This Report summarizes opinions issued on October 18, 2021 (Part I); and cases granted review on that date (Part II).

Case Granted Review: Ysleta del Sur Pueblo v. Texas, 20-493

Ysleta del Sur Pueblo v. Texas, 20-493.  At issue is whether the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act (Restoration Act) “subjects petitioner to the entire body of Texas gaming statutes and regulations or, consistent with the framework of California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), prohibits only those gaming activities that the State bars rather than regulates.” In 1968, Congress recognized petitioner Ysleta del Sur Pueblo as an Indian tribe and simultaneously transferred federal trust responsibility to the State of Texas. In 1983, however, the Texas Attorney General concluded that the Texas constitution forbids the state from entering into a trust relationship with a tribe. Congress enacted the Restoration Act in 1987 in response, “to establish a federal trust relationship” between the federal government and petitioner, as well as the Alabama-Coushatta Indian Tribe. The Restoration Act contains provisions addressing gaming on tribal land. Specifically, §107 of the Act provides:

• (a) IN GENERAL.—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. Any violation of the prohibition provided in this subsection shall be subject to the same civil and criminal penalties that are provided by the laws of the State of Texas. The provisions of this subsection are enacted in accordance with the tribe’s request in Tribal Resolution No. T.C.-02-86 which was approved and certified on March 12, 1986.
• (b) NO STATE REGULATORY JURISDICTION.— Nothing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas.

Petitioner and Texas have been struggling over the meaning of §107 for decades.

The Fifth Circuit’s key pronouncement on the issue came in Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325 (5th Cir. 1994) (Ysleta I), cert. denied, 514 U.S. 1016 (1995). There, petitioner sued Texas under the Indian Gaming and Regulatory Act (IGRA), seeking to compel the state to negotiate a compact for Class III gaming, which includes casino-style gaming. The Fifth Circuit held that the Eleventh Amendment barred petitioner’s suit because the Restoration Act controlled and did not abrogate a state’s immunity from suit. In the course of reaching that conclusion, the court construed §107(a) of the Restoration Act to provide that all of “Texas’ gaming laws and regulations” would “operate as surrogate federal law on the Tribe’s reservation in Texas.” The court reached that conclusion based on its “analysis of the legislative history of both the Restoration Act and IGRA,” and its assessment that “any threat to tribal sovereignty is of the Tribe’s own making,” given the 1986 Tribal Resolution (referenced in the final sentence of §107(a)) proposing to ban all tribal gaming. The current dispute involves gaming activities at the Speaking Rock Entertainment Center, the primary location of petitioner’s gaming operations. After Texas agents concluded in 2017 that the casino’s electronic machines and live-called bingo did not comply with state law and bingo regulations, the state sought injunctive relief in federal district court. Applying Ysleta I, the district court granted summary judgment to the state and enjoined petitioner’s gaming operations. The Fifth Circuit affirmed, “re-reaffirm[ing]” that “[t]he Restoration Act and IGRA erect fundamentally different regimes, and the Restoration Act—plus the Texas gaming laws and regulations it federalizes—provides the framework for determining the legality of gaming activities on [petitioner’s] lands.” 918 F.3d 440.

Petitioner relies heavily on California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), issued while Congress was considering the Restoration Act. Cabazon applied a distinction between “criminal/prohibitory” laws, which a state could enforce on Indian lands, and “civil/regulatory” restrictions, which it could not. As the Court explained, “[t]he shorthand test is whether the conduct at issue violates the State’s public policy.” Congress enacted IGRA soon thereafter. IGRA confirmed the right of Indian tribes to undertake and “to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity.” 25 U.S.C. §2701(5). Petitioner contends that “the Restoration Act’s gaming provisions, especially the abrogation of Texas’ administrative regulations, were influenced in substantial part by” Cabazon. And it maintains that “Sections 107(a) and (b) reflect the compromise that Congress reached in passing the final version of the Restoration Act, with the Tribes restricted from offering any games that are “prohibited” by the laws of the State of Texas (Section 107(a)), and the Tribes retaining regulatory authority over all non-prohibited gaming activities (Section 107(b)).” Petitioner says that “Section 107(b)’s regulatory restriction is fully consistent with” Cabazon, “which was decided six months prior to final passage of the Restoration Act.”

Texas contends that the Fifth Circuit got it right in Ysleta I, and that “[t]he Restoration Act plainly expresses Congress’s intent to federalize and bind the Pueblo to Texas’s gaming laws.” “First,” says Texas, “the Act provides that ‘[a]ll gaming activities which are prohibited by laws of the State of Texas are hereby prohibited on the reservation and on lands of the tribe.’” “Second, it adds that ‘[a]ny violation of the prohibition provided in this subsection shall be subject to the same civil and criminal penalties that are provided by the laws of the State of Texas.’” “Third,” argues Texas, “it states that these provisions ‘are enacted in accordance with the tribe’s request in Tribal Resolution No. T.C.-02-86.’ That resolution stated that the Tribe (a) ‘remains firm in its commitment to prohibit outright any gambling or bingo in any form on its Reservation’ regardless of what law would govern such activities, and (b) wanted its representatives to enact a bill ‘that would provide that all gaming, gambling, lottery, or bingo, as defined by the laws and administrative regulations of the State of Texas shall be prohibited’ on tribal lands.” According to Texas, “[t]aken together, these provisions of the Restoration Act grant the Pueblo ‘status as a federally recognized tribe and limit[] its gaming operations according to state law.’” The state notes that “the Restoration Act makes no mention of Cabazon” and that “since Cabazon Band, this Court and others have consistently refused to import the criminal-prohibitory/civil-regulatory distinction from the Public Law 83-280 context to other, more specific laws governing tribal affairs.”

[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]