Texas Tribal Gaming Case Arguments Today at Supreme Court, Other States Watching 

Posted on: February 22, 2022, 06:14h. 

Last updated on: February 22, 2022, 11:30h.

Ed Silverstein @casinoorgedsilv Read More

Expertise: Legal, Tribal Gaming.

Oral arguments are scheduled to take place at the US Supreme Court today (Feb. 22) on a much-anticipated case, Ysleta del Sur Pueblo v. Texas. Depending on how the high court eventually rules, it could set a direction nationally, or may just address the local issue of tribal bingo in Texas.

Basically, gaming at the reservation was illegal under Texas law. Yet, it was permitted under the IGRA.

The state of Texas, which has opposed gambling expansion, went to court to stop gambling from taking place on the reservation. Both a local federal district court and the US Fifth Circuit Court of Appeals sided with the state.

Tribe Likely to Win

When asked about the case, Robert Jarvis, a professor at Nova Southeastern University’s Shepard Broad College of Law, told Casino.org, he expects the tribe to win. “This would be in keeping with the Court’s recent history, which has been very pro-Native Americans,” he said.

It seems highly doubtful that the US Supreme Court would have taken this case just to affirm the Fifth Circuit, given that the tribe’s dispute with Texas has been going on for decades and has been litigated almost as long,” Jarvis said.

The case also could change the current gambling controversy in Texas. “A win for the tribe in this case will usher in a whole new era of gambling in Texas,” Jarvis predicted.

Nationally, a pro-tribal sovereignty ruling could strengthen the gaming claims of tribes in Maine, like the Passamaquoddy, the Penobscot Nation, and the Aroostook Band of Micmac Indians. This could apply, too, to Rhode Island’s Narragansett Indian Tribe, and the Wampanoag Tribe of Gay Head in Massachusetts.

A win for the tribe also will help other tribes who have been similarly stymied by pre-IGRA laws that have kept them from having gambling operations. Just how much help the Court’s opinion gives them, however, depends on whether the Court writes a narrow opinion, focusing on just the Ysleta, or a broad one, focusing on tribal sovereignty generally,” Jarvis said.

In Texas, a pro-tribal ruling in the case could additionally generate momentum for pro-gaming forces more generally, Mark P. Jones, a fellow at Rice University’s Baker Institute, told Casino.org.

“While the substantive impact of the US Supreme Court’s decision for gambling in Texas is trivial — two small Class II casinos, one located in rural East Texas and the other less than 30 minutes from a racino in New Mexico — the political impact would be greater, since the operation of these two Class II casinos in addition to the Kickapoo Class II casino in Eagle Pass provides ammunition to pro-casino gambling forces for the adoption of Class III casino-gambling across the state,” Jones said.

Supreme Court May Want Expanded Tribal Gaming

Also, Attorney Gary Pitchlynn, a professor at the University of Oklahoma College of Law, told Casino.org he was “surprised, based on prior 5th Circuit rulings, that the SCOTUS … accepted [the case], and I have to believe that there is at least some portion of the court that are focused on ensuring some level of gaming opportunity for all tribes, even if it is merely Class II gaming.”

The federal Restoration Act was passed in 1987. It governs the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes. It prohibits gambling and bingo on the tribes’ reservations.