UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 00-50014
___________________________
STATE OF TEXAS,
Plaintiff-Appellee,
VERSUS
YSLETA DEL SUR PUEBLO; TIGUA GAMING AGENCY; THE TRIBAL
COUNCIL; FILBERT CANDELARIA, Tribal Acting Governor;
FRANCISCO HERNANDEZ, Gaming Commissioner;
Defendants-Appellants.
Appeal from the United States District Court for
the Western District of Texas, El Paso Division
October 31, 2000
Before DAVIS, EMILIO M. GARZA, Circuit Judges, and POGUE, Judge*.
PER CURIAM:**
The State of Texas brought suit against Ysleta del Sur Pueblo
(the “Tribe”) seeking to enjoin the Tribe from violating Texas
anti-gaming laws at its Speaking Rock Casino. The Tribe responded
by filing a motion to dismiss for lack of subject matter
jurisdiction on the basis of tribal immunity. The District Court
*
Judge of the U.S. Court of International Trade, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
concluded that under the Restoration Act (25 U.S.C. § 1300g) tribal
immunity as to the state’s claims is unequivocally abrogated and
waived. We AFFIRM.
This Court has previously addressed the history of the bargain
struck between the Tribe, the State of Texas and Congress in the
passage of the Restoration Act in Ysleta del Sur Pueblo v. State of
Texas, 36 F.3d 1325 (5th Cir. 1994) (“Ysleta I”). Essentially, in
order to obtain passage of the Restoration Act which provided for
restoration of the federal trust relationship to the Tribe, the
Tribe agreed and in fact requested that the act include language
prohibiting all gaming prohibited under Texas state law. In Ysleta
I, this court concluded that the Restoration Act governs the
determination of whether gaming activities of the Tribe are allowed
under Texas law, which operates as surrogate federal law on the
reservation.
The Restoration Act at § 1300g-6(a) clearly states that all
gaming activities which are prohibited under the laws of the State
of Texas are prohibited on the reservation. At § 1300g-6(c), the
courts of the United States are recognized as having exclusive
jurisdiction over any violation of the prohibition in subsection
(a). The section also states that “nothing in this section 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.” Recognizing that suits against
Indian tribes are barred by sovereign immunity in the absence of
clear waiver by the Tribe or congressional abrogation, Oklahoma Tax
Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S.
505, 509, 111 S.Ct. 905, 909 (1991), we find that the Restoration
Act represents a clear abrogation by Congress of the Tribe’s
immunity as to exactly the class of suit brought here - an action
in the courts of the United States by the State of Texas to enjoin
violations of the anti-gaming provision of the act.
Accordingly, the district court’s denial of the Tribe’s motion
to dismiss on the basis of its sovereign immunity was proper and
the judgment of the district court is AFFIRMED. Because the only
issue properly before us is the correctness of the district court’s
denial of immunity, other issues raised by the Tribe are not
reviewable at this time.