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For want of a comma, a casino is lost

I drive my teenage kids crazy correcting their English.

Kid: "Hey, Dad, I seen a deer today."

Me: "SAW a deer today."

Kid: (Heavy sigh) "SAW a deer today."

My kids consider me a nitpicker, of course. Yes, I know what they mean when they say they "seen a deer." But that is not the point. The point is that language works as intended only when used properly. I have annoyed my co-workers for years with my insistence that all documents we produce be grammatically correct. It is particularly important that lawyers use language properly. Valuable rights can be compromised or lost completely by sloppy use of the English language.

This fact has never been clearer to me than in the aftermath of the closing of Ysleta del Sur Pueblo's Speaking Rock Casino. (Before telling the tale, I should note that I was one of the lawyers who filed a "friend of the court" brief on behalf of several Indian organizations in support of the tribe's unsuccessful appeal to the United States Court of Appeals for the Fifth Circuit.) The casino had been a godsend to the tribe, turning it from an impoverished community to a growing economic power in the El Paso, Texas region. The State of Texas, under then-Governor George W. Bush, however, fallaciously maintained that casino gambling was illegal in Texas. As it turns out, only casino gambling by Indian tribes seems to be illegal.

You see, in Texas, the state conducts a state lottery. Licensed Texans can run raffles, bingo games, and "eight-liners," a form of slot machine. Texas allows "casino nights," scratch-off pull-tabs, and pari-mutuel racetrack betting on dogs and horses. In private places, Texans can play cards for money. Anyone familiar with Indian gaming laws knows that this array of legalized gambling in the State of Texas paves the way for Texas Indian tribes to offer a wide range of gaming activities on the reservations. According to the federal courts, though, the Tigua Indians of Ysleta del Sur Pueblo do not enjoy such rights.

In 1987, Congress restored the Ysleta del Sur Pueblo to federal recognition. For many years, the tribe had been under the authority of the State of Texas. The State of Texas was not necessarily opposed to federal recognition of the Pueblo, but was concerned about having a sovereign Indian nation loose within its borders. In one of those deals-with-the-devil that unrecognized tribes are sometimes forced to make, the tribe agreed with the state that it would conduct no gaming within its reservation if the state would not oppose federal recognition of the tribe.

The House of Representatives passed the bill virtually as introduced, including the provision prohibiting the tribe from gaming. The Senate, however, much to its credit, didn't like the deal the tribe had made with the state. The Supreme Court had just decided in the Cabazon case that if a state merely regulated a particular gambling activity, but did not prohibit it, then tribes could engage in that gambling activity free from state regulation. In light of the Cabazon decision, Congress threw out the Ysleta del Sur Pueblo Restoration Act's prohibition of all gaming on the Ysleta del Sur Reservation. The Senate instead enacted the following language: "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." The statute went on to say that nothing in the Act "shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas."

Having been an Indian lawyer for twenty years, when I first read these provisions I understood immediately that Congress was applying the Cabazon decision to the Ysleta del Sur Pueblo. The legislative history confirmed my reading. Former Congressman Morris Udall, Chairman of the Interior Committee responsible for Indian legislation in the House of Representatives, said on the floor of the House just before final passage of the Restoration Act that the Act was amended to apply the Cabazon rule to the Tigua Indians.

Case closed, right? Wrong. Look again at the language of the statute: "All gaming activities which are prohibited by the State of Texas" are prohibited to the Tiguas. See the grammatical error? (My word processing software does.) The phrase could be read either of two ways. It might mean, "ALL gaming activities, which are prohibited by the laws of the State of Texas, are hereby prohibited to the Tiguas." Or it might mean, "All gaming activities THAT are prohibited by the State of Texas are prohibited to the Tiguas." See the difference? The grammatical error is subtle, but it resulted in the federal courts shutting down the Tigua casino.

Under the first interpretation, "which" is a non-restrictive relative pronoun, and the sentence means that ALL gaming activities are prohibited by the State of Texas and therefore prohibited to the Tiguas. Under the second interpretation, "that" is a defining relative pronoun, and the sentence means that only those gaming activities specifically prohibited in Texas are prohibited to the Tiguas. That is the rule from the Cabazon case and is obviously what Congress was trying to enact.

Because of the error in grammar, though, Congress did not exactly do what it intended to do. The grammatical error rendered the statute ambiguous and the State of Texas and the federal courts seized on this ambiguity to shut down the Speaking Rock Casino. The State argued and the federal courts agreed that the statute prohibits ALL gaming activities on the reservation, whether or not those activities are prohibited elsewhere in Texas. Even bingo. Even raffles. Even eight-liners, lotteries, casino nights, racetracks and all those other things that are legal in the State of Texas.

Ordinarily, an ambiguous statute affecting Indians is to be interpreted in the light most favorable to the Indians. Not this time, though. In a baffling bit of judicial logic, the ambiguity of the statute actually was used against the tribe. Congressman Udall's explanation of the bill was dismissed by the courts as only the interpretation of a single congressman in the very last moment of the bill's consideration. Congressman Udall's interpretation was therefore not important to the courts, notwithstanding that he was at the time the single most knowledgeable member of Congress when it came to Indian law.

I suppose I'll keep to myself my vitriolic thoughts about judicial arrogance and result-oriented jurisprudence. Instead, I'll make just two observations. First, people who believe that the American justice system will vindicate tribal rights had better think again. I don't know why the courts ignored Congress's intent, but I do know that the result has devastated the Ysleta del Sur Pueblo's economic livelihood, as well as that of several hundred non-Indian El Pasoans.

Second, to all young Indian students planning to pursue careers requiring mastery of English, especially aspiring lawyers, study English carefully and use it properly. Mind your Ps and Qs, and your whiches and thats, because even the smallest grammatical error can have a tragic impact on the lives of Indians. Just ask the Tiguas.

Kevin Gover, a columnist for Indian Country Today, is a partner is the Washington, D.C. office of Steptoe & Johnson LLP. Mr. Gover's practice focuses on federal law relating to Indians and on Indian tribal law. He is the former Assistant Secretary for Indian Affairs in the U.S. Department of the Interior.