This Report summarizes opinions issued on June 15, 2022 (Part I).
Opinion: Ysleta del Sur Pueblo v. Texas, 20-493
Ysleta del Sur Pueblo v. Texas, 20-493. By a 5-4 vote, the Court held that the Ysleta del Sur and Alabama and Coushatta Indian Tribes of Texas Restoration Act (Restoration Act) “bans as a matter of federal law on tribal lands only those gaming activities also banned in Texas.” The Ysleta del Sur Pueblo is a federally recognized tribe in Texas that conducts gaming operations on its lands. When Congress formally recognized the Tribe in 1968, it assigned responsibilities for a trust relationship to Texas and ensured the Tribe would retain the 100 acres of land it possessed. When Texas renounced its trust responsibilities in 1983, the Tribe sought “new congressional legislation to reestablish its trust relationship with the federal government.” Texas objected to any such legislation unless it contained a provision permitting the state to apply its gaming laws on tribal lands. Negotiations went on for years, during which time the Court decided California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Cabazon “held that, if a state law prohibits a particular game, it falls within Public Law 280’s grant of criminal jurisdiction and a State may enforce its ban on tribal lands. But if state laws merely regulate a game’s availability . . . Public Law 280 does not permit a State to enforce its rules on tribal lands.” (Citations omitted.)
Six months after Cabazon, Congress passed the Restoration Act, which “restored the Tribe’s federal trust status” and “‘prohibited’ as a matter of federal law” all gaming activities prohibited by state law. Additionally, in 1988, Congress passed the Indian Gaming Regulatory Act (IGRA), which permits tribes to offer certain classes of games like bingo in states that permit it for any purpose, but disallowed other classes like blackjack without a tribal/state compact. The Tribe wanted to offer games that required a tribal/state compact but it could not reach an agreement with Texas. The parties went to court where the state argued the Restoration Act trumps IGRA and that all state gaming laws apply on tribal lands. That litigation ended with the Fifth Circuit ruling that “the Restoration Act’s direction superseded IGRA’s and guaranteed that all of ‘Texas’ gaming laws and regulations’ would ‘operate as surrogate federal law on the Tribe’s reservation.’” 36 F.3d 1325, 1326, 1334 (5th Cir. 1994) (Ysleta I). The Tribe continued to conduct its gaming operations “within the confines of Ysleta I” but litigation followed. The bingo battle at issue here stemmed from the tribe’s desire to offer electronic and traditional bingo games on its land. Texas objected, as its laws permit bingo only for charitable purposes. The district court, bound by Ysleta I, ruled in favor of Texas but stayed the injunction pending appeal in case the Fifth Circuit or Supreme Court wanted to reconsider Ysleta I. The Fifth Circuit reaffirmed Ysleta I. In an opinion by Justice Gorsuch, the Court reversed and remanded.
The Court analyzed §107 of the Restoration Act, which addresses gaming on tribal land. Subsection (a) provides, inter alia, that “all gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation and on lands of the tribe.” Subsection (b) provides that “Nothing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas.” The Court explained that §107’s “most striking feature” is the “dichotomy between prohibition and regulation,” which the Court understood to bar gaming activities categorically prohibited by state law, but “does not grant Texas civil or criminal regulatory jurisdiction with respect to matters covered by this ‘section.’” The Court examined the ordinary meaning of the terms “prohibit” and “regulate” and concluded they are “’not synonymous.’” It further viewed Texas’s interpretation—that its regulatory laws fixing the time, place, and manner of bingo also prohibit the game when someone fails to comply with the regulations—as collapsing the dichotomy between prohibitory and regulatory conduct. In the Court’s view, that reading improperly ascribes such a broad meaning to the word “prohibit” that it assumes the same meaning as “regulate” and renders the law “an indeterminate mess.” Also problematic, according to the Court, were Texas’s arguments that would render §107’s subparts superfluous, null, and void. The Court also looked at “contextual clues” such as passage of the Restoration Act within months of the Cabazon decision. Cabazon “drew a sharp line between the terms prohibitory and regulatory and held that state bingo laws very much like the ones now before us qualified as regulatory rather than prohibitory in nature.” When analyzing other statutes passed around the time of the Restoration Act, the Court found that Congress chose to apply Cabazon’s language differently and, in some cases, expressly incorporated state regulations as a matter of federal law.
The Court also considered the impact of language in §107 that “[t]he provisions of this subsection are enacted in accordance with the tribe’s request in Tribal Resolution No. T. C.–02–86.” The resolution in question declared the Tribe’s opposition to Texas’s legislative efforts to apply its gaming laws to tribal lands but also said that “to prevent extension of Texas law to its reservation and avoid ’jeopardiz[ing]’ its request for renewed federal trust status,” it intends “to prohibit gaming or bingo on its reservation.” The resolution also authorized tribal negotiators “to accept federal legislation prohibiting gaming on tribal lands as an alternative to state regulation.” With all this in mind, the Court noted Texas’s concession that the Tribe was and is free to change its laws after adopting that resolution. The Court added that “if Congress had intended a more complete federal ban, it could have easily said so. Not by obliquely referencing a tribal resolution.” And while the Court recognized its decision might generate borderline cases in applying the Act’s terms, it said that “hardly makes it unique among federal statutes,” and cited examples of Congress applying the prohibitory/regulatory framework in other statutes.
Chief Justice Roberts dissented, joined by Justices Thomas, Alito, and Kavanaugh. The dissent believed “[a] straightforward reading of the statute’s text makes clear that all gaming activities prohibited in Texas are also barred on the Tribe’s land. The Court’s contrary interpretation is at odds with the statute’s plain meaning, conflicts with an unambiguous tribal resolution that the Act was ‘enacted in accordance with,’ . . . and makes a hash of the statute’s structure.” (Citation omitted.) The dissent noted Texas’s history of “strict controls on gambling” as well as the resolution to prohibit all gambling and bingo (as defined by Texas law) on the reservation in exchange for Texas dropping its objections to a federal trust relationship. Chief Justice Roberts stated that §107(a) means that when the state wants to enforce its laws prohibiting conduct on tribal land, it must do so in federal court. In his view, “[t]he best reading of [§107] is that all of Texas’s gambling rules apply in full on the Tribe’s land. ‘All’ gaming activities prohibited by Texas are prohibited on the reservation. ‘Any’ violation is subject to the same penalties that Texas would ordinarily impose.” The dissent further believed that the resolution is “of central importance to this case” and constituted more than legislative history because it shows “why [Congress] did what it did: It was acting in accord with the Tribe’s request that it ban on the reservation all gaming as defined by Texas.” And, argued the dissent, “Section 107(a) expressly states that the provision was ‘enacted in accordance with the tribe’s request in Tribal Resolution No. T.C.–02–86.’ As noted, the resolution contains only one single ‘request[]’—that Congress ban on tribal lands ‘all gaming, gambling, lottery, or bingo, as defined by the laws and administrative regulations of the State of Texas.’” (Citation omitted.)
The dissent also offered reasons why §107 does not implicitly incorporate the jurisdictional framework of Public Law 280 and Cabazon. The dissent noted that the tribe “argues that while §105(f) of the Restoration Act incorporated Public Law 280’s Cabazon Band framework, §107(a) did so as well. . . . But if §105(f)—and its incorporation of Cabazon Band—already applied to gaming activities that were generally prohibited in Texas, there would have been no need for Congress to enact the more specific rule of §107(a).” The dissent also discussed a “bizarre result” of the Court’s decision: more lenient treatment for violations of Texas criminal gaming laws as compared to violations of other criminal laws. In the end, the dissent believed that the Court’s decision “throws out” the careful balance between the Tribe and Texas struck by Congress.
