On Oct. 18, the federal Supreme Court agreed to hear a tribal gaming case originating in Texas.
In legal parlance, SCOTUS granted certiorari to two federally recognized tribes that have been restricted from offering gambling on their land. They are challenging that prohibition.
The Indian Gaming Regulatory Act (IGRA) governs tribal gaming around most of the country and is familiar to most who follow the gambling industry. However, in 1987, a year before IGRA became law, the Alabama-Coushatta Tribes of Texas and the Ysleta Del Sur Pueblo signed the state’s Restoration Act, which contains an anti-gambling clause. While other tribes around the country have reaped the benefits of the IGRA over the past three decades, these Texas tribes remain bound by the earlier agreement.
The Lone Star State has lagged most other states in warming up to the idea of gambling. Even so, its lawmakers have approved some limited forms of gambling over the years, including a state lottery.
How the Texas tribal gaming battle began
The tribes filed their petition with the Supreme Court over a year ago, on Oct. 9, 2020. They asked the Court to decide whether the Restoration Act provides the Ysleta del Sur Pueblo (henceforth just “the Pueblo”) with the ability to permit and regulate non-prohibited gaming activities on their land. The petition explicitly highlights bingo as a game Texas permits elsewhere. The state, however, interprets the Restoration Act as restricting all gambling.
The Pueblo are one of three federally recognized tribes in Texas. In 1968, the federal government transferred its trust responsibilities to Texas via the Tiwa Indians Act. In 1981, Texas attempted to walk away from its trust responsibilities via an Attorney General opinion letter. However, this was ultimately rejected by the federal district court in the Western District of Texas.
In 1987, Congress passed the Restoration Act, which essentially transferred trust responsibilities back to the federal government. Within the document were provisions that governed gaming on tribal land. It’s those provisions that are now at issue.
In 1992, the Pueblo attempted to negotiate with the Governor to offer Class II gaming on their land pursuant to IGRA. However, the Governor refused to enter into negotiations.
The Tribe sued, arguing that the State refused to negotiate in good faith. The District Court agreed with the tribes, granting them a summary judgment. The state appealed to the Fifth Circuit, however, which proceeded to overturn the District Court’s judgment.
Two simple clauses at the heart of the dispute
The controversial language can be found in sections 107(a) and (b) of the statute. These state:
(a) IN GENERAL. — All gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation…
(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 Pueblo argue that the matter at its core is about tribal sovereignty. They say that the restrictions on the regulation of gaming on tribal land are inconsistent with the Pueblo’s rights.
The tribe further argues that the Fifth Circuit’s decision effectively nullified the plain reading of Section 107 (b). That language would seem to limit Texas’s authority to dictate what games the Pueblo can operate.
A delayed response from the state
If the defendant in a potential Supreme Court case doesn’t feel the petitioner has made their argument adequately, they’re under no obligation to respond. Texas initially took that tack with the tribes, filing a waiver of its right to respond.
After the Alabama-Coushatta Tribe filed its amicus curiae brief, however, the state had a change of heart. Attorney General Ken Paxton sought an extension to file its opposition, which it eventually did on Jan. 11, 2021.
Solicitor General believes the case should proceed
On February 22, 2021, after their first review of the parties’ briefs, the Supreme Court justices asked for the views of the Solicitor General. This is a common practice when federal policy is in question.
The government filed its brief in late August. The Solicitor General’s brief agreed with the petitioners. That is, it expresses the belief that the Fifth Circuit’s decision was incorrect and that SCOTUS should hear the case on the merits.
Next steps for the Texas tribes’ case
The various parties will file their merits briefs over the coming months, beginning with the Pueblo. We will likely see a number of amicus briefs come in support of the petitioners. Following a response from Texas, the Pueblo will have an opportunity to reply, and then the Court will set the matter for oral arguments. That’s likely to happen sometime in the spring of 2022.
The case will be a significant one in terms of tribal sovereignty. It also touches on important gaming issues within Texas. As we have seen over the last few years, the Lone Star State’s vehement opposition to gaming expansion may not be quite as steadfast as it once was.
On its own, this case is not going to bring legal sports betting or poker to Texas. However, an affirmative decision restoring the Pueblo’s rights to govern the activities that are permissible on their land could prove to be a turning point. In time, it could set the stage for such activities to take place on tribal land in the State.