On the southeast side of El Paso, there's a casino that has sprung up among the sagebrush of the Tigua Indian Reservation. Tribe members call it the Speaking Rock. Texas Gov. George W. Bush calls it illegal.
Like a growing number of officials in other states, Governor Bush is using the courts to slow the spread of gambling in his state, if not shut it down altogether. But closing the casino is proving more difficult than might be expected. The tribe claims they are operating within state laws. And the legal wrangling is just beginning.
How the dispute is resolved here and in states from Florida to California will help determine the limits of Indian sovereignty - one of the oldest legal disputes in the United States. It will also impact the livelihoods of thousands of native Americans, as more tribes turn to casino gambling - the most lucrative tribal venture in history - to raise money.
"Every state in the country, with the exceptions of Utah and Hawaii, has some form of legal gambling, usually a lottery," says Nelson Rose, a law professor and expert on Indian casinos at Whittier Law School in Costa Mesa, Calif. "The tribes are simply saying they have the right to do the same thing. But from the point of view of the state, it's untaxed and unregulated gambling."
Limits to self-rule?
Since 1830, the US Supreme Court has upheld the right of tribes to self-rule, allowing them to regulate everything from fishing, hunting, and mineral rights to the setting up of gambling casinos. But in 1988, these broad rights were tempered, as Congress passed the Indian Gaming Regulatory Act. The controversial new law allows states and tribes to sign compacts on what kind of gambling can take place on reservations. This more direct relationship has sometimes brought peaceful resolutions, and other times brought state and tribal rivalries to a head. But nationwide, it has unleashed the biggest expansion of casino gambling in US history.
The economic impact of this boom has been uneven. Eight of the 184 tribal casinos in the country generate 40 percent of all Indian gambling revenues, and these casinos tend to draw from urban areas. For every Mashantucket Pequot tribe that operates a successful casino near an urban area (in Connecticut), there are dozens of more impoverished rural tribes that have either rejected gambling or have been unable to cash in on it.
In Idaho, the Coeur d'Alene tribe has staked a claim in cyberspace, offering a lottery game over the Internet. Idaho officials say the tribe's activities are abiding by state laws, but officials in other states, including Arizona Sen. Jon Kyl (R) of Arizona, are urging Congress to pass laws to make this and other forms of Internet gambling illegal.
In California, Gov. Pete Wilson (R) ended months of acrimonious negotiations by signing a pact with the Pala Band of Mission Indians, who operate a casino in San Diego County. While nearly 30 tribes say they will fight any state intrusion into their business, a dozen other tribes seem close to signing compacts like the Palas'.
"We want it understood there were no good choices," said Anthony Pico, Pala tribal chairman, at a press conference last month, after signing the pact. "This very sobering and difficult decision was made with a gun to our heads."
In New Mexico, Gov. Gary Johnson has used his popularity among native American voters to sign compacts with all but one of the state's tribes.
The holdouts are the Mescalero Apache tribe in Ruidoso. At issue, says tribal chairman Wendell Chino, is the 16 percent tax that New Mexico demands.
"We refuse to pay," says Mr. Chino, who has led a nationwide fight against state intrusion on Indian reservations. "It's a tax, and the law prohibits a state from taxing another governmental entity."
Here in Texas, Bush seems ready for a long legal fight with the Ysleta del Sur and Kickapoo tribes. And this fight may only become more heated, if Washington grants formal recognition to the dozen tribal groups that are organizing within Texas boundaries.
"While the voters of Texas approved the state lottery, they have not approved casino gambling, and the laws of Texas prohibit casino gambling whether in shopping malls, at truck stops, at restaurants, or on Indian reservations," says Bush spokeswoman Karen Hughes. "The people of Texas do not want their governor to enforce only some of the laws some of the time in some parts of the state."
Of course, some casino proponents argue that Indian casinos are doing exactly what the state does in its lottery: give out prizes in a game of chance.
"The law allows a lottery, and how we play the lottery is up to us," says Marc Schwartz, spokesman for the Ysleta del Sur Pueblo tribe, which lives on the Tigua reservation.
Vague lottery laws
Indeed, the 1993 law that allowed Texas to set up a lottery defined lotteries in somewhat broad terms: They are "procedures operated by the state where prizes are awarded by chance among persons who have paid or agreed to pay for a chance or other opportunity to win a prize."
"If it was illegal, it wouldn't take a lawsuit to shut it down," says Mr. Schwartz, from his El Paso office. "The Texas Rangers would be in here, shutting it down. The fact that they haven't shown up says that they aren't sure."