Can Texas regulate bingo run by an Indian tribe on tribal land under the state Bingo Enabling Act?

Texas AG Opinion JM-1040: Can Texas Regulate Bingo on Indian Lands?

Plain-English summary

In 1988 Congress passed the Indian Gaming Regulatory Act, the federal law that still frames who controls gambling on tribal land. Right after it took effect, the Texas Comptroller (Bob Bullock, whose office ran bingo licensing) asked the Attorney General a batch of questions about how much say Texas had over bingo run by the Texas Band of Kickapoo Indians, whose trust land sits in Maverick County. The short answer running through the whole opinion is that Texas had very little say on the reservation and a normal amount off it.

The federal law sorts gambling into three classes. Bingo is "class II" gaming. On Indian lands, class II gaming is under the jurisdiction of the tribe and federal regulators, and states have no authority to regulate it. The only place a state gets a seat at the table is class III gaming (casino-style games), and only through a negotiated tribal-state compact. So the Comptroller could not apply the Texas Bingo Enabling Act to bingo on Kickapoo trust land, period. That answer did not change if the tribe hired an outside company to run the games under a management contract, because the games are still class II gaming on Indian land.

The Comptroller also wanted to know whether the state could decide if the Kickapoo land really was "Indian land," since the statute had authorized accepting up to 100 acres in Maverick County but the Interior Department had reportedly accepted 125. The Attorney General said neither his office nor the Comptroller could make that call administratively. Whether a tract is Indian land is for the Department of the Interior to decide in the first instance, and a challenge belongs in the courts, as when several Florida agencies sued over land taken in trust for the Seminole Tribe. Until a court says otherwise, the state should treat Interior's determination as controlling.

Two more points sorted out the plumbing. Tribal gaming management contracts are approved and policed by the chairman of the National Indian Gaming Commission, not by the state. And while the federal law borrows state eligibility standards to decide who besides the tribe can hold a tribal gaming license, the state itself has no power to enforce those standards.

Where the state's law still had teeth was off the reservation. Federal Indian law does not generally preempt state regulation of activity that happens off Indian land. So a sale of bingo equipment to the tribe that takes place off Indian land remained subject to Texas regulation, even though the same sale on Indian land did not. And Texas's advertising rules, which let only "licensed authorized organizations" promote bingo, by their plain terms would bar the off-reservation advertising of bingo conducted on Indian land. The Attorney General flagged two cautions on that last point: preemption is ultimately a federal-law question, and banning the advertising of a legal activity raises First Amendment issues under cases like Central Hudson and Posadas. Separately, a commercial hall operator (a "commercial lessor") is not an "authorized organization" and has no authority to advertise or promote bingo at all.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion turned on the Indian Gaming Regulatory Act as it stood in 1989 and on the Texas Bingo Enabling Act (former article 179d), which has since been recodified into the Occupations Code. Federal Indian gaming law, the role of the National Indian Gaming Commission, and the specific situation of the Texas Band of Kickapoo have all developed considerably since then, including later litigation over whether Texas gaming law applies to the tribes. Anyone dealing with a present-day question about tribal gaming in Texas should consult current federal and state law rather than rely on this 1989 analysis.

Who this opinion affected (as of 1989)

The Comptroller and state bingo regulators: The opinion told them they could not regulate, license, or oversee bingo conducted on the Kickapoo trust land, nor determine what counts as Indian land.

The Texas Band of Kickapoo and its contractors: The opinion confirmed their bingo on trust land was outside the Texas Bingo Enabling Act and governed by federal and tribal law, whether the tribe or a management contractor ran it.

Bingo equipment sellers and commercial halls: The opinion warned that off-reservation sales to the tribe stayed under state regulation and that off-reservation advertising of tribal bingo, and any advertising by a commercial lessor, ran into the state statute.

Common questions

Can Texas apply its Bingo Enabling Act to bingo on the Kickapoo reservation?
No. The AG concluded that under the Indian Gaming Regulatory Act, bingo is class II gaming under tribal and federal jurisdiction, and states have no authority to regulate class II gaming on Indian lands.

Does it matter if an outside company runs the tribe's bingo?
No. The AG concluded a state still has no authority to regulate class II gaming on Indian lands whether the games are conducted by the tribe or by a management contractor.

Can the Comptroller decide whether the tribe's land is really Indian land?
No. The AG concluded that determination is for the Department of the Interior in the first instance, with any challenge decided by the courts, not by an administrative ruling of the AG or the Comptroller.

Does Texas bingo law reach sales or advertising off the reservation?
Yes. The AG concluded a sale of bingo equipment to the tribe off Indian land is not exempt from state regulation, and the Bingo Enabling Act's advertising rules by their plain terms reach off-reservation promotion of tribal bingo, subject to a federal-preemption and First Amendment caveat.

Background and statutory framework

The Comptroller's request concerned state regulation of bingo on Indian lands in light of the Indian Gaming Regulatory Act (IGRA), Pub. L. No. 100-497, 102 Stat. 2467, 25 U.S.C. sections 2701-2721, which regulates gaming, including bingo, on Indian lands. The AG explained that IGRA divides gaming into three classes and categorizes bingo as class II gaming (25 U.S.C. section 2703(6)-(7)). Class II gaming on Indian lands is under the jurisdiction of the tribes, subject to federal regulatory provisions, and states have no authority to regulate it (25 U.S.C. section 2710(a)(2); S. Rep. No. 446, 100th Cong., 2d Sess. (1988)). The only situation in which a state may play a role is a tribal-state compact for the conduct of class III gaming (25 U.S.C. section 2710(d)). The AG therefore concluded the Comptroller's office may not regulate bingo on Indian lands in Texas.

On whether particular land was Indian land, the AG quoted IGRA's definition of "Indian lands" (25 U.S.C. section 2703(4)) and the 1983 legislation recognizing the Texas Band of Kickapoo Indians, which authorized the Secretary of the Interior to accept no more than 100 acres in Maverick County for the Band's benefit (25 U.S.C. section 1300b-14; see 25 U.S.C. section 465). Although the Secretary had reportedly accepted 125 acres in trust, which might contravene the statute, the AG concluded neither his office nor the Comptroller's could make an administrative determination whether a particular tract is Indian land; that determination is for the Department of the Interior in the first instance, and a challenge to the department's acceptance of land in trust must be made in the courts. See State of Florida Dep't of Business Regulation v. United States Dep't of Interior, 768 F.2d 1248 (11th Cir. 1985), cert. denied, 475 U.S. 1011 (1986). Absent a judicial determination, the Interior Department's determination should be observed.

On management contracts, the AG explained a tribe may enter a management contract for class II gaming, but the contract is subject to approval by the chairman of the National Indian Gaming Commission, whose responsibility it is to determine that the contract meets the federal requirements (25 U.S.C. section 2711); the Comptroller has no authority to approve, disapprove, or oversee such contracts. Bingo conducted by a management contractor is equally beyond state regulation. On tribal licensing of non-tribal operators, the AG noted IGRA permits tribal licensing of class II gaming owned by a non-tribal person only if the tribal requirements are at least as restrictive as state law, and bars a tribal license to anyone who could not get a state license (25 U.S.C. section 2710(b)(4)(A)); IGRA thus incorporates state-law standards, but the Comptroller has no authority to enforce them.

On the sale of bingo equipment, section 13a(a) of the Texas Bingo Enabling Act requires a manufacturer selling bingo supplies within the state to hold a comptroller's license. The AG concluded that because regulation of the sale of bingo equipment on Indian land is part of the regulation of bingo, which the state cannot regulate on Indian land, the act is inapplicable to a sale on Indian land. A sale off Indian land is a different matter: federal attempts to control Indian activities off Indian lands have been upheld (United States v. 43 Gallons of Whiskey, 93 U.S. 188 (1876); Johnson v. Gearlds, 234 U.S. 422 (1914)), but preemption of state law outside Indian country has not been extensive, and IGRA does not expressly preempt state bingo regulation of off-reservation transactions. The AG therefore concluded a sale of bingo equipment to the tribe occurring off Indian land is not exempt from state regulation. See Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) (absent express federal law to the contrary, Indians going beyond reservation boundaries are generally subject to generally applicable state laws).

On advertising, the AG explained that the Bingo Enabling Act allows only a "licensed authorized organization" to advertise or promote bingo (section 11(p)) and bars anyone other than a bona fide member of such an organization from conducting, promoting, or administering a bingo game (section 11(g); see also section 19). Because the state cannot regulate bingo on Indian lands, these provisions do not apply to advertising on Indian land. But because "licensed authorized organization" means an organization licensed under the Texas statute (section 2(17)), the plain terms of section 11(p) would prohibit the off-reservation advertising of bingo conducted on Indian land, subject to the caution that preemption is a federal-law question. The AG added that although the Comptroller had not asked, a prohibition on advertising a legal activity raises First Amendment questions. See Central Hudson Gas and Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557 (1980); Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986). Finally, the AG concluded a commercial lessor's license carries no authority to advertise or promote bingo, because a commercial lessor is not an "authorized organization" as defined in section 2(11) and is not itself authorized to conduct bingo.

Citations

Cases:

• State of Florida Dep't of Business Regulation v. United States Dep't of Interior, 768 F.2d 1248 (11th Cir. 1985), cert. denied, 475 U.S. 1011 (1986) (challenge to land taken in trust for the Seminole Tribe)
• United States v. 43 Gallons of Whiskey, 93 U.S. 188 (1876) (federal control of Indian-related activity off reservation)
• Johnson v. Gearlds, 234 U.S. 422 (1914) (same)
• Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) (Indians off reservation generally subject to state law)
• Central Hudson Gas and Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557 (1980) (advertising ban and the First Amendment)
• Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) (restrictions on advertising legal gambling facially constitutional)

Statutory authority:

• Indian Gaming Regulatory Act, Pub. L. No. 100-497, 102 Stat. 2467, 25 U.S.C. §§ 2701-2721
• 25 U.S.C. § 2703 (classes of gaming; definition of "Indian lands"); § 2710 (class II and III regulation); § 2711 (management contracts)
• 25 U.S.C. § 1300b-14 (land for the Texas Band of Kickapoo Indians); § 465 (land held in trust)
• Texas Bingo Enabling Act, V.T.C.S. art. 179d, §§ 2(11), 2(17), 11(g), 11(p), 13a(a), 19

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1040
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1040.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; garbled case names have been corrected against the cited reporters; the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

April 12, 1989

Honorable Bob Bullock
Comptroller of Public Accounts
L.B.J. State Office Building
Austin, Texas 78774

Opinion No. JM-1040

Re: Whether an Indian 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. Pub. Law No. 100-497, 102 Stat. 2467, 25 U.S.C. §§ 2701-2721. The act regulates "gaming," including 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)-(7). 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. § 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 gaming on Indian lands. 25 U.S.C. § 2710(d). See generally 25 U.S.C. § 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 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. § 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) Sections [461-479] of this title are hereby made applicable to the 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 is authorized and directed to accept no more 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. § 1300b-14. See generally 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 a particular piece of land to be held in trust for certain Indians would have to be made in the courts. See, e.g., State of Florida Dep't of Business Regulation v. United States Dep'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 agreement meet all requirements of Section 12 of IGRA [25 U.S.C. § 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. § 2711. 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 would 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 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. § 2710(b)(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, 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, or other supplies, devices, or equipment designed 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 tribe that 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.g., 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, § C1 (1982 ed.). The Indian Gaming Regulatory Act does not expressly 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 Apache Tribe v. Jones, 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:

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 the 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 "licensee" as a person licensed under the Bingo Enabling Act, V.T.C.S. art. 179d, § 2(17), we must read "licensed authorized organization" 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 generally Central Hudson Gas and Elec. Corp. 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 de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 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 "authorized organization" 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, § 2(11). Only "authorized organizations" 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.

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.

Although the question is one of federal law, it is our opinion 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