87th LegislatureCivil SocietyFederalLocal NewsEl Paso Indian Tribe Spars With Texas at U.S. Supreme Court Over Electronic Bingo Devices

The nation’s high court granted an appeal in Ysleta del Sur Pueblo v. Texas last October. In court documents, the State of Texas contended that the tribe had “buyer’s remorse” after its 1987 Restoration Act, in which the tribe agreed to comply with Texas law concerning gambling.

The Fifth Circuit Court of Appeals decided in 1994 that Texas has the authority to regulate the tribe’s gambling activities. Part of the question before the Supreme Court is whether the Fifth Circuit’s decision was sound.

The arguments centered on a 1987 decision by the Supreme Court, California v. Cabazon Band of Mission Indians, that state and local governments do not have the authority to regulate gambling activities on tribal reservations except in cases where the federal government specifically confers that authority to the local jurisdiction.

Brant Martin, the pueblo’s attorney, characterized the matter in his argument as one of tribe sovereignty.

“The question this case presents is whether the Restoration Act subjects the pueblo to Texas’ time, place, and manner restrictions as it relates to games that Texas does not flatly prohibit. It does not,” Martin argued.

“In the Restoration Act, Congress codified the Cabazon Band framework and specifically foreclosed Texas’ regulatory authority over the tribe’s gaming activities.”

Representing the State of Texas, attorney Lanora Pettit contended that the pueblo is trying to shimmy its way out of the 1987 Restoration Act, which granted the pueblo federal status but included language that required it to comply with Texas gambling laws.

“In the 1980s, everybody in this case wanted something. The tribe wanted federal recognition, and was willing to cede some of its sovereignty,” Pettit argued. “Texas wanted to avoid high-stakes gambling, which it saw as an invitation to organized crime, and was willing to cede some of its jurisdiction.”

Pettit went on to argue that the pueblo is seeking to “rewrite this legislative bargain.”

The court challenged Martin on whether the machines at the tribe’s Speaking Rock Entertainment Center were legitimate electronic bingo devices or slot machines. Though the federal Indian Gaming Regulatory Act of 1988 generally permits Indian tribes to offer games such as bingo, Texas has contended that these devices are “Las-Vegas-style slot machines.”

Pettit also argued that bingo is only allowed under Texas law in a narrow set of circumstances, such as for charitable organizations and as a defense to prosecution in cases of low-stakes bingo.

Voters in all or part of 226 of Texas’ 254 counties have legalized bingo via ballot referendum and 1,300 organizations are licensed to provide charitable bingo, per the Texas Lottery Commission.

Martin contended that the Cabazon case created a special definition of “prohibition” in the context of tribal gambling and that the tribe is within its rights to offer bingo because the game is not categorically banned in Texas.

“This Cabazon distinction presents a wealth of complicated and quite frankly weird questions, and the slot machine would just be one of a thousand of them,” Justice Elena 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.”

Justices seemed intrigued by the implications of the Cabazon case and whether the Restoration Act requires Texas to allow the pueblo to regulate its own gambling activities if they are not entirely banned by state law.

“This is an odd case. I haven’t seen in decades briefs that were so full of legislative history and pre-enactment this or post-enactment that,” Chief Justice John Roberts said.

The Restoration Act in question included the Alabama-Coushatta (AC) Tribe of Texas, which submitted briefs in the pueblo’s case. The AC Tribe won a victory of their own last year at the federal district court level against the state’s efforts to shutter ostensibly illegal gambling devices at Naskila Gaming, the AC Tribe’s Livingston entertainment center.

Gambling remains mostly illegal under the Texas Constitution. Texas lawmakers barely touched the issue during the 87th Legislature’s regular session, though in November voters did approve the Legislature’s proposed constitutional amendment to allow charitable raffles at some rodeos.

Copies of the pueblo’s brief and the State of Texas’ brief can be found below