By Ronald Mann
February 21, 2022
at 1:35 p.m.
Tuesday’s argument in Ysleta del Sur Pueblo v. Texas features another side of the decades-long conflict between state gaming regulators and Native American tribes. State regulators want to bring reservation gambling under their regulatory umbrella; tribes seek to enjoy gambling facilities that are free from general state constraints.
Some information about the general compromise that governs this issue sets the stage for this dispute. Gambling on tribal lands first rose to prominence with a Seminole casino in Florida in the late 1970s. The success of this facility led to the business model proliferating. The Supreme Court first tackled the problem frankly in its 1987 decision in California vs. Cabazon Band of Mission Indians. This decision draws a distinction between the types of games that a state outright prohibits and the types of games that a state tolerates subject to regulation. States subject to Cabazon Group had the right (under a federal law called Public Law 280) to prevent types of gambling that are prohibited even on reservations, but they cannot enforce their regulatory regimes against types of gambling that are regulated but not prohibited. A few years later, Congress passed the Indian Gaming Regulation Actwhich provides a general framework built on the distinction that judges have made in Cabazon Band.
This case involves Ysleta del Sur Pueblo, a small reserve that wants to continue operating its bingo-themed casino near El Paso. In 1968, Congress transferred fiduciary responsibility from the federal government for the Pueblo to the state of Texas, following a similar action it had taken in 1954 for a much larger reservation held by Alabama- Coushatta in East Texas. In 1983, in response to a lower court ruling that the transfer of these fiduciary responsibilities violated the Texas Constitution, Texas terminated the trust relationship.
Then, in 1987, Congress passed the so-called Restoration Act, which restored the federal government’s relationship of trust with these two tribes. The fundamental question in this case is whether the restoration law, adopted shortly after the decision in Cabazon Group, implements the prohibited/regulated distinction of this case or departs from it. The United States Court of Appeals for the 5th Circuit (which has jurisdiction over Texas) ruled early on that the Restoration Act dismissed the Cabazon Group framework, giving Texas full regulatory control over all forms of gambling on both reservations. The Pueblos and the Alabama-Coushattas have been in more or less constant litigation with Texas ever since, for more than a quarter of a century.
Three provisions of the Restoration Act are relevant. First, Section 105(f) grants Texas “civil and criminal jurisdiction within the bounds of the reservation as if ‘Texas were subject to Public Law 280. Second, Section 107(a) provides that “[a]All gambling activities that are prohibited by Texas state law are hereby prohibited on the reservation and on Tribal lands. Third, Section 107(b) provides: “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.
On the one hand, the arguments of Pueblosupported by the Alabama-Coushatta (an amicus with a big game operation to defend) and the United States. The Pueblo argue that the replication of the Public Law 280 regime in Section 105(f) implicitly brings Cabazon Group distinction at stake, because Cabazon Group itself was an interpretation of the jurisdictional authority of the State of California over the Cabazon Band, which was subject to Public Law 280. Second, the Pueblo interpreted Sections 107(a) and (b) as putting implement both sides of the law. Cabazon Group distinction, with 107(a)’s reference to “prohibited” gambling activities giving Texas the power to prohibit forms of gambling that are totally prohibited in Texas, and with 107(b)’s denial of “regulatory jurisdiction” excluding Texas from directly applying its regulatory authority to the two Restoration Act reservations.
On another side, Texas argues that Section 107(a) sets out the rule for gambling, allowing the state to prohibit any gambling that it could prohibit anywhere in the state, including gambling d ‘a type that is permitted only in accordance with the state regulatory authority. Section 107(b) therefore sets out the general rule of regulation for non-gambling matters and, on this point, denies the state any authority.
In my opinion, the Pueblo have by far the best of the deal when it comes to textual argument. The resemblance of the law to the discussion in Cabazon Group and the language used by Congress to enact this framework into the Indian Gaming Regulation Act is obvious. Yet it is common for judges to give great deference to state efforts to limit harmful activities on reservations, and much of this discussion hinges on a relatively vague reading of Public Law 280. The argument should tell us a lot about how judges lean.