The U.S. Supreme Court recently announced it will hear a case that could end the Tigua (Ysleta del Sur Pueblo) and the Alabama Coushatta tribes’ decades-long battles to offer gaming on their reservations. A ruling for the tribes would support the claim of any federally recognized tribe that cannot offer gaming due to laws predating the 1988 Indian Gaming Regulatory Act (IGRA).
The Department of Justice urged the Supreme Court to grant the Tigua’s challenge to a 2019 decision by the 5th Circuit Court of Appeals, which ruled the bingo games offered at the tribe’s El Paso casino were illegal.
The Supreme Court also will review other district court decisions, including a 1994 ruling that the federal 1985 Texas Restoration Act oversees the tribe’s gaming rights, not IGRA.
The Texas Restoration Act recognized the sovereign status of the Tigua and the Alabama Coushatta tribe, based north of Houston, and restored their lands. But it included a non-gaming clause. It was bad timing. Two years later, IGRA protected federally recognized tribes’ rights to offer Class II gaming on sovereign land, provided this type of gaming was legal elsewhere in the state; that is the case in Texas.
The two tribes have long claimed they were pressured into signing the Texas Restoration Act, believing it was their only chance to regain sovereign status. They argue IGRA should supersede TRA. The two tribes have opened casinos on their lands, but Texas has sought to close them, and they have occasionally been forced to close.
Meanwhile, for 20 years the Kickapoo Tribe has offered bingo operations without state interference at its casino near the Mexican border. The tribe was recognized in 1985 by a law that did not include a non-gaming clause.
Observers believe the Tigua could be victorious. The Biden administration has made it known it wants Texas to address the situation. Also, for the first time in U.S history, the Department of the Interior is headed by a Native American, Deb Haaland. Additionally, in an August letter to the Supreme Court, Acting U.S. Solicitor General Brian Fletcher recommended the court take up the case. Fletcher said the 5th Circuit ruling was “an error,” and he said these issues have “impaired the uniformity of a federal regulatory scheme, and has uniquely disadvantaged two Indian tribes.”
Nova Southeastern University Law Professor Bob Jarvis said, “If the Supreme Court takes the case, and if it finds for the tribe, then every other tribe that currently is foreclosed from offering gambling because of a pre-IGRA law would have a basis for arguing that the court’s new decision supports their getting gambling.”
That would include the Passamaquoddy, the Penobscot Nation and the Aroostook Band of Micmac Indians in Maine; the Narragansett Indian Tribe in Rhode Island; and the Wampanoag Tribe of Gay Head in Massachusetts.
