Tribal bingo
the State’s view. Most notably, in 1994, the Fifth Circuit determined that the Restoration Act superseded the IGRA and guaranteed the entirety of the State’s gaming laws and regulations would “operate as surrogate federal law on the Tribe’s reservation.” 1 Litigation related to the Restoration Act had gone on for almost three decades until the Supreme Court decided to hear the issue. NIGC ISSUES FAVORABLE OPINION FOR PUEBLO On October 5, 2015, the National Indian Gaming Commission (“NIGC”) issued an advisory opinion determining that the Ysleta del Sur Pueblo possessed sufficient jurisdiction over its lands and therefore the IGRA was applicable, and further that the Tribe’s lands were deemed to be “Indian Lands” within the meaning of IGRA. The Department of the Interior, Office of the Solicitor concurred in the determination. On the same day, the NIGC issued a similar opinion making the same determination in favor of the Alabama-Coushatta Indian Tribe. As a result of the NIGC opinion, the Texas Federal Court Judge requested legal briefs from both the Tribe and the State of Texas concerning the meaning and implications of the NIGC opinion. This action, in part, led to further litigation which ultimately ended up with the Supreme Court decision in favor of the Tribe. NIGC opinions are not binding on courts, although they may be viewed as persuasive authority. TEXAS’ ATTEMPT TO SHUTDOWN PUEBLO’S BINGO OPERATIONS LEADS TO SUPREME COURT REVIEW OF RESTORATION ACT The case before the Supreme Court arose from the Tribe offering electronic bingo at its Speaking Rock Entertainment Center in 2016. The State of Texas attempted to shut down the electronic bingo operation. Under Texas law, bingo is permissible only for charitable purposes and subject to a broad array of regulations. The majority opinion, written by Justice Gorsuch and joined by Justices Breyer, Sotomayor, Kagan, and Barrett, is separated into three parts and begins by analyzing the Restoration Act under the rules of statutory construction. The Court reasoned that the State’s interpretation violated many of the Court’s longest-standing rules of statutory construction. Mainly, that the State’s interpretation of the
term “prohibit” goes against the plain meaning of the word. In addition, the Court concluded that reading Section 107(a) of the Restoration Act in accordance with the State’s view would render the remainder of the section meaningless. Second, the opinion identifies “contextual clues” favoring the Tribe’s interpretation of the Restoration Act. The Court revisited its 1987 decision in California v. Cabazon, which distinguished between types of gambling a state may prohibit outright and those it permits in a limited capacity subject to regulation. The opinion noted that the Restoration Act was signed into law only six months after the decision in Cabazon, and the language of the Act tracks in a similar fashion to Cabazon. The Court highlighted that the state bingo laws at issue are nearly identical to the state bingo laws at issue in Cabazon. In Cabazon, the Court regarded the bingo laws as regulatory in nature because the Court found that California permitted at least some forms of bingo. The Court found this same reasoning “clinches the case” as to Texas’ bingo laws. Again, looking to the rules of statutory construction, the majority opined “when Congress enacts statutes, it is aware of this Court’s relevant precedents.” The Court recognized that, at the time the Restoration Act was enacted, “Cabazon was not only a relevant precedent concerning Indian gaming; it was the legal precedent.” The opinion also compared the Restoration Act to two other statutes enacted contemporaneously. The other statutes expressly provided that a tribe was subject to both the laws and regulations which prohibit or regulate gambling. The Court stressed that “[t]he implication that Congress drew from Cabazon and meant for us to apply its same prohibitory/regulatory framework here seems almost impossible to ignore.” Finally, the Court rejected a variety of public policy arguments advanced by the State. Ultimately, the Court reasoned that a reading in favor of the State’s view would “collapse” the prohibit/regulate dichotomy laid out in the Restoration Act. Significantly, the U.S. Solicitor General’s Office backed the Tribe’s position. After an invitation from the Court to file a brief on the matter, the Office supported the Tribe’s petition to take up the case, saying that the Act should be viewed consistent with Cabazon. In a strong dissent, Chief Justice John Roberts came to the opposite conclusion. Justice Roberts retorted that the majority’s reading “makes a hash of the statute.” In Justice Robert’s view, the Restoration Act’s text “does not signal
1 Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325, 1334 (5th Cir. 1994).
IMGL Magazine • November 2022 • 47
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