EL PASO, Texas ? The Tigua of Ysleta del Sur Pueblo filed a motion in U.S. District Court to try to keep their casino open while the tribe appeals to the Fifth Circuit Court of Appeals in New Orleans.
The tribe contends there will be extensive economic damage if the Speaking Rock Casino is closed.
Former Assistant Secretary of Indian Affairs Kevin Gover said he fears that if the casino is closed it could set a dangerous precedent with a domino effect all of Indian country may see.
The Tigua casino has 800 employees -- 50 of whom are tribal members -- and a direct payroll of more than $14 million per year. Business and community leaders in the region voiced concern over a potentially huge financial blow to regional businesses and services if the casino is closed.
The threat is a result of Texas Attorney General John Cornyn filing a suit to close the casino in 1999. In court filings, Cornyn attempted to redefine American Indian tribes as simple "associations" with the same rights and privileges as a sorority or fraternity.
Supporters of the Tigua ask why the Kickapoo tribe in Texas is not a part of the legal action closing Speaking Rock Casino.
In May 1998, then-Gov. George W. Bush met with the leaders of the Kickapoo Traditional Tribe of Texas. He said the Tiguas fall under Texas jurisdiction and thus were breaking the law, but the Kickapoo, under federal jurisdiction, were therefore not subject to state investigation.
"This (Kickapoo casino) is an issue that needs to be resolved in federal court. It's different from that of the Tiguas," Bush told reporters in 1998.
Yet in USC, Title 25, Chapter 14, Subchapter LXXVIII- Ysleta del Sur Pueblo: Restoration of Federal Supervision, Section 1 provides that a federal reservation is established for the Tigua and is declared to be held in trust by the secretary of the Interior.
Gover, now practicing law in Washington, D.C., said he foresees a new cycle where states attempt to gain control over tribes and emphasized he can see no legal difference between the Tigua and the Kickapoo tribes.
"Remember that states don't have authority under (Public Law) 280 to regulate conduct, they can prohibit it, but they can't regulate it," Gover said. "I have been struggling as I read the news articles on it as to why somebody thinks that this reservation is somehow different, because I don't see that it is."
In Sec. 1300g-6, titled gaming activities, the law states that "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 section continues: "nothing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas."
Gover called the provision on gaming a masterpiece of ambiguity. "I would have interpreted this frankly as what is already contained in the Indian Gaming Regulatory, that basically if it is permitted in the state ? they have to make a compact with the state. Without having read any legislative history, I still don't see why this provision would lead to the Tiguas being treated differently. I see nothing in the statues that suggest that they are meant to be treated differently than other tribes."
Adding that nothing that is happening is casual or coincidental Gover said, "We are seeing two types of litigation coming up that we haven't seen in a good long time. One is that tribes are not tribes. Tribes are not governments. Tribes are instead some sort of voluntary associations. So you see (the) Mashantucket under attack, the Suquamish under attack. Under the same theory now you see the Tigua under attack.
"The other thing we are seeing are these equal protection type arguments that states cannot authorize tribes to be the only ones who have casinos. We see litigation in California right now, we see it in Arizona, we see it in Wisconsin and we are about to see it in New York.
"Those two things are very serious trends. And none of this stuff is accidental. It's not like in different parts of the country people all had the same idea, completely independent of one another. It reflects the efforts of groups like the National Association of Counties, National Association of Attorneys General and the National Governors Association to pursue a strategy to attack Indian sovereignty and Indian gaming.
"I am not surprised to see this happen and all of Indian country has a stake in the outcome of the Tigua litigation," Gover said.
This new cycle of attacks on Indian sovereignty is only one of many over the last century, Gover said, adding the attitude of the Bush administration may be part of the reason more are taking place.
"The philosophy of local control that the Republicans pursue too often becomes a philosophy of states rights to the exclusion of tribal authority. So we all have a lot to be concerned about when we hear the secretary of the Interior talking about more local and state input into the process of trust land acquisition. That gives us reason to worry.
"We hear the same thing come around every so often. We heard it during the Reagan years. We certainly heard it in the '50s during the termination. We heard it in the teens and '20s. It is cyclical and each cycle is dangerous to us and they have to be met and overcome.
"We are in one of those times right now. I don't want to be alarmist about it, but you can see what is going on in the Supreme Court right now."
If the Texas attorney general wins in his effort to shut the Tiguas down by grouping the tribe with associations like sororities and fraternities, Gover said the fight will just be starting.
"You see these types of challenges. We have an attorney general saying that an Indian tribe, a tribal government recognized by the United State, is like a fraternity.
"Believe you me, if someone sees that he actually won a case on that theory, you will see that same theory trotted out again and again against the tribes. It's not something to ignore. We really have to meet this kind of challenge directly and again. All of Indian country has a stake in the outcome of the Tigua litigation."