A case that’s burdened the state of Texas and the Ysleta and Alabama-Coushatta tribes for 30 years has been decided. The Supreme Court has sided with tribes on bingo.
With the ruling, the High Court has given the tribes a degree of sovereignty over their gaming operations. Most gambling remains illegal in Texas. This ruling simply makes a distinction between “regulation” and “prohibition.”
Tribes fought to offer bingo on reservations
In a 5-4 decision, with Justice Gorsuch writing the opinion, the Supreme Court sided with the tribes. The Court determined that regulation and prohibition are not interchangeable ideas.
The ruling centers around the Ysleta Tribe (also known as the Tiguas) and the Alabama-Coushatta Tribe of Texas. The Ysleta operate the Speaking Rock Entertainment Center in El Paso. The Alabama-Coushatta, north of Houston, touts its tribe as the oldest reservation in Texas.
The tribes were fighting for their right to offer electronic and traditional bingo gaming. For nearly 30 years, lower courts have granted Texas the authority to enforce all state gambling laws on tribal lands. That effectively outlawed bingo.
A brief legal history of Ysleta v. Texas
The history of this court case revolves around the 1968 Restoration Act. It re-established a trust between the two tribes and the federal government. This act, among other things, also established gaming parameters for the tribes.
The parameter that has created controversy in the court system for the past three decades is Section 107. The section says, “all gaming activities which are prohibited by the laws of the state are prohibited on the reservation and lands of the tribe.”
The state argued that since they prohibit bingo, except for charity and religious functions, tribes cannot offer bingo as a casino game. The tribes countered with the precedent set by the 1987 California v. Cabezon Band of Mission Indians decision.
That ruling made a distinction between prohibited gaming activities, which are illegal in all forms (like craps), and regulated gaming activities, which are permissible under certain conditions (like bingo). Cabezon ruled that tribes had the sovereignty to offer regulated games on their lands but not prohibited games.
Court rules bingo is a regulated activity
The ruling in Ysleta v. Texas essentially confirmed Cabezon. It remanded the case back to the 5th US Circuit Court of Appeals for further deliberation.
In his opinion, Gorsuch presented a number of dictionary definitions of prohibit (“forbid,” “effectively stop it,” and “make [it] impossible”) and regulate (“fix the time, amount, degree or rate” of an activity “according to rules”) to determine that Texas’s laws on bingo fall clearly on the side of regulation.
He also acknowledged that the state sensibly argued that they do prohibit the game unless certain conditions about time, place and manner are met. However, this reading of the Restoration Act, Gorsuch concluded — claiming that regulation can become prohibition if conditions are met — renders the act “an indiscriminate mess.”
Gorsuch ultimately leaned on Cabezon. As well as addressing the regulate/prohibit debate, it was a case about allowing bingo.
“For us, [Cabezon] clinches the case[…]We do not see how we might fairly read the terms of the Restoration Act except in the same light. After all, “[w]hen the words of the Court are used in a later statute governing the same subject matter, it is respectful of Congress and of the Court’s own processes to give the words the same meaning in the absence of specific direction to the contrary.”
Vindication for the tribes
The Ysleta and Alabama-Coushatta tribes expressed vindication at the Court’s decision. Ricky Sylestine, chair of the Alabama-Coushatta tribe of Texas, said, “The Court’s decision is an affirmation of tribal sovereignty and a victory for the Texas economy.”
State Rep. Veronica Escobar, (D-Texas), whose district includes the Ysleta, echoed this sentiment.
“I congratulate all those who worked on behalf of the Tiguas to help reverse targeted discrimination they’ve had to endure, grant this community its right to sovereignty and to usher in the economic independence that will come with this ruling.”
Tribal gaming still heavily prohibited
The victory did not grant tribes free rein on gaming. Gorsuch made that clear.
“None of this is to say that the tribe may offer gaming on whatever terms it wishes. The Restoration Act provides that a gaming activity prohibited by Texas law is also prohibited on tribal land as a matter of federal law. Other gaming activities are subject to tribal regulation and must conform to the terms and conditions set forth in federal law, including IGRA (Indian Gaming Regulatory Act) to the extent applicable.”
This means bingo, both electronic and traditional, may operate openly in tribal casinos in Texas.
Court lined up on tribal decisions
The court’s 5-4 decision has lined up the same way on a number of key tribal decisions. Justices Gorsuch, Amy Coney Barrett, Sonia Sotomayor, Stephen Breyer and Elena Kagan have affirmed decisions. Chief Justice John Roberts and Justices Brett Kavanaugh, Samuel Alito and Clarence Thomas have dissented.
The slightly pro-tribal makeup could signify further gains for tribal gaming in the coming years. As upcoming tribal cases (Oklahoma v. Castro-Huerta, for one) reach decision, it will be interesting to see if the justices continue this tenuous pro-tribal alignment.