Split Supreme Court Says Texas Cannot Regulate Tribe’s Electronic Bingo | Snell and Wilmer
In a 5-4 vote on Wednesday, June 15, the U.S. Supreme Court resolved a long-running dispute over Texas’ ability to control gambling conducted by the Ysleta del Sur Pueblo Tribe (the “Tribe”) ).
The case centered on the language of the 1987 Ysleta del Sur and Alabama-Coushatta Indian Tribes of Texas Restoration Act (the “Restoration Act”). In 1968, Congress recognized the Ysleta del Sur Pueblo as an Indian tribe and assigned trust responsibilities for the tribe in Texas. The tribe’s reservation is located near El Paso, Texas. In the early 1980s, Texas relinquished these responsibilities. In 1987, the federal government took over the responsibilities of the tribe, along with the Alabama-Coushatta Indian Tribe, by enacting the Restoration Act. The following year, Congress enacted the Indian Gaming Regulatory Act (“IGRA”).
For several years thereafter, the tribe and the state disagreed on the extent to which Texas gaming laws applied to the tribe’s gambling operations. Section 107 of the Restoration Act deals directly with gambling on tribal lands. It provides in paragraph (a) that “gambling activities which are prohibited by [Texas law] are prohibited on the reservation and on tribal lands. However, paragraph (b) states that the statute does not grant Texas “civil or criminal regulatory jurisdiction” with respect to matters covered by Section 107.
In a long saga of litigation, Texas has always interpreted the Restoration Act as subjecting the tribe to all of its gaming laws and regulations. In contrast, the tribe interpreted the wording of the law as consistent with the case California vs. Cabazon Band of Mission Indians480 US 202 (1987) – which laid the groundwork for IGRA’s adoption in 1988. The tribe argued that the Restoration Act restricted it from offering only state-prohibited gambling activities.
The Fifth Circuit Court of Appeals repeatedly sided with the state’s opinion. Most notably, in 1994, the Fifth Circuit determined that the Restoration Act superseded the IGRA and ensured that all of the state’s gaming laws and regulations “would operate as a surrogate federal law on the reservation of the tribe”. Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325, 1334 (5th Cir. 1994). Litigation over the Restoration Act dragged on for nearly three decades until the Supreme Court decided to hear the matter.
The Supreme Court case stems from the tribe offering electronic bingo at its Speaking Rock Entertainment Center in 2016. The state of Texas attempted to shut down the electronic bingo operation. Under Texas law, bingo is only allowed for charitable purposes and only subject to a wide range of regulations.
The majority opinion, written by Justice Gorsuch and joined by Justices Breyer, Sotomayor, Kagan and Barrett, is separated into three parts and begins by analyzing the Restoration Act according to the rules of statutory interpretation. The Court held that the state’s interpretation violated many of the Court’s oldest rules of statutory interpretation. Primarily, that the state’s interpretation of the term “prohibit” runs counter to the ordinary meaning of the word. Further, the Court found that reading Section 107(a) of the Restoration Act from the state’s perspective would render the rest of the section meaningless.
Second, the opinion identifies “contextual clues” favoring the tribe’s interpretation of the restoration law. The Court reversed its 1987 decision in California v. Cabazon, which distinguished between the types of gambling that a State may outright prohibit and those that it authorizes on a limited basis and subject to regulation. The notice noted that the Restoration Law had only been enacted six months after the decision in Cabazonand the wording of the Act similarly follows Cabazon. The Court noted that the state bingo laws at issue are nearly identical to the state bingo laws at issue in Cabazon. In Cabazon, the Court considered the bingo laws to be regulatory in nature because it found that California permitted at least some forms of bingo. The Court found that this same reasoning “seals the deal” with respect to Texas bingo laws.
Again, regarding the rules of statutory interpretation, the majority held that “when Congress enacts statutes, it is mindful of the relevant precedents of this Court.” The Court recognized that at the time of the enactment of the Restoration Act, “Cabazon was not only a relevant precedent regarding Indian games; it was the legal precedent.” The opinion also compared the Restoration Act to two other statutes enacted at the same time. The other statutes expressly provided that a tribe was subject to both the laws and regulations that prohibit or regulate gambling. The Court pointed out that “[t]the implication that Congress has drawn from Cabazon and supposed to apply its same prohibitive/regulatory framework to us here seems almost impossible to ignore.
Finally, the Court rejected a variety of public policy arguments put forward by the state. Ultimately, the Court held that an interpretation in favor of the state’s view would “nullify” the prohibit/regulate dichotomy set out in the Restoration Act. Significantly, the United States Solicitor General’s office supported the tribe’s position. After an invitation from the Court to file a brief on the matter, the Bureau supported the tribe’s motion to take up the case, saying the law should be considered consistent with Cabazon.
In a strong dissent, Chief Justice John Roberts came to the opposite conclusion. Justice Roberts countered that the majority reading “makes a hash of the law”. According to Justice Robert, the wording of the Restoration Act “does not signal an intention to enact Cabazon Group‘s unique dichotomy. Interestingly, Justice Roberts included with the dissent a photo of electronic bingo machines from Tribe’s Speaking Rock Entertainment Center. In a footnote, he argues that the photo confirms that the electronic bingo played at the establishment “is about as close to real bingo as Bingo the famous dog”. However, ownership of the electronic bingo game was not at issue in this case.
Although specific to Texas laws, the opinion is also expected to have positive implications for another tribe in Texas. The Alabama-Coushatta tribe has been embroiled in the same battle with the state for many years over electronic bingo. The Alabama-Coushatta Tribe was also recognized in the Restoration Act and is subject to the same gaming provisions. The Alabama-Coushatta Tribe participated in this case as amicus.