]
shall be construed as precluding the State of Texas from bringing an
action in the courts of the United States to enjoin violations of the
provisions of this section.”
B.
Prior Litigation Regarding Gaming on the Pueblo
Reservation
1.
Ysleta I
In 1993, the Tribe sued the State and argued that, pursuant to the
Indian Gaming Regulatory Act (“IGRA”)3, the State had failed to
negotiate in good faith to form a Tribal-State compact concerning
IGRA is a statute that governs gaming on myriad Indian reservations
throughout the country. 25 U.S.C. §§ 2701, et seq. IGRA divides
gaming into “class I,” “class II,” and “class III” gaming activities;
whether a specific type of gaming is allowed on a reservation and how
the gaming is regulated depends on which class of gaming activity is
applicable. See id. §§ 2703, 2710. Additionally, IGRA requires that
states negotiate in good faith if a tribe that wishes to engage in class III
gaming requests such negotiations. Id. § 2710(d)(3)(a).
3
6
gaming on the Pueblo reservation. Ysleta Del Sur Pueblo v. State of
Tex., 852 F. Supp. 587, 590 (W.D. Tex. 1993), rev’d, 36 F.3d 1325 (5th
Cir. 1994). The district court applied IGRA and concluded that the
State was required to negotiate in good faith with the Tribe regarding
casino-type gaming. Id. at 597. Further, the district court did not
believe that the Restoration Act should have any effect on the relief that
the Tribe requested. Id.
However, on appeal, the Fifth Circuit reversed the district court
and determined that the Restoration Act—not IGRA—governs Pueblo
gaming. Id. at 1332–33. Ysleta del Sur Pueblo v. State of Texas (“Ysleta
I”), 36 F.3d 1325 (5th Cir. 1994). Specifically, the Fifth Circuit decided
that “the Tribe has already made its ‘compact’ with the State of Texas,
and the Restoration Act embodies that compact.” Id. at 1335.
Moreover, the Fifth Circuit stated that, pursuant to the Restoration
Act, “Texas’s laws and regulations [] operate as surrogate federal law on
the Tribe’s reservation.” Id. at 1334.
In reaching this conclusion, the Fifth Circuit rejected the Tribe’s
argument that the Restoration Act should be read to incorporate the
Supreme Court’s decision in California v. Cabazon Band of Mission
7
Indians, 480 U.S. 202 (1987). Id. at 1334–34. In Cabazon Band, which
was decided six months prior to the Restoration Act’s enactment, the
Supreme Court considered Pub. L. 280, which, among other things,
granted California broad criminal jurisdiction over offenses committed
by Indians but provided the State a more limited grant of civil
jurisdiction over tribal reservations. 480 U.S. at 207 (citing Pub. L. 280,
67 Stat. 588 (1953), which is codified as 18 U.S.C. § 1162). To
determine whether conduct falls within a state’s jurisdiction pursuant
to Pub. L. 280, the Supreme Court recognized a distinction between
“criminal/prohibitory” laws and “civil/regulatory” laws:
if the intent of a state law is generally to prohibit certain
conduct, it falls within Pub. L. 280’s grant of criminal
jurisdiction, but if the state law generally permits the conduct
at issue, subject to regulation, it must be classified as
civil/regulatory and Pub. L. 280 does not authorize its
enforcement on an Indian reservation.
Id. at 209.
Consequently, if the Restoration Act incorporated
Cabazon Band’s criminal-prohibitory/civil-regulatory dichotomy,
then courts would consider whether Texas law permits the conduct
at issue, subject to regulation, or prohibits the conduct outright.
However, the Fifth Circuit determined that—even though some
discussion regarding Cabazon Band occurred on the House floor—
8
Congress as a whole did not intend to incorporate the criminalprohibitory/civil-regulatory dichotomy into Restoration Act. Ysleta
I, 36 F.3d at 1334–34. Instead, all gaming activities prohibited by
Texas laws and regulations are prohibited by the Restoration Act.
Id.
Ultimately, the Fifth Circuit determined that the Tribe’s suit
against the State was barred by Eleventh Amendment immunity.
Id. at 1336–37. Therefore, the case was remanded with instructions
that the district court dismiss the Tribe’s suit. Id. at 1337.
2.
Ysleta II
In 1999, the State sued the Tribe and sought to enjoin gaming
activities on the Pueblo reservation.4 On September 27, 2001, summary
judgment was granted in the State’s favor. Texas v. del Sur Pueblo
(“Ysleta II”), 220 F. Supp. 2d 668, 687 (W.D. Tex. 2001) (internal
citations omitted), modified (May 17, 2002), aff’d, 31 F. App’x 835 (5th
Cir. 2002), and aff’d sub nom. State of Texas v. Pueblo, 69 F. App’x 659
(5th Cir. 2003), and order clarified sub nom. Texas v. Ysleta Del Sur
Pueblo, No. EP-99-CA-320-H, 2009 WL 10679419 (W.D. Tex. Aug. 4,
4
Litigation proceeded under cause number EP-99-CV-320.
9
2009). In his Memorandum Opinion, Judge Eisele determined that the
Tribe cannot engage in “‘regulated’ gaming activities unless it complies
with the pertinent regulations.” Id. at 690. The court determined that
the Tribe’s activities did not comply with Texas’s laws and regulations.
Id. at 695–96. Moreover, the court considered equitable factors and
concluded that “[t]he fruits of [the Tribe’s] unlawful enterprise are
tainted by the illegal means by which those benefits have been
obtained.” Id. at 697. Accordingly, the Tribe was permanently enjoined
from continuing its operations. Id. The injunction mandated that the
Tribe and those affiliated with it terminate, inter alia,
• “[A]ll card games; all dice games; all games using one or
more balls and or a spinning wheel and games involving a
vertical spinning wheel, which require players to pay a
monetary fee;”
• “Gambling activities played with cards, dice, balls, Keno
tickets, bingo cards, slot machines, or any other gambling
device;”
• “Providing to any person for his/her use a slot machine;”
• “Conducting any gambling game from which any person or
party enjoined herein is likely to receive any economic
benefit other than personal winnings, including, but not
limited to: [] Bingo or any variation thereof. . . . ”
Permanent Injunction, Ysleta II, No. EP-99-CV-320 (W.D. Tex. Sept. 27,
10
2001), ECF No. 115 at 3–5. The Fifth Circuit summarily affirmed
Judge Eisele’s opinion. State v. del sur Pueblo, 31 F. App’x 835 (5th Cir.
2002).
In May 2002, the injunction was modified to clarify that the Tribe
may engage in legal gaming activities. Order Modifying September 27,
2001 Injunction, Ysleta II, No. EP-99-CV-320 (W.D. Tex. May 17, 2002),
ECF No. 165. Judge Eisele stated that “[t]he Tribe is bound, through
the terms of the Restoration Act, to adhere to Texas gaming law. Not
all gaming activities are prohibited to the Tribe, only those gaming
activities that are prohibited by Texas law to private citizens and other
organizations.” Id. at 16.
Significantly, the order modifying the injunction discussed
charitable bingo. Id. at 14–17. In seeking modifications to the
injunction, the Tribe sought to conduct charitable bingo without a
license. Id. The Tribe averred that, because § 107(b) of the Restoration
Act does not give Texas regulatory jurisdiction over the Tribe, the Tribe
should be permitted to operate bingo that is regulated by the Tribe’s
own commission rather than by Texas’s bingo commission. Id. at 15.
However, Judge Eisele made clear that the Tribe must, like other
11
citizens, follow Texas gaming law. Id. Notably, Judge Eisele
determined that the Tribe is not entitled to conduct bingo without a
license because “the Tribe is subject to Texas gaming law on all
matters, including participation in charitable bingo activities.” Id.
C.
The Relevant Facts Regarding This Litigation
The facts in this case are undisputed.5 The lawsuit centers
around the Tribe’s activities at Speaking Rock Entertainment Center
[hereinafter “Speaking Rock”], which is the primary location for the
Tribe’s gaming activities.6 The Tribe’s gaming operations are a
significant source of employment for the Pueblo people, and the Tribe
uses the money raised at its casino to fund several important
governmental initiatives, including education, healthcare, and cultural
The Tribe asserts that “mixed question[s] of law and fact” exist in this
case because it believes the State has “conflat[ed ] what is a law and
what is a regulation.” Resp. 9. However, the Tribe does not dispute the
facts that the State has alleged regarding the gaming operations;
instead, the Tribe challenges the conclusions that the State draws from
the available facts.
5
Although the majority of the Tribe’s operations occur at Speaking
Rock, the Tribe also operates a smaller number of machines at the
Socorro Tobacco Outlet. See Mot. Ex. F (Hisa Dep. Tr.), at 11:16–12:12.
Thus, although the Court will refer to the Tribe’s operations as those at
“Speaking Rock,” the Court’s discussion applies to the one-touch
machines located at the Socorro Tobacco Outlet, as well.
6
12
preservation. Resp. 6. The Pueblo’s operations are not conducted
pursuant to any license from the Texas Lottery Commission. Mot. Ex.
K at 6.
On May 17, 2017, agents and attorneys representing Texas
inspected Speaking Rock. Mot. 3. There, the State video-recorded the
gaming operations at Speaking Rock and found that the Tribe operates
stationary one-touch machines as well as live-called bingo. See
generally Mot. Ex. A. The one-touch machines and live-called bingo are
described below.
1.
One-Touch Machines
The Pueblo operate more than 2,500 one-touch machines. Mot.
Ex. F (Hisa Dep. Tr.), at 11:16–12:12. The one-touch machines, which
are available for play twenty-four hours a day, seven days a week
(“24/7”), are lined in rows:
Mot. Ex. A. The machines have decorative outer wrapping and are
13
labeled with different names—e.g., “Big Texas Payday,” “Welcome to
Fabulous Las Vegas,” “Kitty City,” and “Lucky Duck.” Id. The
machines display lights, sounds, and graphics for the purposes of
entertainment. Mot. Ex. C (Eclipse Dep. Tr.), at 38:11–17.
To initiate a session on a one-touch machine, a player inserts
either cash or a ticket that represents a cash value into the machine.
Mot. Ex. A. Although the machines look similar to a traditional “slot
machine,” the underlying game is run by using historical bingo draws.
Resp. Ex. A (Eclipse Dep. Tr.), at 24:24–25. Players are assigned a
bingo card based on an electronically maintained stack of cards. Id. at
32:24–33:2. On some machines (but not all), after the card is assigned,
the player has the option to operate the touch screen and select a
different card from the stack. Id. at 33:3–8; Mot. Ex. I (Am.
Amusement Dep. Tr.), at 31:19–22.
The historical bingo cards are displayed in different locations on
on the game screens, typically above or below the screen’s graphics.
Mot. Ex. A. For example, the “Big Texas Payday” design displays bingo
cards on the top left corner of the screen:
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Id. After selecting a card, the player presses a button, which represents
the value that the player is betting during that session. Id. Then, the
graphics on the screen move and the machine emits noise before
displaying whether the player won any cash value. Id.
To determine if a player wins, the software applies a preset,
historical ball draw to the card on the screen. Resp. Ex. A (Eclipse Dep.
Tr.), at 34:25–35:3. If the player’s card would have achieved a bingo
based on the ball draw retrieved by the machine’s software, then the
player wins his session of play. See id. The Tribe provides historical
ball draw data to the company that designs the software for the Tribe’s
one-touch machines, and the data is based on prior, actual (nonelectronic) bingo ball pulls conducted at Speaking Rock. Id. at 35:10–
16, 79:1–12. Because the machines are configured to run based on
historical bingo ball draws, the Pueblo refer to the machines as
“stationary cardminders.” Resp. 8–9.
If a player wins, then the player may use the value won in order to
15
continue playing on that particular machine, print out a ticket
reflecting a cash value and insert it into a different machine for play, or
bring the ticket to a casino employee where he is entitled to exchange
the ticket for its cash value. Mot. Ex. A.
2.
Live-Called Bingo
Additionally, the Pueblo operate 24/7 live-called bingo games in
their “Sovereign Bingo Lounge.” Id. To play, a player may purchase
either paper or electronic bingo cards. Id. If a player uses a paper
bingo card, then the player manually marks the cards to determine
whether he has achieved a bingo. Id. However, the electronic,
handheld cardminders have the capacity to track the player’s cards for
him and will notify the player if he wins. Id. Thus, with the aid of an
electronic cardminder, a player at Speaking Rock is able to play dozens
of cards at the same time on one machine. The parties’ briefing does
not specify the precise number of cards that can be played on one
electronic cardminding machine. However, the Tribe admits that the
number is more than sixty-six. Mot. Ex. K.
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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
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
17
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
Texas seeks a permanent injunction halting the Tribe’s operations
at Speaking Rock. The Tribe avers that it is not subject to the State’s
regulations. Resp. 13–15. Further, according to the Tribe, its
operations at Speaking Rock are permissible forms of bingo. Id. at 15–
17. For the reasons discussed below, the Court concludes that the Tribe
is subject to the State’s regulations. The Court also determines that the
Tribe’s operations violate Texas law. Finally, the Court is of the opinion
that the Tribe should be enjoined from continuing its gaming operations
at Speaking Rock.
18
A.
Whether the State may enforce Texas regulations
against the Tribe in federal court
The Tribe’s Response principally focuses on the interaction
between subsections (a) and (b) of the Restoration Act. Section 107(a)
provides:
(a) IN GENERAL.—All 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. Any
violation of the prohibition provided in this subsection shall
be subject to the same civil and criminal penalties that are
provided by the laws of the State of Texas. The provisions of
this subsection are enacted in accordance with the tribe’s
request in Tribal Resolution No. T.C.-02-86 which was
approved and certified on March 12, 1986.
According to the Tribe, the State has “failed to distinguish
between what a law and what a regulation is.” Resp. 3. The Tribe
asserts that subsection (a) should be understood to convey that
“Congress has confirmed the Pueblo’s sovereign right to engage in all
gaming activity not prohibited by the laws of the State of Texas.” Id. at
4. The Pueblo’s formulation of this provision is not a precise recitation
of the Restoration Act’s text. Subsection (a) does not affirmatively grant
a right to engage in gaming; instead it prohibits illegal gaming.
Additionally, § 107(b) provides that, “Nothing in this section shall
be construed as a grant of civil or criminal regulatory jurisdiction to the
19
State of Texas.” The Tribe contends that subsection (b) demonstrates
that “Congress has also confirmed that Texas’ regulatory scheme cannot
be applied by the Court to the Ysleta del Sur Pueblo.” Id. at 5.
However, although subsection (b) provides that Texas does not have
“regulatory jurisdiction,” subsection (b) does not provide that Texas’s
regulations are thus unenforceable against the Tribe in federal court.
Importantly, the Tribe’s formulation of subsection (b) does not reflect
the Fifth Circuit’s interpretation of the statute. Pursuant to Ysleta I,
the Tribe is subject to Texas’s regulations, and Texas may properly
enforce its regulations in federal court.
Admittedly, the Restoration Act does not clearly define what
“regulatory jurisdiction” means. However, in light of Ysleta I, there is
no need to relitigate whether the Tribe must follow Texas regulations.
Though an interpretation of subsection (b) that incorporated Cabazon
Band would distinguish between laws that prohibit conduct and those
that permit but merely regulate conduct, the Fifth Circuit rejected this
view. The Court recognizes the Tribe’s frustration that Ysleta I and
subsequent case law interpreting Ysleta I do not clearly elucidate
subsection (b)’s effect on tribal gaming. See Resp 14–15. Nonetheless,
20
the Court is bound by Fifth Circuit precedent and understands Fifth
Circuit case law to require that the Tribe follow Texas gaming
regulations.
The Fifth Circuit considered this issue in Ysleta I and determined
that “Congress—and the Tribe—intended for Texas’ gaming laws and
regulations to operate as surrogate federal law on the Tribe’s
reservation in Texas.” 36 F.3d at 1334 (emphasis added). In reaching
its decision, the Fifth Circuit considered the legislative history and text
of the Restoration Act. Id. The Fifth Circuit focused on the Tribe’s
commitment to prohibit all gambling on the Reservation, as
memorialized in Tribal Resolution No. T.C.-02-86, which is incorporated
by reference in § 107(a) of the Restoration Act. Id.
The Tribe asserts that the Fifth Circuit’s decision that Texas’s
regulations operate as “surrogate federal law” should be disregarded
because, according to the Tribe, the statement is dicta and was not fully
considered when written. Resp. 14 n.16. The Tribe previously raised
this argument in Ysleta II before Judge Eisele, and Judge Eisele
rejected the Tribe’s contention:
The question before the court was: Which statutory scheme,
IGRA or the Restoration Act, governed the Tribe’s casino
21
operation? And, to resolve that question, the Fifth Circuit had
to first determine the effect of the Restoration Act’s § 107.
Only after determining § 107’s effect could it then decide
whether the Restoration Act and IGRA had an actual conflict.
Once the court found conflict, it was forced to decide which
statute to apply, and, in so doing, concluded that the
Restoration Act, as the specific statute, was applicable. Only
after it decided that the Restoration Act applied could the
court decide whether the Act had waived the State’s sovereign
immunity. If the court had determined that IGRA applied, or
that the Restoration Act and IGRA followed the same basic
statutory scheme regarding gaming, the result of the case
would have been different. So the initial determination
regarding the breadth of the Restoration Act’s provisions on
gaming was a necessary step toward the Court’s final
decision. And that determination being necessary, it cannot
be dicta.
Ysleta II, 220 F. Supp. 2d at 687. Thus, Judge Eisele’s reasoning
supports that, because the Fifth Circuit needed to consider the breadth
of the Restoration Act to make its decision, its determination that the
State’s regulations function as surrogate federal law is not dicta.
Significantly, even if it were dicta, the Fifth Circuit’s decision
would be highly persuasive. The Fifth Circuit fully considered the
Restoration Act’s text and legislative history when determining whether
the Tribe is subject to Texas’s regulations via the Restoration Act, and
no contrary opinion since then has been published by the Fifth Circuit.
Accordingly, the Court would afford the Fifth Circuit’s thorough
22
reasoning great weight. See, e.g., Sheet Metal Workers v. EEOC, 478
U.S. 421, 490 (1986) (“Although technically dicta, . . . an important part
of the Court’s rationale for the result that it reache[s] . . . is entitled to
greater weight . . . .”) (O’Connor, J., concurring); O’Dell v. N. River Ins.
Co., 614 F. Supp. 1556, 1559 (W.D. La. 1985) (“As always, dicta by one
panel stands as persuasive authority only, although it is entitled to
great weight absent a contrary holding in the circuit.”).
In sum, the Fifth Circuit decided that the Tribe is subject to
Texas’s gaming laws and regulations, which function as surrogate
federal law pursuant to the Restoration Act.7 Thus, the Tribe’s
The Court recognizes that the Pueblo and Alabama-Coushatta Tribes
disagree with the Fifth Circuit’s decision. The Tribes have petitioned
Congress to amend the law in order to provide either that the Tribes
may conduct gaming as allowed by IGRA or that the Cabazon Band
criminal-prohibitory/civil-regulatory dichotomy should be read into the
Restoration Act’s text. See, e.g., Oversight Hearing on the
Implementation of the Restoration Act Before the S. Comm. on Indian
Affairs, 107th Cong. (2002). The Tribes believe that courts have
misinterpreted the Restoration Act’s intended meaning. See id. at 4
(statement of Kevin Battise, Tribal Council Chairman, AlabamaCoushatta Indian Tribe of Texas) (noting that the Member who
discussed Cabazon Band in front of the House of Representatives prior
to House approval of the Restoration Act was the chairman of the House
Insular Affairs Committee and suggesting that the Fifth Circuit should
have accorded his statement greater weight). The Court notes that,
although the Tribes have made Congress aware of their concerns,
Congress has not yet amended the Restoration Act. Thus, absent an act
7
23
insistence that Texas should only be able to enforce its laws, but not its
regulations, conflicts with precedent. Accordingly, the Court need not
distinguish between laws and regulations, as the Court concludes that
it must enforce both.
B.
Whether the gaming activities at Speaking Rock are
prohibited by Texas laws or regulations
Next, the Court considers whether the gaming activities at
Speaking Rock are barred by Texas gaming laws. As Judge Eisele
noted, “[n]ot all gaming activities are prohibited to the Tribe, only those
gaming activities that are prohibited by Texas law to private citizens
and other organizations.” Order Modifying September 27, 2001
Injunction, Ysleta II, No. EP-99-CV-320 (W.D. Tex. May 17, 2002), ECF
No. 165 at 3–5. Accordingly, determining whether the Pueblo
operations are legal under Texas state law, which is federalized by the
Restoration Act, requires careful consideration of Texas’s statutory and
regulatory scheme.
1. Texas Gaming Law
Two sources of Texas law are principally relevant here: first, the
of Congress, the Fifth Circuit’s interpretation of the Restoration Act, as
articulated in Ysleta I, controls the Court’s decision.
24
Bingo Enabling Act and, second, Texas’s Charitable Bingo
Administrative Rules. Below, the Court describes the relevant
provisions of each scheme. Then, the Court considers whether the
Tribe’s operations at Speaking Rock comply with Texas law.8
a)
Bingo Enabling Act
Pursuant to the Bingo Enabling Act, bingo may be conducted by
authorized charitable organizations. See generally TEX. OCC. CODE
§ 2001. “Bingo” is “a specific game of chance, commonly known as bingo
or lotto, in which prizes are awarded on the basis of designated
numbers or symbols conforming to randomly selected numbers or
symbols.” Id. § 2001.002(4). In most circumstances, unlicensed bingo is
a third-degree felony.9 Id. § 2001.551.
The Tribe seeks declarations that “bingo is a gaming activity” and that
“the laws of the State of Texas do not prohibit bingo.” Pueblo Defs.’
First Am. Counterclaim 23, Sept. 7, 2018, ECF No. 121. Bingo is a
gaming activity. However, the Court cannot accurately assert that
Texas laws “do not prohibit” bingo. Instead, charitable bingo is
allowable in some circumstances; however, it is illegal when it fails to
conform with Texas’s complex statutory and regulatory scheme.
8
However, it is not a felony to conduct: small bingo games in a person’s
home for nominal prizes, bingo in a senior citizens’ center or hospital for
entertainment, or bingo for radio or television promotions as long as the
participants are not required to pay to play. Id. § 2001.551.
9
25
Limitations exist on the duration and frequency of bingo
occasions.10 An organization may only conduct three bingo occasions
per week, and each occasion may not exceed four hours. Id. §
2001.419(a), (b). Typically, no more than two bingo occasions may be
conducted per day. Id. § 2001.419(c).
Additionally, the Bingo Enabling Act provides a detailed scheme
regarding the use of bingo equipment employed as an aid to bingo.
“Bingo equipment” is defined as:
(i) a machine or other device from which balls or other items
are withdrawn to determine the letters and numbers or other
symbols to be called; (ii) an electronic or mechanical
cardminding device; (iii) a pull-tab dispenser; (iv) a bingo
card; (v) a bingo ball; and (vi) any other device commonly used
in the direct operation of a bingo game[.]
Id. § 2001.002(5)(A). Bingo equipment may be used; however, the
equipment must be supplied by licensed manufacturers and
distributers. Id. § 2001.407.
Moreover, the Act provides specific limitations regarding the use
“‘Bingo occasion’ means a single gathering or session at which a bingo
game or a series of bingo games, including selling and redeeming pulltab bingo tickets, are conducted on the day and at the times listed on
the license issued to a licensed authorized organization.” Id.
§ 2001.002(6).
10
26
of cardminding devices:
A person may not use a card-minding device: (1) to generate
or determine the random letters, numbers, or other symbols
used in playing the bingo card played with the device’s
assistance; (2) as a receptacle for the deposit of tokens or
money in payment for playing the bingo card played with the
device’s assistance; or (3) as a dispenser for the payment of a
bingo prize, including coins, paper currency, or a thing of
value for the bingo card played with the device’s assistance.
Id. § 2001.409.
b)
Charitable Bingo Administrative Rules
The Texas Administrative Code further defines the term
“cardminding device” as:
A device used by a player to monitor bingo cards played at a
licensed authorized organization’s bingo occasion and which:
(i) provides a means for the player to input or monitor called
bingo numbers; (ii) compares the numbers entered or received
against the numbers on the bingo cards stored in the memory
of the device or loaded or otherwise enabled for play on the
device; and (iii) identifies any winning bingo pattern(s) and
prize levels.
TEX. ADMIN. CODE § 402.321. Players may use electronic cardminders,
but any electronic cardminder may only play up to sixty-six cards at a
time. Id. § 402.322(r).
Additionally, before a manufacturer furnishes a cardminding
system to a bingo licensee, the system must have “first been tested and
27
certified as compliant with the standards in [§ 402.324 of the
Administrative Code] by an independent testing facility or the
Commission’s own testing lab.” Id. § 402.324.
2. The Tribe’s Operations
Next, the Court considers whether the Tribe’s one-touch machines
and live-called bingo comply with Texas law and, correspondingly, the
Restoration Act. Notably, the Tribe has not obtained a license to
conduct bingo from the Texas Lottery Commission, as required by the
Bingo Enabling Act.
First, the Court determines whether the Pueblo’s one-touch
machines comply with the Bingo Enabling Act and Texas
Administrative Code’s requirements for electronic cardminders.
Admittedly, the Tribe’s one-touch machines look and sound like LasVegas-style slot machines. However, Texas law does not focus on how
bingo equipment looks and sounds to determine whether it is legal.
Instead, the law defines what may or may not be considered a legal
cardminding device. For the reasons discussed below, the one-touch
machines—although cleverly designed to select winners based on
historical bingo pulls—fail to comply with Texas’s scheme.
28
Pursuant to the Bingo Enabling Act, a cardminding device may
not be used “to generate or determine the random letters, numbers, or
other symbols used in playing the bingo card played with the device’s
assistance.” TEX. OCC. CODE § 2001.409(a)(1). Philip Sanderson, who
previously worked for the State and participated in drafting the rules
regarding cardminding devices, testified about the Tribe’s machines.
Resp. Ex. B (Sanderson Dep. Tr.), at 19:14–20:2. Based on his
knowledge of the machines and understanding of the regulations, Mr.
Sanderson opined that “[n]either the server nor the individual
cardminding device contain a random number generator.” Id. at 28:17–
39:3. Specifically, because the software is configured to select the next
bingo card from an electronically maintained stack of cards, rather than
randomly choosing a card, Sanderson believes that the machine does
not generate nor determine any random outcome. Id. The Court finds
Mr. Sanderson’s testimony to be persuasive and does not believe that
the one-touch machines are random number generators.
Although the Court believes that the Tribe’s machines do not
randomly generate numbers, the one-touch machines fail to comply
with other provisions in the Bingo Enabling Act. Specifically, the Bingo
29
Enabling Act prohibits a cardminding device from being used “as a
receptacle for the deposit of tokens or money in payment for playing the
bingo card played with the device’s assistance” or as “as a dispenser for
the payment of a bingo prize, including coins, paper currency, or a thing
of value for the bingo card played with the device’s assistance.” TEX.
OCC. CODE § 2001.409(a)(2), (3). Here, a game session on a one-touch
machine is initiated by inserting either cash or a cash-value voucher
into the machine. After the game session concludes, the machines
provide a voucher that represents a cash value to players who have won
the game. Accordingly, the one-touch machines do not comport with the
Bingo Enabling Act’s requirements for bingo cardminding devices.
In contrast to the one-touch machines, the Tribe’s live-called bingo
looks and sounds like traditional, preconceived notions of bingo.
However, the Tribe’s cardminders enable a participant to play more
cards than Texas’s regulations permit. The Texas Administrative Code
only allows electronic cardminding machines to monitor up to sixty-six
cards at one time; however, the Tribe has admitted that its machines
allow players to play more than sixty-six cards.
Moreover, any cardminding device must be tested by an
30
independent testing facility or the Commission’s own testing lab in
order to evaluate the machine’s compliance with Texas law. The Tribe’s
software and devices are tested by an independent facility. Mot. Ex. M.
However, the facility does not evaluate the machines for compliance
with Texas law; instead, the facility has been provided different
standards that are promulgated by the Pueblo Regulatory Commission.
See id. (depicting the standards that the Pueblo Regulatory Commission
provided to the testing facility). Therefore, the Tribe’s machines are not
properly tested for compliance with Texas state law.
Additionally, the Pueblo’s operations exceed the scope of any bingo
authorized by the Bingo Enabling Act. The Act allows for bingo to be
conducted during four-hour sessions, three times per week. The Tribe’s
use of the machines and live-called bingo—which are available 24/7—
far exceed the volume of charitable bingo authorized by Texas law.
In sum, the Court is of the opinion that the Tribe’s bingo
operations fail to comply with Texas law.
C.
Whether an injunction should be issued
“The party seeking a permanent injunction must meet a four-part
test. It must establish: (1) success on the merits; (2) that a failure to
31
grant the injunction will result in irreparable injury; (3) that said injury
outweighs any damage that the injunction will cause the opposing
party; and (4) that the injunction will not disserve the public interest.”
VRC LLC v. City of Dallas, 460 F.3d 607, 611 (5th Cir. 2006).
“Injunctive relief is an extraordinary and drastic remedy, not to be
granted routinely, but only when the movant, by a clear showing,
carries the burden of persuasion.” Holland Am. Ins. Co. v. Succession of
Roy, 777 F.2d 992, 997 (5th Cir. 1985). Thus, “[i]n exercising their
sound discretion, courts of equity should pay particular regard for the
public consequences in employing the extraordinary remedy of
injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).
1. Success on the Merits
As discussed above, Texas has proven success on the merits.
Specifically, Texas has shown that the Tribe’s activities at Speaking
Rock fail to comport with Texas law and regulations, which have been
federalized via the Restoration Act. Although Texas has demonstrated
success on the merits, “[a]n injunction is a matter of equitable
discretion; it does not follow from success on the merits as a matter of
course.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 32 (2008).
32
Accordingly, the Court next considers the other, equitable elements that
must be met to issue an injunction.
2. Irreparable Harm
“In general, a harm is irreparable where there is no adequate
remedy at law, such as monetary damages.” Janvey v. Alguire, 647
F.3d 585, 600 (5th Cir. 2011) (citing Deerfield Med. Ctr. v. City of
Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B 1981); Parks v.
Dunlop, 517 F.2d 785, 787 (5th Cir. 1975)); see also ADT, LLC v. Capital
Connect, Inc., 145 F. Supp. 3d 671, 694 (N.D. Tex. 2015) (“An injury is
generally considered to be irreparable if the injury cannot be undone
through monetary relief.” (citing Enterprise International, Inc. v.
Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472–73 (5th
Cir. 1985))).
In this case, monetary damages are inadequate because the State
cannot seek them. The Restoration Act provides the State a single
remedy: seeking an injunction in federal court. See Restoration Act
§ 107(c). Thus, if the Court were to determine that no injunction should
be entered, the State would have no alternative course of action to
enforce Texas law via the Restoration Act. Accordingly, no adequate
33
remedy at law exists, and the Court is of the opinion that the State
would suffer irreparable harm in the absence of an injunction.
Additionally, the State avers that it suffers irreparable injury
when it is “prevented from enforcing its laws.” Mot. 19. On this point,
Texas cites cases holding that states suffer irreparable injury when
enjoined from enforcing their laws. Id. (citing Maryland v. King, 567
U.S. 1301, 1303 (2012) (“[A]ny time a State is enjoined by a court from
effectuating statutes enacted by representatives of its people, it suffers
a form of irreparable injury.”); Planned Parenthood of Greater Tex.
Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013)
(“When a statute is enjoined, the State necessarily suffers the
irreparable harm of denying the public interest in the enforcement of its
laws.”)). The Tribe notes that the cases the State relies on are not
directly applicable here.11 Resp. 20. In this case, no party seeks to
enjoin the State from enforcing its laws; instead the State itself is
Further, the Tribe contends that “[r]equiring the State to prove the
merits of its case, rather than through disfavored injunctive relief, is
not ‘irreparable harm.’” Resp. 20. Although the Tribe’s argument lacks
clarity, it appears that the Tribe believes that the State seeks to achieve
an injunction without demonstrating success on the merits. That belief
is incorrect. The Court notes that this factor—irreparable harm—is
required in addition to success on the merits.
11
34
pursuing an injunction against the Tribe. Id.
As a formal matter, being enjoined from enforcing laws is different
than seeking an injunction against a party that is breaking the law.
This is especially true because of the sweeping scope of an injunction
that prevents a state from enforcing its laws. In this case, if an
injunction were not issued, the State’s gaming law would not be wholly
ineffective. Although Texas’s gaming law would be unenforceable as to
the Tribe, any harm that Texas would face from denying the public the
enforcement of its laws would be more limited in scope than the type of
broad-sweeping injunction at issue in Planned Parenthood.
However, as a practical matter, the interest protected in this case
is the same: if the State is unable to enjoin the Tribe’s gaming
operations, then the State will be unable to seek other recourse so that
it may effectively enforce its laws against the Tribe. The State and its
citizens have an interest in enforcing State law, and seeking an
injunction is the only way that the State may enforce its gaming law on
the Pueblo reservation. Thus, in this case, due to the lack of other
available remedies, the State’s interest in enforcing its laws would be
irreparably impaired if it cannot obtain an injunction against the Tribe.
35
In sum, the Court determines that the State has shown
irreparable harm because, in the absence of an injunction, the State is
unable to enforce Texas’s gaming laws on the reservation as provided by
the Restoration Act.
3. Balance of Equities & Public Interest
Because the parties are sovereigns who represent their respective
constituents, the balance of equities and public interest are congruent:
the Texas citizenry’s interests align with the State’s interest in
enforcing its laws, and the Pueblo community’s interest aligns with the
Tribe’s interests in maintaining its operations at Speaking Rock.
Accordingly, the Court will analyze these factors together.
The Pueblo community relies on Speaking Rock to fund important
governmental initiatives. As the Court noted in its March 29, 2018,
“Order Regarding Magistrate’s Report and Recommendation and
Plaintiff’s Application for Preliminary Injunction” (ECF No. 77)
[hereinafter “Order Regarding R. & R.”], courts have considered the
importance of tribal self-governance and the impact of income lost by
gaming when balancing the equities of a case. See Prairie Band of
Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001)
36
(factoring in “the prospect of significant interference with tribal selfgovernment” to the balance of the equities); Seneca-Cayuga Tribe of
Oklahoma v. State of Okla. ex rel. Thompson, 874 F.2d 709, 716 (10th
Cir. 1989) (finding that the balance of equities tipped in favor of a tribe
because the tribe stood to “lose income used to support social services
for which federal funds have been reduced or are non-existent, and lose
jobs employing Indians who face a [high] rate of unemployment”).
Admittedly, neither of the aforementioned cases perfectly reflect
the case at hand, specifically because the tribes in Prairie Band and
Seneca-Cayuga did not seek to engage in illegal activity on their
reservations. In Prairie Band, the Tribe enacted its own motor vehicle
code and, seeking to have the State recognize its vehicle registrations,
sued the State of Kansas. 253 F.3d at 1239. In affirming a preliminary
injunction, the Tenth Circuit considered that tribes have an interest in
self-governance and that registering vehicles is a governmental
function. Id. at 1250–51.
Seneca-Cayuga raised an issue more similar to this case: two
Tribes filed a federal action to enjoin a pending state-court suit in which
Oklahoma sought to halt the Seneca-Cayuga and Quapaw Tribes from
37
conducting bingo. 874 F.2d at 710. The Tenth Circuit determined that
the Tribes were likely to prevail on the merits. Id. at 716. Accordingly,
the court of appeals upheld a preliminary injunction because the Tribes
faced a significant loss of tribal income and interference in selfgovernment. Id. The State’s interest—especially considering its low
likelihood of success on the merits—did not outweigh the Tribes’
interest. Id.
In this case, for similar reasons to those discussed in SenecaCayuga, the Court declined to grant a preliminary injunction during an
earlier stage of this litigation. Order Regarding R. & R. 40–43.
Specifically, the Court determined that the State had not shown a
sufficient likelihood of success on the merits at the preliminary
injunction stage. Id. at 28–38. Without a clear demonstration of
success on the merits, a preliminary injunction would unnecessarily
impair the Tribe’s self-governance. Id. However, the Court noted that
it would “ultimately base its decision [regarding a permanent
injunction] on the legality of the bingo machines at issue” and that the
“revenue from Speaking Rock does not entitle Defendants to engage in
illegal activity.” Id. at 43 n.14.
38
Presently, the State has shown success on the merits. Therefore,
although the Tribe has an interest in self-governance, the Tribe cannot
satisfy that interest by engaging in illegal activity. Further, the Court
cannot decline to enforce the Restoration Act, which is federal law. As
Judge Eisele stated in 2001,
[T]he Pueblo and its members, and others, have
benefitted enormously from the Pueblo’s illegal gambling
operations, but this circumstance can not justify the clear
violation of law. The fruits of this unlawful enterprise are
tainted by the illegal means by which those benefits have been
obtained.
Under the law the court believes it has no choice but to
enjoin the continued operation of this widespread common
and public nuisance.12 But, even assuming the court has some
discretion in the matter, it concludes that it would be an abuse
of that discretion not to enjoin the gaming and gambling
activities under the circumstances of this case.
What the Defendants characterize as “equities” in this
The Court notes that, even though the Texas Remedies Code codifies
a violation of gambling laws as a “common and public nuisance,” see
TEX. CIV. PRAC. & REM. CODE § 125.0015, the State does not suggest that
the community considers Speaking Rock to be a nuisance of any sort.
See Resp. Ex. F at 14–15. To the contrary, the Tribe has submitted
evidence demonstrating that the community supports Speaking Rock
and believes that Speaking Rock is a valuable community asset. Resp.
Ex. I (collecting letters expressing community support). However,
regardless of the chapter’s title, Texas law does not require the State to
prove that the Tribe’s actions would be considered a nuisance based on
general tort principles. Instead, the Texas statute provides a remedy
for any gambling violation “as prohibited by the Penal Code.” TEX. CIV.
PRAC. & REM. CODE § 125.0015(a)(5). Thus, Texas law considers illegal
gambling to be a nuisance per se even if the community does not.
12
39
case are not such in the eyes of the law. They are matters
which might, however, be brought to the attention of the
Congress of the United States or the legislature of the State
of Texas.
Ysleta II, 220 F. Supp. 2d at 697. Accordingly, because the Tribe’s
operations run contrary to Texas’s gaming law, the balance of equities
weighs in favor of the State.
In sum, the State has shown (1) success on the merits, (2)
irreparable harm if no injunction is issued, (3) the balance of equities
favors the State, and (4) an injunction would serve the public interest.
Moreover, the Court is bound by the Restoration Act’s text, as well as
the Fifth Circuit’s interpretation of the Act. Accordingly, the Court
must enjoin the Tribe’s gaming activities, which violate Texas law.
The Court is cognizant than an injunction will have a substantial
impact on the Pueblo community. Accordingly, the Court joins the
refrain of Judges who have urged the Tribes bound by the Restoration
Act to petition Congress to modify or replace the Restoration Act if they
would like to conduct gaming on the reservation. See Texas v. Alabama
Coushatta Tribe of Texas, 298 F. Supp. 3d 909, 925 (E.D. Tex. 2018)
(stating that “[t]he plain language of the Restoration Act stands, as does
the Fifth Circuit’s undisturbed interpretation of the application of that
40
Act” and that “[u]ntil Congress can be persuaded to amend or repeal the
Restoration Act, . . . the Tribe must conform to the gaming laws and
regulations of Texas”).
Finally, the Court believes that, prior to entering a permanent
injunction, the Court should receive input from the parties regarding
the precise language of the injunction. As the Tribe has noted, an
injunction may not simply command that a party “follow the law.”
Resp. 18. Instead, an injunction must be specific and state its terms in
reasonable detail. Fed. R. Civ. P. 65(d). Thus, the Court invites each
party to submit a proposed permanent injunction for the Court’s
consideration by March 1, 2019. Thereafter, the Court will consider the
submissions, if any, and enter an injunction regarding the Tribe’s
operations.
IV.
CONCLUSION
Accordingly, IT IS ORDERED that the State of Texas’s “Motion
for Summary Judgment and Permanent Injunction” (ECF No. 146) is
GRANTED.
IT IS FURTHER ORDERED that the March 4, 2019, trial
setting in this matter is VACATED.
41
IT IS FINALLY ORDERED that, in light of this Memorandum
Opinion, each party may draft and submit a proposed permanent
injunction, if it so chooses, by March 1, 2019, at 5:00 p.m. Mountain
Time.
SIGNED this 14th day of February, 2019.
_____________________________________
PHILIP R. MARTINEZ
UNITED STATES DISTRICT JUDGE
42
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