.svg)
Body
In a 5-4 decision that could boost efforts to expand gambling in Texas, the U.S. Supreme Court on Wednesday (June 15) ruled the Tigua Indians of El Paso can continue electronic bingo operations.
Justice Neil Gorsuch, who startled the Indian gaming community in February with some of his comments during oral arguments in the Tigua case, wrote the majority opinion.
“In Cabazon, the [U.S. Supreme] Court drew a sharp line between the terms prohibitory and regulatory and held that state bingo laws very much like the ones now before us qualified as regulatory rather than prohibitory,” Gorsuch wrote in his 20-page opinion.
Cabazon is a landmark 1987 California case in which the Supreme Court ruled gaming tribes are entitled to operate any form of gambling already allowed in their states.
Alarmed by the potential consequences of Cabazon, Congress passed the Indian Gaming Regulatory Act (IGRA) the following year.
But instead of restraining the growth of Indian gaming, IGRA has enabled tribal gaming to explode into a $33.7bn industry which appears destined to surpass the revenue of commercial casinos.
During oral arguments in the Tigua case, Gorsuch floated the idea of overturning Cabazon “and the consequences for IGRA be damned.”
But his opinion on Wednesday all but proves Gorsuch was merely playing the role of devil’s advocate during the oral arguments.
“Gorsuch is probably the Supreme Court’s most knowledgeable justice on Indian law,” said Tom Foley, a former member of the National Indian Gaming Commission who is an attorney with the Foley & Quigley law firm in St. Paul, Minnesota, and Washington, D.C.
The Supreme Court’s decision overturns a federal law called the Restoration Act of 1987 which reinstated federal recognition for the Tiguas, also known as the Ysleta del Sur Pueblo, and the Alabama-Coushatta Tribe near Houston.
In exchange for federal recognition, the Restoration Act prohibited the tribes from engaging in any gaming activities banned by Texas law.
“The best reading of this statute (the Restoration Act of 1987) is that all of Texas’ gambling rules apply in full on the tribe’s land,” Chief Justice John Roberts wrote in his dissenting opinion.
“'All' gaming activities prohibited by Texas are prohibited on the reservation. 'Any' violation is subject to the same penalties that Texas would ordinarily impose,” said Roberts, who once represented the American Gaming Association (AGA) as a private attorney before joining the Supreme Court in September 2005.
Todd Curry, an associate professor of political science professor at the University of Texas at El Paso, said the Tigua and Alabama-Coushatta tribes can operate bingo-style slot machines but are still not allowed to launch Class III casino-style gambling, which is not permitted elsewhere in Texas and would require the tribes and state to agree to a compact.
“The Restoration Act is really the mover here for the opinion,” Curry said.
“Congress, as Gorsuch notes in his opinion, borrows language specifically from Cabazon when describing how gaming would work between the tribes and the state,” he said.
“Since Congress copied the Supreme Court’s language from Cabazon (in the Restoration Act), the state of Texas cannot prohibit bingo [from] being used by the tribes [because] the state allows it for charity purposes.”
Las Vegas Sands continues to plan a lobbying offensive for the legalization of casinos next year by the Texas legislature, but Curry is pessimistic about prospects for commercial gaming in the Lone Star State.
“Despite the work of PACs (political action committees) within the state, there has been very little movement (for the legalization of casinos or sports betting),” he said. “I just don’t see it happening.”
The big surprise among other justices who joined Gorsuch’s majority opinion was Amy Coney Barrett, who like Gorsuch is a conservative nominated by former President Trump.
The other three justices joining the majority opinion included: Stephen Breyer, who is retiring this year; Elena Kagan; and Sonia Sotomayor.
The three justices joining Roberts in his dissent included: Samuel Alito; Brett Kavanaugh; and Clarence Thomas.
