Tribal bingo
IMPLICATIONS OF SUPREME COURT DECISION The Supreme Court opinion also had positive implications for another Texas tribe. The Alabama-Coushatta Indian Tribe had been embroiled in the same battle with the State for many years over electronic bingo. The Alabama-Coushatta was recognized in the Restoration Act and was subject to the same provisions regarding gaming. The Alabama- Coushatta participated in the Pueblo’s case as an amicus. Within a few weeks after the Supreme Court decision was announced in favor of the Pueblo, the State of Texas notified the Fifth Circuit that it would not appeal a 2021 Texas Federal Court decision favorable to the Alabama-Coushatta. Accordingly, all litigation against the Alabama-Coushatta and its Naskila gaming facility is now ended. Prompted by Justice Roberts’ dissent, it was unknown – until the filing of the parties’ Joint Status Report in late September – whether the State of Texas would continue its battle against the Tribe. The remaining issue was whether the characterization of the Tribe’s electronic bingo gaming is a gaming activity regulated by the State of Texas, or a gaming activity unlike normal bingo and therefore absolutely banned by the State. In prior litigation, the State had taken the position that the electronic bingo gaming activity is unlike normal bingo gaming and is therefore absolutely banned by the State. In contrast, the Tribe had maintained that the electronic bingo gaming is a form of bingo because it is run using a process that is historically known as “bingo draws.” In agreeing to dismiss the litigation, the State likely recognized that it did not have strong legal support for its position for several reasons: 4 25 U.S.C. § 2710(b)(1)(A).
• First, the IGRA makes clear that a Tribe may offer a gaming activity unless it is truly banned by a state in all forms – not just permitted subject to various restrictions. The IGRA states that “[a]n Indian tribe may engage in, or license and regulate, class II gaming on Indian lands within such tribe’s jurisdiction, if . . . such Indian gaming is located within a State that permits such gaming for any purpose by any person, organization or entity and such gaming is not otherwise specifically prohibited on Indian lands by Federal law.”). 4 • Second, the Second, Seventh, Eighth and Ninth Circuits have already held that a state “cannot regulate and prohibit [gaming activities], alternately, game by game and device by device, turning its public policy off and on by minute degrees.” 5 • Third, at least one other Circuit Court has held that electronic bingo games, such as the ones operated by the Tribe, fall within the legal definition of bingo gaming for the purposes of the IGRA. 6 • Finally, Texas law contemplates electronic bingo as a form of bingo authorized by the State. The Texas Bingo Enabling Act defines “bingo equipment” as meaning “equipment used, made, or sold for the purpose of use in bingo [, including] . . . an electronic or mechanical cardminding device; . . . and any other device commonly used in the direct operation of a bingo game.” 7 To be sure, the Texas legislature can always decide to ban all forms of bingo gaming, which would likely prohibit the Tribe from offering any bingo gaming. However, bingo gaming has been legal in Texas for over four decades, and there is no proposed legislation or other indication that the legislature will impose any ban on all bingo gaming in the state.
Heidi McNeil Staudenmaier is the Partner Coordinator of Native American Law & Gaming Law Services for Snell & Wilmer, L.L.P. hstaudenmaier@swlaw.com or 602.382.6366
5 Sycuan Band of Mission Indians v. Miller, 54 F.3d 535, 539 (9th Cir.1995); see also United States v. Sisseton– Wah- peton Sioux Tribe, 897 F.2d 358, 368 (8th Cir.1990) (same); Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024, 1031 (2d Cir. 1990) (same); Wisconsin v. Ho-Chunk Nation, 784 F.3d 1076 (7th Cir. 2015) (same). 6 U.S. v. 1033 Elec. Gambling Devices, 223 F.3d 1091 (9th Cir. 2000). 7 Tex. Occ. Code Ann. § 2001.002(5)(A)(ii) and (vi).
IMGL Magazine • November 2022 • 49
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