GAMLBING

Court rules against Kickapoo gambling expansion

Fifth Circuit says Interior Department overstepped its bounds.

The prospect that federal authorities might overrule Texas officials and allow Las Vegas-style gambling on one Indian reservation in the state was short-lived.

In May, U.S. Department of the Interior officials gave preliminary approval for the Kickapoo Traditional Tribe of Texas to expand gambling at its Eagle Pass reservation, but on Friday, two of three federal appellate judges said the department's rules had gone beyond what Congress intended and had denied the State of Texas its sovereign right not to be sued.

A spokesman for Attorney General Greg Abbott hailed the decision Monday.

"The 5th Circuit Court of Appeals ruling is a clear victory for the citizens of Texas," Thomas Kelley said. "In striking down the U.S. Department of the Interior's gaming application procedures as unconstitutional, the court has reaffirmed that the State of Texas should have meaningful input in any federal decision regarding casino-style gambling, an activity that has always been illegal in Texas."

Tribal representatives did not return a phone call seeking comment.

Over the past 12 years, the Kickapoos have contended to state and federal officials that, according to federal law, they should be able to offer more than poker and bingo at their casino because Texas operates its own lottery.

Texas officials, however, have refused to negotiate with the tribe, and in May the Legislature refused to approve the expansion of gambling for tribes.

With state officials refusing to negotiate, Interior officials created rules that would have forced state authorities to the negotiating table or allowed federal officials to decide the issue.

The Interior Department's preliminary approval would have allowed games such as blackjack, roulette, baccarat, pai gow and keno and various dice games at the Eagle Pass casino.

The state sued the Interior Department over its procedures, but a district court ruled that such a suit was premature.

The two 5th Circuit judges who ruled Friday, Chief Judge Edith Jones and Judge Carolyn Dineen King, said Interior's rules went too far, sending the case back to district court.

Jones said the rules left a state that insists on its right of sovereign immunity with two unfavorable choices: refuse to negotiate and take its chances with the Interior secretary or submit to mediation.

King wrote that it could be argued that the state now has "the leverage to block gaming on Indian land . . . in a manner wholly contrary to Congress' intent." Yet King said that issue was not before the appellate court.

In his dissent, Judge James Dennis wrote that Interior has the right to address any gaps in the law that allow a state to refuse to negotiate with a tribe while blocking the tribe's ability to sue for relief.

Jones noted that the U.S. government could sue Texas, though the tribe cannot, to determine whether the state has acted in good faith.

That could be a long shot.

When the Kickapoos began their quest for more gambling, their negotiations with then-Gov. George W. Bush and his counsel, Alberto Gonzales, went nowhere. Gonzales is now U.S. attorney general and the one to decide whether the federal government would sue Texas.

'In striking down the U.S. Department of the Interior's gaming application procedures as unconstitutional, the court has reaffirmed that the State of Texas should have meaningful input in any federal decision regarding casino-style gambling, an activity that has always been illegal in Texas.'

Thomas Kelley

Attorney general's spokesman

lcopelin@statesman.com; 445-3617