Ysleta del Sur Pueblo v. Texas

LII note: the oral arguments in Ysleta del Sur Pueblo v. Texas are now available from Oyez. The U.S. Supreme Court has now decided Ysleta del Sur Pueblo v. Texas .


Did the Fifth Circuit correctly interpret the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act to subject the Ysleta del Sur Pueblo to all Texas gaming regulations?

Oral argument: 
February 22, 2022

This case asks the Supreme Court to decide whether Texas can regulate bingo and other gaming activities on tribal lands. Petitioner Ysleta del Sur Pueblo argues that the Court's precedent of Cabazon Band should control for purposes of statutory interpretation. Under Cabazon Band, tribes cannot operate games that state law prohibits; however, tribes do not have to follow state regulations governing games that are not otherwise prohibited. Respondent Texas maintains that the Restoration Act controls this issue, and that the Act does not incorporate the Cabazon Band interpretation. Therefore, Texas asserts that all gaming activities on tribal lands are subject to Texas regulations. The outcome of this case is limited to two tribes in Texas but could have implications on their tribal sovereignty.

Questions as Framed for the Court by the Parties 

Whether the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act provides the Ysleta del Sur Pueblo with sovereign authority to regulate non-prohibited gaming activities on their lands (including bingo), as set forth in the plain language of Section 107(b), the act’s legislative history and the Supreme Court’s holding in California v. Cabazon Band of Mission Indians, or whether the U.S. Court of Appeals for the Fifth Circuit’s decision affirming Ysleta del Sur Pueblo v. Texas (Ysleta I) correctly subjects the Pueblo to all Texas gaming regulations.


The Ysleta del Sur Pueblo (“the Pueblo” or “the Tribe”) are a federally recognized Indian nation in Texas, with its 100-acre reservation near El Paso, Texas. Brief for Petitioners, Ysleta del Sur Pueblo at 5. In the 1980s, the Pueblo sought to obtain federal trust status from the federal government. Id. at 6–7. Their initial attempts were unsuccessful because Texas officials opposed casino-type gambling in the state. Id. at 7–8.

In the mid-1980’s, Congress began considering a bill that would create a new trust relationship with the Tribe. Id. at 7. The Bill went through many iterations because the Tribe and Texas could not agree on whether gaming should be governed by Texas law. Id. Ultimately, the Pueblo passed a tribal resolution stating their opposition to the gaming provision in Texas law as an infringement on the Tribe’s sovereignty, but acknowledging that the restoration of their trust relationship with the federal government was more important. Id. at 8. The Tribe agreed to “provide that all gaming, gambling, lottery, or bingo, as defined by the laws and administrative regulations of the State of Texas, shall be prohibited on the Tribe’s reservation.” Id. at 9.

The Senate revised the bill to prohibit only gaming activities prohibited by Texas state law. Id. At 11. The revisions expressly stated that nothing in the act would give Texas regulatory authority and gave the federal courts exclusive jurisdiction over the Tribe and its members. Id. The House passed the bill, and President Reagan signed the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act (“the Restoration Act”) into law in 1987. Id. at 12.

The following year, Congress passed the Indian Gaming Regulatory Act (IGRA), which gave tribes the right “to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity.” 25 U.S.C. §2701(5); id. at 13. IGRA classified gaming into three categories, with Class III being casino style gaming that is only permitted pursuant to tribal-state compacts. 25 U.S.C. §2710; Brief for Petitioners at 13.

In 1992, the Pueblo sought an agreement with Texas to allow Class III gaming on their reservation, and Texas refused. Brief for Petitioners at 14. The Pueblo sued in district court and were granted summary judgment. Id. The Fifth Circuit reversed and held that the Restoration Act, not IGRA, controlled (this case is known as “Ysleta I”). Id. at 15. Under the Restoration Act, the Fifth Circuit interpreted Texas gaming law to act as a surrogate for federal law on the Tribe’s reservation in Texas. Id. at 15. The Supreme Court denied review. Id. at 16. Since the decision in Ysleta I, the lower courts have tried many ways to implement the decision in disputes between the Pueblo and Texas. Id. at 16–17.

The current dispute centers on gaming activities at the Speaking Rock Entertainment Center near El Paso, Texas. Id. at 17. In 2017, Texas found that Speaking Rocks’ electronic bingo machines and live-call bingo did not comply with Texas law and sought injunctive relief in federal district court to stop the bingo machines and live-call bingo. Id. The district court granted Texas injunctive relief. Id. at 17–18. The district court then stayed the injunction pending a higher court’s decision on whether Texas was exercising regulatory jurisdiction over the Tribe. Id. at 18. The Fifth Circuit reversed, holding the precedent of Ysleta I to be controlling, meaning that Texas’s gaming laws and regulations act as surrogate federal law on reservations. Id. at 18–19.

The Ysleta Pueblo filed a petition for certiorari. Id. at 19. The Supreme Court granted the petition and invited the Solicitor General to express the federal government's position. Id. at 19. The Solicitor General filed an amicus brief stating that the Fifth Court decision was wrongly decided, because the United States views the Restoration Act as only prohibiting tribal gaming that is explicitly banned by the state, and that state law should not regulate gaming that is allowed in the state. Brief of Amicus Curiae United States, in Support of Petitioner at 10.



The Ysleta del Sur Pueblo argue that the Restoration Act integrated the California v. Cabazon Band of Mission Indians interpretation of Public Law 280, which grants certain States criminal jurisdiction over offenses committed by or against Indians in Indian country located within the States, into both sections 105 and 107 of the Restoration Act. Brief for Petitioners, Ysleta del Sur Pueblo at 23–24; see also Public Law 280. In Cabazon Band, the Tribe explains, the Court interpreted Public Law 280 to mean that tribes cannot operate games that state law prohibits; however, tribes do not have to follow state regulations governing games that are not otherwise prohibited. Id. at 23–24. Section 105, the Pueblo note, grants Texas civil and criminal jurisdiction over the Tribe in accordance with Sections 401 and 402 of the Indian Civil Rights Act, which grants the same civil and criminal jurisdiction that Public Law 280 grants. Id. at 24. Therefore, the Tribe concludes that Public Law 280 is incorporated into Section 105 and, accordingly, Texas does not have the authority to regulate the gaming activities of tribes. Id. at 25. Additionally, the Pueblo note that Section 107 of the Restoration Act, which is specific to gaming, supports this interpretation of Section 105 by distinguishing between laws that prohibit types of gaming and laws that merely regulate gaming. Id. at 27–28. The Tribe points to other laws passed at the same time that granted states the power to both prohibit and regulate gaming on Tribal lands. Id. at 29. If Congress intended to give Texas the power to regulate tribal gaming, the Tribe asserts, it would have been explicit in the text of the Texas Restoration Act. Id. Moreover, the Tribe notes that Ysleta I misconstrued the Restoration Act by finding that the Act federalizes all Texas gaming law. Id. at 38. The court in Ysleta I, the Tribe explains, did not fully engage with the statute’s text, improperly relied on the tribal resolution, misinterpreted the legislative history, and too quickly found conflict between the Restoration Act and IGRA. Id. at 38–47. The Tribe also contends that a different interpretation of 105 would contradict 107(b), which explicitly precludes any interpretation of the statute from granting regulatory power to Texas. Id. at 30. Finally, the Pueblo cite legislative history supporting the codification of Cabazon Band into Sections 105 and 107, as a Senate Report clarifies that Section 107(b) “is a restatement of the law as provided in [Public Law 280].” Id. at 33.

The State of Texas (“Texas”) argues that the Restoration Act does not integrate Cabazon Band but federalizes all of Texas gaming law. Brief for Respondents, The State of Texas at 21. Texas highlights three important rules of statutory construction that the Fifth Circuit followed: first, “look at every word in context;” second, “give each word its ordinary meaning unless otherwise defined;” and third, “give effect, if possible, to every word Congress used.” Id. at 20. Texas maintains that the ordinary meaning of the first sentence of Section 107, which prohibits tribal gaming activities prohibited by Texas, includes all of Texas’s gaming regulations and, accordingly, federalizes both Texas’ prohibitions and regulations. Id. at 20–21. Furthermore, Texas indicates that the inclusion of Tribal Resolution No. T.C.-02-86, which expressed the Pueblo’s intent to “prohibit outright any gambling or bingo in any form on its reservation,” in Section 107 affirms the Pueblo’s intent to outlaw these activities on its reservation. Id. at 22. By including this Resolution, Texas argues, Congress planned to act broadly and federalize all Texas gaming law. Id. at 20–23. Additionally, Texas asserts that the Cabazon Band interpretation only applies to state regulation of Indian tribes and not in this context, where a state law has been federalized. Id. at 24. Texas adds that Congress did not provide any indication that it meant to incorporate the Cabazon Band interpretation of “prohibited” and thus contends that the Court should adopt the plain meaning of “prohibited” instead of distinguishing between outlawed and merely regulated games, as Cabazon Band does. Id. at 27. Moreover, Texas argues that the Cabazon Band interpretation should not be adopted, even if it is applicable, because it is unworkable. Id. at 29. Specifically, Texas explains, the public policy portion of the doctrine is ambiguous and contradicts how the phrase “public policy” is used in most other contexts. Id. at 30. Utilizing the Cabazon Band framework rather than the Restoration Act framework, Texas contends, will lead to more confusion and will contravene how other courts have decided to solve the issue. Id. at 30–31.


The Pueblo argue that applying the Cabazon Band interpretation to the Restoration Act reconciles otherwise contradictory readings of the Restoration Act and IGRA. Brief for Petitioners, Ysleta del Sur Pueblo at 35. Under Cabazon Band, the Pueblo explain, if a gaming activity is not prohibited by Texas law, Texas regulations and the Restoration Act do not apply, but IGRA does apply. Id. If a gaming activity is prohibited by Texas law, the Tribe adds, the Restoration Act applies. Id. The Tribe notes that this interpretation gives the Restoration Act and IGRA full effect. Id. Any other interpretation, the Pueblo highlight, produces a contradiction between the Restoration Act and IGRA. Id. Moreover, the Tribe maintains that a different interpretation of the Restoration Act would not protect tribes from state regulation, as IGRA is meant to do. Id. at 36. The Tribe also contends that a different interpretation would indefensibly exclude the Pueblo from IGRA’s regulations. Id. at 36. Additionally, the Tribe points to an established presumption that conflicts of law should be resolved in favor of the tribes. Id. at 37. This presumption, the Tribe explains, stems from an attempt to maintain tribal sovereignty and demands the application of state law only “if Congress has expressly so provided.” Id. Therefore, the Tribe asserts, the Tribe’s interpretation of the Restoration Act should be applied and, accordingly, the Tribe should not be subject to any Texas gaming regulations. Id. at 38.

In contrast, Texas argues that under the ordinary rules of statutory construction, the Restoration Act rather than IGRA controls here. Brief for Respondents, The State of Texas at 33. Texas explains that the Restoration Act controls because it is more specific, and rules of statutory interpretation demand the application of a more specific statute over a general statute. Id. at 34. The Pueblo’s reliance on the “Indian canon of construction,” Texas notes, is misleading because this canon is only meant to be applied when the statute at issue is ambiguous. Id. The Fifth Circuit, Texas explains, found that the Restoration Act is not ambiguous and thus the Indian canon of construction should not be applied. Id. Further, Texas asserts that the Restoration Act and IGRA can be harmonized if applied properly. Id. Texas maintains that IGRA does not apply in this case because it is a general statute, while the Restoration Act applies because it is a more specific statute. Id. at 34–35. IGRA, Texas contends, does not apply to the Pueblo because the Restoration Act already prohibits gaming on Pueblo lands. Id. at 35. Texas argues that this does not constitute an indefensible exclusion of the Pueblo from IGRA because IGRA is only meant to be applied in accordance with other federal law, highlighting that IGRA states in two separate sections that it should only be applied “in light of other federal law.” Id. Therefore, Texas argues, there is no contradiction between the Restoration Act and IGRA under Texas’ and the Fifth Circuit’s interpretation of the Restoration Act. Id. at 36.



The Alabama-Coushatta Tribe of Texas (“the Alabama-Coushatta”) argues on behalf of the Pueblo that the Supreme Court has long held that the tribes retain sovereign authority over their members and territory, and are subordinate only to the federal government. Brief of Amicus Curiae, Alabama-Coushatta Tribe of Texas, et. Al., in Support of Petitioner at 5-6. The Alabama-Coushatta further contend that the tribes’ ability to generate their own economic activity is key to their sovereignty, which the Court has recognized in the past. Id. At 6. The Alabama-Coushatta also fear that a loss in the ability to regulate their own gaming will significantly harm, if not endanger, the tribes’ ability to remain sovereign. Id. At 7-8. The United States agrees with the tribes, noting that the federal government has a strong interest in the tribes’ abilities to self-govern, and that the fundamental purpose of IGRA was to promote tribal economic development, self-sufficiency, and strong self-government. Brief of Amicus Curiae United States, in Support of Petitioner at 22.

Texas contends that the current legal structure for tribal gaming is not an attack on tribal sovereignty, because the Restoration Act is uniquely situated to mostly affect gambling activity at two facilities within Texas. Brief of Respondent State of Texas in Opposition at 25. To support this view, Texas notes that only two out of the 547 federally recognized Indian tribes are affected under the Restoration Act. Id. Therefore, Texas argues that a ruling sustaining the Fifth Circuit's holding will not frustrate the federal government’s interest in promoting tribal independence. Id.


In support of the Pueblo, the National Indian Gaming Association ("NIGA") argues that the Fifth Circuit's interpretation of the Regulation Act and IGRA disregards Congress’ intent to create a uniform system governing how tribal gaming is regulated. Brief of Amicus Curiae The National Gaming Association, in Support of Petitioner at 15. NIGA contends that if Congress intended for the Ysleta Pueblo and Alabama-Coushatta to be exempt from such uniform regulation, it would have included an express exemption in IGRA. Id.

In response, Texas states that if Congress did not agree with prior holdings of the interpretation of the Restoration Act, it could have easily amended IGRA or repealed the Restoration Act to comply with the uniform tribal gaming regulations. Supplemental Brief of Respondent Texas at 10. Because Congress has not amended either statute, Texas contends that the Court should infer that the Fifth Circuit incorrectly interpreted Congressional intent in Ysleta I. Id. Texas notes that the Pueblo do not argue that IGRA should apply to their gaming activity. Id. at 9.


NIGA contends that the Fifth Circuit’s ruling only creates costly litigation and uncertainty for both the tribes and Texas. Brief of Amicus Curiae The National Gaming Association, in Support of Petitioner at 16. NIGA argues that under the Fifth Circuit’s decision, the only way for Texas to enforce its regulations is through seeking relief in federal court. Id. NIGA further asserts that IGRA set up an agency, the National Indian Gaming Commission, to oversee and monitor the minutiae of gaming. Id. Therefore, according to NIGA, it makes much more sense for IGRA’s established agency to be the regulatory body instead of the federal courts. Id.

In response to the NIGA’s arguments, Texas asserts that the extensive litigation surrounding this issue is due to the Tribe continually trying to re-define the terms of casino gaming. Brief of Respondent State of Texas in Opposition at 7. Texas argues that the Pueblo have consistently used the wrong forum, the courts, to dispute the deal that they struck to gain a federal trust relationship. Id. at 26. According to Texas, such litigation on the part of Tribe has significantly burdened the federal court system in Texas. Id. Furthermore, Texas asserts that the correct forum to resolve this issue is not the courts but Congress, which may elect to either repeal or amend the Restoration Act. Id.


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