Marty Schladen

El Paso Times

AUSTIN — If Texas state police want to go undercover to gather evidence at Tigua facilities, they need to first get permission, according to an ordinance passed by the tribal council earlier this month.

The ordinance is at least partly the result of a Texas attorney general’s investigation into tribal gambling that the Tiguas said violated their sovereignty.

The new tribal law requires police and other government officials — as well as news media — to get approval to go onto Tigua lands, including the entertainment centers where other members of the general public can enter without requesting permission.

The tribe had complained in court that agents of the state police had improperly entered centers with hidden cameras to record what they claimed was illegal gambling.

“It’d be like the state of Texas sending somebody into Mexico to investigate without permission,” said Dolph Barnhouse, the attorney who is representing the Tiguas in their gambling litigation against the Texas Attorney General’s office. “They’re a sovereign entity.”

The ordinance, Barnhouse said, is intended to make that clear.

“As an Indian tribe, the pueblo is vested with inherent sovereign power to remove or exclude from the limits of its reservation non-members of the tribe,” Tigua Gov. Carlos Hisa said in a letter sent this week to the El Paso Times.

It said that “covered individuals” must get special permission to enter public spaces on the reservation, which comprises about 4,000 acres in three large parcels and several smaller ones.

The letter says people such as “members of the media and those who have connections to government agencies, specifically law-enforcement agencies — may have access to pueblo lands only by (a) specific invitation, (b) obtaining permission, (c) inter-local agreements, or (d) as permitted by pueblo law. Covered individuals are not considered members of the general public.”

Those who violate the ordinance could face a maximum fine of $2,000.

The Attorney General’s Office and the Texas Department of Public Safety didn’t immediately respond to requests for comment, with the DPS saying more research is needed.

In a phone interview, Hisa and tribal Lt. Gov. Christopher Gomez said the new ordinance formalizes a policy that’s long been in place.

“This has always been the practice,” Hisa said. “We’re no more exclusive than Fort Bliss is. We just want to make it official.”

One reason to make it official has to do with the tribe’s long-running federal court case against the state of Texas over whether it can offer games of chance.

Late last year, the Tiguas obtained letters from federal authorities saying that the tribe could be eligible to offer certain games under the regulation of the National Indian Gaming Commission.

Texas Attorney General Ken Paxton argued that the letters did not give the tribe permission to offer such gambling. He also argued that the sweepstakes games at the Tigua entertainment centers are illegal in any case.

U.S. District Judge Kathleen Cardone in late May ruled against the Tiguas, saying their sweepstakes machines amounted to illegal gambling. She gave the tribe 60 days to end the sweepstakes games.

Cardone also ruled that her court would no longer pre-clear games offered by the Tiguas. If state officials have a problem with them, they can file a complaint with the court, she ordered.

“Additionally, the court eliminates the requirement that the pueblo defendants ‘allow the designated representatives of the state of Texas access on a monthly basis to ... any ... location at which gaming activities are conducted by the defendants, and access to the records maintained by the defendants,” Cardone’s May 27 order says.

Two weeks later, on June 10, the Tiguas passed their ordinance prohibiting state officials and others from entering the entertainment centers without permission.

That might make it difficult for state authorities to monitor future activities at the centers.

“They were conducting an official state investigation where they had no authority to do so,” Barnhouse said of the past investigation.

The Tiguas initially raised the issue back in 2014, saying that the evidence the Texas Attorney General’s Office was presenting to the court was gathered illegally.

In a Sept. 24, 2014, order, Cardone seemed to agree.

“While Congress undoubtedly granted (the Texas attorney general) the right to demand compliance with Texas gambling statutes, Congress also undoubtedly restricted (the AG’s) means of enforcement to bringing an action in the federal courts,” Cardone wrote. Texas “must do so in a manner that respects both federal law and (the Tiguas') inherent tribal sovereignty.”

However, Cardone said the Tiguas needed to clearly notify state officials that they couldn’t enter the pueblo without first getting permission.

“The Court agrees with (the Tiguas) that ‘a hallmark of Indian sovereignty is the power to exclude non-Indians from Indian lands ...,’ ” Cardone wrote. “Neither party, however, has sufficiently briefed the court on what actions (the Tiguas) took to communicate any terms of exclusion to (Texas officials or their investigators) prior to the undercover operations.”

Ronald Jackson, another attorney for the Tiguas, said the tribe did not plan to continue operating sweepstakes games after the ordinance had been passed.

He also explained that news media were included in those who must seek permission to enter the pueblo in part because journalists had gotten into trouble in the past. He said a TV crew had put itself and pueblo personnel in danger by entering a construction zone.

“This is a good-friend ordinance,” Jackson said. “Just call and let us know.”

Marty Schladen can be reached at 512-479-6606; mschladen@elpasotimes.com; @martyschladen on Twitter.