              THE    ATTORSEY        GESERAL
                        OF   TEXAS



                        April 12, 1989




Honorable Bob Bullock,               Opinion No.   JM-1040
Comptroller of Public Accounts
L.B.J. State Office Building         Re:   Whether  an    Indian
Austin, Texas 78774                  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. Rub. Law No. 100-497, 102
Stat. 2467, 25 U.S.C.     §S 2701-2721.   The act regulates
1'gaming,11including 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)-(a).   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.
5 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 aaming on Indian lands.        25 U.S.C.
§ 2710(d). See aenerallv     25 U.S.C.   5 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




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Honorable Bob Bullock - Page 2     (JM-1040)




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. S 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) Se;&ins  [4617479] of thist;21e    are
        hereby          applicable   to          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     '  authorized   and
        directed to accept no rno:: 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.    5 1300b-14.   See aenerally   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



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Honorable Bob Bullock - Page 3     (JM-1040)




a particular piece of land to be held in trust for certain
Indians would have to be made in the courts. See, e.a
State of Florida Den't of Business Reuulation     v. United
States DeD'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 agree-
        ment meet all requirements  of Section 12 of
        IGRA [25 U.S.C. 5 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. 5 2511. 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  woul:
        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




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Honorable Bob Bullock - Page 4        (JM-1040)




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.  5 27100) (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,




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Honorable Bob Bullock - Page 5     (JM-1040)




           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,
               other supplies, devices,    or equipment
           iisigned 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 tribethat 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.a., 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, 5 Cl (1982 ed.). The Indian
Gamina Reaulatorv     Act does not exnresslv 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       Anache
Tribe v. Jones. N.M., 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:




                                 p. 5398
                              1




Honorable Bob Bullock - Page 6    (JM-1040)




           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 tiZ
        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
*11icensee8Nas a person   licensed under the Bingo Enabling
Act, V.T.C.S.  art. 179d, 5 2(17), we must read "licensed




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Honorable Bob Bullock - Page 7   (JM-1040)




authorized organizationl' 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
aenerallv Central Hudson Gas and Elec. Corn. 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
             >                                    ism Co. of
Puerto RiB, 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   l'authorized
organizationl' 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, 5 2(11).     Only      "authorized
organizationsl' 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.




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Honorable Bob Bullock - Page 8     (JM-1040)




                       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.

              Althoush the ouestion is one of federal
        law, it is our opi&on 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




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