UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 00-50014 ___________________________

STATE OF TEXAS,

Plaintiff-Appellee,

VERSUS

YSLETA DEL SUR PUEBLO; TIGUA GAMING AGENCY; THE TRIBAL COUNCIL; FILBERT CANDELARIA, Tribal Acting Governor; FRANCISCO HERNANDEZ, Gaming Commissioner;

Defendants-Appellants.

Appeal from the United States District Court for the Western District of Texas, El Paso Division

October 31, 2000

Before DAVIS, EMILIO M. GARZA, Circuit Judges, and POGUE, Judge*.

PER CURIAM:**

The State of Texas brought suit against Ysleta del Sur Pueblo

(the “Tribe”) seeking to enjoin the Tribe from violating Texas

anti-gaming laws at its Speaking Rock Casino. The Tribe responded

by filing a motion to dismiss for lack of subject matter

jurisdiction on the basis of tribal immunity. The District Court

* Judge of the U.S. Court of International Trade, sitting by designation. ** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. concluded that under the Restoration Act (25 U.S.C. § 1300g) tribal

immunity as to the state’s claims is unequivocally abrogated and

waived. We AFFIRM.

This Court has previously addressed the history of the bargain

struck between the Tribe, the State of Texas and Congress in the

passage of the Restoration Act in Ysleta del Sur Pueblo v. State of

Texas,

(5th Cir. 1994) (“Ysleta I”). Essentially, in

order to obtain passage of the Restoration Act which provided for

restoration of the federal trust relationship to the Tribe, the

Tribe agreed and in fact requested that the act include language

prohibiting all gaming prohibited under Texas state law. In Ysleta

I, this court concluded that the Restoration Act governs the

determination of whether gaming activities of the Tribe are allowed

under Texas law, which operates as surrogate federal law on the

reservation.

The Restoration Act at § 1300g-6(a) clearly states that all

gaming activities which are prohibited under the laws of the State

of Texas are prohibited on the reservation. At § 1300g-6(c), the

courts of the United States are recognized as having exclusive

jurisdiction over any violation of the prohibition in subsection

(a). The section also states that “nothing 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.” Recognizing that suits against

Indian tribes are barred by sovereign immunity in the absence of clear waiver by the Tribe or congressional abrogation, Oklahoma Tax

Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla.,

,

(1991), we find that the Restoration

Act represents a clear abrogation by Congress of the Tribe’s

immunity as to exactly the class of suit brought here - an action

in the courts of the United States by the State of Texas to enjoin

violations of the anti-gaming provision of the act.

Accordingly, the district court’s denial of the Tribe’s motion

to dismiss on the basis of its sovereign immunity was proper and

the judgment of the district court is AFFIRMED. Because the only

issue properly before us is the correctness of the district court’s

denial of immunity, other issues raised by the Tribe are not

reviewable at this time.