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For years, gaming tribes viewed the U.S. Supreme Court as a hostile forum, but the court’s decision this week to hear arguments in a Texas Indian gaming case shows the tide may be shifting and commercial casinos could benefit.
The Tigua Indians of El Paso are asking the court to strike down a federal law which empowers the state of Texas to block the tribe — formally known as Ysleta del Sur Pueblo — from offering electronic bingo games.
El Paso is on the western border of Texas but whatever ruling the Supreme Court makes also will have an impact on an East Texas gaming tribe known as Alabama-Coushatta.
On August 31, a federal magistrate in Beaumont, Texas, ruled the Alabama-Coushatta can legally operate its Naskila Gaming electronic bingo center.
The year before Congress passed the Indian Gaming Regulatory Act (IGRA) in 1988, the U.S. House and Senate passed a law which simultaneously restored the federal relationship with the Tigua and Alabama-Coushatta tribes.
However, the 1987 Restoration Act specifically bans all gaming activities prohibited by the laws of the state of Texas.
The Tigua tribe argues Texas law allows the state to regulate but not prohibit bingo.
The tribe also argues the 1987 restoration law conflicts with IGRA, citing the Supreme Court’s milestone decision in California v Cabazon Band of Mission Indians.
The Cabazon decision was released six months before the restoration law was enacted in August 1987 and spawned not only IGRA but the $34bn tribal gaming industry.
The Tigua tribe appealed to the Supreme Court after the 5th U.S. Circuit Court of Appeals in New Orleans ruled that “Congress — and the Tribe — intended for Texas’ gaming laws and regulations to operate as surrogate federal law on the Tribe’s reservation in Texas.”
After the Supreme Court on Monday announced it would hear the case, Brant Martin, who is the Tigua Tribe’s lead counsel, said in a prepared statement: “This is an important case involving the sovereignty and self-determination of Native American tribes, and the interpretation of federal statutes protecting those rights.”
George Skibine, who was deputy assistant secretary for Indian Affairs at the U.S. Department of the Interior from January 2008 to September 2011, said the Supreme Court’s ruling is not likely to have an impact on Indian gaming outside Texas.
“The question before the [U.S. Supreme] Court is whether the Fifth Circuit misinterpreted a key provision of the Tigua Restoration Act. Therefore, I do not believe that the decision would have an impact beyond the particular facts of this case,” Skibine told VIXIO GamblingCompliance in an email.
Wesley Cochran, a law professor at Texas Tech University and one of three authors of this year’s book, “Gaming Law and Gambling Law,” said he was surprised when the nation’s high court agreed to hear the case.
“The problem is the language in the Restoration Act is so explicit that I don’t think there’s much wiggle room there,” Cochran said.
“I might bet against the tribes here. I think this is one that they’re not going to win.”
But if the Supreme Court rules for the Tigua Tribe, Cochran said prospects for expanding not only Indian gaming but legalizing commercial casinos in Texas could improve significantly.
“This could be the foot in the door and make more legislators in Austin consider the issue more seriously,” Cochran said.
Skibine and Cochran agreed the Supreme Court seems to be more receptive to Indian gaming cases than in previous years.
For example, in a 6-3 decision three years ago, the Supreme Court upheld a 2014 federal law to terminate a lawsuit which would have closed a tribal casino in western Michigan.
Perhaps the most important person in the Supreme Court’s new approach to tribes is Justice Neil Gorsuch, who succeeded deceased Justice Antonin Scalia — an outspoken critic of Indian gaming.
Todd Curry, a political science professor at the University of Texas at El Paso, acknowledged Gorsuch still has not heard an Indian gaming case since joining the court on April 10, 2017, after being nominated by President Trump.
“However, in every case involving indigenous peoples since he joined the court, he has voted to support their claims and grant them relief,” Curry said of Gorsuch.
“Indeed, he has also written nearly every majority opinion in those cases.”
Before Gorsuch began serving on the Supreme Court, Justice Clarence Thomas described the laws applying to Native Americans and other indigenous peoples as “schizophrenic,” Curry said.
“Thomas said, ‘In my view, the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously,’” Curry said.
“I think the [Supreme] Court has long desired an expert on this issue, and they have one in Gorsuch,” Curry said.
