U.S. Supreme Court Justice Asks If Seminal Indian Gaming Case Should Be Scrapped

February 23, 2022
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In an unusually lengthy hearing of more than an hour and a half on Tuesday in the U.S. Supreme Court, Justice Neil Gorsuch raised the possibility of overturning a landmark 1987 decision which led to the enactment of the Indian Gaming Regulatory Act of 1988.

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In an unusually lengthy hearing of more than an hour and a half on Tuesday (February 22) in the U.S. Supreme Court, Justice Neil Gorsuch raised the possibility of overturning a landmark 1987 decision which led to the enactment of the Indian Gaming Regulatory Act (IGRA) of 1988.

Gorsuch, who is considered a tribal-friendly justice, said the Supreme Court’s decision 25 years ago in California v Cabazon Band of Mission Indians has sowed confusion about the difference between prohibiting and regulating gambling activity.

“What would be the negative consequences in the [federal] government’s view, if any, if we were to [disregard] this distinction — ignore it — overturn Cabazon?” Gorsuch asked Anthony Yang, a U.S. Department of Justice assistant to the Solicitor General.

“Wow,” Yang said. “First of all, I don’t think that is before the [Supreme] Court. This has been a fundamental distinction that’s existed in the law of tribal sovereignty and tribal lands for decades upon decades.”

Even Lanora Pettit, the principal deputy assistant solicitor for the state of Texas who opposed Yang during Tuesday’s hearing, said it is not necessary to revoke the Cabazon decision.

Gorsuch asked Pettit about her view that the distinction between prohibition and regulation is “not workable.”

“Wouldn’t that logic seem to suggest — if that’s true — then … Cabazon, we should just get rid of it and scrap it and the consequences for IGRA be damned?” Gorsuch asked.

Pettit said IGRA can be applied without Cabazon.

Justice Elena Kagan seemed to disagree, saying Cabazon is “written all over this statute (IGRA).”

Cabazon presents “a wealth of sort of complicated and, quite frankly, weird questions,” Kagan said.

“Cabazon tells us to make a distinction between prohibition and regulation when most of regulation prohibits certain things, and then you’re stuck in the middle of trying to figure out what’s a prohibition and what’s a regulation,” Kagan said.

All nine justices, including Clarence Thomas who rarely asks questions during oral arguments, participated in exchanges with attorneys during Tuesday’s hearing about an Indian gaming case in Texas.

The Tigua Indians of El Paso, known as Ysleta del Sur Pueblo, claim the state of Texas is violating IGRA by blocking the tribe’s operation of electronic bingo games.

The tribe argues IGRA trumps another federal statute known as the Texas Restoration Act.

Passed by Congress one year before IGRA, the Texas Restoration Act reinstated the federal government’s relationship with the Tigua and Alabama-Coushatta tribes of Texas.

But a caveat in the Restoration Act prohibits both tribes from engaging in any gaming activity banned in the Lone Star State.

The Restoration Act does not include the other federally-recognized tribe in Texas, the Kickapoo, which offers bingo games in its casino in Eagle Pass.

Although Texas allows charitable bingo, the state claims the Tigua Indians’ electronic bingo machines are equivalent to slot machines and violate state law.

Justice Amy Coney Barrett noted federal judges in the El Paso area have complained about being repeatedly asked by Texas authorities to rule on even minute details of operations at the Tigua Indians’ bingo facility.

“Why would it make sense to enlist federal district courts to police all these aspects of gaming? It just seems to me like that would be an odd system,” Barrett said.

Justice Samuel Alito said he was puzzled about how courts can determine if the tribe’s machines are bingo or not.

“If they are not bingo, they’re something else. Let’s say they’re dingo,” Alito said, provoking laughter in the courtroom.

Brant Martin, a Fort Worth, Texas, attorney representing the Tigua Indians, said the Texas Bingo Enabling Act and experts could help a court determine if the tribe’s machines qualify as bingo.

Apparently amused by the notion of testimony by bingo experts, Alito drew another loud laugh from the audience by asking Martin: “Would you ask my grandmother?”

The Supreme Court usually releases its decision on a case about three or four months after oral arguments.

If the court rules for the Tigua Indians, it could open the door for gambling expansion in the Lone Star State not only for tribes but commercial casinos which have unsuccessfully sought to enter the state for years.

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