By: González of El Paso H.J.R. No. 185
A JOINT RESOLUTION
proposing a constitutional amendment to require the governor to
execute model gaming compacts with the Alabama-Coushatta Tribe of
Texas and the Ysleta del Sur Pueblo and to authorize those tribes to
sue this state if the governor fails to execute said model gaming
compacts.
BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. THE INTERIOR
The foregoing Compact between the Tribes and the State of
Texas is hereby approved this ___, pursuant to authority conferred
on me by Section 11 of the Indian Gaming Regulatory Act, 102, Stat.
2472 or Sections 2, 107, and 207 of the Ysleta del Sur Pueblo and
Alabama and Coushatta Indian Tribes of Texas Restoration Act. I
direct that it be promptly submitted to the Federal Register for
publication. Section 10, Article IV, Texas Constitution, is amended
by adding Section 10a to read as follows:
Sec. 10-a. EXECUTION OF TRIBAL GAMING COMPACTS.
Notwithstanding any other laws enacted by the legislature, within
90 days following the request by any of the Alabama-Coushatta Tribe
of Texas or the Ysleta del Sur Pueblo, to enter a gaming compact
with the state, the governor shall execute the on behalf of the
state with said requesting tribe the model gaming compact as set
forth below:
Sec. 10-a (a):
MODEL COMPACT BETWEEN THE YSLETA DEL SUR PUEBLO,
ALABAMA-COUSHATTA TRIBE OF TEXAS, AND THE STATE OF TEXAS PROVIDING
FOR THE CONDUCT OF TRIBAL CLASS III GAMING
THIS COMPACT is made and entered into between the Ysleta del
Sur Pueblo (hereinafter referred to as the "Pueblo"), the
Alabama-Coushatta Tribe of Texas (hereinafter referred to as the
"Alabama-Coushatta") (collectively hereinafter referred to as the
"Tribes"), and the State of Texas (hereinafter referred to as
"State").
RECITALS
WHEREAS, the State of Texas is a sovereign State of the United
States of America, having been admitted to the Union pursuant to the
Act of December 29, 1845, 5 Stat. 144, and is authorized by its
Constitution to enter into contracts and agreements, including this
agreement with the Tribes; and
WHEREAS, the Tribes are federally recognized Indian Tribes
and their governing bodies, the Tribal Councils are authorized to
enter into contracts and agreements of every description, including
this agreement with the State; and
WHEREAS, the Ysleta del Sur Pueblo and Alabama and Coushatta
Indian Tribes of Texas Restoration Act ("Restoration Act") was
passed on August 18, 1987 (Pub. L. 100-89), which permits the Pueblo
and the Alabama-Coushatta to engage in any gaming activity that is
not prohibited by the State, without application of the State's
gaming laws and regulations; and
WHEREAS, the Congress of the United States has enacted the
Indian Gaming Regulatory Act of 1988 (25 U.S.C. 2701 et. Seq.)
(hereinafter "IGRA"), which permits Indian tribes to operate Class
III gaming activities on Indian reservations pursuant to a
tribal-state compact entered into for that purpose; and
WHEREAS, the Tribes propose to operate Class III gaming
establishments on Eligible Indian Lands in the State of Texas, and
by respective Tribal Council Resolutions and Tribal Ordinances will
adopt rules and regulations governing the games played and related
activities at the Class III gaming establishments; and
WHEREAS, the State presently permits and regulates various
types of gaming within the State (but outside Indian lands) that
satisfy the definition of Tribal Class III gaming; and
WHEREAS, the United States Supreme Court in Ysleta Del Sur
Pueblo v. Tex., 213 L. Ed. 2d 221 (2022) held that, pursuant to the , 213 L. Ed. 2d 221 (2022) held that, pursuant to the
express provisions of the Restoration Act, the Pueblo and the
Alabama-Coushatta may conduct gaming activities not prohibited by
the State of Texas, and that the State may not regulate such gaming
activities; and
WHEREAS, at the general election held on [November , ], the
State amended the Constitution through [NAME] (the "Amendment");
and
WHEREAS, a compact between the Tribes and the State for the
conduct of Class III gaming is sufficient to satisfy requirements
imposed by the United States Congress by enactment of IGRA, for the
operation of lawful Class III gaming by the Pueblo and
Alabama-Coushatta on Eligible Indian Lands in Texas; and
WHEREAS, under the terms of the Restoration Act, the Pueblo
and the Alabama-Coushatta may engage on lands held in trust by the
United States Secretary of the Interior for the benefit of the
Pueblo and Alabama-Coushatta in any gaming activity that is not
prohibited in the state, without any application of the State's
gaming laws and regulations except as otherwise provided by a
Tribal-State gaming compact.
WHEREAS, the State and the Tribes, in recognition of the
sovereign rights of each party and in a spirit of cooperation in the
interests of the citizens of the State and the Tribes, have engaged
in good faith negotiations recognizing and respecting the interests
of each party and have agreed to this Compact.
NOW, THEREFORE, the Tribes and the State agree as follows:
SECTION 1. Purpose and Objectives
The purpose and objectives of the Tribes and the State in
making this Compact are as follows:
(A) To demonstrate the goodwill and cooperative spirit between the
State and the Tribes;
(B) To continue the development of effective working
relationships between the State and tribal governments;
(C) To compact for Class III gaming on lands held in trust by the
Secretary of the Interior for the benefit of the Pueblo and
Alabama-Coushatta in Texas under the Restoration Act and as
authorized by IGRA;
(D) To fulfill the purpose and intent of IGRA and the Restoration
Act by providing for tribal gaming as a means of generating tribal
revenues, thereby promoting tribal economic development, tribal
self-sufficiency and strong tribal government;
(E) To provide tribal revenues to fund tribal government
operations or programs, to provide for the general welfare of the
Tribes and their members and for other purposes allowed under IGRA
and the Restoration Act;
(F) To provide for the operation of Class III gaming in which,
except as provided in 25 U.S.C. 2710(b)(4) and (d)(2)(A) of IGRA,
the Tribes shall have the sole proprietary interest and be the
primary beneficiary of the Tribes' gaming enterprises;
(G) To recognize the State's interest in the establishment by the
Tribes of rules and procedures for ensuring that Class III gaming is
conducted fairly and honestly by the owners, operators, and
employees and by the patrons of any Class III gaming enterprise of
the Tribes; and
(H) To establish procedures to notify the patrons of the Tribes'
Class III gaming establishments that the establishments are not
regulated by the State and that patrons must look to the tribal
government or to the federal government to resolve any issues or
disputes with respect to the operations of the establishments.
SECTION 2. Definitions
For purposes of this Compact, the following definitions
pertain:
(A) "Class III gaming" means all forms of gaming authorized by
this Compact, which are neither Class I nor Class II gaming, as such
terms are defined in 2703(6) and (7) of IGRA. Only those Class III
games authorized by this Compact may be operated by the Tribes.
(B) "Commercial Gaming Facility" shall mean any facility that is
not operated by the Tribes on Eligible Indian Lands that offers
Electronic Games of Chance or Table Games for gambling purposes,
whether or not operated by the State Lottery Commission.
(C) "Competitive Market - Pueblo" means the following Texas
counties: El Paso, Hudspeth, any county in which the Pueblo owns any
lands held in trust by the Secretary of the Interior, and any county
contiguous therewith.
(D) Competitive Market - Alabama-Coushatta" means the following
Texas counties: Polk, Tyler, Trinity, Angelina, Jasper, Hardin,
Liberty, San Jacinto, Walker, Montgomery, any county in which the
Alabama-Coushatta owns any lands held in trust by the Secretary of
the Interior, and any county contiguous therewith.
(E) "Electronic Game of Chance" means a player activated or
operated electronic, mechanical, or electromechanical device that:
(1) allows a person to play a game of chance or a facsimile
of a game of chance, which may or may not be affected by an element
of skill; is activated by, or which is operated through, the
insertion of a coin, currency (or equivalent thereof), token, or by
the use of a credit or the pledge or promise to pay anything of
value;
(2) is controlled by software or electronic, mechanical, or
electromechanical process that determines the element of chance and
winning payout; and
(3) awards either
(a) cash or
(b) credits, tokens, replays, or a written statement
of the player's accumulated credits, if the credits, tokens,
replays, or written statement can be redeemed for cash, or
(c) any other thing of value.
"Electronic Game of Chance" does not include:
(1) Charitable gaming operated under the regulation of the
State Lottery Commission whether or not such gaming uses player
activated electronic or electromechanical devices; and
(2) Any of the games in use by the Texas State Lottery.
(F) "Eligible Indian Lands" means lands, acquired by the United
States in trust for the Tribes as defined under IGRA or held in
trust for the benefit of the Pueblo and the Alabama-Coushatta under
the Restoration Act, as applicable.
(G) "Mobile Sports Wagering" means any sport wagering on a
platform that is deployed and accessed through the internet or an
application on a mobile device.
(H) "Person" means a business, individual, proprietorship, firm,
partnership, joint venture, syndicate, trust, labor organization,
company, corporation, association, committee, state, local
government, government instrumentality or entity, or any other
organization or group of persons acting jointly.
(I) "Net Win" means the total amount wagered on each electronic
game of chance, minus the total amount paid to players for winning
wagers at such machine calculated in accordance with Generally
Accepted Accounting Principles pursuant to American Institute of
Certified Public Accountant standards. For purposes of computing
Net Win, the total amount wagered does not include the initial value
of any electronic promotional slot credits provided to a patron by
the Tribal Gaming Facility so long as there is no monetary value to
the electronic promotional slot credit other than in a slot
machine, and the exclusion of the promotional slot credit from the
total amount wagered does not otherwise have a negative impact on
the total aggregate of Net Win; the total amount wagered does
include subsequent wagers made using any credits or winnings
derived from the initial play of such electronic promotional
credits. If a machine is part of an inter-casino linked system or
similar enterprise, the "total amount paid to players for winning
wagers at such machine" does include the pro-rata share of winnings
paid out under that linked system but does not include the payment
of fees, costs, royalties, or other expenses associated with or
attributable to administering the inter-casino linked system.
(J) "Resident Tribal Member" means an enrolled member of the
Tribes who resides within the Tribes' "Indian Country" (as defined
under 18 U.S.C. 1151).
(K) "Sports Wagering" means a wager on sports events, portions of
sports in a sports event or combination of sports events through any
system or method of wagering.
(L) "Table Games" means games that utilize real non-electronic
cards, dice, chips and equipment in the play and operation of the
game.
(M) "Tribal Gaming Commission" shall have the meaning provided in
Section 4 below.
SECTION 3. Authorized and Location of Class III Games
(A) The Tribes may lawfully conduct the following Class III games
on Eligible Indian Lands:
(1) Poker;
(2) Craps and related dice games;
(3) Wheel games, including "Big Wheel" and related games;
(4) Roulette;
(5) Banking card games that are not otherwise treated as
Class II gaming in Texas pursuant to 25 U.S.C. 2703(7)(c);
(6) Electronic games of chance;
(7) Keno;
(8) Twenty-one or blackjack;
(9) Chuck-a-luck (dai shu);
(10) Chemin de fer;
(11) Baccarat;
(12) Pai gow;
(13) Slot machine;
(14) Mobile sports wagering;
(15) Sports wagering; and
(16) Any other Class III game that lawfully may be operated
by a person licensed to operate a casino pursuant to IGRA or the
Restoration Act.
Any limitations on the number of games operated or played,
their location within Eligible Indian Lands as defined under this
Compact, hours or period of operation, limits on wagers or pot size,
or other such limitations shall be determined by duly enacted
tribal law or regulation. Any state law restrictions, limitations
or regulation of such gaming shall not apply to Class III games
conducted by the Tribes pursuant to this Compact.
(B) Additional Class III games may be lawfully conducted by mutual
agreement of the Tribes and the State as follows:
(1) The Tribes shall request additional games by letter from
the Tribal Chairperson Governor on behalf of the Tribes to the
Governor of Texas on behalf of the State. The request shall
identify the additional proposed gaming activities with
specificity and any proposed amendments to the Tribes' regulatory
ordinances.
The State, acting through the Governor, shall take action on
any respective Tribe's request within ninety (90) days after
receipt. The Governor's action shall be based on whether the
provisions of this Compact are adequate to fulfill the policies and
purposes set forth in the IGRA and the Restoration Act with respect
to such additional games.
(C) The State is required to negotiate with the Tribes over the
inclusion in this Compact any form of Class III gaming if the State
offers any other game classified as Class III for any purpose.
(D) The Tribes and State agree that the Tribes are authorized to
operate authorized Class III games on their Eligible Indians Lands.
Subject to limitations set forth herein, wagers on mobile sports
wagering made by players physically located within the boundaries
of the State of Texas and using a mobile or other electronic device
shall be deemed to take place exclusively where received at the
location of the servers or other devices used to conduct such mobile
sports wagering activity at a facility on Eligible Indian Lands as
defined under IGRA or held in trust for the benefit of the Pueblo or
the Alabama-Coushatta under the Restoration Act.
SECTION 4. Regulation of Class III Gaming
(A) Integrity of Gaming. Protecting the Class III gaming
activities requires that the public maintain confidence and trust
in the integrity of gaming activities, which activities must be
free of criminal and corruptive elements.
(1) Enactment of Tribal Gaming Ordinance. Prior to
permitting the initiation of any Class III gaming on Eligible
Indian Lands, the Tribes will enact comprehensive gaming regulatory
ordinances governing all aspects of the Tribes' gaming enterprises.
The requirements of this Section 4 are intended to supplement,
rather than conflict with, the provisions of the Tribes'
ordinances. To the extent any regulatory requirement of this
Compact is more stringent or restrictive than a parallel provision
of the Tribes' ordinances, as now or hereafter amended, this
Compact shall control.
(2) Applicability. The regulatory requirements of this
Section 4 shall apply to the conduct of all Class III gaming
authorized by the Compact. At all times in which the Tribes conduct
any Class III gaming under this Compact, the Tribes shall maintain,
as part of their lawfully enacted ordinance, requirements at least
as restrictive as those set forth herein.
(3) Strict Regulation. The Tribes shall license, operate,
and regulate all Class III gaming activities in accordance with
this Compact, tribal law, IGRA, the Restoration Act, as applicable,
and all other applicable federal law. This shall include but not be
limited to the adoption of the Minimum Internal Control Standards,
the licensing of consultants (except accountants and legal
counsel), primary management officials, and key employees to each
Class III gaming activity or operation. Any violation of this
Compact, tribal law, IGRA, the Restoration Act, or other applicable
federal law shall be corrected immediately by the Tribe.
(a) Minimum Age Requirements.
(i) No person under the age of 21 may participate
in any Class III game.
(ii) Except for non-gaming employees, no person
under the age of 21 may be physically present on or in those
portions of the premises of a licensed gaming facility where Class
III gaming is being played. Persons under the age of 21 may be
physically present on or in those portions of the premises where
Class III gaming are not being played or in the restaurant areas.
(b) Posting of Rules. The rules of each Class III card
game shall be posted in a prominent place in each card room and must
designate:
(i) The maximum rake-off percentage, time buy-in
or other fee charged;
(ii) The number of raises allowed;
(iii) The monetary limit of each raise;
(iv) The amount of ante; and
(v) Other rules as may be necessary.
(c) Bank Secrecy Act. The Tribes shall comply with all
applicable provisions of the Bank Secrecy Act, P.L. 91-508, October
26, 1970, 31 U.S.C. 5311-5314.
(d) Prohibited Acts. In addition to other civil and
criminal offenses that otherwise may not be listed, the Tribes
shall prohibit the following acts:
(i) Participating within Indian Lands in any
Class III gaming not authorized by the Tribes;
(ii) Knowingly making a false statement in an
application for a license;
(iii) Knowingly making a false statement in
connection with any contract in relation to any gaming;
(iv) Attempting to bribe any person
participating in any gaming;
(v) Offering or accepting a loan, financing, or
other thing of value between a Commissioner or employee of the
Tribal Gaming Commissions as established by the Tribes or the
gaming facilities and any person participating in any gaming;
(vi) Promoting or participating in any illegal
gaming;
(vii) Failing to keep sufficient books and
records to substantiate receipts, disbursements, and expenses
incurred or paid from any gaming;
(viii) Falsifying any books or records that
relate to any transaction connected with any gaming;
(ix) Conducting, participating in, or tolerating
any gaming which in any manner results in cheating or
misrepresentation, and which allows any other disreputable tactics
which detract from the fair nature and equal chance of
participation between gaming players, or which otherwise creates an
advantage over and above the chance of such gaming activity which
affects its outcome;
(x) Conducting gaming with, or allowing
participation in, gaming by or with a visibly intoxicated or
disorderly player;
(xi) Allowing or participating in the sale of
liquor at gaming facilities in a manner prohibited by Tribal law;
(xii) Allowing any person, by providing
something other than money, personal checks, or other approved
consideration, a chance to play or participate in any gaming;
(xiii) Using bogus or counterfeit chips or
charitable gaming tickets, or to substitute or use any cards,
charitable gaming tickets, or gaming equipment that has been marked
or tampered with;
(xiv) Employing or possessing any cheating
device;
(xv) Facilitating cheating in any gaming;
(xvi) Knowingly using any fraudulent scheme or
technique to change the odds of any gaming activity;
(xvii) Soliciting or using, directly or
indirectly, inside information on the nature or status of any
gaming activity for the benefit of any person;
(xviii) Tampering with a gaming device or
attempting or conspiring to manipulate the outcome or the payoff of
a gaming device, or otherwise tampering with or interfering with
the proper functioning of a gaming device;
(xix) Altering or counterfeiting a gaming
license;
(xx) Knowingly aiding, abetting, or conspiring
with another person or knowingly causing any person to violate any
rules and regulations adopted by the Tribal Gaming Commission;
(xxi) Operating, using, or making available to
the public any illegal gaming device, apparatus, material, or
equipment;
(xxii) Selling, holding out for sale, or
transporting into or out of the jurisdiction of Indian Lands any
illegal gaming device, apparatus, material, or equipment;
(xxiii) Assisting or allowing a person who is
under the minimum age for gaming patrons to participate in a gaming
activity;
(xxiv) Possessing any illegal narcotics or
controlled substances in any gaming facility, gaming
administrative offices, or any exterior areas of a gaming facility;
(xxv) Knowingly stealing or attempting to steal
funds or other items of value from any gaming operation or from the
Tribal Gaming Commission;
(xxv) Knowingly employing any person at a gaming
operation who does not have the required gaming license;
(xxvi) Conspiring with or inducing any person to
violate any of the provisions of Tribal or applicable federal or
State law;
(xxvii) Engaging in any act, practice, or course
of operation that could result in a fraud or deceit upon any person;
(xxviii) Making false statements in any matter
before the Tribal Gaming Commission;
(xxix) The possession of firearms by any person
within a gaming facility. This prohibition shall not apply to law
enforcement officers authorized to be on the premises as well as
private security service retained to provide security at a gaming
facility, or armored car services; and
(xxx) The participating in any gaming by barred
or self-excluded persons. Any jackpot won by person on the barred
or self-exclusion list shall be donated by the Tribes pursuant to
their respective tribal policies.
(4) Administration of Regulation. The regulatory
requirements set forth in this section of this Compact shall be
administered and enforced as follows:
(a) Tribal Gaming Commission. The Tribes shall
charter with perpetual existence a Tribal Gaming Commission as a
governmental subdivision of the Tribes.
(i) The Tribal Gaming Commissioners shall have
responsibility to administer and enforce the regulatory
requirements set forth in this Section.
(ii) Tribal Gaming Commissioners and any
appointed agents thereof shall be separate and independent from
casino management, and shall be prohibited from maintaining
employment as a casino employee.
(b) State Representative. A representative
authorized in writing by the Governor of the State shall have the
right to inspect all tribal Class III gaming facilities and all
tribal casino records relevant to this Compact. Such inspections
by the State are subject to the following conditions:
(i) With respect to public areas, at any time
with 12 hours' prior notice to the Tribes' Tribal Gaming Commission,
and the respective Tribes shall have the right to monitor any such
inspection;
(ii) With respect to private areas not accessible
to the public, at any time during normal business hours, with 24
hours' prior written notice to the Tribes' Tribal Gaming
Commission, and the respective Tribes shall have the right to
monitor any such inspection; and
(iii) With respect to inspection and copying of
tribal casino records, with five days' prior written notice to the
Tribes' Tribal Gaming Commission, not including weekends.
(c) Confidentiality. Except as otherwise provided by
law or as also allowed by the exceptions defined below, the State
agrees to maintain in confidence and never to disclose to any third
party any financial information, proprietary ideas, plans,
methods, data, development, inventions, or other proprietary
information regarding the gambling enterprise of the Tribes, games
conducted by the Tribes, or the operation thereof which is provided
to the State by the Tribes without the prior written approval of a
duly authorized representative of the Tribes, provided that the
information is marked as confidential information when received by
the State. Nothing contained herein shall be construed to
prohibit:
(i) The furnishing of any information to a law
enforcement or regulatory agency of the United States or State
government pursuant to a lawful request of such agency;
(ii) The State from making known the names of
persons, firms, or corporations conducting Class III gaming
activities pursuant to the terms of this Compact, locations at
which such activities are conducted, or the dates on which such
activities are conducted;
(iii) Publishing the terms of this Compact;
(iv) Disclosing information as necessary to
audit, investigate, prosecute, or arbitrate violations of this
Compact; and
(v) Complying with any law, subpoena, or court
order. The State shall immediately notify the Tribes of any request
or demand for the release of confidential information under this
subsection 4(A)(4)(c) to allow the Tribes to initiate proceedings
under Section 7 of this Compact or other applicable law to resolve
any dispute regarding the State's intention to disclose such
information.
(d) Tribal Inspection. The Tribes shall have the
right to inspect State records concerning all Class III gaming
conducted by the Tribes consistent with Texas's Freedom of
Information Act.
(e) Dispute Resolution. In the event the State
believes that the Tribes are not administering and enforcing the
regulatory requirements set forth herein, it may invoke the
procedures set forth in Section 6 of this Compact.
(B) Licensing.
(1) Licensing of Persons. The Tribes may not license, hire,
or employ as a key employee or primary management official as those
terms are defined at 25 C.F.R. 502.14 and 502.19, in connection with
Class III gaming, any person who:
(a) Is under the age of twenty-one (21), unless
employed in a non-gaming position; or
(b) Has been convicted of or entered a plea of guilty
or no contest to a gambling-related offense, fraud, or
misrepresentation. The terms "fraud or misrepresentation" as used
herein shall mean a criminal offense committed in Texas or any other
jurisdiction, involving theft, fraud, or misrepresentation, which
is a felony or would be a felony if committed in Texas, and which was
committed as an adult or prosecuted as an adult offense, and which
has not been effectively removed from the employee's criminal
record by executive pardon, State court order, or operation of law;
or
(c) Has been convicted of or entered a plea of guilty
or no contest to any offense within the immediately preceding five
(5) years, whether committed in this state or any other
jurisdiction, that is, or would be, a crime under the provisions of
the Texas Penal Code, Act No. 328 of the Public Acts of 1931, as
amended, being MCL 750.1 to 750.568, or the controlled substance
provisions of the Public Health Code, Act No. 368 of the Public Acts
of 1978, as amended, being MCL 333.7101 to 333.7545, or any other
criminal offense involving theft, dishonesty, fraud, or
misrepresentation arising under the law of Texas or another state
or jurisdiction, that was committed as an adult or prosecuted as an
adult offense and which has not been effectively removed from the
employee's criminal record by executive pardon, State court order,
or operation of law; this provision shall not apply if that person
has been pardoned by the Governor of the State where the conviction
occurred, or, if a tribal member, has been determined by the Tribes
to be a person who is not likely again to engage in any offensive or
criminal course of conduct and the public good does not require that
the applicant be denied a license as a key employee or primary
management official; or
(d) Is determined by the Tribes to have participated
in organized crime or unlawful gambling or whose prior activities,
criminal records, reputation, habits, and/or associations pose a
threat to the public interest or to the effective regulation and
control of gaming, or create or enhance the dangers of unsuitable,
unfair, or illegal practices, methods, and activities in the
conduct of gaming or to the carrying on of the business and
financial arrangements incidental to the conduct of gaming; or
(e) Is a person whose license has previously been
revoked pursuant to the Tribes' Gaming Ordinances, or to whom the
issuance or renewal of a license has been denied, except with the
unanimous approval of the Tribes' Tribal Gaming Commissioners.
(2) Licensing of Gaming Service Suppliers. The Tribal
Gaming Commission shall require a License for any person who
supplies gaming services in the amount of $10,000 or more in any
one-month period to the Class III gaming facility. The gaming
services supplier, and all persons holding a 10% or greater direct
or indirect financial interest in the gaming services supplier,
shall submit to a background investigation and be required to meet
the standards set forth herein.
(3) Consultation with NIGC or Office of Indian Gaming,
United States Department of Interior ("Office of Indian Gaming").
At the time a primary management official or key employee is hired,
the Tribal Gaming Commission shall forward to the NIGC or the Office
of Indian Gaming, as applicable, a completed application containing
all applicable information. No license shall be issued until the
happening of:
(a) receipt of notification that the NIGC or Office of
Indian Gaming has no objection to the issuance of a license; or
(b) the expiration of the thirty (30) day period
provided for review under 25 C.F.R. Section 558.3(c) or Office of
Indian Gaming relevant regulations.
(4) State Verification. Upon the request of the State, the
Tribes will provide to the State the background information
compiled by the Tribes on all consultants (except legal counsel and
accountants), management personnel, suppliers and employees
required to be licensed under 25 C.F.R. Part 556 or the Tribes'
gaming ordinances to allow the State to verify the Tribes'
background information.
(5) Non-Transferability of License. Any license issued is
valid only for the person at the place of business shown on the face
of the license. The license is not assignable or otherwise
transferable.
(C) Management Agreement
(1) All management contracts entered into by the Tribes
regarding its gaming enterprises operated pursuant to this Compact
shall conform to all the requirements of IGRA, including 25 U.S.C.
2711, and tribal law.
(2) If the Tribes enter into or amends a management contract
for the operation of any Class III gaming or component thereof, the
State shall be given fourteen (14) days prior written notice of such
contract or amendment.
(D) Accounting and Audit
(1) Double Entry System. All accounting records shall be
kept on a double entry system of accounting, maintaining detailed,
supporting, subsidiary records. The Tribes shall maintain the
following records for not less than three (3) years:
(a) Revenues, expenses, assets, liabilities, and
equity for the location at which Class III gaming is conducted;
(b) Daily cash transactions for each Class III game at
the location at which gaming is conducted, including but not
limited to transactions relating to each gaming table bank, game
drop box, and gaming room bank;
(c) All markers, IOUs, returned checks, hold checks,
or other similar credit instruments;
(d) Individual and statistical game records (except
card games) to reflect statistical drop and statistical win; for
electronic, computer, or other technologically assisted games,
analytic reports which show the total amount of cash wagered and the
total amount of prizes won;
(e) Contracts, correspondence, and other transaction
documents relating to all vendors and contractors;
(f) Records of all tribal gaming enforcement
activities;
(g) Audits prepared by or on behalf of the Tribes; and
(h) Personnel information on all Class III gaming
employees or agents, including rotation sheets, hours worked,
employee profiles, and background checks.
(2) Audit. The Tribes shall respectively cause to be
conducted annually an independent audit of their respective gaming
operations.
(a) Applicability. All gaming related contracts that
result in the purchase of supplies, services, or concessions in
excess of $25,000 annually, except contracts for professional legal
and accounting services, shall be specifically included within the
scope of the audit.
(b) Submission to NIGC or Office of Indian Gaming. The
Tribes shall submit the resulting audit reports to the NIGC or
Office of Indian Gaming, as applicable.
(c) Submission to State. The Tribes shall submit the
respective resulting audit reports to the State, together with a
copy of the engagement letter setting forth the scope of the audit.
SECTION 5. Providers of Class III Gaming Equipment or
Supplies
(A) No Class III games of chance, gaming equipment, or supplies
may be purchased, leased, or otherwise acquired by the Tribes
unless the Class III equipment or supplies meet the technical
equipment standards established by the NIGC or Office of Indian
Gaming.
(B) Prior to entering into any lease or purchase agreement, the
Tribes shall obtain sufficient information and identification from
the proposed seller or lessor and all persons holding any direct or
indirect financial interest in the lessor or the lease/purchase
agreement to permit the Tribes to conduct a background check on
those persons. The Tribes shall not enter into any lease or
purchase agreement for Class III gaming equipment or supplies with
any person or entity if the lessor, seller, or any manager or person
holding direct or indirect financial interest in the lessor/seller
or the proposed lease/purchase agreement, is determined to have
participated in or have involvement with organized crime or has
been convicted of or entered a plea of guilty or no contest to any
other felony offense within the immediately preceding five (5)
years, unless that person has been pardoned.
(C) The seller, lessor, manufacturer, or distributor shall
provide, assemble, and install all Class III games of chance,
gaming equipment, and supplies in a manner approved and licensed by
the Tribes.
SECTION 6. Dispute Resolution
(A) In recognition of the government-to-government relationship
of the Tribes and the State, the parties shall make their best
efforts to resolve disputes that arise under this Compact by
good-faith negotiation whenever possible. Therefore, the Tribes
and State (for the purposes of this section also referred to as the
"party" or "parties") shall seek to resolve disputes by first
meeting and conferring in good faith to foster a spirit of
cooperation and efficiency in the administration and monitoring of
the performance and compliance of the terms, provisions, and
conditions of the Compact, as follows:
(1) Either party shall give the other, as soon as possible
after the event giving rise to the concern, a written notice setting
forth the facts giving rise to the dispute and with specificity, the
issues to be resolved.
(2) The other party shall respond in writing to the facts
and issues set forth in the notice within fifteen (15) days of
receipt of the notice, unless both parties agree in writing to an
extension of time.
(3) The parties shall meet and confer in good faith by
telephone, a video communication platform, or in person in an
attempt to resolve the dispute through negotiation within thirty
(30) days after receipt of the notice set forth in subdivision (1),
unless both parties agree in writing to an extension of time.
(4) Disputes that are not otherwise resolved by mutually
agreed means may be resolved in the United States District Court in
the judicial district where the Tribes' respective Gaming
Facilities are located, or if the federal court lacks jurisdiction,
in the state court of competent jurisdiction in the County where the
Tribes' respective Gaming Facilities are located.
(5) Each Party shall be responsible for any attorneys' fees
or other litigation costs it incurs in connection with any dispute
or litigation arising under this Compact.
(6) This section may not be construed to waive, limit, or
restrict the ability of the parties to address the issues arising
out of this Compact, by mutual agreement in writing, to pursue
dispute resolution by mediation.
(7) For the purpose of actions based on disputes between the
Tribes and the State that arise under this Compact and the judicial
enforcement of any judgement or award resulting therefrom, the
Tribes and the State expressly waive their right to assert any and
all sovereign immunity from suit and enforcement of any ensuring
judgment and further consent to be sued in federal or state court,
as the case may be, provided that:
(i) the dispute is limited solely to issues
arising under this Compact;
(ii) neither the Tribes nor the State make any
claim for restitution or monetary damages (expect that payment of
any money expressly required by the terms of this Compact may be
sought), and solely injunctive relief, specific performance
(including enforcement of a provision of this Compact expressly
requiring the payment of money to one or another of the parties),
and declaratory relief (limited to a determination of the
respective obligation of the parties under this Compact) may be
sought; and
(iii) nothing herein shall be construed to
constitute a waiver of the sovereign immunity of either the Tribes
or the State with respect to any third party that is made a party or
intervenes as a party to the action.
SECTION 7. Notice to Patrons
In the facilities of the Tribes where Class III gaming is conducted
the Tribes shall post in a prominent position a Notice to patrons at
least two (2) feet by three (3) feet in dimension with the following
language:
NOTICE
THIS FACILITY IS REGULATED BY ONE OR MORE OF THE FOLLOWING:
THE NATIONAL INDIAN GAMING COMMISSION, THE OFFICE OF INDIAN GAMING
OF THE U.S. DEPARTMENT OF THE INTERIOR, AND THE GOVERNMENT OF THE
TRIBE. THIS FACILITY IS NOT REGULATED BY THE STATE OF TEXAS.
SECTION 8. Regulation of the Sale of Alcoholic Beverages
and Tobacco
(A) The Tribes hereby adopt and apply to their respective Class
III gaming establishments as tribal law those State laws, as
amended, relating to the sale and regulation of alcoholic beverages
encompassing the following areas: sale to a minor; sale to a visibly
intoxicated individual; sale of adulterated or misbranded liquor;
hours of operation; and similar substantive provisions. Said
tribal laws, which are defined by reference to the substantive
areas of State laws referred to above, shall apply to the respective
tribal Class III gaming establishment in the same manner and to the
same extent as such laws apply elsewhere in the State to
off-reservation transactions.
(B) The Tribes will respectively adopt ordinances as described in
Section 8(A) above, and seek approval of their ordinance, if
required, from the United States Department of the Interior. Upon
approval by the Department of the Interior, if required, the Tribes
will pass and enforce the respective local ordinances on Eligible
Indian Lands as tribal law.
(C) The Tribes agree to prohibit sales of tobacco to minors at
their Class III gaming facilities.
SECTION 9. Effective Date
This Compact shall be effective immediately upon:
(A) Endorsement by the respective Tribal Chairperson/Governor and
concurrence in that endorsement by resolution of the respective
Tribal Council;
(B) Endorsement by the Governor of the State; and
(C) Approval by the Secretary of the Interior of the United
States, by operation of law pursuant to § 2710(d)(8)(C) of IGRA, or
the Office of Indian Gaming, as applicable.
SECTION 10. Binding Effect, Duration, and Severability
(A) This Compact shall be binding upon the State and the Tribes
from the date it becomes effective unless modified or terminated by
written agreement of both parties.
(B) The parties agree that 25 U.S.C. § 2710(d)(3) through (8), or
any successor provisions of law, apply to successor compacts.
(C) The Tribes may, pursuant to the procedures of IGRA, or the
Section 3 provisions herein, request the State to enter into
negotiations for a successor compact governing the conduct of Class
III gaming activities. If the parties are unable to conclude a
successor compact, this Compact shall remain in full force and
effect pending exhaustion of the administrative and judicial
remedies set forth in IGRA and/or any other applicable federal law.
(D) In the event that any section of provision of this Compact is
disapproved by the Secretary of the Interior of the United States or
the Office of Indian Gaming or is held invalid by any court of
competent jurisdiction, it is the intent of the parties that the
remaining sections or provisions of this Compact, and any
amendments thereto, shall continue in full force and effect. This
severability provision does not apply to Sections 14 and 15 of this
Compact.
SECTION 11. Notice to Parties
Unless otherwise indicated, all notices, payments, requests,
reports, information, or demand which any party hereto may desire
or may be required to give the other party hereto, shall be in
writing and shall be personally delivered or sent by first-class,
certified or registered United States Mail, postage prepaid, return
receipt requested, and sent to the other party at its address
appearing below or such other address as any party shall
hereinafter inform the other party hereto by written notice given
aforesaid:
Notice to the Tribes shall be sent to:
For the Pueblo:
Governor - Tribal Council
Ysleta del Sur Pueblo
119 South Old Pueblo Road
El Paso, Texas 79907
For the Alabama-Coushatta:
Chairman - Tribal Council
Alabama-Coushatta Tribe of Texas
571 State Park Road 56
Livingston, Texas 77351
Notice to the State shall be sent to:
Office of the Governor
P.O. Box 12428
Austin, TX 78711
Every notice, payment, request, report, information, or
demand so given shall be deemed effective upon receipt, or if
mailed, upon receipt or the expiration of the third day following
the day of mailing, whichever occurs first, except that any notice
of change of address shall be effective only upon receipt by the
party to whom said notice is addressed.
SECTION 12. Entire Agreement
This Compact is the entire agreement between the parties and
supersedes all prior agreements, whether written or oral, with
respect to the subject matter hereof. Neither this Compact nor any
provision herein may be changed, waived, discharged, or terminated
orally, but only by an instrument in writing signed by the Tribes
and the State.
SECTION 13. Filing of Compact with Secretary of State
Upon the effective date of this Compact, a certified copy
shall be filed by the Governor with the Texas Secretary of State and
a copy shall be transmitted to each house of the Texas State
Legislature and the Texas Attorney General. Any subsequent
amendment or modification of this Compact shall be filed with the
Texas Secretary of State.
SECTION 14. Tribal Payments to State for Economic Benefits
of Exclusivity
(A) The State and the Tribes acknowledge and recognize that this
Compact provides the Tribes with substantial exclusivity and,
consistent with the goals of IGRA, and the Restoration Act, special
opportunities for tribal economic opportunity through covered
gaming activity in the state. In consideration of the substantial
exclusivity, so long as the State does not, after January 1, 202 ,
authorize or allow the operation of any additional form of gaming
within the individual Tribe's Competitive Market, the Tribes agree
to pay the State a percentage of the revenue derived from covered
game revenues in an amount equal to five percent (5%) of the net win
received by the Tribe in a calendar year from the play of Class III
covered game. The amount is due and payable not later than the 20th
day after the last date of the preceding quarter for the revenue
received by the Tribes in the preceding quarter.
(B) Payment of revenue due under this Compact shall be made to the
comptroller of public accounts of the State. Nothing in this
Compact allocates the revenue to a particular state purpose.
(C) This Compact does not authorize the State to impose any tax,
fee, charge, or assessment of the Tribes or an enterprise of the
Tribes.
(D) The payments provided for in this Section are subject to the
following restrictions:
(1) In the event the State authorizes the State Lottery to
operate Electronic Games of Chance, as defined by this Compact, the
payments under this section shall be reduced by 50% as of the date
upon which those games become available to the public and this
reduction shall remain in effect so long as those games remain
available to the public. The remaining 50% of the payments shall
remain in effect as a continuing incentive to the State to refrain
from approving the operation of a Commercial Gaming Facility within
the individual Tribe's Competitive Market.
(2) In the event the State authorizes or approves the
operation of Electronic Games of Chance by a Commercial Gaming
Facility within the individual Tribe's Competitive Market Area, the
payment obligation under this section shall be suspended in its
entirety so long as the Commercial Gaming Facility continues to
operate.
(3) In the event the State authorizes and approves the
simultaneous operation of more than one Commercial Gaming Facility,
including a licensed pari-mutuel horse or dog track, to operate
Electronic Games of chance, as defined by this Compact, within 100
miles of the boundary of the Alabama-Coushatta Tribe, payments made
by the Alabama-Coushatta Tribe shall be reduced by 75% as of the
date upon which those games become available to the public and this
reduction shall remain in effect so long as those games remain
available to the public.
(4) In the event the State authorizes and approves a
Commercial Gaming Facility, including a licensed pari-mutuel horse
or dog track, to operate Electronic Games of chance, as defined by
this Compact, within 100 miles of the boundaries of the Pueblo,
payments made by the Pueblo shall be reduced by 75% as of the date
upon which those games become available to the public and this
reduction shall remain in effect so long as those games remain
available to the public.
SECTION 15. Tribal Payments to Local Units of Government
(A) In addition to the payments to the State in Section 14,
the Tribes shall also make payments in the manner described in this
section in an amount equal to two percent (2%) of the annual Net Win
to the local units of government that are located in the immediate
vicinity of the casino or that are otherwise directly affected by
the operation of the casino. It is the intent of the State and the
Tribes that the payments to local units of government provided for
in this section will be used primarily to provide financial
resources to those political subdivisions of the State that
actually experience increased operating costs associated with the
operation of the Tribes' Class III gaming facilities.
(B) Local Revenue Sharing Board.
(1) The local units of government within which the
gaming facility is located may, at their option, elect to form a
Local Revenue Sharing Board in conjunction with the Tribes in the
manner described in this subsection. In that event, the Board shall
receive and direct the disbursement of the payments required by
this Section.
(2) The Local Revenue Sharing Board shall be created
pursuant to an Inter-Governmental Memorandum of Understanding,
entered into between the Tribes and the following respective local
units of government: (1) the county in which the casino is located;
(2) the city, village, or township in which the casino is located;
and (3) any remaining units of local government in the immediate
vicinity of the casino that choose to be parties to the
Inter-Governmental Memorandum of Understanding. The
Inter-Governmental Memorandum of Understanding shall provide that
the Local Revenue Sharing Board shall consist of the following
individuals:
(a) One (1) representative selected by the
governing body of the county in which the Tribes' Class III gaming
facilities are located;
(b) One (1) representative selected by the
governing body of the village, city, or township in which the
Tribes' Class III gaming facilities are located;
(c) One (1) representative selected by the
remaining units of local government that are parties to the
Inter-Governmental Memorandum of Understanding; and
(d) Three (3) representatives selected by the
Tribes.
(3) Any disbursement of funds by the Local Revenue
Sharing Board concerning the distribution of revenues shall require
an affirmative vote of at least four (4) of the six representatives
comprising the Board.
(4) The Tribes agree that they shall not unreasonably
obstruct or impede the formation of their respective Local Revenue
Sharing Board which are amicably formed by the non-Tribal local
units of government.
(5) The procedures for the functioning of the Local
Revenue Sharing Boards, guidelines for establishment of criteria or
a formula for the distribution of revenues, and all other matters
not specified in this Compact, shall be determined by the
non-Tribal members of the Local Revenue Sharing Boards.
(6) Funds paid by the Tribes to the Local Revenue
Sharing Board shall be held in an interest bearing account and the
available funds shall be disbursed by the Boards consistent with
the following priorities:
(a) Each unit of government shall first receive
an amount equal to any specific actual costs incurred by that unit
of government as the result of the development or operation of the
Tribes' Class III gaming facilities, including payment to local
units of government for police, fire, and public safety services.
(b) Each unit of local government shall next
receive an amount equivalent to the amount of ad valorem property
taxes that the unit of government would have received if the Tribes'
Class III gaming facilities were subject to ad valorem property
taxes.
(c) The balance of such funds remaining after the
disbursements described in subparagraphs (a) and (b) shall be
allocated and disbursed by the Boards to eligible local units of
government, including the school district in which the Tribes'
Class III gaming facilities are located, to be used by those unites
of government for any lawful local government purpose.
(7) All payments due the local units of government
pursuant to the terms of this Section shall be paid no later than
the 20th day after the last day of the preceding quarter for the
revenue received by the Tribes in the proceeding quarter. Any
payments due and owing from the Tribes in the year this Compact is
approved, or the final year the Compact is in force, shall reflect
the actual Net Win but only for the portion of the year the Compact
is in effect.
(C) In the event that the eligible local units of government
fail or decline to form a Local Revenue Sharing Board pursuant to
subsection (B), the Tribes shall allocate and disburse the funds
required by this section to effect the intent on the tribal payments
to local units of government.
SECTION 16. Taxes
By entering into this agreement neither the Tribes nor the
State of Texas intend to create any new authority, nor to expand or
diminish any existing authority, on the part of the State of Texas
to impose taxes upon the Tribes, their members, or any person or
entity doing business with the Tribes pursuant to this Compact.
SECTION 17. Liability for Damage to Persons and Property
(A) During the term of this Compact, the Tribes shall each
maintain public liability insurance with limits of not less than
$250,000 for anyone person and $4,000,000 for anyone occurrence for
personal injury, and $2,000,000 for anyone occurrence for property
damage.
(B) The Tribes' respective insurance policies shall include
an endorsement providing that the insurer may not invoke tribal
sovereign immunity up to the limits of the policy required under
subsection A.
(C) Neither the Tribes nor the State are creating, or intend
to create, any rights in third parties which would result in any
claims for any nature whatsoever against the Tribes or the State as
a result of this Compact. Neither the Tribes nor the State have
waived immunity from third party suits or claims of any kind or
nature whatsoever against them, and nothing contained in this
Compact shall be construed to effect a waiver, in whole or in part,
of said immunity.
SECTION 18. Program to Promote Responsible Gambling
(A) Each Tribal Gaming Commission shall establish a program
to promote responsible gaming and to mitigate pathological and
reckless gambling by implementing the following measures:
(1) Requiring that all Gaming Facility supervisors and
gaming floor employees are trained on responsible gaming and to
identify and manage reckless gambling;
(2) Requiring the Gaming Facility make available to
patrons at conspicuous locations and ATMs in the Gaming Facility
educational and informational materials which aim at the prevention
of reckless gambling and that specify where to find assistance;
(3) Requiring the Gaming Facility to establish
self-exclusion programs whereby a self-identified reckless gambler
may request the halt of promotional mailings, the revocation of
privileges for casino services, the denial or restraint on the
issuance of credit and check cashing services, and exclusion from
the Gaming Facility;
(4) Requiring the Gaming Facility to establish an
involuntary exclusion program that allows the Gaming Operation to
halt promotional mailings, deny or restrain the issuance of credit
and cash checking services, and deny access to the Gaming Facility
to patrons who have exhibited signs of problem gambling;
(5) Requiring the Gaming Facility to display at
conspicuous locations and at ATMs within the Gaming Facility
signage bearing a toll-free help-line number where patrons may
obtain assistance for reckless gaming issues;
(6) Requiring the Gaming Facility to make diligent
efforts to prevent underage individuals from loitering in the area
of the Gaming Facility where the Gaming Activities take place; and
(7) Requiring the Gaming Facility to assure that
advertising and marketing of the Gaming Activities at the Gaming
Facility contain a responsible gambling message and a toll-free
help-line number for reckless gamblers, where practical, and that
they make no false or misleading claims.
(B) Nothing herein is intended to grant any third party the
right to sue based on a perceived violation of these standards.
IN WITNESS WHEREOF, the Tribal Chairperson/Tribal Governor,
acting for the Tribes and the Governor acting for the State of Texas
have set their hands and seals.
Date:
APPROVAL BY THE SECRETARY OF
United States Department of the Interior for the Interior
SECTION ____. This proposed constitutional amendment shall
be submitted to the voters at an election to be held _____. The
ballot shall be printed to permit [or "provide for"] voting for or
against the proposition: " The constitutional amendment (WORDING OF
BALLOT PROPOSITION)."