on Feb 21, 2022
at 1:35 pm
Tuesday’s argument in Ysleta del Sur Pueblo v. Texas presents yet another installment in the decades-long conflict between state gambling regulators and Native American tribes. The state regulators want to bring reservation gambling under their regulatory umbrella; tribes seek to profit from gambling facilities that are exempt from general state constraints.
Some background about the general compromise that governs that problem sets the stage for this dispute. Gambling on tribal lands first came to prominence with a Seminole casino in Florida in the late 1970s. The success of that facility led to proliferation of the business model. The Supreme Court first addressed the problem squarely in its 1987 decision in California v. Cabazon Band of Mission Indians. That decision distinguishes between types of gambling that a state prohibits outright and types of gambling that a state tolerates subject to regulation. States subject to Cabazon Band were entitled (under a federal statute referred to as Public Law 280) to prevent the prohibited types of gambling even on reservations, but they cannot enforce their regulatory regimes against those types of gambling that are regulated but not prohibited. A few years later, Congress adopted the Indian Gaming Regulatory Act, which provides a general framework built on the distinction that the justices drew in Cabazon Band.
This case involves the Ysleta del Sur Pueblo, a small reservation that wants to continue operating its bingo-themed casino near El Paso. In 1968, Congress transferred the federal government’s trust responsibility for the Pueblo to the state of Texas, following a similar action it had taken in 1954 for a much larger reservation held by the Alabama-Coushatta in East Texas. In 1983, responding to a lower-court decision holding that the transfer of those trust responsibilities violated the Texas Constitution, Texas terminated the trust relationship.
Then, in 1987, Congress passed the so-called Restoration Act, which restored the trust relationship of the federal government with those two tribes. The basic question in the case is whether the Restoration Act, adopted shortly after the decision in Cabazon Band, implements the prohibited/regulated distinction of that case or departs from it. The U.S. Court of Appeals for the 5th Circuit (which has jurisdiction over Texas) held early on that the Restoration Act rejects the Cabazon Band framework, giving Texas full regulatory control over all forms of gambling on the two reservations. The Pueblo and the Alabama-Coushatta 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 boundaries of the reservation as if” Texas were subject to Public Law 280. Second, Section 107(a) provides that “[a]ll 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.” 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 one side are the arguments of the Pueblo, supported by the Alabama-Coushatta (an amicus with a large gambling operation of its own to defend) and the United States. The Pueblo argue that the replication of the Public Law 280 regime in Section 105(f) implicitly brings the Cabazon Band distinction into play, because Cabazon Band 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 read Sections 107(a) and (b) as implementing the two sides of the Cabazon Band distinction, with 107(a)’s reference to “prohibited” gaming activities giving Texas the authority to prohibit those forms of gambling that are utterly prohibited in Texas, and with 107(b)’s denial of “regulatory jurisdiction” excluding Texas from applying its regulatory authority directly to the two Restoration Act reservations.
On the other side, Texas argues that Section 107(a) states the rule for gambling, allowing the state to prohibit any gambling that it could prohibit anywhere in the state, including gambling that is of a type that is permitted only in accordance with the state’s regulatory authority. Section 107(b), then, states the general regulatory rule for non-gambling topics, and on that point denies the state any authority.
To my mind, the Pueblo have far the better of the case as a matter of textual argument. The resemblance of the statute to the discussion in Cabazon Band and to the language Congress used to adopt that framework into the Indian Gaming Regulatory Act is conspicuous. Still, it is common for the justices to give great deference to state efforts to limit harmful activity on reservations, and much of this discussion depends on a relatively loose reading of Public Law 280. The oral argument should tell us a lot about how the justices are leaning.