SCOTUS to hear arguments in Texas vs. Ysleta Del Sur Pueblo starting Feb 22, 2022

Texas Tribes Gear Up For February SCOTUS Showdown With The State

In October of last year, Online Poker Report reported on the Supreme Court case involving the Ysleta del Sur Pueblo and the State of Texas. Following the submission of amicus curiae briefs from the Alabama-Coushatta Tribe of Texas, the National Indian Gaming Association, and the Solicitor General’s office, plus a response from the State of Texas, the case is slated to have oral arguments on Feb 22, 2022.

The case has had a long path to oral arguments. The petition for certiorari was initially filed with the Supreme Court way back in October 2020. While this case does not have the potential to open Texas to further gambling expansion directly, the resolution of the issue could be a small step towards starting a conversation about it.

The current state of gambling in Texas

As reported in May 2021, there has been some talk that Texas is preparing to change its tune on its long-held opposition to gambling. Recent efforts to allow sports betting fizzled out and discussion of possible casino expansion also waned. However, just having a conversation about gaming expansion is a change for one of the last major US population centers with few regulated gambling options.

Despite past failures, Texas Rep. Dan Huberty told the National Council of Legislators from Gaming States that he believes there is a real possibility for sports betting to come to Texas in 2023. But, before that happens, the Supreme Court must resolve this dispute over the state’s Restoration Act. The case results from an anti-gambling clause contained in the Act.

Refresher on the Supreme Court case

In 1987, one year before the Indian Gaming Regulatory Act (IGRA) became law, the Alabama-Coushatta Tribes of Texas and the Ysleta del Sur Pueblo signed Texas’s Restoration Act. The Act’s gambling prohibition has subsequently resulted in the tribes being unable to take advantage of the opportunities provided by IGRA.

The crux of the dispute centers on the interpretation of the following language:

“(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.”

The Tribes argue that this allows them to allow gaming on their lands, but the State argues that the preceding section allows the State ample authority to prohibit gaming on tribal lands.

In 2020, the Fifth Circuit Court of Appeals upheld the initial ruling, which was in favor of the state. The Supreme Court will now have the final word.

The Alabama-Coushatta Tribes of Texas brief

The first amicus brief filed comes from the similarly situated Alabama-Coushatta Tribes of Texas. They argue that the Restoration Act does not prohibit tribes from offering bingo on their own terms, outside of Texas’s regulatory scheme. Texas amended its Constitution to allow bingo in 1980, so the game is not prohibited by Texas law.

Brief of the National Indian Gaming Association

The National Indian Gaming Association supports the Tribes’ authority to regulate gaming activities on their land. It argues that federal laws promote limits on state authority to control activities on tribal land. Additionally, the group argues that leaving in place the lower court’s decision would have “anomalous and harmful results.”

The national association argues that leaving the Fifth Circuit’s opinion in place would undercut IGRA’s desire for a uniform federal tribal-gaming policy. Additionally, the organization argues that the Fifth Circuit’s decision would effectively carve out Texas-based disputes as being subject to the federal courts’ interpretation. In contrast, virtually all other tribal gaming disputes would go forward to the far less costly National Indian Gaming Commission.

Brief of the United States

Previously the Court asked for views from the Solicitor General on the matters before the Court. In December 2021, Solicitor General Elizabeth Prelogar filed her brief expressing the view of the federal government.

The United States argues that the Fifth Circuit Court of Appeals “erroneously construed the Restoration Act to permit Texas to regulate forms of gaming that the State does not prohibit outright.”

The government argues that the Restoration Act allows the state only to prohibit activity outright. However, it does not provide the state the power to regulate unprohibited activity.

It goes on to say that:

“Section 107, correctly construed, is consistent with IGRA’s national regulation of gaming in Indian country. Reversing the Fifth Circuit will thus close a significant regulatory void and correctly provide for regulation of petitioner’s Class II gaming by the NIGC.”

Texas responds

Unsurprisingly, the State of Texas has responded effectively, arguing the opposite of the Petitioners and the amici. First, Texas argues that the Fifth Circuit correctly interpreted the Restoration Act. The State contends that Congress did not amend the drafting of the Restoration Act as a result of the Ninth Circuit’s decision in the Cabazon Band case.

This argument is interesting because each side argues differently. However, the Petitioners cite legislative materials, which they argue indicates that the Cabazon Band was contemplated. Texas’s argument is effectively that the lower courts ruled correctly. It holds that the Restoration Act provides the state the authority to decide what gaming takes place on tribal land.

What to make of this?

The big question is, what is the big takeaway from this case?

Primarily that if the Tribes win it would be a step forward for tribal gaming in Texas. It would enable Tribes to offer any form of gaming which the state doesn’t prohibit outright.

At the moment, there are few such options. However, the tides of gambling expansion appear to be turning.

True, the immediate impact of a decision for the Tribes may seem small, with only bingo at stake. However, it would mean that the Tribes get a seat at the table if any new forms of gambling arrive in the state. The way things are going elsewhere, that could soon mean sports betting, and perhaps even online gambling.

- John Holden J.D. / Ph.D. is an academic. His research focuses on policy issues surrounding sports corruption.
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