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Bingo dispute in Lone Star State leaves justices grappling with precedent

Often veering away from the original questions presented to them, the justices gave little indication on how they might rule in a fight between Texas and one of the three federally recognized tribes in the state. 

WASHINGTON (CN) — The Supreme Court grappled with its precedent and statutory interpretation Tuesday in a dispute over gambling rules for a tribe in the Lone Star State that could have bigger implications for tribal sovereignty. 

One of three federally recognized Indian nations in Texas, the Ysleta del Sur Pueblo has asked the court to consider if its bingo gaming operations are exempt from Texas’ gambling rules. At Speaking Rock Entertainment Center outside of El Paso, the Pueblo use live and casino-style slot bingo that Texas says violates public policy. 

At the center of the case sits the court’s 1987 decision in California v. Cabazon Band of Mission Indians and a Reagan-era law passed shortly after known as the Restoration Act. Cabazon led to the expansion of tribal gambling across the country with its holding that California law permitted regulated gaming rather than prohibiting it. The Restoration Act meanwhile created a federal trust relationship between two tribes and Texas, with one provision of the trust barring the tribes from conducting gambling that the state considers illegal. 

Much of Tuesday's argument — one of two pertaining to tribal issues this morning — centered on the distinction between prohibited and regulated gaming. Cabazon was used to create the Restoration Act, and the Pueblo claim that Texas cannot regulate games that it does not completely prohibit. 

“On the heels of this court's decision in Cabazon, Congress changed the language of the Restoration Act to replicate the prohibitory regulatory dichotomy struck in Cabazon,” said Brant Martin, an attorney for Wick Phillips Gould representing the Pueblo. “Section 107 A incorporates the Cabazon framework. It federalizes Texas law, but only as to prohibited games and bingo, in the state of Texas, is not a prohibited game.”  

Most tribes are permitted to gamble under the Indian Gaming Regulatory Act but the Pueblo are subject to the Restoration Act rules instead. The case challenges a 1994 decision by the Fifth Circuit in Ysleta del Sur Pueblo v. Texas that granted Texas regulatory jurisdiction over nonprohibited gaming activity on trial lands. 

Texas argues that the Pueblo and the state both made compromises in the Restoration Act, and the Pueblo want to rewrite that bargain. 

“Everybody in this case wanted something,” said Lanora Pettit, principal deputy solicitor general for Austin, Texas. “The tribe wanted federal recognition and was willing to cede some of its sovereignty. Texas wanted to avoid high-stakes gambling, which it saw as an invitation to organized crime, and was willing to cede some of its jurisdiction.” 

Justice Neil Gorsuch suggested just overruling the Cabazon precedent. 

“I take your argument that this is a unique text and we have to read the language in that context, but Texas argues that even in this context, the difference between prohibition and regulation is just unworkable,” the Trump appointee said to the Pueblo’s attorney. “It's almost an argument perhaps for overruling Cabazon.” 

The Department of Justice is supporting the Pueblo in the case as amicus curaie. Its representative seemed shocked by Gorsuh’s suggestion to overrule Cabazon

“Wow,” Anthony Yang, the assistant to the U.S. solicitor general, said after Gorsuch’s question. “First of all, I don't think that's before the court. This has been a fundamental distinction that's existed in the law of tribal sovereignty and tribal lands for decades upon decades.” 

In the context of this case, Cabazon was used to structure the Restoration Act, but Martin told the justices the tribe's argument survives without it. Experts say gaming law outside of Texas has a settled framework so overruling Cabazon would not have a big fallout. What is more important, however, is the effect on things outside of gambling like civil forfeitures, civil confinements or taxes in Public Law 280 states. Public Law 280 gave a handful of states jurisdiction over both criminal cases and civil lawsuits involving Indians on reservation land. 

Cabazon doesn't really matter that much anymore,” Matthew Fletcher, a foundation professor of law at Michigan State University Foundation, said over the phone in an interview about the Pueblo case.

“I think where it potentially matters is in nongaming related Public Law 280 things going forward … and that it's already a mess, to say the least," added Fletcher, who is also director of Michigan State's Indigenous Law & Policy Center. "In a Public Law 280 state, each state court has a different interpretation of that distinction, and the Supreme Court has never taken any of those cases seriously. So it would radically upset whatever little law is out there and probably make it worse. It would kind of be like throwing a lit match into a gas can for no reason whatsoever.” 

Justice Samuel Alito inquired about the role of interpretive canons within the case. 

“You refer to the Indian canon,” the Bush appointee said to the government’s lawyer. “Those who favor the interpretation of statutes to mean what the words of the statute are generally understood to mean, have some question about some of these substantive canons. Now some of them, like the Rule of Lenity, have a long history. What do you think is the basis for this Indian canon?” 

The Indian canon says that if there is ambiguity in a statute, the interpretation should benefit the tribe. This means that if the Indian canon was used in this case, the justices should defer to the tribe's interpretation of the statute. 

“Under normal default interpretive rules, this is a really easy case in Indian law,” Fletcher said. “The statute, if ambiguous — and there's definitely ambiguity — here should be interpreted to the benefit of the tribe. So Justice Alito is trying to head that off by basically saying the Indian canon is totally made up.” 

Alito’s question sparked interest from the other justices. Justice Elena Kagan pointed to the fact that there are canons of interpretation in a lot of areas, such as the major questions doctrine. While some canons hurt the government, some help them. Kagan asked how the justices should reconcile all the different canons before them.

“Is there any way that the government has of coming in and saying, how do we reconcile our views of all these different kinds of canons,” the Obama appointee asked the government.  “Maybe we should just toss them all out.” 

Attorneys for Texas and the Pueblo did not respond to requests for comment following arguments in the case. 

Follow @KelseyReichmann
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