PHILIP R. MARTINEZ, UNITED STATES DISTRICT JUDGE.
On this day, the Court considered Counter-Defendant Ken Paxton, in his official capacity as the Attorney General's [hereinafter "Paxton"] "Motion for Summary Judgment" (ECF No. 147) [hereinafter "Motion"], filed on November 14, 2018; Counter-Plaintiffs Ysleta del Sur Pueblo, the Tribal Council, and Tribal Governor Michael Silvas or his Successor's [hereinafter, collectively, "Pueblo" or "the Tribe"] "Response in Opposition to Counter-Defendant Ken Paxton's Motion for Summary Judgment on Defendants' Counterclaim" (ECF No. 153) [hereinafter "Response"], filed on December 5, 2018; and Counter-Defendant Paxton's "Reply in Support of Counter-Defendant Ken Paxton's Motion for Summary Judgment" (ECF No. 158) [hereinafter "Reply"], filed on December 14, 2018, in the above-captioned cause. After due consideration, the Court is of the opinion that Paxton's Motion should be granted, for the reasons that follow.
This case is the most recent chapter of a decades-long dispute between the State of Texas and the Tribe regarding gaming activities on Pueblo tribal land. In 1987, the Restoration Act restored a federal trust relationship and federal assistance to the Tribe. See generally Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act, Pub. L. No. 100-89, 101 Stat. 666 (1987). In relevant part, § 107(a) of the Restoration Act provides that "[a]ll gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation
The current dispute involves bingo activities on the Tribe's reservation. Am. Compl., Aug. 15, 2017, ECF No. 8. According to the State, "[t]he Pueblo currently operates several thousand one-touch `electronic bingo' slot machines, as well as an unlicensed 24/7 bingo operation, on its El Paso reservation." Id. at 1. The State asserts that the Tribe's activities violate Texas law and the Restoration Act; therefore, the State seeks to enjoin the Tribe's operations. Id. The Tribe, however, avers that its gaming operations are permissible forms of bingo. Pueblo Defs.' First Am. Counterclaim 18 [hereinafter "Counterclaim"], Sept. 7, 2018, ECF No. 121.
The Texas Constitution provides that "[t]he Legislature by law may authorize and regulate bingo games conducted by a church, synagogue, religious society, volunteer fire department, nonprofit veterans organization, fraternal organization, or nonprofit organization supporting medical research or treatment programs." TEX. CONST. Art. 3 § 47(b). The Bingo Enabling Act is the operative statute that enables charitable bingo in Texas. See TEX. OCC. CODE § 2001. The Bingo Enabling Act defines which types of organizations are allowed to conduct charitable bingo, provides parameters for bingo occasions, and discusses bingo licensing requirements. Id.
In its Counterclaim, the Tribe contends that the Texas Constitution and Bingo Enabling Act
Pursuant to Federal Rule of Civil Procedure 56(a), a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A genuine dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Rogers v. Bromac Title Servs., LLC, 755 F.3d 347, 350 (5th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).
"Under Federal Rule of Civil Procedure 56(c), the party moving for summary judgment bears the initial burden of ... `identifying those portions of [the record] which it believes demonstrate
In adjudicating a motion for summary judgment, a court "consider[s] evidence in the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in favor of that party." Bluebonnet Hotel Ventures, LLC v. Wells Fargo Bank, N.A., 754 F.3d 272, 276 (5th Cir. 2014).
In his Motion, Paxton seeks summary judgment on the Tribe's Counterclaim. Specifically, Paxton asserts that 42 U.S.C. § 1983 is the appropriate vehicle for alleging a constitutional claim and that the Tribe is not a proper claimant pursuant to § 1983. Mot. 6, Reply 2. Additionally, Paxton contends that the Tribe's claims fail on their merits because the Bingo Enabling Act is not unconstitutionally written or enforced. Mot. 9-10.
According to the Tribe, its Counterclaim "does not include a claim under 42 U.S.C. § 1983" and, therefore, whether the Tribe is a proper claimant pursuant to § 1983 is irrelevant. Resp. 7. The Tribe presents two theories regarding how this case might be properly brought without invoking § 1983. First, the Tribe asserts that its claim is brought as "Declaratory Judgment Act litigation." Id. at 8. Second, the Tribe contends that "even if this were a `stand alone' constitutional claim, it would be proper." Id. For the following reasons, the Court is of the opinion that the Declaratory Judgment Act does not provide an independent cause of action and that the Tribe's claim may not be brought as a freestanding constitutional claim. Accordingly, § 1983 is the proper vehicle for the Tribe's claim.
The Declaratory Judgment Act provides no independent cause of action. The operation of the Declaratory Judgment Act is "only `procedural' ... leaving `substantive rights unchanged.'" Medtronic, Inc. v. Mirowski Family Ventures, LLC, 571 U.S. 191, 199, 134 S.Ct. 843, 187 L.Ed.2d 703 (2014) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 S.Ct. 617 (1937) and then Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 509, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) ). Therefore, the Act "is not an independent source of federal jurisdiction; the availability of such relief presupposes the existence of a judicially remediable right." Schilling v. Rogers, 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960) (internal citation omitted). Because the Declaratory Judgment Act provides no independent cause of action, the Tribe may not use the Act alone as a vehicle to bring its Equal Protection claim into federal court.
Further, the Tribe asserts that bringing this suit as a standalone constitutional claim is proper. Thus, the Court considers whether federal common law provides a cause of action for freestanding Equal Protection claims and determines that it does not.
Courts have determined that "[t]he Equal Protection clause of the Fourteenth Amendment is not self-enforcing but requires application through some legislative act." Zentgraf v. Texas A & M Univ., 492 F.Supp. 265, 270 (S.D. Tex. 1980) (citing Katzenbach v. Morgan, 384 U.S. 641, 649, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) and Ex parte Virginia, 100 U.S. 339, 345, 25 S.Ct. 676 (1880) ); see also Johnson v. Sutter Delta Med. Ctr., No. C 11-03628 SI, 2011 WL 5444319, at *2 (N.D. Cal. Nov. 9, 2011) ("[T]he Fourteenth Amendment is not self-enforcing. Rather, § 5 of the Fourteenth Amendment grants Congress the power to enact legislation with the purpose of enforcing the Fourteenth Amendment." (citing City of Boerne v. Flores, 521 U.S. 507, 518-19, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) ) ). Thus, an Equal Protection claim must be authorized by legislation and cannot be derived from the common law.
Notwithstanding case law to the contrary, the Tribe believes that the Court may decide its constitutional claim without Congressional authorization. To support its contention, the Tribe cites Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) and Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). Resp. 8. It appears that the Tribe presumes these cases were brought as standalone constitutional claims; however, this belief is mistaken. Olech was filed pursuant to § 1983, and Davis was brought under Bivens,
In sum, the Court is of the opinion that it has no authority to decide the Tribe's Equal Protection claim absent a legislative act. Accordingly, the Court must consider whether the Tribe may bring its claim pursuant to § 1983, which is the relevant statute that authorizes persons to bring a claim against a state actor who has violated their constitutional rights. Without such legislative authorization, the Court lacks authority to hear the claim.
Having determined that § 1983 is the proper method of alleging an Equal Protection claim, the Court must determine whether the Tribe may proceed pursuant to § 1983.
42 U.S.C. § 1983 (emphasis added). The key question here is whether the Tribe is a "person" who may bring a claim pursuant to § 1983. According to the State, the Tribe is not a proper claimant based on the Supreme Court's decision in Inyo County, a case which considers when an Indian tribe is a proper claimant pursuant to § 1983. Mot. 6-7.
In this section, the Court discusses Inyo County and circuit court cases interpreting it. Then, the Court determines that the Tribe may proceed on two of its three theories regarding why the State's action violates the Tribe's constitutional rights.
In Inyo County, the Supreme Court determined that the Paiute-Shoshone Indian Tribe "does not qualify as a `person' who may sue under § 1983." Inyo Cty., Cal. v. Paiute-Shoshone Indians of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701, 704, 123 S.Ct. 1887, 155 L.Ed.2d 933 (2003). There, the local district attorney's office obtained a search warrant to secure payroll records of employees who worked at a casino run by the Tribe as part of a welfare fraud investigation. Id. at 705, 123 S.Ct. 1887. The Tribe sued in federal court and alleged, among other things, that the search violated the Tribe's right to self-governance because the Tribe, as a sovereign, is immune from state processes. Id. at 706, 123 S.Ct. 1887.
In determining that the Tribe could not bring a § 1983 suit, the Supreme Court reasoned that § 1983 "was designed to secure private rights against government encroachment, ... not to advance a sovereign's prerogative to withhold evidence relevant to a criminal investigation." Id. at
In some circumstances, a sovereign may qualify as a person. In reaching its decision, the Supreme Court considered cases regarding when a sovereign is a "person" able assert a claim pursuant to a federal statute. Id. at 711, 123 S.Ct. 1887. Specifically, a sovereign acting as a purchaser may qualify as a "person." See State of Ga. v. Evans, 316 U.S. 159, 162, 62 S.Ct. 972, 86 S.Ct. 1346 (1942) (determining that a state acting as a purchaser is a "person" for purposes of the Sherman Act); Pfizer, Inc. v. Gov't of India, 434 U.S. 308, 320, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978) (determining that a foreign nation is a "person" who may seek treble damages as afforded by federal antitrust laws). Accordingly, the Supreme Court's reasoning suggests that a sovereign may qualify as a "person" if the sovereign is asserting a right that a nonsovereign entity could have asserted.
The Fifth Circuit has not yet addressed Inyo County's scope or application. The Sixth, Ninth, and Tenth Circuits have had the opportunity to consider the scope of Inyo County and determine whether a Tribe's § 1983 claim should be barred.
"[W]hether a sovereign entity may be considered a `person' depends on the specific rights that it is asserting." Keweenaw Bay Indian Cmty. v. Rising, 569 F.3d 589, 595 (6th Cir. 2009). In Keweenaw Bay, the Indian Community asserted that Michigan had violated its constitutional rights when the State "offset" federal funds that the Community was entitled to in order to collect back taxes that the State asserted the Community owed. Id. The district court had determined that the Community could not proceed based on the Supreme Court's decision in Inyo County. The Sixth Circuit stated that:
Id. at 596. The Sixth Circuit did not decide which of its articulated interpretations was best but determined that "the District Court erred under either reading." Id. The Sixth Circuit remanded the case for the district court "to determine whether the Community was entitled to the federal funds (a) only as a result of its sovereignty, or (b) simply because it provides certain social services."
In Skokomish Indian Tribe v. United States, the Ninth Circuit determined that the Skokomish Tribe could not bring an action against a public utility company pursuant to a treaty regarding tribal lands and § 1983. 410 F.3d 506 (9th Cir. 2005).
In Muscogee (Creek) Nation v. Oklahoma Tax Commission, Muskogee (Creek) Nation—an Indian Nation—sued Oklahoma after Oklahoma's tax commission directed the state highway patrol to stop Muskogee vehicles in order to inspect cigarettes and seize any cigarettes that did not bear a tax stamp in compliance with a state statutory scheme. 611 F.3d 1222, 1225-35 (10th Cir. 2010). The Nation asserted that its Fourth Amendment rights were violated by the highway patrol because of its sovereign immunity. Id.
The Tenth Circuit reasoned that the Supreme Court suggested "that an Indian tribe's status as a sovereign entity did not per se foreclose its ability to bring suit as a `person' under § 1983. Instead, the viability of a tribe's § 1983 suit depended on whether the tribe's asserted right was of a sovereign nature." Id. at 1234 (citing Inyo County, 538 U.S. at 711, 123 S.Ct. 1887). Because "[n]o exemption from the state's statutory scheme based on Indian commerce would be available to [the Tribe] suing as a non-sovereign `person,'" the Tenth Circuit determined that the claim was one seeking to vindicate sovereign rights. Id. at 1235-36. Thus, the Tribe was unable to proceed pursuant to § 1983.
After considering Inyo County and the case law interpreting it, the Court concludes that the following test should be applied: If a Tribe could not bring its claim if it were not a sovereign, then the claim should be barred by Inyo County. Thus, claims that are based on Tribal treaties, sovereign immunity, or other privileges granted only to sovereigns should be barred. On the other hand, if the claim is one that nonsovereign entities in similar situations could bring—even if the claim has some relation to the Tribe's sovereignty—then Inyo County should not preclude the claim.
Even if Inyo County does not bar the Tribe's claims outright, Inyo County does affect how the Tribe may support its claims. That is, the Tribe may not rely on any alleged sovereign rights in proving its claims because the Tribe would effectively be suing to vindicate sovereign rights. See Inyo Cty., 538 U.S. at 712, 123 S.Ct. 1887 (determining that although "a tribal member complaining of a Fourth Amendment violation would be a `person' qualified to sue under § 1983," the tribal member— "like other private persons"—could not assert a right to immunity). In this case, the Tribe contends that it has a "fundamental sovereign right to engage in gaming on the reservation." Resp. 8. However, Inyo County makes clear that Indian tribes may not use § 1983 to enforce sovereign rights. Therefore, the Court declines to determine whether any enforceable sovereign right to engage in gaming exists.
First, the Tribe contends that "[t]here is no legitimate reason for excluding Indian Tribes from the Texas constitutional and statutory classification of entities allowed to conduct the gaming activity of bingo." Resp. 10. Thus, according to the Tribe, the State unlawfully discriminated against Indians when it drafted the charitable bingo exemption. Id. at 11. A nonsovereign charitable entity could plausibly assert that it was discriminated against when the Texas legislature did not include it in the list of organizations authorized to conduct bingo. Accordingly, the Court believes that this claim may be decided on its merits.
Next, the Tribe asserts that the State's enforcement scheme is discriminatory. Resp. 14-15. The Tribe contends that Paxton "has never brought suit against non-Indians" to enforce gaming violations but "has worked for years to stop bingo on the Ysleta del Sur Pueblo" reservation. Counterclaim 21-22. Further, the Tribe avers that the State has discriminated against Indian tribes because Texas's Office of the Attorney General initiates suits against Indian tribes, whereas "everyone else in the state is subject to the legal oversight of local district attorneys." Resp. 14.
A district court in California has considered whether a tribe could bring an Equal Protection claim against a state regarding the state's enforcement of gaming laws. In Fort Independence Indian Community v. California, the Community alleged that California violated the Equal Protection Clause by denying the Community "special privileges and/or immunities" that the State had extended other tribes. No. CIVS08432LKK/KJM, 2008 WL 6137129, at *5 (E.D. Cal. Sept. 10, 2008). The court determined that the tribal plaintiff asserted an interest "that a similarly situated private party would not enjoy" and that its Equal Protection claim was thus outside the scope of § 1983. Id.
In this case, the Tribe asserts that it is being treated differently than other, nontribal entities that offer gambling. Thus, the Tribe's claims are distinguishable from the claims at issue in Fort Independence. A nonsovereign entity could bring a similar claim alleging that the State's enforcement structure violated its rights and singled it out for special treatment. Thus, the Court is of the opinion that the Tribe's claim regarding enforcement should also be considered on its merits.
Finally, the Tribe contends that its Equal Protection rights are violated because Congress has the "plenary power... to deal with the unique issues concerning Indian nations" and because Texas "seeks to unlawfully expand [its] regulatory reach." Resp. 12-14. The Tribe further
Whether the Tribe could allege any Equal Protection theory based on this point is not entirely clear, as its claim appears to be rooted in preemption. At any rate, to the extent that any cognizable Equal Protection theory exists regarding Congress's plenary power to regulate Indian tribes, the claim is based in the Tribe's belief that it, as a sovereign, has a right to engage in gaming. The Tribe has not alleged any Equal Protection claim that a nonsovereign entity could bring regarding the State's regulatory reach. Thus, the Court concludes that Inyo County bars the Tribe from pursuing a § 1983 claim based on this theory.
The Tribe asserts that the Bingo Enabling Act violates the Equal Protection Clause because the State has allowed some charitable entities to conduct bingo but declines to include Indian tribes on the list. For the reasons discussed below, the Court is of the opinion that rational basis scrutiny applies and that a rational basis exists for the Bingo Enabling Act's charitable exception. Thus, the Bingo Enabling Act's charitable exception does not violate the Equal Protection Clause.
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ). When determining whether legislation violates the Equal Protection Clause, "[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Id. at 440, 105 S.Ct. 3249. However, some exceptions to the general rule exist, and statutes that fall under one of the exceptions are afforded a heightened standard of review.
Heightened scrutiny will be applied if a statute facially discriminates against a suspect class—i.e., if the statute discriminates on the basis of race, national origin, or sex. See id. ("[W]hen a statute classifies by race, alienage, or national origin," the law should be "subjected to strict scrutiny and will be sustained only if [it is] suitably tailored to serve a compelling state interest."); Lewis v. Ascension Par. Sch. Bd., 806 F.3d 344, 354 (5th Cir. 2015) ("`Laws that explicitly distinguish between individuals on racial grounds fall within the core of that prohibition,' and are subject to strict scrutiny." (quoting Hunt v. Cromartie, 526 U.S. 541, 546, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) ). Further, a law that is facially neutral may be subject to strict scrutiny, but "only if the neutral law has a `disproportionately adverse effect' that `can be traced to a discriminatory purpose.'" Id. (quoting Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) ).
Here, the Tribe asserts that, because legislation that singles out Native Americans or relies on classifications based on Native American heritage is analyzed based on a strict scrutiny level of review, the Bingo Enabling Act's charitable exception should be afforded strict scrutiny. Resp. 4. However, the Bingo Enabling Act does not single out Native Americans (or
Thus, in order to establish that strict scrutiny applies, the Tribe must show that the statute has a disproportionate effect on Native Americans and that the adverse effect can be traced to a discriminatory purpose. Yet, the Tribe has failed to put forward any evidence showing that the Bingo Enabling Act has a discriminatory purpose. Additionally, the Court notes that charitable organizations on tribal lands are permitted to apply for a license to conduct charitable bingo, just like a charitable organization in any other community is able to apply for a license to conduct bingo. In fact, the Pueblo volunteer fire department has obtained a bingo license from Texas. Mot. Ex. A (Hisa Dep. Tr. 49:2-3). Thus, it appears that the State did not leave tribes off the list in order to prevent tribal organizations from engaging in fundraising. To the contrary, tribal entities that meet the State's facially neutral criteria may conduct charitable bingo. Accordingly, the Tribe has not shown that Texas's laws regarding bingo discriminate against a suspect class.
In addition to applying strict scrutiny when a statute discriminates against a suspect class, courts have found that statutes impinging on certain fundamental rights—e.g., interstate travel, parental rights, and marriage—may be subject to strict scrutiny. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (interstate travel), M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (parental rights), Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (marriage). Jurisprudence regarding fundamental rights "specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition." Washington v. Glucksberg, 521 U.S. 702, 703, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997).
The Tribe asserts that it possesses a sovereign right to engage in gaming. Resp. 8. However, as previously discussed, the Court declines to consider whether Indian tribes enjoy any fundamental right to engage in gaming, as this alleged right is rooted in sovereignty and is not a right that may be enforced pursuant to § 1983. Significantly, the Tribe does not contend that the Bingo Enabling Act violates any traditionally recognized fundamental right. Accordingly, the Court is of the opinion that the Bingo Enabling Act does not impinge on an enforceable fundamental right and should not be subject to strict scrutiny on this basis.
In sum, the statute does not classify on the basis of race, and the Tribe has not shown that it otherwise has a discriminatory purpose. Further, the Tribe has not alleged that the statute impinges upon any enforceable fundamental right. Accordingly, the Court is of the opinion that a rational basis standard of review should apply.
When a rational basis standard of review applies,
City of Cleburne, 473 U.S. at 441-42, 105 S.Ct. 3249. Thus, having determined that a rational basis standard of review applies, the Court considers whether the bingo exception is rationally related to a legitimate state interest.
The purpose of the Bingo Enabling Act is to increase charities' ability to raise revenues "so that [charities] can assist and provide much needed services in our communities." STATE OF TEXAS, REPORT OF THE SENATE INTERIM COMM. ON CHARITABLE BINGO, 75th Sess., at 21 (1996). Thus, it appears that the Texas legislature determined that religious groups, volunteer fire departments, nonprofit veterans' organizations, fraternal organizations, and nonprofit organizations supporting medical research or treatment are charities that provide important services in Texas communities. Promoting private charitable giving is a legitimate government interest, and allowing community organizations to raise funds via bingo is a rational means to achieve that end.
To be clear, the list of organizations authorized to conduct bingo may not be an exhaustive list of all types of charities that provide services to a community. The Tribe appears to believe that, because the State did not include Indian tribes on the list of organizations that may conduct bingo, the Bingo Enabling Act does not serve a legitimate purpose. Resp. 10 (stating that "[t]here is no legitimate reason for excluding Indian Tribes from the Texas constitutional and statutory entities allowed to conduct the gaming activity of bingo"). However, the Court is not tasked with determining whether the State drafted the best, or most inclusive, list of organizations that support and provide services to communities. Instead, the Court considers whether a rational basis exists for the State's decision. Since the exempted organizations are charitable organizations that provide services to a community, a rational basis for the list of organizations exists. Accordingly, the Court is of the opinion that summary judgment should be granted in the State's favor on this claim.
Further, the Tribe avers that the State's enforcement of the Bingo Enabling Act is discriminatory. Specifically, the Tribe asserts that similarly situated entities are not prosecuted for gaming violations. Resp. 18. Additionally, the Tribe contends that, while Paxton's centralized office—the Office of the Attorney General—has initiated litigation against Indian tribes, "everyone else in the state is subject to the legal oversight of local district attorneys." Resp. 14. For the reasons provided below, the Court is of the opinion that summary judgment should be granted in the State's favor regarding the Tribe's discriminatory enforcement claims.
The Equal Protection Clause protects the right to be free from discriminatory enforcement of the law. In order to prove discrimination, a litigant must show that they have been treated differently than others who are similarly situated. Zayre of Georgia, Inc. v. City of Marietta, 416 F.2d 251, 254 (5th Cir. 1969) ("The federal courts have no general supervisory power over the operation of state and local governments.... A showing of discrimination rests, in turn, on a difference in treatment as between those similarly situated."). "To be a `class of one,'
The Tribe has not put forward any evidence demonstrating that a similarly situated comparator exists. In its Counterclaim, the Tribe identifies entities that the Tribe believes operate gaming rooms. Counterclaim 15-18. However, the Tribe has failed to produce any summary judgment evidence supporting its averments that these entities operate gaming rooms.
The Tribe appears to believe that it need not produce evidence showing that other entities have engaged in gaming. Instead, the Tribe attempts to shift the burden of producing evidence regarding its claims to the State. Resp. 19. The Tribe contends that the State has offered "not a single piece of evidence to contradict the averments in the Counter Claim setting forth in detail the operation of bingo halls throughout Texas that go unchallenged." Id.
Nonetheless, the Tribe cannot shift the burden of production to the State. In this case, "[t]he `burden of production at trial ultimately rests on the [Tribe;]'" thus, "the movant
Here, the Tribe has not provided any evidence that would tend to show that other, similarly situated entities are violating the State's gaming laws without being prosecuted for the violation. Thus, the Tribe fails to identify a genuine issue of fact for trial, and the Court determines that summary judgment should be granted in the State's favor on this issue.
Finally, the Tribe asserts that Paxton has violated the Tribe's constitutional rights because the Office of the Attorney General prosecutes the Pueblo's gaming violations, whereas local district attorneys' offices prosecute nontribal entities' gaming violations. Resp. 14. On the other hand, the State contends that the reason that the Attorney General bring suits against Indian tribes, is "embedded in the structure of the Texas Constitution." Resp. 12. According to the State, gaming violations are typically prosecuted as criminal actions initiated by local county or district attorneys. Id. at 13. However, pursuant to the Restoration Act, "Texas has limited authority to halt violations of gaming laws on the Tribe's reservation, with this suit being the primary, if not sole, method of doing so." Id. at 13-14.
Considering the limitations imposed by the Restoration Act, it appears that the State's county and district attorneys could not pursue an action against the Tribe in the manner that they typically pursue actions against other entities—that is, via a state-court criminal action. See Restoration Act § 107(c) (providing that "the courts of the United States shall have exclusive jurisdiction over any offense in violation of subsection (a) that is committed by the tribe, or by any member of the tribe, on the reservation or on lands of the tribe"). It is unclear to the Court whether the State's local criminal prosecutors have the authority to file civil actions in federal court on behalf of the State. However, even if local attorneys do possess the authority to file suits on the State's behalf in federal court, the Restoration Act precludes the State from bringing this suit in the way that it typically pursues lawsuits regarding gaming violations. Specifically, Texas may not pursue a state-court criminal action regarding the Tribe's gaming operations. Thus, a rational basis exists for prosecuting actions against the Pueblo differently than actions against other entities.
Additionally, the Tribe contends that Paxton has determined that local officials should not initiate actions against Indian tribes because of a lack of political will from local leaders. Resp. 15. Thus, it appears that the Tribe believes that the State has no legitimate reason for determining that the Office of the Attorney General should initiate these suits. To support its point, the Tribe relies on oral argument that occurred in a prior hearing in this litigation. During argument, in response to a question posed by the Magistrate Judge regarding whether a civil suit in federal court is the sole remedy allowed by Restoration Act, Texas's attorney stated,
Resp. Ex. E (Prelim. Inj. Hearing Tr. 37:20-38:11). Statements made by an attorney who is not under oath are arguments, not evidence. Thus, the Tribe has not proffered any admissible evidence to support its contention that Paxton is making decisions based on political will. In addition, the attorney was offering a hypothetical reason regarding why Congress may have drafted the Restoration Act in the fashion that it did, and the attorney was not offering a statement regarding why Texas's Office of the Attorney General has chosen to bring this action against the Tribe.
Moreover, even if the Tribe offered admissible evidence showing that the State considers political aims in determining who should prosecute an action, the Tribe has failed to provide any authority suggesting that it would be constitutionally improper for the State to consider local officials' political will. Rather, it appears that the State's policy would further the legitimate governmental interest of ensuring that Texas's laws are enforced.
In sum, because of the limitations imposed by the Restoration Act, the State must initiate actions regarding the Pueblo's alleged gaming violations in a different manner than the State's normal practice in initiating actions against other entities that are not covered by the Restoration Act. Thus, Paxton has a rational basis for using the centralized Attorney General's office to pursue this action: he endeavors to follow the Restoration Act, which is federal law. Having determined that a rational basis exists, the Court is of the opinion that Texas's structure for prosecuting alleged gaming violations does not violate the Equal Protection Clause.
Accordingly,
