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Kolby KickingWoman 
ICT

The Supreme Court issued a 5-4 decision Wednesday morning, allowing Ysleta Del Sur Pueblo, located near El Paso, Texas, to offer electronic bingo at its gaming facility.

Conservative Justice Neil Gorsuch wrote the opinion for the court and was joined by fellow conservative Justice Amy Coney Barrett and the three liberal justices to form the majority opinion.

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

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While the decision is a victory in a decades-long fight for the Ysleta Del Sur Pueblo, Gorsuch added that it does not mean it can add any gaming activity it wishes; but that the 5th Circuit Court of Appeals, “erred in their understanding of the Restoration Act.”

“Under that law’s terms, if a gaming activity is prohibited by Texas law it is also prohibited on tribal land as a matter of federal law. Other gaming activities are subject to tribal regulation and must conform with the terms and conditions set forth in federal law, including IGRA to the extent it is applicable,” the opinion reads.

A call to tribal officials of the Ysleta Del Sur Pueblo went unreturned by the time of publication.

John Tashuda, Kiowa, described the decision as a big win for Indian Country and a solid case to have on the books.

“So it's great for those tribes there but it also provides a lot of solidity for the rest of the tribes,” Tashuda said on the ICT Newscast with Aliyah Chavez. “Questions were raised, and I think hopefully, at least for now, those have been answered.”

He added that it’s a positive, long term, sign that Justice Gorsuch continues to be a strong advocate for tribes and this marks the second case Justice Coney Barrett has sided with tribes. Tashuda served as the principal deputy assistant secretary of Indian Affairs from 2017 to 2020.

At the center of the case was the aforementioned Restoration Act, which extended federal recognition to the Ysleta Del Sur Pueblo and Alabama-Coushatta Tribe of Texas, and a state provision that prohibited each from establishing gaming not allowed in the state. 

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The tribes were victim to termination era policies that sought to end federal trust responsibilities. Prior to the Restoration Act, both tribes had been federally-recognized. The provision about tribal gaming was added after the passing of the Indian Gaming Regulatory Act.

Another Texas tribe, the Kickapoo Traditional Tribe of Texas, is not subject to this provision and has run the Kickapoo Lucky Eagle Casino without legal challenge. However, the state of Texas will not enter into a class III gaming compact with the tribe that would allow slot machines and table games.

Bingo is legal under Texas law for “charitable reasons.”

During the oral arguments, many justices focused on the look of the machine games offered by the tribe.

Anthony Yang, assistant to the U.S. solicitor general, was one of the lawyers representing the tribe. He delved into the specifics of how the machines have bingo characteristics.

“I can tell you that bingo has three primary characteristics. These are actually codified in IGRA. Congress has recognized that these are the three primary characteristics,” Yang said at the time. “One, you have a card bearing numbers or designators. Two, you cover those numbers when they are drawn or somehow identified. And you win by covering an arrangement of numbers.”

In writing the dissent, Chief Justice John Roberts was not swayed by that argument, writing that during an inspection of the tribe’s facility “officials found more than 2,000 machines that looked exactly like “‘Las-Vegas-style slot machines.’”

“The Court today accepts the Tribe’s position, but I am not persuaded,” Roberts wrote.

At the end of the day, the case has been remanded to the 5th Circuit Court of Appeals.

There are still multiple cases related to Indian Country that have yet to have opinions released, including one on the Indian Child Welfare Act and another dealing with fallout from the landmark McGirt case.

One Twitter user noted, Coney Barrett joining this coalition of justices is a big deal and could affect the outcomes of other federal Indian law cases the court has yet to rule on.

“Not only was it likely the swing vote here, but it is also suggests that she's a fifth vote to *reaffirm* (rather than overrule) the 5-4 McGirt decision from 2020,” Steve Vladeck tweeted.

Stay tuned to ICT for further coverage of the Supreme Court.

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