A marathon legal battle in federal court between the state and the Tigua Indians over their right to operate a casino on their reservation east of El Paso may have taken a turn in the tribe’s favor.

Two federal agencies recently found that national Indian law supersedes the state’s authority to block the Tigua from offering certain types of gambling.

Almost three decades ago, both the Tigua and the Alabama-Coushatta, a small tribe in east Texas, were prohibited from having gambling as a condition of becoming federally recognized tribes.

At the time, Texas allowed only charity bingo. While the state soon legalized other forms of gaming, including para-mutual gambling and a state lottery, it has aggressively fought efforts by the two tribes to operate casinos.

The state later sued the Tigua in 1999 after the tribe opened its “Speaking Rock Casino.” It has been in intermittent litigation with the tribe ever since.

In a recent 21-page legal analysis, a deputy solicitor for Indian affairs for the U.S. Department of the Interior concluded that the Tigua and the Alabama-Coushatta both have the right, under the Indian Gaming Regulatory Act, to offer permitted Class II gaming such as bingo, electronic bingo and certain card games.

Earlier last month, the National Indian Gaming Commission advised both tribes by letter of the finding, and that the clause prohibiting gambling in the Restoration Act — which brought official recognition to the tribes — is “implicitly repealed” by other federal law.

“This should resolve the Tigua’s long struggle to be on equal footing with other Indian tribes and offer Class II gambling,” said Dolph Barnhouse, a tribal lawyer. “We’re talking with the state but there is still no clear indication of what they are going to do.”

A spokesman for Attorney General Ken Paxton, whose office is trying to force the shutdown of two Tigua “entertainment centers,” which closely resemble casinos, declined to comment, noting the ongoing litigation.

More than 240 Indian tribes around the nation offer certain types of gambling under the oversight of the National Indian Gaming Commission. In Texas, only the Kickapoo in Eagle Pass have a casino.

Like the Tigua, the Alabama-Coushatta have been trying to reopen a reservation casino they were forced to close in 2002. Unlike the Tigua, they have avoided a prolonged legal confrontation with the state.

“We feel we have the right to open a casino and we are moving forward. We have been in contact with equipment manufacturers,” said Carlos Bullock, a spokesman for the 1,100-member tribe.

Bullock said that earlier this year the two small Texas tribes independently sought intervention by the Department of the Interior, and later began working together to resolve their common dilemma.

While he believes the Alabama-Coushatta now have the green light to offer gaming, he is not certain the legal tussle is over.

“We have not heard anything from the state. We’re expecting them to fight us, but we think this letter from the NIGC and the solicitor’s opinion gives us the defense that we are covered under the Indian Gaming Regulatory Act,” he said.

Barring any obstacles, the tribe expects to open its casino early next year with about 300 gaming machines. The operation will provide about 150 jobs and roughly double the tribe’s income, he said.

But until the federal lawsuit against the Tigua is resolved and the injunction lifted, their situation is somewhat more complicated.

Several years ago, state investigators conducted an undercover operation at the Tigua’s gaming operation, which claimed to be a legal sweepstakes, thus skirting the prohibition on gambling.

The state decided otherwise, and last year went back to federal court. In March, U.S. District Judge Kathleen Cardone found the Tigua in contempt, ruling it had violated the 2001 injunction against gambling.

She ordered the tribe to modify it’s “sweepstakes” operation to bring it into line with state and federal law, and threatened $100,000-a day fines for non-compliance.

“The Motion for contempt is only the most recent tangle in a protracted saga between Texas and the Ysleta del Sur Pueblo of the Tigua Indian Tribe,” she wrote in her ruling.

“For nearly 15 years, the Tribe has sought to institute various forms of gaming on its reservation, while Texas has sought to enjoin those operations as violations of Texas gaming laws,” she continued.

The actions of the two federal agencies, however, and resultant amendments to the Tigua’s tribal gaming regulations, could change things.

Barnhouse said all parties are aware of the new agency findings, and that Cardone has told both sides to submit new pleadings.

Barnhouse said he expects the administrative rulings on Indian gaming to prevail.

“The law is pretty clear. When it’s clearly within their area of authority and expertise, the court has to defer,” he said.

Tigua Gov. Carlos Hisa, who has spent much of the last 13 years fighting to reopen the casino, is cautiously optimistic that the long battle may soon end.

“We’re just going to be patient and hope to get a good decision from the judge. All we’re asking for is to be under federal jurisdiction when it comes to gaming, and have the same rights as other tribes,” he said.

He said that recent good news has already lifted the outlook of the 4,000-member tribe, some of whom remember the jobs and economic good times when the Speaking Rock Casino was open.

“There is a sense of relief and excitement. We’ve been waiting for this for a long time,” he said. “We feel we can breathe and plan for our future, instead of just operating day to day, never knowing when we would be shut down.”

jmaccormack@express-news.net