THE ATTORSEY GESERAL
OF TEXAS
April 12, 1989
Honorable Bob Bullock, Opinion No. JM-1040
Comptroller of Public Accounts
L.B.J. State Office Building Re: Whether an Indian
Austin, Texas 78774 tribe is subject to the
Texas Bingo Enabling Act,
article 179d, V.T.C.S.,
and related questions
(RQ-1577)
Dear Mr. Bullock:
You ask a number of questions .about state regulation of
bingo on Indian lands in light of a 1988 federal enactment,
the Indian Gaming Regulatory Act. Rub. Law No. 100-497, 102
Stat. 2467, 25 U.S.C. §S 2701-2721. The act regulates
1'gaming,11including bingo, on Indian lands.
The federal statute divides gaming into three classes,
and bingo is categorized as class II gaming. 25 U.S.C.
§ 2703(6)-(a). Class II gaming on Indian lands is under the
jurisdiction of the tribes, but subject to the provisions of
the Indian Gaming Regulatory Commission. 25 U.S.C.
5 2710(a)(2). States have no authority to regulate bingo on
Indian lands. Id.; see also S. Rep. (Indian Affairs
Committee) No. 446, 100th Cong., 2d Sess. (1988)
(accompanying bill S. 555, which became Indian Gaming
Regulatory Act). The only situation in which a state may
play a role in the regulation of gaming on Indian lands is
where a tribe and a state enter into a compact regarding the
conduct of class III aaming on Indian lands. 25 U.S.C.
§ 2710(d). See aenerallv 25 U.S.C. 5 2703(a) (defining
class III gaming). Therefore, your office may not regulate
bingo on Indian lands in Texas.
Your first question is whether certain land deeded to
the United States Department of the Interior for the benefit
of the Texas Band of Kickapoo Indians is in fact Indian
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Honorable Bob Bullock - Page 2 (JM-1040)
land. The Indian Gaming Regulatory Act defines "Indian
lands" as follows:
(4) The term 'Indian lands' means--
(A) all lands within the limits of any
Indian reservation; and
(B) any lands title to which is either
held in trust by the United States for the
benefit of any Indian tribe or individual or
held by any Indian tribe or individual
subject to restriction by the United States
against alienation and over which an Indian
tribe exercises governmental power.
25 U.S.C. S 2703(4). The 1983 legislation by which Congress
recognized the Texas Band of Kickapoo Indians as a subgroup
of the Kickapoo Tribe of Oklahoma contains the following
provisions governing acquisition of land for the benefit of
the Texas Band of Kickapoo Indians:
(a) Se;&ins [4617479] of thist;21e are
hereby applicable to Band:
Provided, however, That the Secretary is only
authorized to exercise his authority under
section 465 of this title with respect to
lands located in Maverick County, Texas.
(b) The Secretary ' authorized and
directed to accept no rno:: than one hundred
acres of land in Maverick County, Texas which
shall be offered for the benefit of the Band
with the approval of the Tribe. Nothing in
this subsection shall be construed as
limiting the authority of the Secretary under
section 465 of this title.
25 U.S.C. 5 1300b-14. See aenerally 25 U.S.C. § 465
(general authorization for the Department ,of Interior to
acquire land to be held in trust for Indians). You tell us
that the Secretary of the Interior actually accepted 125
acres of land in trust for the benefit of the Texas Band of
Kickapoo Indians. Such a transaction may well contravene
the statute set out above. Neither this office nor your
office, however, has authority to make an administrative
determination as to whether or not a particular piece of
land is in fact Indian land. Such a determination would
have to be made, in the first instance, by the Department of
the Interior. A challenge'to the department's acceptance of
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Honorable Bob Bullock - Page 3 (JM-1040)
a particular piece of land to be held in trust for certain
Indians would have to be made in the courts. See, e.a
State of Florida Den't of Business Reuulation v. United
States DeD't of Interior, 768 F.2d 1248 (11th Cir. 1985),
cert. denied, 475 U.S. 1011 (1986) (challenge by various
state agencies to Secretary of Interior's acceptance of
tract of land to be held in trust for benefit of Seminole
Indian Tribe of Florida). In the absence of a judicial
determination about the land in question, we advise you that
the determination of the Department of the Interior as to
what land is Indian land should be observed.
You also ask:
Assuming that the Tribe enters into an
agreement whereby another entity agrees to
manage and operate the conduct of bingo on
the Tribe's trust land, must such an agree-
ment meet all requirements of Section 12 of
IGRA [25 U.S.C. 5 2711]?
An Indian tribe may enter into a management contract for the
operation and management of a class II gaming activity. 25
U.S.C. 5 2511. Such a contract is subject to the approval
of the chairman of the National Indian Gaming Commission.
Id. It is the responsibility of the chairman of the
National Indian Gaming Commission to determine that the
contract meets the requirements of the federal statute.
Your office has no responsibility for or authority to
approve, disapprove, or oversee such contracts.
You next ask:
Under the terms of a management contract
entered into between the Tribe and
management contractor, the contractor woul:
assume responsibility for managing and
operating the bingo games conducted on the
Tribe's trust lands. In light of the fact
that the Tribe is, in such circumstances, no
longer the entity operating the bingo games,
my third question is whether bingo games
conducted by the management contractor acting
pursuant to such a contract are subject to
the Texas Bingo Enabling Act?
Again, under the Indian Gaming Regulatory Act, a state
has no authority to regulate class II gaming on Indian
lands, regardless of whether the games are conducted by the
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Honorable Bob Bullock - Page 4 (JM-1040)
tribe or by another entity pursuant to a management
contract.
You next ask:
In the event the Tribe elects to license
another entity to own a bingo activity to be
conducted on the Tribe's trust lands within
the Tribe's jurisdiction, would the proposed
licensee be required to be an organization
eligible for a license to conduct bingo under
the Texas Bingo Enabling Act? Would the
bingo occasions conducted pursuant to the
tribal license be subject to the Texas Bingo
Enabling Act?
The Indian Gaming Regulatory Act contains the following
provision:
A tribal ordinance or resolution may
provide for the licensing or regulation of
class II gaming activities owned by any
person or entity other than the Indian tribe
and conducted on Indian lands, only if the
tribal licensing requirements . . . are at
least as restrictive as those established by
State law governing similar gaming within the
jurisdiction of the State within which such
Indian lands are located. No person or
entity, other than the Indian tribe, shall-be
eligible to receive a tribal license to own a
class II gaming activity conducted on Indian
lands within the jurisdiction of the Indian
tribe if such person or entity would not be
eligible to receive a State license to
conduct the same activity within the
jurisdiction of the State.
25 U.S.C. 5 27100) (4) (A) - In other words, the Indian
Gaming Regulatory Act incorporates state-law standards to
govern the conduct of bingo by persons and entities other
than an Indian tribe. Your office, however, has no
authority to enforce those provisions.
You next ask:
In the event the Tribe may conduct bingo
not subject to regulation under the Bingo
Act, may manufacturers and distributors
licensed to sell bingo cards, supplies,
p. 5397
Honorable Bob Bullock - Page 5 (JM-1040)
devices, or equipment for use in Texas
legally sell such items to the Tribe?
Section 13a(a) of the Texas Bingo Enabling Act, article
179d, V.T.C.S., provides in part:
A manufacturer may not sell or supply to a
person within this state or for use within
this state bingo cards, boards, sheets, pads,
other supplies, devices, or equipment
iisigned to be used in playing bingo or
engage in any intrastate activities involving
those items without holding a license from
the comptroller of public accounts.
Although the question is one of federal law, it is our
opinion that regulation of the sale of bingo equipment on
Indian land is part of the regulation of bingo. Because the
state has no authority to regulate bingo on Indian land, the
Texas Bingo Enabling Act is inapplicable to a sale of bingo
equipment that takes place on Indian land.
Your question also raises the issue of whether a sale
to a tribethat occurs off of Indian land is subject to the
act.. Attempts by the federal government to control
activities of Indians off Indian lands have been upheld.
See, e.a., United States v. 43 Gallons of Whiskey, 93 U.S.
188 (1876) (holding that Congress may constitutionally
forbid the sale of liquor in an area adjoining an Indian
reservation in order that Indians will not be tempted by
alcohol): see also Johnson v. Gearlds, 234 U.S; 422, 436-39
(1914). However, "preemption of state laws outside of
Indian country has not been extensive." F. Cohen, Handbook
of Federal Indian Law, ch. 6, 5 Cl (1982 ed.). The Indian
Gamina Reaulatorv Act does not exnresslv preempt the
application of state bingo regulations to Indians who are
engaging in transactions relating to bingo off of Indian
land. Rather, the act repeatedly refers to gaming on Indian
lands. Therefore, we conclude that a sale of bingo
equipment to an Indian tribe that occurs off of Indian land
is not exempt from state regulation. See Mescalero Anache
Tribe v. Jones. N.M., 411 U.S. 145 (1973) (stating that
absent express federal law to the contrary, Indians going
beyond reservation boundaries have generally been held
subject to state laws applicable to all citizens of state).
We caution, however, that the question is one of federal
law.
Your final question is in three parts:
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1
Honorable Bob Bullock - Page 6 (JM-1040)
First, in the event the Tribe may conduct
bingo not subject to regulation under the
Bingo Act, may the Tribe legally advertise or
promote its bingo games?
Secondly, in the event the Tribe enters
into a management contract such as *
described in Section 12 of IGRA, may tiZ
management contractor advertise or promote
the Tribe's bingo games?
Thirdly, if the answer to part 2 of this
question is yes, and assuming that the
management contractor in question also holds
a Texas commercial lessor's license, may that
contractor/lessor advertise or promote the
Tribe's bingo games at the lessor's
commercial hall(s) in Texas or any other
location in Texas?
Section 11(p) of the Texas Bingo Enabling Act, article
179d, provides:
No one other than a licensed authorized
organization may advertise or promote bingo.
A licensed authorized organization may not
include in an advertisement or promotion the
amount of a prize or series of prizes offered
at a bingo occasion.
Section 11(g) provides:
A person other than a bona fide member of
a licensed authorized organization may not
conduct, promote, administer, or assist in
conducting, promoting, or administering, a
bingo game.
See also V.T.C.S. art. 179d, § 19. Again, because the state
cannot regulate bingo on Indian lands, these provisions do
not apply to advertisements or promotions on Indian land.
As indicated, however, although it would doubtless be within
the authority of Congress to preempt application of those
provisions to advertisement or promotion conducted pursuant
to the Indian Gaming Regulatory Act, it is our opinion that
Congress has not done so. Section 11(p) permits only
"licensed authorized organizations' to advertise or promote
bingo in Texas. Since the Bingo Enabling Act defines
*11icensee8Nas a person licensed under the Bingo Enabling
Act, V.T.C.S. art. 179d, 5 2(17), we must read "licensed
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Honorable Bob Bullock - Page 7 (JM-1040)
authorized organizationl' to refer only to organizations
licensed under the Texas statute. Therefore, the plain
terms of section 11(p) would prohibit the advertisement or
promotion off of Indian land of bingo conducted on Indian
land. Again, however, we caution that the issue of
preemption is one of federal law. Furthermore, although you
have not asked about the constitutionality of applying the
statute to bingo conducted pursuant to the Indian Gaming
Regulatory Act, we note that a prohibition on the
advertisement of a legal activity raises questions under the
First Amendment to the United States Constitution. See
aenerallv Central Hudson Gas and Elec. Corn. v. Public Serv.
Comm'n of New York, 447 U.S. 557 (1980) (holding that a New
York Public Service Commission order banning electric
utilities from advertising violates the First and Fourteenth
Amendments); posadas
> ism Co. of
Puerto RiB, 478 U.S. 328 (1986) (holding that Puerto Rico's
restrictions on the advertising of legal gambling activities
are facially constitutional).
Also, we note in response to the third part of your
question that a person who holds a commercial lessor's
license has no authority to promote or advertise bingo, even
if the bingo is conducted under the Texas statute. Article
179d allows only "licensed authorized organizations" to
advertise or promote bingo. The act defines l'authorized
organizationl' as follows:
'Authorized organization' means a
religious society, a nonprofit organization
(other than an organization whose membership
is predominantly veterans or their dependents
organized to advance the interests of
veterans, active duty personnel, or their
dependents) whose predominant activities are
for the support of medical research or
treatment programs, a fraternal or veterans
organization, or a volunteer fire department.
V.T.C.S. art. 179d, 5 2(11). Only "authorized
organizationsl' may receive a license to conduct bingo under
the Texas statute, and the act uses the term "authorized
organization" only to refer to entities authorized to
conduct bingo. A licensed authorized organization may use
the premises of an authorized commercial lessor to conduct
bingo. However, there is no requirement that a licensed
commercial lessor be an "authorized organization," and a
licensed commercial lessor is not itself authorized to
conduct bingo. Therefore, section 11(p) would not permit a
licensed commercial lessor to advertise or promote bingo.
p. 5400
Honorable Bob Bullock - Page 8 (JM-1040)
SUMMARY
The state has no authority to regulate
bingo in Indian lands. This office cannot
make a factual determination as to what land
is in fact Indian land. The state has no
authority to approve, disapprove, or oversee
management contracts for the operation of
bingo on Indian lands.
Althoush the ouestion is one of federal
law, it is our opi&on that Congress has not
preempted the state from applying state
provisions regulating bingo to Indian bingo
activities that take place off of Indian
land.
Very truly yours,
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 5401