     Case: 10-50804     Document: 00511526731         Page: 1     Date Filed: 06/30/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 30, 2011

                                       No. 10-50804                        Lyle W. Cayce
                                                                                Clerk

STATE OF TEXAS

                                                  Plaintiff-Appellee
v.

YSLETA DEL SUR PUEBLO; TIGUA GAMING AGENCY; TRIBAL
COUNCIL; ALBERT ALVIDREZ, Tribal Governor; CARLOS HISA, Tribal
Lieutenant Governor

                                                  Defendants-Appellants



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:99-CV-320


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Ysleta del Sur Pueblo (the “Tribe”) has been locked
in litigation with the State of Texas (the “State” or “Texas”) for many years over
gaming activities conducted at the Tribe’s casino. In this appeal — the third in
a series of related appeals spanning almost twenty years — the Tribe contests
a contempt order issued by the district court. The Tribe asserts that the


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                        No. 10-50804

contempt order is improper because (1) it is criminal in nature, but the district
court treated it as a civil contempt order, and (2) the district court exceeded its
authority when it granted state agents monthly access to the Tribe’s gaming
records. Disagreeing with the Tribe and concluding that the contempt order was
properly issued and is valid, we affirm that order and dismiss the Tribe’s appeal.


                                I. FACTS & PROCEEDINGS
       The controversy underlying this case has a long history.1 Since the mid-
1980's, the gaming endeavors of the Tribe, a federally recognized Indian2 tribe
located near El Paso, Texas, have been governed by the Restoration Act,3 which
sharply curtails the Tribe’s right to engage in gaming activities and limits such
activities to those expressly permitted by Texas law.4 The Restoration Act
permits Texas to seek an injunction in federal court if the Tribe should engage
in gaming activities prohibited by Texas law.5
       In a reversal of its original position on gambling,6 the Tribe filed a civil
action in 1993, seeking to force the State to negotiate a Tribe-State compact that



       1
         See Ysleta del Sur Pueblo v. Texas (Ysleta I), 36 F.3d 1325, 1327-1332 (5th Cir. 1994),
cert. denied, 514 U.S. 1016 (1995) (documenting in depth the history of the Tribe and the
federal statutes governing Native American gambling).
       2
        In the interests of consistency and because we used the term “Indian” in Ysleta I, we
employ it now rather than the often preferred term “Native American.”
       3
           25 U.S.C. § 1300g.
       4
           Id. § 1300g-6(a).
       5
           Id. § 1300g-6(c).
       6
         Ysleta I, 36 F.3d at 1328 (“[T]he Tribe, at the time of the resolution's adoption, ha[d]
no interest in conducting high stakes bingo or other gambling operations on its reservation and
remain[ed] firm in its commitment to prohibit outright any gambling or bingo in any form on
its reservation.” (first alteration added, second and third alterations in original, and internal
quotation marks omitted)).

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                                        No. 10-50804

would allow gaming activities on the reservation.7 When that case was appealed
to this court, we concluded that (1) the gaming laws and regulations of Texas
operate as surrogate federal law on the Tribe’s reservation,8 and (2) the Tribe
must conform to those laws unless it can persuade Congress to amend or repeal
the Restoration Act.9
       Despite this ruling, the Tribe began to offer a variety of gambling games
at the Speaking Rock Casino (the “Casino”) located on tribal lands. The Casino
started as a bingo hall, but its operations were expanded to include slot
machines, poker, blackjack, dice, and other forms of gambling prohibited by
Texas law. In 1999, the Attorney General of Texas, using the avenue of relief
permitted to the State under the Restoration Act,10 filed a civil suit in the district
court to enjoin the activities of the Casino deemed to be in violation of Texas law.
In 2001, the district court granted the State’s motion for summary judgment and
entered the requested injunction.11 Once again, the Tribe appealed to us, and
once again, its appeal was unsuccessful.12 Following that second appeal, the
district court modified the injunction to clarify that the Tribe was not prohibited
from engaging in the few gaming activities that are lawful in Texas.13




       7
           Id. at 1331.
       8
           Id. at 1335.
       9
           Id.
       10
         25 U.S.C. § 1300g-6(c) (“[N]othing in this section shall be construed as precluding the
State of Texas from bringing an action in the courts of the United States to enjoin violations
of the provisions of this section.”).
       11
            Texas v. Ysleta del Sur Pueblo, 220 F. Supp. 2d 668, 697-98 (W.D. Tex. 2001).
       12
         See generally Texas v. Ysleta del Sur Pueblo (Ysleta II), 69 F. App’x 659 (5th Cir.)
(unpublished), cert. denied, 540 U.S. 985 (2003).
       13
            Order Modifying September 27, 2001, Injunction, 220 F. Supp. 2d at 709.

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       In 2008, the Texas Attorney General filed a motion for contempt based on
asserted violations of the amended injunction. The State contended that the
Tribe was operating “eight-liner” gaming devices14 in the Casino in a manner
that violated TEX. PENAL CODE § 47.01(4). Texas only permits the operation of
eight-liners if the machines reward players “exclusively with noncash
merchandise prizes, toys, or novelties, or a representation of value redeemable
for those items, that have a wholesale value available from a single play of the
game or device of not more than 10 times the amount charged to play the game
or device once or $5, whichever is less.”15 In violation of this restriction, the
Casino was issuing Visa debit cards16 to winning players in amounts in excess
of five dollars.
       The district court held an evidentiary hearing on the State’s motion for
contempt, explicitly limiting the scope of the hearing to determining whether the
Tribe’s operation of the eight-liner machines violated Texas law. The district
court ultimately granted the State’s contempt motion and ordered the Tribe to
allow representatives of the State monthly access to the Casino’s records and all
of the Tribe’s books and records relating to its gaming operations. The Tribe
moved to amend the court order to limit the State’s inspections to records
pertaining to eight-liners only. After the district court granted that motion late
in July 2010, the Tribe appealed the contempt order (Ysleta III).


                              II. STANDARD OF REVIEW



       14
        An eight-liner is an electronic device often described as video poker or video lottery.
See Owens v. State, 19 S.W.3d 480, 481 (Tex. App.—Amarillo 2000, no pet.).
       15
            TEX. PENAL CODE ANN. § 47.01(4)(B).
       16
       “Cash” in this context is not limited to coins and paper money, but also includes other
mechanisms of payment. See Hardy v. State, 102 S.W.3d 123, 131-32 (Tex. 2003).

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       We review a contempt order de novo.17 We review sanctions granted by
the district court for abuse of discretion18 and review its factual findings that
underlie sanctions for clear error.19


                                       III. ANALYSIS
A. Contempt Order
       The Tribe contends that the sanctions imposed by the district court were
criminal in nature, so that the civil contempt proceedings conducted by that
court were inappropriate. Concluding that the contempt order was civil in
nature, we hold that the district court properly granted that order.
       We consider several factors when determining whether a contempt
proceeding is criminal or civil in nature. Several key distinctions between the
two are:
       (1) civil contempt lies for refusal to do a commanded act, while
       criminal contempt lies for doing some forbidden act;
       (2) a judgment of civil contempt is conditional, and may be lifted if
       the contemnor purges himself of the contempt, while punishment for
       criminal contempt is unconditional;
       (3) civil contempt is a facet of the original cause of action, while
       criminal contempt is a separate cause of action brought in the name
       of the United States;
       (4) the notice for criminal contempt must indicate the criminal
       nature of the proceeding.20




       17
         Positive Software Solutions, Inc. v. New Century Mortg. Corp., 619 F.3d 458, 460 (5th
Cir. 2010) (citing FDIC v. Maxxam, Inc., 523 F.3d 566, 590 (5th Cir 2008)).
       18
            Maxxam, 523 F.3d at 590 (citing Chambers v. NASCO, Inc., 501 U.S. 32, 54 (1991)).
       19
            See Crowe v. Smith, 151 F.3d 217, 238-39 (5th Cir. 1998).
       20
            Skinner v. White, 505 F.2d 685, 688-89 (5th Cir. 1974) (citations omitted).

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Another factor is the purpose of the order, namely, whether the order is meant
to be punitive or merely coercive and remedial.21
       In this instance, all factors confirm that the contempt order is civil in
nature, not criminal. When the Tribe offered cash prizes in excess of five dollars,
it violated the terms of the injunction, i.e., that it adhere to Texas gaming law,
and thus was refusing to do a commanded act. Next, the contempt order is
conditional because the Tribe “carr[ies] the keys of their prison in their own
pockets.”22 For instance, the Tribe could cease to operate eight-liners at the
Casino until the court ruled on future operations, or it could submit evidence of
compliance to the district court and ask for the contempt order to be removed or
modified. Further, the State brought its motion for contempt in the context of
a larger, lengthy, civil litigation proceeding.23 And, the State was acting not in
a prosecutorial role or as a representative of the public, but directly as the
complainant, as it was entitled to do under the Restoration Act. Morever, the
sanctions contained in the contempt order confirm that its purpose was remedial
— to ensure compliance with the terms of the injunction — rather than punitive
for violating those terms. As the contempt order was indisputably civil in
nature, the district court did not need to provide the additional procedural
safeguards required for criminal contempt orders.




       21
            In re Hunt, 754 F.2d 1290, 1293 (5th Cir. 1985) (citations omitted).
       22
          Shillitani v. United States, 384 U.S. 364, 368 (1966) (internal quotation marks and
citation omitted). See also Lance v. Plummer, 353 F.2d 585, 592 (5th Cir. 1965) (“[S]anctions
imposed in civil contempt proceedings must always give to the alleged contemnor the
opportunity to bring himself into compliance, the sanction cannot be one that does not come
to an end when he repents his past conduct and purges himself.”).
       23
           See Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444-45 (1911) (“Proceedings
for civil contempt are between the original parties, and are instituted and tried as a part of
the main cause. But, on the other hand, proceedings at law for criminal contempt are between
the public and the defendant, and are not a part of the original cause.”).

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B. Judicial Authority
       The Tribe also contends that the district court exceeded its authority when
it entered an order that would permit state agents to conduct regulatory
inspections on a federal enclave to enforce federal law. Stated differently, the
Tribe asserts that the district court exceeded the statutory authority granted by
Congress by giving the State regulatory authority and the power to enforce
federal law over the Tribe.        The Tribe also claims that the district court
improperly delegated its judicial authority to the state agents. Once again, we
conclude that the district court acted properly and that the Tribe’s position on
this issue is simply wrong.
       The district court did not grant Texas either regulatory or enforcement
authority over the Tribe when it authorized state agents to conduct inspections
of the Tribe’s gaming records. According to the specific wording of the order, the
state agents are only empowered to inspect those records. Then, if they should
find any irregularities, the State would have to return to the district court for
further action. As noted above, the Tribe, not the State, controls the duration
of the inspection regime, as it may either cease to operate the machines in
question or file evidence of its compliance in the district court and seek
modification or removal of the order. As Texas can neither issue sanctions nor
control the duration of the inspections, the contempt order does not grant the
State regulatory or enforcement power over the Tribe.
       Neither has the district court improperly delegated an adjudicatory role
to the State. The limited right of inspection in the instant case is analogous to
discovery. We have previously noted that district courts have broad discretion
when it comes to matters relating to discovery, and that “it is unusual to find
abuse of discretion in these matters.”24 The district court has been taking an

      24
        Swanner v. United States, 406 F.2d 716, 719 (5th Cir. 1969) (citation omitted). See
also Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir. 1986) (citations omitted)

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active role in overseeing the “discovery” at issue here, as evidenced by its
modification of the original contempt order to narrow its focus to the Tribe’s use
of eight-liners.
       As the district court only authorized additional discovery and did not
delegate any regulatory, enforcement, or adjudicatory power to the State, it did
not exceed its authority when it granted the contempt order authorizing state
agents to inspect the Tribe’s gaming records.


                                   IV. CONCLUSION
       The district court did not abuse its discretion or otherwise err when it
granted the contempt order, an order that was clearly civil in nature. Neither
did the court’s contempt order impermissibly delegate any regulatory,
enforcement, or adjudicatory authority to the State when it permitted monthly
inspections of tribal records pertaining to the operation of eight-liners. We
affirm the district court’s contempt order allowing inspection of tribal records by
state agents with respect to the operation of eight-liners.
       AFFIRMED.




(“Control of discovery is committed to the sound discretion of the trial court and its discovery
rulings will be reversed only where they are arbitrary or clearly unreasonable.”).

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