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On Feb 22, the Supreme Court heard oral arguments between the Ysleta del Sur Pueblo versus the State of Texas.
At issue is the question of whether the tribes are permitted to offer electronic bingo under the Restoration Act. The case is significant but has not attracted much mainstream interest. That’s in part because the Restoration Act’s jurisdictional scope is limited to Texas.
Despite flying under the radar of most media outlets, the case has drawn interest from the National Indian Gaming Association (NIGA) and the Solicitor General’s office. The Supreme Court has asked the latter for its views on the matter.
The Supreme Court’s oral arguments mark the culmination over years of litigation and animosity centered on the tribes’ desire to offer electronic bingo. On the surface, this may not sound like a sufficiently high-stakes case that Supreme Court would take an interest.
However, as came out in oral arguments, one big question is whether the Court finds electronic bingo to be “bingo” at all. Its answer will have ramifications for many more states than just Texas.
On the surface, the case is about the language in the Restoration Act. Specifically, it’s about whether the Act permits the state to prohibit gaming on tribal lands. The disputed language states:
(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.
In 2020, Texas prevailed at the Fifth Circuit Court of Appeals. The Circuit Court found that the Restoration Act permitted the Lone Star State to prohibit even the very limited forms of gaming the tribes were engaged in. For their part, the Ysleta del Sur Pueblo has argued that the clause in question prohibits Texas from having any civil or criminal authority over gaming on tribal lands.
This conflict is what has attracted Supreme Court review.
The case was the Supreme Court’s first in its return to the bench after their winter break. Mark Walsh of SCOUTSblog summarized the hearing, including several of its lighter moments.
One of these occurred when Chief Justice John Roberts tried to articulate the differences between live call bingo and electronic bingo. The former is what most would picture when they think about “bingo.”
The Chief Justice described the latter as looking like a slot machine. The Tribe’s counsel objected to the characterization, but noted that is probably how the State of Texas would describe the machines.
This response was followed by a quip from Justice Alito. He declared that if the machines are not bingo, they must be something else, and proposed calling them “dingo.”
The joke reportedly got big laughs.
In its opening Brant Martin, counsel for the Tribe, opened by framing the case as:
“…whether the Restoration Act subjects the Pueblo to Texas’s time, place, and manner restrictions as it relates to games that Texas does not flatly prohibit.”
Of course, the Tribe argues that it does not. It claims instead that under the Cabazon framework, Texas lacked authority to regulate the Tribe’s gaming activities. Justice Thomas, uncharacteristically in live arguments, was the first to jump in. He had questions about whether Cabazon was a grant of jurisdiction, which Mr. Martin concurred with.
Chief Justice Roberts described the case as “odd.”
He then noted that he had never seen briefs so full of legislative history in decades on the bench.
Much of the petitioner’s case centered on whether the activities occurring on the Tribe’s land were really permitted under Texas law. Texas law prohibits bingo games which are operated for profit.
Justice Coney Barrett also wanted the petitioner’s counsel to discuss whether the term “prohibit” was a term of art. Mr. Martin said that yes, in the wake of Cabazon, “prohibit” is a term of art.
Anthony Yang argued in favor of the petitioners, on behalf of the federal government. He endorsed the idea that Tribe’s view is grounded in the Cabazon framework, which grants tribes substantial sovereignty.
Mr. Yang was asked about the electronic bingo (or dingo) games, as well as conventional bingo. However, he circled back to the District Court’s findings that the issue was not whether the games were bingo. Rather, he claims the issue is instead whether Texas law prohibits a gaming product where you put money in and subsequently get money out.
Lanora Pettit argued on behalf of Texas. Justice Thomas asked her to discuss the difference between prohibition and regulation. Ms. Pettit tried to frame the case as being related to Cabazon, though she contended this was not at issue under the Restoration Act.
Justice Sotomayor noted that Ms. Pettit’s arguments that what Texas was attempting to argue seemed incompatible with the statute. Eventually, Ms. Pettit seemed backed into a corner when the Justices pressed on the distinction between prohibition and regulation ,and whether what was being asked could result in Cabazon being overturned.
Ms. Pettit argued that was not what she was asking. However, Justice Gorsuch in particular framed her arguments as seemingly asking for just such an act.
It is nearly impossible to read the tea leaves from Supreme Court oral arguments. What’s more, this case is complex because of the length of its history, stretching nearly 30 years.
In the end, it appeared that the Ysleta del Sur Pueblo may be holding a slight edge. Justice Gorsuch’s suggestion that what Texas was asking for would require overturning Cabazon seems bad for the state’s side. Whether it’s accurate or not, that perception could sink the State’s hopes. Historically, the Court has been very cautious about overturning precedent.