The Supreme Court recently heard oral argument
in Ysleta Del Sur Pueblo v. Texas, a case about the
restrictions federal law places on two Texas tribes' ability to
operate gaming enterprises. When Congress recognized the two
tribes, it "prohibited" gaming on their reservations to
the same extent Texas law "prohibits" gaming. Texas
argues this statute is straightforward—if a form of gaming is
illegal off the reservation, it is illegal on the
reservation.
The tribes make a more nuanced argument. They say that Congress
wrote the law with California v. Cabazon Band of Mission
Indians, a case that revolutionized the tribal gaming
industry, in mind. In Cabazon, the Supreme Court held
that certain states could apply their
laws prohibiting gaming to tribal lands, but
could not regulate gaming activities that were
not wholly banned under state law. Thus, because Texas does not
prohibit bingo altogether, but instead merely restricts it to
charitable purposes, the tribes argue they can operate commercial
bingo enterprises free from Texas's regulations.
To most observers, this case seemed unlikely to make a broad impact
on tribal gaming. But some justices may have other ideas. Justice
Gorsuch, often seen as a supporter of tribes, floated the
possibility of overruling Cabazon. (To which an
attorney for the federal government responded: "Wow!")
The Court is unlikely to overrule Cabazon—for
starters, no party in this case asked for that outcome—but
given that Cabazon is the foundation of modern
tribal gaming and has even broader implications in the field of
Indian law, any doubt as to its vitality will raise eyebrows.
The justices also questioned the government's attorney about
the "Indian canon of construction" which requires courts
to interpret statutes affecting tribes in favor of tribal interests
where possible. Justice Alito said that textualists—jurists
who rely primarily on the text of a law in resolving
cases—"have some questions" about interpretive
canons, while Justice Kagan noted she might be in favor of
"toss[ing] them all out[,]" including the Indian canon.
Any weakening of the Indian canon would have major repercussions
for tribal nations.
Finally, the Court seemed interested in how bingo is defined for
tribal gaming. Electronic bingo devices at tribal casinos sometimes
resemble Vegas-style slot machines more than traditional bingo, but
federal law carefully delineates the boundaries between bingo and
more heavily regulated gaming devices. Justice Alito called the
bingo machines at issue in this case "something
different" than one might expect "people to be playing in
church or at the Elks" (and he went on about a
"Dingo" hypothetical example to test the advocates).
Other justices expressed interest in classifying these machines
under federal law. While some bingo devices have generated
litigation, the Supreme Court has never considered a bingo
classification dispute. This case does not cleanly present a bingo
question, but the Court may nevertheless weigh in on the law of
bingo classification in its opinion.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.