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Tribe’s bingo games get green light from Supreme Court

The divided ruling left the justices squabbling over Congress’ authorization of gaming on tribal lands.

WASHINGTON (CN) — In a split decision on Wednesday, the Supreme Court allowed a tribe to continue bingo gaming operations over an attempt from Texas to prohibit them.

The 5-4 ruling says Texas cannot ban gaming activities on tribal lands unless they are also banned in the state. Justice Neil Gorsuch was joined in the majority by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett. Chief Justice John Roberts wrote a dissenting opinion joined by Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh. 

“In this case, Texas contends that Congress expressly ordained that all of its gaming laws should be treated as surrogate federal law enforceable on the Ysleta del Sur Pueblo Reservation,” Gorsuch wrote. “In the end, however, we find no evidence Congress endowed state law with anything like the power Texas claims.” 

The Ysleta del Sur Pueblo — one of three federally recognized Indian nations in Texas — asked the justices to allow them to continue bingo gaming operations at its Speaking Rock Entertainment Center outside of El Paso, Texas. The live and casino-style slot bingo used at the casino violates Texas public policy, but the tribe claimed it was exempt from those laws. 

The Supreme Court expanded tribal gambling across the country in 1987 when it ruled in California v. Cabazon Band of Mission Indians that California law permitted regulated gaming rather than prohibiting it. However, a Reagan-era law passed shortly after created a federal trust relationship between two tribes and Texas that barred the tribes from conducting gambling that the state considers illegal. 

When the case was argued in February, the justices focused on the distinction between prohibited and regulated gaming. The Pueblo claims that Texas cannot regulate games that it does not completely prohibit. The justices also questioned a 1994 precedent from the Fifth Circuit that allowed Texas to have regulatory jurisdiction over nonprohibited gaming activity on tribal lands. 

The fact that Texas does not forbid bingo activities is a problem for the state’s argument, Gorsuch said. 

“The State concedes that its laws do not forbid, prevent, effectively stop, or make bingo impossible,” the Trump appointee wrote. “Instead, the State admits that it allows the game subject to fixed rules about the time, place, and manner in which it may be conducted. From this alone, it would seem to follow that Texas’s laws fall on the regulatory rather than prohibitory side of the line — and thus may not be applied on tribal lands under the terms of subsection (b).”

Gorsuch said Texas cannot both regulate and prohibit bingo and claims Texas’ reading of the law creates an “indeterminate mess” instead of providing coherent guidance. 

The majority also point to the timing of Congress’ authorization of the Restoration Act which came only six months after the court decided Cabazon

“For us, that clinches the case,” Gorsuch wrote. “This Court generally assumes that, when Congress enacts statutes, it is aware of this Court’s relevant precedents. And at the time Congress adopted the Restoration Act, Cabazon was not only a relevant precedent concerning Indian gaming; it was the precedent.” 

The dissent argues that the court makes a “hash” of the statute’s structure in interpreting the statute to mean only Texas laws that ban a particular game apply on tribal land. Roberts claims that the best reading of the statute is that all gambling rules in Texas should apply on the tribe’s land. 

“The best reading of this statute is that all of Texas’s gambling rules apply in full on the Tribe’s land,” the George W. Bush appointee wrote. “‘All’ gaming activities prohibited by Texas are prohibited on the reservation. ‘Any’ violation is subject to the same penalties that Texas would ordinarily impose.” 

Roberts said the majority “cherry-picked” parts of the statute to make its argument but the text shows that Congress bans all gaming, gambling, lottery or bingo on tribal lands as defined by the laws of the state of Texas. 

When Congress passed the bill granting federal trust status to the tribe, Roberts said it struck a careful balance which the majority has now thrown out. 

“The Court today throws out that balance, treating gaming on this reservation as if it were just like any other Public Law 280 reservation,” Roberts wrote. 

Brant Martin, an attorney for Wick Phillips Gould representing the Pueblo, and Lanora Pettit, principal deputy solicitor general for Texas, did not respond to requests for comment following the ruling. 

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