Indianz.Com > News > Supreme Court strikes back at state in long-running tribal sovereignty dispute
Speaking Rock Entertainment Center
The Speaking Rock Entertainment Center is owned and operated by the Ysleta del Sur Pueblo, also known as the Tigua Tribe, in El Paso, Texas. Photo: Speaking Rock Entertainment Center
Supreme Court strikes back at state in long-running tribal sovereignty dispute
Wednesday, June 15, 2022

WASHINGTON, D.C. — The days of state governments claiming special authority over Indian Country appear to be numbered, with the nation’s highest court issuing another favorable ruling for tribal interests as an otherwise controversial term winds down.

By a vote of 5-4, the U.S. Supreme Court on Wednesday sided with two Indian nations in a long-running battle over their economic sovereignty. The decision confirms that the Alabama-Coushatta Tribe and the Ysleta del Sur Pueblo, also known as the Tigua Tribe, can continue to offer Class II games — such as bingo and electronic forms of bingo — free of interference from the state of Texas.

“The court’s decision is an affirmation of tribal sovereignty and a victory for the Texas economy,” Alabama-Coushatta Chairman Ricky Sylestine said in response to the landmark ruling.

“The highest court in the land has made clear that our tribe has the right to legally operate electronic bingo on our reservation, just as we have the past six years,” Sylestine said of Naskila Gaming, which has put more than 350 people to work about 90 miles outside of Houston in the eastern part of Texas.

“Our guests and employees now have certainty that the Alabama-Coushatta Tribe of Texas will be able to offer electronic bingo on our reservation for many years to come,” Sylestine added in a longer statement.

The Tigua Tribe, for whom the case Ysleta del Sur Pueblo v. Texas takes its name, has been battling the state even longer — since Republican George W. Bush was governor before becoming president over two decades ago. Speaking Rock Entertainment Center in El Paso was repeatedly forced to cease operations based on an argument that has now been soundly rejected by the Supreme Court.

“Today’s historic opinion marks a long-overdue victory for the Ysleta del Sur Pueblo Tribe,” said Rep. Veronica Escobar (D-Texas), whose district includes the Tiguas.

“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,” said Escobar, who has championed legislation to clarify the matter once and for all.

According to Escobar, the Supreme Court’s victory reaffirms the need for Congress to codify the rights of the two tribes permanently. With Democrats still in control of the legislative and executive branches of the U.S. government, she said she would continue to advocate for H.R.2208, the Ysleta del Sur Pueblo and Alabama-Coushatta Tribes of Texas Equal and Fair Opportunity Settlement Act.

The bill easily passed the U.S. House of Representatives last May, only for progress to be stalled in the U.S. Senate.

“While the Tiguas rightfully celebrate this win today, I remain committed to ensuring their legal right is codified forever into law,” Escobar said. “I ask my colleagues in the Senate to bring my bill, H.R.2208, the Ysleta del Sur Pueblo and Alabama-Coushatta Tribes of Texas Equal and Fair Opportunity Act, to the Senate floor for a vote and send it to President Biden’s desk.” 

But for now, the Supreme Court’s ruling represents a long-overdue rebuke to the exercise of state sovereignty over Indian Country. In the majority decision, Justice Neil Gorsuch said there was “no evidence” that Texas somehow has special authority to prevent the Alabama-Coushatta Tribe and the Tigua Tribe from offering Class II games on their homelands.

“Native American tribes possess ‘inherent sovereign authority over their members and territories,'” Gorsuch wrote in the first sentence of the 20-page opinion, before explaining that Congress — in exercise of its trust and treaty responsibilities — has taken action in certain instances to authorize state jurisdiction in Indian Country.

“In this case, Texas contends that Congress expressly ordained that all of its gaming laws should be treated as surrogate federal law enforceable on the Ysleta del Sur Pueblo Reservation,” Gorsuch, a nominee of Republican former president Donald Trump, continued.

“In the end, however, we find no evidence Congress endowed state law with anything like the power Texas claims,” Gorsuch concluded.

Joining Gorsuch in the majority were the three liberal leaning members of the Supreme Court, including Justice Stephen G. Breyer, who is retiring at the end of the current term in just a matter of weeks. Justices Sonia Sotomayor and Elena Kagan brought the vote in support of tribal sovereignty to four.

The fifth — and crucial — vote in Ysleta del Sur Pueblo v. Texas came from Justice Amy Coney Barrett, who is the newest member of the court. Along with Gorsuch, whose record in Indian law is unprecedented, she was nominated to the bench by Republican former president Donald Trump.

Barrett, incidentally, delivered her very first Indian law opinion this week, authoring a 6-3 decision in Denezpi v. United States on Monday that reaffirmed the inherent sovereignty of tribal courts to prosecute crimes that are also taken up by the federal government.

Despite the notable presence of Barrett in the majority, the rest of the Supreme Court was not convinced. Chief Justice John G. Roberts Jr. led the conservative wing in a dissent that bought into the idea that Texas should be able to ban gaming on two reservations even though another Indian nation, the Kickapoo Tribe, engages freely in the $27.8 billion industry, which took a major hit due to the ongoing COVID-19 pandemic.

“Texas has long maintained strict controls on gambling,” Roberts wrote in the 17-page dissent that was joined by Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh.

Roberts added: “While the Texas Constitution now contains limited exceptions for charitable bingo and raffles, as well as the state’s official lottery, its ban on casino-style gaming remains absolute.”

According to the Texas State Law Library, the Lone Star State is indeed “one of the strictest” when it comes to gambling.

But the very first footnote in the dissent advances a major reason for the state’s opposition to gaming near Houston and El Paso, two of the largest population centers in Texas. Along with a black and white photo, Roberts derided the electronic gaming machines at Speaking Rock as far from the stereotypical images of bingo as a low-stakes and easy-going form of entertainment.

“A photograph from the record of this version of ‘bingo’ is appended to this opinion,” the footnote reads. “It confirms that the electronic bingo played at the Speaking Rock Entertainment Center is about as close to real bingo as Bingo the famous dog.”

In other states — most notably Oklahoma, where some tribes heavily market their casinos to their neighbors across the border in Texas — disputes over electronic forms of bingo led to the legalization of full-scale gambling, such as slot machines and card games. That in turn led to the negotiation of tribal-state agreements, defined as Class III gaming compacts by the Indian Gaming Regulatory Act.

Texas has adamantly refused to come to the table when asked by tribes but the oral argument made clear that IGRA’s legal framework is open to the Tiguas and Alabama-Coushattas. The key question was asked by Justice Gorsuch.

“Class III would still be subject to either a negotiation of a compact with the state or they would only be allowed to engage in Class II gaming under IGRA,” attorney Brant C. Martin, who represented the state of Texas at the hearing, told the Supreme Court.

Indianz.Com Audio: Ysleta del Sur Pueblo v. Texas

Ysleta del Sur Pueblo is one of three Indian law cases heard by the Supreme Court during the term that began last October. It was argued on February 22, the same day as Denezpi v. United States, whose opinion was released on Monday.

The third Indian law case, Oklahoma v. Castro-Huerta, was heard on April 27, which was the last day for oral arguments. The outcome of the highly contentious dispute affects whether tribes in Oklahoma can rely on the U.S. government — as their trustee — to prosecute crimes on their reservations.

The Supreme Court is set to conclude its current term by the end of June. A ruling in Castro-Huerta could come as soon as next week, or in the final week of the month.

U.S. Supreme Court Decision: Ysleta del Sur Pueblo v. Texas
Syllabus | Opinion [Gorsuch] | Dissent [Roberts]

U.S. Supreme Court Documents: Ysleta del Sur Pueblo v. Texas
Question Presented | Docket Sheet: No. 20-7622 | Oral Argument Transcript

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