Ken Paxton Has (Possibly) Given Us a Blueprint for How He'll Handle the Alabama Coushatta

After a long wait the state has finally tipped its hand on how it will handle the Alabama-Coushatta reopening a casino in Livingston in 2016. 

Spoiler alert: The state is most likely against it. 

Back in 2001, the Alabama-Coushatta opened their casino on the reservation just outside of Livingston, and for a handful of months the casino gave the tribe jobs and money right there on the reservation. But then the state stepped in and they were forced to close. For more than 13 years the casino hall has sat empty and unused but now they've been told by the federal government that they can reopen.

Back in October two federally recognized tribes on Texas reservations, the Alabama-Coushatta in Livingston and the Tigua on the Ysleta del Sur Pueblo reservation near El Paso, received approval from the National Indian Gaming Commission to reopen their respective casinos and offer gaming like bingo and electronic bingo. The Office of the Solicitor General of the Department of the Interior backed up the NIGC that the two tribes had legal rights to offer gaming on their reservations. 

(The legalese behind all of this is complicated, but basically the National Indian Gaming Commission and the federal government concluded that the Indian Gaming Regulatory Act, in reality, repealed all the restrictions under the tribal restoration acts that had banned tribes from gaming or doing anything else that isn't in line with Texas law. Both tribes were restored to federal recognition in 1989 but the federal reasoning is that the Indian Gaming Regulatory Act cancelled out any state prohibition against gaming.) 

When word came down that the federal government was on their side, both the Alabama-Coushatta and the Tigua cautiously started getting ready to reopen their casinos — the state forced both casinos to close in 2001 — while waiting to see what the state response would be. 

After a long court battle — which they ultimately lost when the U.S. Fifth Circuit Court of Appeals sided with the state — the Alabama-Coushatta abandoned gaming entirely after a challenge was launched in the federal courts by then State Attorney Gen. John Cornyn. But the Tigua had continued to offer a lower level of gaming right up until the state won a court order forcing them to stop.

The Tiguas were still duking this out in court when the National Indian Gaming Commission came out with its opinion that the both federally-recognized tribes had the right to offer gaming.

The news was celebrated by both tribes. Ever since then, the Alabama-Coushatta have slowly and steadily been preparing to reopen their casino in 2016.

“We're moving forward, but there are a lot of hurdles we have to get over with the National Indian Gaming Commission and with public stuff. It's slower than we'd intended, but we're making sure we're doing everything by the book and we've been in contact with the National Indian Gaming Commission every step of the way to make sure we're doing things correctly,” Alabama-Coushatta spokesman Carlos Bullock says. 

Meanwhile, U.S. District Judge Kathleen Cardone issued an order requiring the Tiguas and other parties to the lawsuit to file their briefs on what the federal agency decision means. 

On December 9 Paxton filed a brief on the Tiguas case — the tribe has been in a legal fight over the right to gamble for more than 20 years now — on the issue. Predictably he came down against it, contending that "no federal agency interpretation can contradict Congressional intent.”  

The 26-page brief referenced 25 court cases and dug into eight "issues" that concerned the state, with most of the issues tugging at whether or not the National Indian Gaming Commission and the Department of the Interior had the right to even issue their opinion on gaming. 

Paxton was pretty clear about what he thought: 

"If Congress has explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute ... Here there is no gap. The only issues presented are legal issues for this court. Congress delegated no power or authority to either federal agency to interpret laws or invalidate portions of federal law."

Outside of the brief Paxton has officially stayed silent on the question of the Alabama-Coushatta. "At this point, we will not be providing any comment," Spokeswoman Teresa Farfan replied via email in response to our questions.

However, the Alabama-Coushatta come up twice in Paxton's brief. The first mention comes right at the start:

"Should Texas be required to join the Alabama-Coushatta Tribe to this litigation ... without any evidence that the Alabama-Coushatta Tribe is currently violating the Restoration Act?"

Then, at the end of the brief he answers his own question:

"Since this litigation was filed to enjoin and hold accountable the Pueblo defendants for their continued violation of federal law embodied in the Restoration Act, there is no need to ... add third-party tribes which, unlike the Pueblo defendants here, are not currently violating federal law." 

Translation: The Alabama-Coushatta aren't currently violating the federal law so they won't be in trouble with the state until they actually do something to violate the federal law, like, you know, maybe reopening their casino in 2016. 

Still, Bullock says they aren't letting the implications of Paxton's brief hold them up, at the same time that the Alabama-Coushatta are being careful to do everything exactly as required by law. “We never want to go through what we did the last time where we'd hired 300 people, and then we had to lay them off. That really hurt our tribe, having to lay people off like that. But that's not going to happen this time. We're moving forward and this time everything is going to be in order,” he says. “In the end, we don't know – we can't know for sure – what the state is going to do, but we're moving ahead.”

Now we just have to wait and see if there's any way that the Alabama-Coushatta can follow the rules according to Paxton. 
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Dianna Wray is a nationally award-winning journalist. Born and raised in Houston, she writes about everything from NASA to oil to horse races.
Contact: Dianna Wray