Ysleta del Sur Pueblo v. State of Tex.

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

NO. 93-8477

YSLETA DEL SUR PUEBLO,

Plaintiff-Appellee,

VERSUS

STATE OF TEXAS and ANN RICHARDS, Governor,

Defendants-Appellants.

*****************************************************************

CONSOLIDATED WITH

NO. 93-8823

YSLETA DEL SUR PUEBLO,

Plaintiff-Appellee,

VERSUS

STATE OF TEXAS and ANN RICHARDS, Governor,

Defendants-Appellants.

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 CONSOLIDATED WITH

NO. 94-50130

YSLETA DEL SUR PUEBLO,

Plaintiff-Appellee,

VERSUS

STATE OF TEXAS and ANN RICHARDS, Governor,

Defendants-Appellants.

Appeals from the United States District Court
for the Western District of Texas
(October 24, 1994)

Before REYNALDO G. GARZA, DEMOSS, and PARKER, Circuit Judges.

DEMOSS, Circuit Judge:

Pursuant to the Indian Gaming Regulatory Act (IGRA), 25 U.S.C.

§§ 2701-21, the Ysleta del Sur Pueblo ("Tribe"), a federally
recognized Indian tribe located near El Paso, Texas, sued the state

of Texas ("State") and its governor for refusing to negotiate a

compact that would permit the Tribe to engage in casino-type

gambling on its reservation. Having concluded that neither IGRA

nor the Restoration Act, 25 U.S.C. § 1300g, barred the Tribe from

engaging in such gambling, the district court granted the Tribe

summary judgment. We hold that the Restoration Act, not IGRA,

governs this dispute and does not give the Tribe the right to sue

2
the State in federal court. We therefore reverse the district

court's summary judgment for the Tribe and remand with instructions

to dismiss the Tribe's suit.

I.

Before analyzing the State's appeals, we first provide some

background on the Restoration Act, IGRA, and the procedural history

of this case.

A.

In 1968, the federal government recognized the Tiwa Indians1

of the Ysleta del Sur Pueblo as an Indian tribe but simultaneously

transferred responsibility for the Indians to the state of Texas.

See Tiwa Indians Act, Pub. L. No. 90-287, 82 Stat. 93 (1968).

Although the Tiwa Indians Act constituted legal recognition of the

Indians, it had no practical effect on the relationship between the

federal government and the Tribe because "[t]he Tribe had not been

subject to federal supervision and had received no federal Indian

services before the 1968 Act, and that status continue [sic] after

its enactment." S. REP. NO. 90, 100th Cong., 1st Sess. 7 (1987).

Instead, Texas administered the Tribe's affairs, which included

holding the Tribe's 100-acre reservation in trust and providing

economic development funds to the Tribe. H.R. REP. NO. 36, 100th

Cong., 1st Sess. 2 (1987). Furthermore, the Tiwa Indians Act

expressly recognized that the Tiwa Indians were "subject to all

1
Prior to passage of the Restoration Act, the Ysleta del Sur
Pueblo were known as the Tiwa Indians. Section 102 of the
Restoration Act officially changed the name of the Tribe. 25
U.S.C. § 1300g-1.

3
obligations and duties [as] citizens under the laws of the [s]tate

of Texas." See Tiwa Indians Act.

In 1983, however, Texas became concerned that its trust

relationship with the Tribe violated state constitutional law.

H.R. REP. NO. 36, at 2. Consequently, the United States and the

Tribe began the process of granting the Tribe federal trust status.

In December 1985, the House of Representatives of the 99th Congress

passed H.R. 1344, a bill to restore the trust relationship between

the United States and the Tribe. With regard to gaming activities,

§ 107 of H.R. 1344 provided:

Gaming, lottery or bingo on the tribe's reservation and on
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) (text of H.R. 1344

as passed by the House). Notwithstanding § 107, various state

officials and members of Texas' congressional delegation still were

concerned that H.R. 1344 did not provide adequate protection

against high stakes gaming operations on the Tribe's reservation.

Believing that restoration of their federal trust status was more

important than exercising the option to operate gaming operations,

the Tribe approved Resolution No. TC-02-86 in March 1986.2 The

2
Because of its critical importance to our resolution of this
case, we re-print, with emphasis in certain portions, Resolution
No. TC-02-86:

WHEREAS, on December 16, 1985, the United States House of
Representatives passed H. R. 1344, a bill to provide for the
restoration of the federal trust relationship to the Ysleta

4
del Sur Pueblo (Tigua Indian Tribe of Texas), and H. R. 1344
is now before the United States Senate for consideration; and,

WHEREAS, after hearings on H. R. 1344 before the House
Committee on Interior and Insular Affairs on October 17, 1985,
the Comptroller of Public Accounts for the State of Texas
raised concerns that H. R. 1344 would permit the Tribe to
conduct high stakes gambling and bingo operations to the
detriment of existing charitable bingo operations in the State
of Texas; and,

WHEREAS, the Comptroller urged members of the Texas
Congressional Delegation to defeat H. R. 1344 unless the bill
was amended to provide for direct application of state laws
governing gaming and bingo on the reservation; and,

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, in response to the concerns voiced by the Comptroller
and other officials, the Tribe attempted to insure that H. R.
1344 would give the Tribe no competitive advantage in gaming
operations by agreeing to amend H. R. 1344 to provide that any
gaming activities on the reservation would be conducted
pursuant to tribal law that would be required to be identical
to state law, and H. R. 1344 was so amended by the House
Interior committee; and,

WHEREAS, some state officials and members of the Texas
congressional delegation continue to express concern that H.
R. 1344, as amended, does not provide adequate protection
against high stakes gaming operations on the reservation; and,

WHEREAS, the proposal that H. R. 1344 be amended to make state
gaming law applicable on the reservation continues to be
wholly unsatisfactory to the Tribe in that it represents a
substantial infringement upon the Tribes' power of self
government, is inconsistent with the central purposes of
restoration of the federal trust relationship, and would set
a potentially dangerous precedent for other tribes who desire
to operate gaming facilities and are presently resisting
attempts by State to apply their law to reservation gaming
activities; 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,

5
resolution represented a political accommodation between the Tribe,

the state of Texas, and various members of Texas' congressional

delegation. The Tribe clearly viewed the applicability of state

gaming laws on its reservation as an infringement on its

sovereignty. But to ensure passage of the restoration legislation,

the Tribe urged Congress to adopt "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." The

distinction between the language in § 107, as passed by the House,

and the Tribe's suggested language is that § 107 provided the Tribe

with the option to deviate from Texas' gaming laws if the Tribe

petitioned the secretary of Interior, the secretary approved, and

Congress did not overrule the secretary. The Tribe's suggested

language, on the other hand, established that Texas law with regard

to gaming would effectively operate as surrogate federal law. The

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(a) of
the Restoration Act] 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.

6
resolution also clearly indicates that the Tribe, at the time of

the resolution's adoption, "ha[d] no interest in conducting high

stakes bingo or other gambling operations on its reservation" and

"remain[ed] firm in its commitment to prohibit outright any

gambling or bingo in any form on its reservation."

The Senate of the 99th Congress incorporated the Tribe's

suggested language. Section 107 of H.R. 1344, as passed by the

Senate in September 1986, provided 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) (text of H.R. 1344 as passed by the

Senate). Shortly thereafter, however, the Senate vitiated action

on H.R. 1344, see 132 CONG. REC. S13735 (daily ed. Sept. 25, 1986),

whereupon the bill died.

The restoration legislation was reintroduced as H.R. 318 in

the 100th Congress, and the House passed the bill in April 1987.

Section 107 of H.R. 318 provided that, "[p]ursuant to Tribal

Resolution T.C.-02-86 which was approved and certified on March 12,

1986, all gaming as defined by the laws of the State of Texas shall

be prohibited on the tribal reservation and on tribal land." 133

CONG. REC. H2051 (daily ed. April 21, 1987) (text of H.R. 318 as

passed by the House). The Senate approved H.R. 318 in July 1987.

The Senate amended § 107 to read:

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

7
 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.

133 CONG. REC. S10568 (daily ed. July 23, 1987) (text of H.R. 318 as

passed by the Senate). According to the Senate Report accompanying

the legislation, the only difference between § 107 as passed by the

Senate and § 107 as passed by the House was that the Senate version

"expand[s] on the House version to provide that anyone who violates

the federal ban on gaming contained in [§ 107] will be subject to

the same civil and criminal penalties that are provided under Texas

law." S. REP. NO. 90, 100th Cong., 1st Sess. 8-9 (1987).

Otherwise, the report stated, the "central purpose" of the two

versions was the same: "to ban gaming on the reservations as a

matter of federal law." Id. at 8. The House concurred in the

Senate's amendments in August 1987, see 133 CONG. REC. H6972 (daily

ed. Aug. 3, 1987), whereupon H.R. 318 became public law 100-89.

Section 107 of the Restoration Act is now codified at 25 U.S.C. §

1300g-6.3

3
The Restoration Act restored not only the Ysleta del Sur
Pueblo's federal trust status but also the federal trust status of
the Alabama and Coushatta Indian tribes. The Act has two titles.
Title I, 25 U.S.C. § 1300g, concerns the Ysleta del Sur Pueblo, and
Title II, 25 U.S.C. §§ 731-37, concerns the Alabama and Coushatta
Indian tribes. The two titles are nearly identical, particularly
with regard to the sections concerning gaming. It is important to
note that the Alabama and Coushatta Indian tribes are not parties
to this suit. In fact, these tribes recently voted to not engage
in casino-style gambling on their reservation. See Dianna Hunt,
Indians Defeat Plan for Casino on Reservation, HOUSTON CHRON., June
16, 1994, at 1A.

8
 B.

In the midst of the 100th Congress' deliberations over the

Restoration Act, the Supreme Court issued its opinion in California

v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). In that

case, two Indian tribes located in California were sponsoring

unregulated gaming activities on their reservations.4 The state of

California attempted to enforce against the tribes a state statute

regulating bingo operations. The tribes sued, asserting that

California had no authority to enforce its gambling laws and

regulations on tribal reservations because the United States, which

has plenary power over Indian affairs, had not authorized

California to do so. California argued that, pursuant to Public

Law 280 of 1953,5 the United States had expressly authorized

California to enforce its bingo statute against the tribes. Public

Law 280 specifically granted California authority to (1) enforce

its criminal laws on Indian reservations,6 and (2) hear in its

courts civil causes of action in which an Indian is a party.7

California argued in Cabazon Band that its bingo statute was a

criminal law which could be enforced on Indian reservations.8

4
The California tribes were sponsoring bingo, draw poker, and
other card games.
5
See Pub. L. No. 83-280, ch. 505, §§ 2 & 4, 67 Stat. 588
(1953) (codified at 18 U.S.C. § 1162(a) and 28 U.S.C. § 1360(a)
respectively).
6
Id. § 2 (codified at 18 U.S.C. § 1162(a)).
7
Id. § 4 (codified at 28 U.S.C. § 1360(a)).
8
In addition to California, Public law 280 applied to five
other states: Alaska, Minnesota, Nebraska, Oregon, and Wisconsin.

9
 The Supreme Court disagreed. The Court began by noting that,

while Public Law 280 broadened California's authority with regard

to Indian reservations, Congress did not intend to grant it general

civil regulatory authority. Public Law 280, the Court reasoned,

was narrowly tailored to combat lawlessness on reservations and not

"to effect total assimilation of Indian tribes into mainstream

American society." Cabazon Band, 480 U.S. at 207-08. Thus,

according to the Court, when a state invokes Public Law 280 to

enforce its laws, it must be determined whether the law is

"criminal" in nature, and therefore applicable, or "civil" in

nature, and therefore inapplicable except when the law is relevant

to private civil litigation in state court. The question of

whether a law is criminal or civil, in turn, depends on the law's

practical effect. That is, a state law is criminal, and thus

applicable under Public Law 280, if it generally prohibits certain

conduct, but a state law is civil, and presumptively inapplicable,

if it regulates the conduct at issue. Cabazon Band, 480 U.S. at

209-10.

Applying the criminal-prohibitory/civil-regulatory dichotomy,9

the Court rejected California's claim that its bingo statute was

criminal in nature on the basis that the statute is not a general

prohibition on certain conduct. Instead, "the state law generally

9
The Court noted that this Circuit originally enunciated the
dichotomy in Seminole Tribe of Florida v. Butterworth, 658 F.2d 310
(5th Cir. 1981). Cabazon Band, 480 U.S. at 209-10.

10
permits the conduct at issue, subject to regulation."10 Id. at 209.

The Court analogized California's bingo statute to the state's

other gambling statutes, all of which regulate (rather than

prohibit) the relevant conduct.11 The Court concluded that, given

the extent to which the state currently regulated gambling,

California had no public policy against bingo in particular or

gambling in general. Id. at 211. California therefore could not

prohibit the tribes from offering the gaming activities on their

reservations.

Cabazon Band led to an explosion in unregulated gaming on

Indian reservations located in states that, like California, did

not prohibit gaming. While Congress recognized that the growth in

gaming generated substantial revenues for the tribes and, hence,

fostered tribal autonomy, it nonetheless became concerned that

unregulated growth might invite criminal elements. In 1988,

Congress therefore enacted the Indian Gaming Regulatory Act (IGRA),

25 U.S.C. §§ 2701-21. IGRA was intended to balance the right of

tribes to self-government with the need "to protect both the tribes

and the gaming public from unscrupulous persons." See generally S.

REP. NO. 446, 100th Cong., 2d Sess. 1-3 (1988), reprinted in 1988

U.S.C.C.A.N. 3071, 3071-73.

10
The statute in particular required bingo games to be operated
by unpaid members of designated charitable organizations. In
addition, it limited prizes to $250 and required profits to be used
for charitable purposes. CAL. PENAL CODE § 326.5 (1987).
11
In addition to bingo, California permits, with certain
regulatory constraints, a lottery, pari-mutuel betting on horse
races, and card games. Cabazon Band, 480 U.S. at 210-11.

11
 IGRA establishes three distinct classes of gaming -- Class I,

Class II, and Class III -- each with its own degree of regulation.

IGRA defines Class I gaming as social games typically offered at

traditional Indian ceremonies. 25 U.S.C. § 2703(6). IGRA

expressly states that it does not regulate Class I gaming. Id. §

2710(a)(1). IGRA defines Class II gaming as bingo and non-banking

card games (i.e., card games in which the casino has no economic

interest in the outcome). Id. § 2710(7)(A). IGRA provides that a

tribe may engage in Class II gaming so long as the state in which

the tribe is located "permits" such gaming. Id. § 2710(b)(1).

Finally, IGRA defines Class III gaming as all other forms of

gaming, id. § 2703(8), particularly the lucrative casino-style

games such as blackjack, slot machines, roulette and baccarat. See

S. REP. NO. 446 at 3, 7. IGRA places two important conditions on

Class III gaming. First, just as it does with Class II gaming,

IGRA establishes that a tribe may engage in Class III gaming so

long as the state in which the tribe is located "permits" such

gaming. 25 U.S.C. § 2710(d)(1)(B). Second, IGRA requires a tribe

that seeks to engage in Class III gaming to negotiate a compact

with the state in which it is located. Id. § 2710(d)(1)(C).

Congress viewed tribal-state compacts as the most effective means

of balancing tribal sovereignty with the states' need to protect

the public against the risks typically associated with Class III-

type gaming. S. REP. NO. 446 at 13-14. If a state refuses to

negotiate a compact with a tribe, IGRA permits the tribe to sue the

state in federal court. 25 U.S.C. § 2710(d)(7)(A)(i).

12
 C.

Pursuant to IGRA, the Ysleta del Sur Pueblo petitioned the

governor of Texas in February 1992 to begin negotiations to enter

into a tribal-State compact.12 Governor Ann Richards took the

position that she could not negotiate a compact for the proposed

gaming activities because Texas law and public policy forbid such

gaming activities. The tribe therefore sued the State in April

1993. In May 1993, The State moved to dismiss on the grounds that

the Eleventh and Tenth Amendments barred the suit. The district

court denied the State's motion in June 1993, and the State

appealed in July 1993. The State's appeal from the district

court's denial of the motion to dismiss (No. 93-8477) represents

the first of three appeals in this case.

After we denied a motion to stay the proceedings pending

resolution of the State's first appeal,13 the parties returned to

district court. In September 1993, the Tribe and the State each

filed motions for summary judgment. The parties' motions primarily

focused on a host of detailed IGRA-related questions, such as

whether Texas law currently "permits" Class III games to be played.

The parties also raised the issue of whether the Restoration Act

independently bars the Tribe from engaging in Class III-type

12
The Tribe specifically proposed baccarat, blackjack, craps,
roulette and slot machines, which hereinafter will be referred to
collectively as "proposed gaming activities."
13
The motion to stay was filed along with the first appeal.
We denied the motion in August 1993, with the caveat that the
governor could not be subject to process in the district court
during the pendency of the State's first appeal.

13
gaming. In November 1993, the district court granted the Tribe

summary judgment. Ysleta del Sur Pueblo v. State of Texas, 852 F.

Supp. 587 (W.D. Tex. 1993). The court found that Texas effectively

"permits" the Class III games in which the Tribe is seeking to

engage, and that therefore Texas could not refuse to negotiate a

tribal-state compact. Id. at 590-96. The court also found that

the Restoration Act does not serve as an independent bar to the

Tribe's gaming plans. Id. at 597.

In response to the court's summary judgment for the Tribe, the

State filed its second appeal (No. 93-8823) in November 1993. The

State again moved for a stay in the proceedings pending resolution

of this latest appeal. Instead of granting a stay, we consolidated

the State's two appeals in January 1994 and expedited their

consideration. Meanwhile, the Tribe, in response to the State's

second appeal, filed with this court a motion to dismiss that

appeal for lack of jurisdiction. The Tribe argued that, absent the

appointment of a mediator,14 the district court's summary judgment

for the Tribe was not a final judgment for purposes of 28 U.S.C. §

1291. The Tribe's motion, however, was subsequently rendered moot

when the district court appointed a mediator in February 1994. To

ensure that its second appeal was properly preserved, the State

formally appealed the court's appointment of a mediator. We

14
IGRA provides that, if a tribe and a state fail to reach a
compact within the sixty-day period following a court order to do
so, the court is empowered to appoint a mediator to choose between
each party's "last best offer for a compact." 25 U.S.C. §
2710(d)(7)(B)(iv).

14
consolidated the State's third appeal (No. 94-50130) with its

remaining two (Nos. 93-8477 & 93-8823).

II.

Our sister circuits have split on the issue of whether IGRA

constitutionally permits an Indian tribe to sue a state. Compare

Seminole Tribe of Florida v. State of Florida, 11 F.3d 1016, 1026-

28 (11th Cir. 1994) with Cheyenne River Sioux Tribe v. State of

South Dakota, 3 F.3d 273, 280-81 (8th Cir. 1993).15 The State has

appealed precisely the same issue. However, as is apparent below,

our resolution of the State's second appeal renders this issue

moot. Mindful that we should not reach constitutional issues when

a case can be resolved on other grounds, we will merely assume,

without deciding, that Congress did not exceed its constitutional

authority when it enacted IGRA.

III.

We now consider the State's two remaining appeals (Nos. 93-

8823 & 94-50130), both of which essentially appeal the district

court's order granting summary judgment in favor of the Tribe and

denying the State's cross-motion for summary judgment. In their

respective motions for summary judgment, the parties devoted most

of their discussion to IGRA-related questions. The parties

addressed the issue of whether Texas law "permits" the Tribe's

15
See also William T. Bisset, Tribal-State Gaming Compacts: The
Constitutionality of the Indian Gaming Regulatory Act, 21 HASTINGS
CONST. L.Q. 71, 76-92 (1993); Joseph J. Weissman, Note, Upping the
Ante: Allowing Indian Tribes to Sue States in Federal Court Under
the Indian Gaming Regulatory Act, 62 GEO. WASH. L. REV. 123, 133-61
(1993).

15
proposed gaming activities to be played "for any purpose by any

person." 25 U.S.C. § 2710(d)(1)(B). Texas, of course, argued that

its laws and public policy prohibit the Tribe's proposed gaming

activities, whereas the Tribe argued the exact opposite. The State

alternatively argued that the Restoration Act independently bars

the Tribe from engaging in its proposed gaming activities. The

Tribe argued that under either IGRA or the Restoration Act, the

analysis and the conclusion are the same: Texas law does not

prohibit the proposed gaming activities, and therefore Texas cannot

bar the Tribe from engaging in them. As to both IGRA and the

Restoration Act, the district court agreed with the Tribe and

granted its motion for summary judgment. See Ysleta, 852 F. Supp.

at 590-97. We conclude that (1) the Restoration Act and IGRA

establish different regulatory regimes with regard to gaming, (2)

the Restoration Act prevails over IGRA when gaming activities

proposed by the Ysleta del Sur Pueblo are at issue, and (3) the

Tribe's suit is barred because the Restoration Act did not even

attempt to abrogate the State's Eleventh Amendment immunity.

A.

The Tribe insists that, under either IGRA or the Restoration

Act, the analysis for determining whether the Tribe's proposed

gaming activities are allowed is the same. Specifically, it

insists that § 107(a) of the Restoration Act does not operate as an

independent bar to its proposed gaming activities because Texas

does not "prohibit" the proposed gaming activities. The first

sentence of § 107(a) of the Restoration Act provides: "All gaming

16
activities which are prohibited by the laws of the State of Texas

are prohibited on the reservation and on lands of the tribe." 25

U.S.C. § 1300g-6. The Tribe maintains that the term "prohibit" has

special significance in federal Indian law, which is derived from

Cabazon Band; and whether a federal court is interpreting IGRA or

the Restoration Act, it should apply the same analysis, i.e., the

Cabazon Band criminal-prohibitory/civil-regulatory dichotomy.

Thus, according to the Tribe, the critical question under either

IGRA or the Restoration Act is whether Texas law and public policy

"prohibit" (that is, criminalize rather than regulate) the proposed

gaming activities.16

The Tribe argues that Texas does not prohibit the Tribe's

proposed gaming activities by pointing to the State's broad

definition of a lottery: "`Lottery' means the procedures operated

by the state under this chapter through which prizes are awarded or

distributed by chance among persons who have paid, or

unconditionally agreed to pay, for a chance or other opportunity to

receive a prize." TEX. GOV'T. CODE ANN. § 466.002(3) (Vernon Supp.

1994). The Tribe contends that its proposed gaming activities fall

within the State's definition of lottery. That is, like a lottery,

the Tribe's proposed gaming activities (i.e., baccarat, blackjack,

craps, roulette and slot machines) are all games of prize, chance

and consideration. Because the State permits one type of game

16
The Tribe contends that both IGRA and the Restoration Act
incorporated the Cabazon Band rationale because both statutes were
passed by the same committees in each chamber at roughly the same
time.

17
where the elements are prize, chance and consideration, the State

no longer prohibits any other games with the same elements. The

State, instead, merely regulates them. Consequently, according to

the Tribe, § 107(a) of the Restoration Act does not act as an

independent bar to the Tribe's proposed gaming activities.

The Tribe's argument is appealing only because § 107(a) of the

Restoration Act uses the word "prohibit." But our analysis of the

legislative history of both the Restoration Act and IGRA leads us

to a conclusion contrary to that sought by the Tribe. When it

passed IGRA, Congress indicated that, when determining whether

Class II games are "prohibited" in certain states, federal courts

should rely on Cabazon Band's criminal-prohibitory/civil-regulatory

distinction.17 No such express recognition of Cabazon Band appears

in the committee reports accompanying the Restoration Act. Rather,

in considering the Restoration Act, Congress clearly was concerned

with enacting the compromise between the Tribe, the State and

various members of the Texas congressional delegation. Congress

specifically drafted § 107(a) "in accordance with the tribe's

17
In the committee report accompanying IGRA, Congress stated
that:
Federal courts will rely on the distinction between State
criminal laws which prohibit certain activities and the civil
laws of a State which impose a regulatory scheme upon those
activities to determine whether class II games are allowed in
certain States. This distinction has been discussed by the
Federal courts many times, most recently by the Supreme Court
in Cabazon.
S. REP. NO. 446 at 6. Thus, while Congress was specific as to
Cabazon Band's application to Class II gaming, Congress left open
the question as to whether that case applied to Class III gaming.
Because we conclude that the Restoration Act clearly does not
incorporate Cabazon Band, we leave open the question of whether
IGRA incorporates Cabazon Band with regard to Class III gaming.

18
request in tribal Resolution No. T.C.-02-86." 25 U.S.C. 1300g-

6(a). That resolution is crystal clear. The Tribe, in response to

the concerns of Texas officials and various members of the State's

congressional delegation, petitioned Congress to adopt "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." Congress acquiesced, and in so doing, spelled out

the purpose of § 107(a): "[t]his section provides that gambling,

lottery or bingo as defined by the laws and administrative

regulations of the State of Texas is prohibited on the tribe's

reservation and on tribal lands." S. REP. NO. 90 at 10 (emphasis

added). The report's reference to both the laws and administrative

regulations of Texas is clearly inconsistent with a contention that

the Tribe and Congress contemplated that the prohibitory-regulatory

distinction of Cabazon Band would be involved in analyzing the

Restoration Act. Furthermore, as a means of enforcing those laws

and regulations, Congress provided in § 107(a) that "[a]ny

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." 25 U.S.C. § 1300g-6(a)

(emphasis added). Again, if Congress intended for the Cabazon Band

analysis to control, why would it provide that one who violates a

certain gaming prohibition is subject to a civil penalty? We thus

conclude that Congress did not enact the Restoration Act with an

19
eye towards Cabazon Band.18 Congress was merely acceding to the

Tribe's request that the tribal resolution be codified. See S. REP.

NO. 90 at 8 (the Tribe, "by formal resolution, requested that this

legislation incorporate [its] existing law and custom that forbids

gambling").19

The Tribe points to two items in the Restoration Act's

legislative history that it believes indicates Congress

incorporated Cabazon Band into § 107(a) of the Act. First,

Congress noted in its report that § 107(b) "is a restatement of the

law as provided in [Public Law 280]." Id. at 10. The reference to

Public Law 280, the statute at issue in Cabazon Band, presumably is

the hook on which the Tribe hangs this argument. The Tribe's

argument, however, misses the mark, because § 107(b), as opposed to

§ 107(a), states only that the Restoration Act is not to be

construed as a grant of civil or criminal regulatory jurisdiction

to the State. In that sense only, § 107(b) is a restatement of

Public Law 280. But it is § 107(a) that determines whether Texas

"prohibits" certain gaming activities, and § 107(a) is not a

restatement of Public Law 280.

The Tribe's second argument admittedly raises a closer

question. In August 1987, as the Restoration Act was on the brink

18
Our conclusion is buttressed by the fact that the Restoration
Act, which (like IGRA) was enacted after Cabazon Band was decided,
makes no reference to the case, whereas IGRA does. See S. REP. NO.
446 at 6. We take IGRA's reference to Cabazon Band as evidence
that Congress knew how to incorporate the case when it so intended.
19
The report also states that the "central purpose" of § 107(a)
is "to ban gaming on the reservations as a matter of federal law."
S. REP. NO. 90 at 8.

20
of final passage in the House of Representatives, a member made the

following statement on the floor of the House:

It is my understanding that the Senate amendments to [§ 107]
are in line with the rational [sic] of the recent Supreme
Court decision in the case of Cabazon Band of Mission Indians
versus California. This amendment in effect would codify for
[the Tribe] the holding and rational [sic] adopted in the
Court's opinion in the case.

133 CONG. REC. H6975 (daily ed. Aug. 3, 1987) (statement of Rep.

Udall). Standing alone, this statement supports the Tribe's

argument that Congress intended to incorporate Cabazon Band into

the Restoration Act. But we find ourselves confronted with

substantial legislative history to the contrary, including the

plain language of § 107(a), its accompanying report language, and

the tribal resolution to which § 107(a) expressly refers. We

cannot set aside this wealth of legislative history simply to give

meaning to the floor statement of just one representative that was

recited at the twelfth hour of the bill's consideration. See,

e.g., Fort Stewart Schools v. Federal Labor Relations Auth., 495

U.S. 641, 648-50 (1990). Rather, upon reviewing these materials,

we are left with the unmistakable conclusion 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.20

20
We are aware that the Supreme Court has established some
rules of construction as to Acts of Congress relating to Indian
affairs which require that Congress' intention be "explicit,"
"clear," "unambiguous," "plain" and "specific." See United States
v. Santa Fe Pac. R.R. Co., 314 U.S. 339 (1941); United States v.
Dion, 476 U.S. 734 (1986); Solem v. Bartlett, 465 U.S. 463 (1984).
The Restoration Act satisfies these requirements.

21
 B.

We find it significant that § 107(c) of the Restoration Act

establishes a procedure for enforcement of § 107(a) which is

fundamentally at odds with the concepts of IGRA. Under § 107(c),

the state of Texas is authorized to file suit in a federal court to

enjoin any violation by the Tribe of the provisions of § 107(a).

25 U.S.C. § 1300g-6(c); see also S. REP. NO. 90 at 9. The state of

Texas did not initiate his litigation under § 107(c); rather, the

Tribe brought this suit under IGRA. Because the Restoration Act

and IGRA establish such fundamentally different regimes, we now

must decide which statute applies in this case. The Tribe argues

that, to the extent that a conflict between the two exists, IGRA

impliedly repeals the Restoration Act. We disagree. The Supreme

Court has indicated that "[r]epeals by implication are not

favored." Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.

437, 442 (1987). The Court in Crawford Fitting further noted that,

"where there is no clear intention otherwise, a specific statute

will not be controlled or nullified by a general one, regardless of

the priority of enactment." Id. at 445 (quoting Radzanower v.

Touche Ross & Co., 426 U.S. 148, 153 (1976)). With regard to

gaming, the Restoration Act clearly is a specific statute, whereas

IGRA is a general one. The former applies to two specifically

named Indian tribes located in one particular state, and the latter

applies to all tribes nationwide. Congress, when enacting IGRA

less than one year after the Restoration Act, explicitly stated in

two separate provisions of IGRA that IGRA should be considered in

22
light of other federal law.21 Congress never indicated in IGRA that

it was expressly repealing the Restoration Act. Congress also did

not include in IGRA a blanket repealer clause as to other laws in

conflict with IGRA. Finally, we note that in 1993, Congress

expressly stated that IGRA is not applicable to one Indian tribe in

South Carolina, evidencing in our view a clear intention on

Congress' part that IGRA is not to be the one and only statute

addressing the subject of gaming on Indian lands.22 Therefore, we

conclude not only that the Restoration Act survives today but also

that it -- and not IGRA -- would govern the determination of

whether gaming activities proposed by the Ysleta del Sur Pueblo are

allowed under Texas law, which functions as surrogate federal law.

The Tribe warns that our conclusion (i.e., that Texas gambling

laws and regulations are surrogate federal law) will constitute a

substantial threat to its sovereignty in that "[e]very time the

State modifies its gambling laws, the impact will be felt on the

reservation." However, any threat to tribal sovereignty is of the

Tribe's own making. The Tribe noted in its resolution that it

viewed § 107(a) of the Restoration Act as "a substantial

infringement upon the Tribes' [sic] power of self government" but

nonetheless concluded that relinquishment of that power was

21
See 25 U.S.C. § 2701(5) ("[t]he Congress finds that . . .
Indian tribes have the exclusive right to regulate gaming activity
on Indian lands if the gaming activity is not specifically
prohibited by federal law"); id. § 2710(b)(1)(A) (tribes may engage
in Class II gaming if, inter alia, "such gaming is not otherwise
specifically prohibited on Indian lands by Federal law").
22
See 25 U.S.C. § 941l(a).

23
necessary to secure passage of the Act. To borrow IGRA

terminology, the Tribe has already made its "compact" with the

state of Texas, and the Restoration Act embodies that compact. If

the Ysleta del Sur Pueblo wishes to vitiate the compact it made to

secure passage of the Restoration Act, it will have to petition

Congress to amend or repeal the Restoration Act rather than merely

comply with the procedures of IGRA.

C.

Finally, having concluded that the Restoration Act governs

this case, we now must determine whether the Tribe's suit against

the State is cognizable. The Eleventh Amendment bars any suit

against a state in federal court, unless either the state has

waived its sovereign immunity or Congress, pursuant to another

provision in the Constitution, has expressly abrogated the state's

immunity. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-40

(1985). A state's sovereign immunity under the Eleventh Amendment

includes immunity from suits brought by Indian tribes. Blatchford

v. Native Village of Noatak, 111 S. Ct. 2578 (1991). While the

State clearly raised the Eleventh Amendment as a defense to the

Tribe's IGRA suit, it did not do the same with regard to the

Restoration Act. The State's omission, however, does not mean we

are precluded from raising the issue sua sponte, because the

Eleventh Amendment operates as a jurisdictional bar. See Edelman

v. Jordan, 415 U.S. 651, 678 (1974); Ortiz v. Regan, 749 F. Supp.

1254, 1264 (S.D.N.Y. 1990); 13 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE

AND PROCEDURE § 3524 at 167-71. We find nothing in the record

24
indicating that the state of Texas consented to the Tribe's suit.

Likewise, in enacting the Restoration Act, Congress said nothing

whatsoever which could be construed as an abrogation of the State's

sovereign immunity. Accordingly, we reverse the district court's

summary judgment in favor of the Tribe and remand the case with

instructions to dismiss the Tribe's suit for lack of jurisdiction.

IV.

For the foregoing reasons, we REVERSE the district court's

summary judgment for the Tribe and REMAND with instructions to

DISMISS the Tribe's suit.

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