For most Americans, what they know about Native Americans is what they learned in history class, and that those fuckers love to gamble. More specifically, they love to open places for American tourists to gamble—that shit is profitable as fuck, and these reservations really need the scratch. Apparently, it’s way better than opening an iPhone factory or some shit. Also, I’m guessing that the reservation’s rules don’t really allow them to open a factory there, but I could be mistaken.
Before we dig in too much, it’s important to point out the difference between a law and regulation. I’m guessing if you’re reading this, you already have more than a passing interest in government, and probably understand the difference, but still, for the weary traveler who stumbled on this page by mistake, and just decided, “Aw fuck it. I’m here, might as well read on to the end,” this is for you.
While I’ll talk about this from the point of view of the federal government, it’s just as true for states and local governments, too.
A law is some rule passed by congress that sets framework for what you may or may not do, or more specifically, creates an invisible line between, “I can get arrested for this, I cannot get arrested for this.”
Regulations however, are more complicated. Regulations start with congress passing a bill to create a regulatory agency, such as a federal gaming commission. Once that entity is created, the president (or the executive) appoints a head of that agency, which congress then approves. That head of the agency then hires minions to do his or her bidding.
These regulatory agencies are generally created to handle areas which require expertise that congress doesn’t have. They’re all mostly lawyers, so their expertise is generally limited to law.
In our example, they’re not experts on gambling, how people and casinos might cheat, how games should fairly be played, etc. So this head of the gaming commission would typically either be an expert themselves, or a good leader who hires experts to advise them.
Those experts that work for the agency then write regulations for the area they’re tasked by law to govern. Regulations largely carry the same weight as laws, as they’re backed by the laws that created the agency that wrote them. So if you violate a regulation, you’re still penalized by the law authorizing the creation of that regulation. Make sense?
Now, we talked about how Native Americans love to open casinos. This started back in the 1970’s when a Seminole tribe in Florida apparently smoked a shit ton of peyote and were like, “Dude, we should open a fucking casino.” It made a fortune, and so Native Americans all over the country collectively thought, “Wait a minute, there’s a way we can bilk the non-natives out of a lot of their cash, and they’ll be happy we did it? Tell me more!” The golden rule of casinos after all, is “the house always wins.”
In general, in order to repay Native Americans for the ways the US Government has fucked them over the years, we created tribal reservations and let them govern themselves to some extent. However, there’s always this push and pull about how much autonomy they have, versus how much the state they reside in, or the federal government may impose on them. This is the heart of our case, here.
Back in 1987, in California v. Cabazon Band of Mission Indians, SCOTUS basically said that if the state outright bans a particular means of gambling, the Native Americans can’t just do that game on their land. But if the state has regulations around that game, allowing it to be played within the state, so long as it’s within their regulations, then those regulations don’t apply to the Native American’s casino—they are free to regulate their own shit. This precedent later became law when congress passed the Indian Gaming Regulatory Act (IGRA), which incorporated much of the language from the Cabazon Band ruling.
Texas, a state that claims to be all about liberty, except for pregnant women, LGBTQ folks, and Indian casinos apparently, wants to regulate the Native American casinos. Specifically, the reservation belonging to the Ysleta del Sur Pueblo tribe, which has a Bingo-themed casino. But they know based on IGRA, they’re not allowed. So they’ve decided to get creative in their legislation.
Yselta’s casino has both traditional “live call” bingo, and bingo machines, that are basically slot machines, but for old people who play bingo. However, Texas law only allows bingo to be played with real money, when it’s for a charity, and shit like that, not as part of a profitable business model.
Back in 1968, realizing they had bigger fish to fry, like putting a man on the moon, congress had transferred it’s trust relationship with the pueblo tribes in the Texas area to the state of Texas. But in 1983, Texas courts ruled that transfer violated the Texas constitution, so they were like, “Nah, federal government, they’re your problem.” So the trust was transferred back to the US Government, who shortly after the Cabazon ruling, passed the Restoration Act, resuming control of that trust.
Texas argues that the Restoration Act has language that basically invalidates the Cabazon ruling, meaning they can regulate the fuck out of the Ysleta bingo game. Remember, bingo is legal in Texas, they just regulate it. If it was illegal, the Ysleta tribe would be out of luck, and that shit wouldn’t be allowed at all.
As the good folks at SCOTUSBlog laid out, the relevant passages in the restoration act are these:
First, Section 105(f) grants Texas “civil and criminal jurisdiction within the boundaries of the reservation as if” Texas were subject to Public Law 280. Second, Section 107(a) provides that “[a]ll gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation and on lands of the tribe.” Third, Section 107(b) provides: “NO STATE REGULATORY JURISDICTION. — Nothing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas.”
Public Law 280 was the law that allowed states to ban certain types of gambling on Native Reservations, so long as they were banned outright in the state.
So Texas’ argument is pretty fucking creative. They say that 107(a) allows them to ban any form of gambling that they have deemed by regulation, as improper. That 107(b) is just about regulations in general, and isn’t about gambling, and thus largely irrelevant.
The Pueblo however, think Texas are fucking idiots who apparently can’t read a law. That clearly, 105(f) in their estimation, means Texas is bound under Public Law 280, and as such, anything that falls under Texas regulation, vs Texas law is like Teflon to the Native Americans. That shit don’t stick.
I’m not sure if I can explain this in a way that makes sense, but I’m sure as fuck going to try.
You know how I love when the justices give hypotheticals, right? Well, I’m going to take a crack at that shit. Bear with me, I’m new at this.
Remember first, that the way the law reads, Texas can ban a game at the casino which they’ve banned in Texas everywhere else. But if they allow a game and merely regulate it, they cannot impose those regulations on the casino.
So here’s my hypo: Imagine there’s an overarching game with certain basic principles, and it’s called Bingo. But then there’s different versions of Bingo, we’ll say there’s one with 50 numbers, and one with 60 numbers.
Now imagine Texas allows Bingo to be played in Texas for money, but their regulations only allow it if it’s the 50-number variety.
In this example, Bingo is legal in Texas, but it’s regulated to the 50-number version.
So Texas’s argument in this hypothetical is that because their regulation prohibits 60-number Bingo, they think that gives them the right to ban it at the casino, because they have “banned “prohibited” it everywhere else in Texas.
The Pueblo people on the other hand, say “Hey look, you Texas assholes. You do allow Bingo in your fucking state, you just regulate certain types of it. So it isn’t fucking “prohibited” in your state, which means you can’t regulate what version we decide to offer.
So where Texas thinks regulations can be related to prohibitions, Ysleta basically argues they’re mutually exclusive.
Make sense? God I hope so. I don’t know how better to explain it, if not.
On to the arguments!
Justice Roberts, seeming skeptical of Yselta’s argument that prohibited means prohibited entirely, not just by regulation asked this question to Ysleta counsel Brant C. Martin:
I was just going to say I don’t know who you’re including in everybody here, but it says prohibited.
And just—I mean, if you had—under Texas law, you can have bingo games sort of up to $100 at stake, okay, and then what’s happening is the tribe is having bingo games up to $1,000. Now, if you told somebody that, that they have games up to $1,000, it would be perfectly natural for that person to say, well, that’s prohibited because there’s a $100 cap.
But counsel Martin fired back, and was like, “Dude, did you read the court’s opinion in Cabazon? I included it in my fucking briefs. Your predecessors specifically made this distinction already. I’m not reinventing the fucking wheel, here. I didn’t just make this shit up.”
But Justice Kagan, who fucking loves to argue (don’t know if I’ve mentioned that before), hit back with this:
Well, suppose that that’s right, Mr. Martin, but I think what the Chief Justice is suggesting is that it’s not the normal term—use of the term “prohibited.” What you’re really relying on is the idea that Cabazon turns this language into a kind of term of art and that Congress was aware of that and that when Congress used the word “prohibited” it was incorporating this distinction that had been made in Cabazon.
And let’s say that your argument really does depend on that.
It’s not the normal use of the word “prohibited.” It’s a Cabazon use of the word “prohibited.” So then the question is, what’s your best evidence that this Court—that the—that Congress, when it passed this statute, really did have Cabazon in mind rather than was using the normal use of the word “prohibited”?
Her argument being that Ysleta’s argument relies on the idea that congress adopted the Cabazon ruling’s definition of prohibited, but that those fucks in congress don’t necessarily give a fuck about what SCOTUS says or does. They’re grown ass men and women. They may have decided they didn’t like Cabazon, and wrote the law with a more normal usage of prohibited as Justice Roberts laid out.
But counsel Martin was undeterred. He was like, “Listen, you argumentative old hag, the language in the law, specifically 107(a) and 107(b) clearly states Texas shall have no jurisdiction. How the fuck else can you possibly interpret that shit?”
Justice Alito, also not willing to let this shit go, regarding the meaning of prohibited, asked this to counsel Martin:
If you were in Congress and you were aware of Cabazon and you wanted to use “prohibited” in the normal sense of the word and you said, well, I’m afraid that if I use this word “prohibited,” people are going to think it has the Cabazon meaning, what would you have — how would you have written this?
He went on to ask if they should have used the word “forbidden” instead, or something like that?
Counsel Martin responded:
Your Honor, my submission would be that by using the word “prohibited” in 107(a) and then using no regulatory jurisdiction in 107(b), that it was clear that they were intending to implicate Cabazon.
Justice Barrett, hearing this argument point blank asked if that means that Ysleta loses if Cabazon hadn’t been ruled on, and this law was just a random law congress wrote this way.
Counsel Martin was like, “Hell no. Let’s not get crazy, Justice Barrett. The ordinary meaning of “prohibit” is to forbid. Bingo isn’t fucking forbidden in Texas. I get Justice Robert’s argument, that other normal folk might interpret it that way, but normal folks are morons. We’re fucking lawyers, and we know better.”
As they moved away from defining “prohibited,” they went on to the idea as to whether these machines that are like slot machines, but one where you play Bingo, are really Bingo, or in fact slot machines under the guise of Bingo, and therefore prohibited, even under his definition of prohibited.
Justice Roberts even point blank asked, “Does this fucking thing look like a slot machine?”
Counsel Martin was like, “No dude, it looks like a Bingo machine.”
This bit of comedy garnered a few laughs, which is rare for SCOTUS. But they had been out of session and under COVID restrictions for a while, so maybe they were just a little happy to be back hearing arguments.
The heart of the argument seemed to be whether the casino could get away with having a prohibited slot machine by merely naming it Bingo. But counsel went out of his way to describe that these games are easily recognizable as an electronic form of Bingo, even if they bear some resemblance to a slot machine.
But counsel Martin was quick to point out that Texas wasn’t singling out the slot…’er…bingo machines, they complained about all the Bingo they were playing there.
Justice Thomas went on to question when specifically is Bingo allowed in Texas, and counsel Martin advised him that the statute allows for charitable organizations to play Bingo for money.
So justice Thomas was like, “Well, if the casino isn’t a charity, then how are they not prohibited?”
His argument seems to put forth the idea that the rules of Bingo in Texas aren’t regulated, the “Who can do it” is regulated.
But counsel Martin pointed out that in the Indian Gaming Regulatory Act (IGRA), any game which is allowed to be played under any situation, is allowed under IGRA’s rules, specifically.
Justice Alito, seemingly nostalgic over the laughter he heard a few minutes ago, went back to the “machines” line of questioning. And asked this juicy hypothetical, getting a laugh of his own:
Well, I’m puzzled by both your argument and by Cabazon and, in particular, by how a court is going to decide whether these machines, which I don’t have a very clear picture of in my mind, are bingo or not bingo. If they are not bingo, they’re something else.
Let’s say they’re dingo.
And Texas prohibits dingo, then you can’t have them, right?
Counsel Martin tacitly agreed, that if Texas had an all out ban on Dingo, then those machines would not be allowed.
So then Alito was like, “Well who the fuck decides if it’s even Bingo, Dingo, or your mom? Someone has to!”
So counsel Martin was like, “Alright man, I’ll play your stupid fucking game. The Texas Bingo Enabling Act defines Bingo. Our slot…’er…bingo machine fits their fucking definition. There are experts on this shit, and they say it’s Bingo.”
I shit you not, Justice Breyer, looking for some laughs of his own, when he heard about these so-called Bingo experts, chimed in with:
Did you ask my grandmother?
He won the “Joke of the day” award with this one. Congrats Justice Breyer.
Counsel Martin, recognizing a good joke when he hears it, responded humorously, while still answering the question:
My own mother has asked me questions about those very issues, Your Honor.
But there are experts, in fact, that talk about whether or not something has a random number generator or not, whether or not the math makes it bingo, whether or not the evidence of the pattern makes it bingo.
All of those things are taken into account. All of those same things, Your Honor, are taken into account by the NIGC.
Justice Alito, not done with his juicy hypotheticals, threw counsel Martin a curveball with this little nugget:
Do you think that the sale of opioids without a prescription is prohibited, or is it merely regulated?
Counsel Martin was like, “Dude, why the fuck are we talking about drugs? The Restoration Act that we’re talking about here is about gaming, not hitting the crack pipe, so I’m not going near that shit with a 20′ pole. I’m just going to say that our argument is restricted to gaming issues, and move this shit right along. Let’s talk about your drug habits another day.”
Chief Arguer, Justice Kagan wasn’t really done yet with this problem, though. She asked:
You know, Mr. Martin, I guess just following up on what Justice Alito talked about, this Cabazon distinction presents a wealth of sort of complicated and, quite frankly, weird questions. And the slot machine would just be one of like a thousand of them.
I mean, it just—Cabazon tells us to make a distinction between “prohibition” and “regulation” when most of regulation prohibits certain things. And then you’re stuck in the middle of trying to figure out what’s a prohibition and what’s a regulation.
But I guess, as I—well, Cabazon is there, it’s not unique to the question of slot machines. I mean, how should we figure in any discomfort about Cabazon and the distinction that it makes itself?
Counsel Martin’s answer was basically that IGRA was specifically drafter about gaming, so hypotheticals about opiods and shit, are a whole different animal, and therefore not relevant to this shit.
The United States agrees with the Ysleta people so much, that they filed an amicus brief with them, in hopes to bolster Ysleta’s argument, and to shut Texas down.
Counsel Anthony Yang opened with this:
Mr. Chief Justice, and may it please the Court: Just six months after this Court drew the distinction in Cabazon under Public Law 280 between gaming activity that is prohibited versus gaming activity that is regulated by state law, Congress enacted Section 107, mirroring that language to draw the same distinction in the exact same Indian gaming context. Section 107(a) forbids a tribe from engaging in gaming activities that are prohibited under Texas law, and Section 107(b) further provides that Section 107(a) does not grant the state civil or criminal regulatory jurisdiction. Texas has conceded in this Court that Section 107(b) restates the limits of Public Law 280.
Those limits draw directly from Cabazon, they limit state regulatory jurisdiction, and they make clear that Section 107 adopts the Cabazon framework. The Fifth Circuit’s contrary view erroneously relies on legislative history and text that Congress once excluded but then removed from the legislation.
This Court should correct that error.
Justice Thomas started off questioning what the difference between a regulation and prohibition are, when he asked, “what if there’s a law that says, “Nobody under 21 can come into this fucking establishment.” Is that a prohibition, or regulation?”
But counsel Yang was ready for this:
That could be a prohibition but, here, not in this context.
The statute focuses on gaming activities that are prohibited.
The gaming activity would not be prohibited in that context.
That is a method of conducting the gaming activity with people under the age of 21. This is exactly the distinction that Congress—that this Court in Cabazon drew. And I would point to Williams versus Taylor, which—a unanimous decision of this Court which said that when a later statute on the same subject matter uses words of a prior Supreme Court opinion, those words are given the same meaning unless there’s a specific direction to the contrary. And the word there was “failed.” It wasn’t “failed” can have a lot of different meanings in a lot of different contexts.
Justice Roberts, apparently concerned about the workload of the US Attorney’s office asked this:
Mr. Yang, I think your office is going to be very busy over the next 10 years explaining why the word “prohibited,” in 18 U.S.C. whatever, still covers, you know, activities, possession of whatever, even though it’s permitted at some level, right? I mean, it’s prohibited to possess a certain amount of whatever, but, you know, at — at a level of personal use or medical whatever, it’s okay, then you can’t prohibit it at all.
His point being, that if they give Ysleta the victory, a lot of laws that use the words “prohibit” and “regulate,” are going to be interpreted differently, and may overturn a lot of convictions and shit.
But Mr. Yang, knowing he works for the federal government, and can work his cases in his own time, not worrying about getting fired because government doesn’t give a fuck if there’s a queue a mile long, responded with this:
We aren’t concerned about that because, with respect to this distinction—let me take a step back.
This distinction exists in Public Law 280. It’s done so for a long time.
Cabazon was 35 years ago. Cabazon applied a distinction in Bryan.
Bryan understood that there’s an important principle at stake here. You need to preserve tribal sovereignty and tribal government and that if you allow state regulatory power on tribal lands, you would destroy tribal sovereignty.
That principle in Bryan was extended in Cabazon specifically to the gaming context, where the Court drew this prohibitory/regulatory distinction. We don’t think this is a problem with respect to all of 18 U.S. Code C because, when you’re interpreting a statute like this, particularly a statute enacted directly on the heels of a Supreme Court decision on the same subject matter using the same language, what you look to is not some general understanding of the word “prohibit;” you look to the way that this Court has used the term “prohibit.”
During counsel Yang’s time, the subject of canon’s came up a lot. One was the Indian Canon, the other the Major Questions canon.
Canon’s aren’t so much laws, as they are basic operating principles. The Indian canon is basically that whenever SCOTUS considers a case between the government and Native American tribes, and there’s a bit of a gray area, they should defer to the tribe. Since we’ve historically fucked them over, we owe them that.
The major questions canon is something we’ve sort of discussed before in the OSHA decisions regarding vaccine mandates. It’s basically that for major questions that affect nearly the entirety of the American people, congress should be passing such laws, not regulatory authorities like OSHA, which is why SCOTUS sided against them in that case.
With that in mind, it seems the Indian canon should suggest that Texas loses, unless there’s a pretty compelling argument that the only way to interpret those laws, is Texas winning. Since we’re here, seems like it’s clearly not the only way to interpret them.
After counsel Yang wrapped up, it was counsel Lanora C. Pettit for the great state of Texas’ turn. She opened with an explanation as to why Texas gives a fuck about all this.
Thank you, Mr. Chief Justice, and may it please the Court: In the 1980s, everybody in this case wanted something.
The tribe wanted federal recognition and was willing to cede some of its sovereignty.
Texas wanted to avoid high-stakes gambling, which it saw as an invitation to organized crime, and was willing to cede some of its jurisdiction. The federal government was split about how to balance these sovereign interests.
So everyone made concessions, which are embodied in the Restoration Act.
The tribe got its recognition and may offer gambling to the same extent as other Texans, but further gambling is banned under federal law. The tribe asks to rewrite this legislative bargain based on Cabazon Band, but it’s admitted that Cabazon Band did not address how to interpret a statute that federalizes state law.
Its effort to extend Cabazon Band suffers from three primary faults. First, it ignores that when it comes to gambling, the Restoration Act departs from the Cabazon Band framework by treating both civil and criminal penalties and civil and criminal regulatory jurisdiction the same way. Second, it overlooks that the Cabazon Band test was written to avoid a form of state encroachment into tribal affairs that isn’t possible when a federal court is applying federal law. And, third, it depends on a definition of jurisdiction that disregards the close tie between that term in the 1980s and an adjudicator’s ability to decide a case.
That’s how it’s used in Public Law 280, in Section 105(f), and, as Justice Kagan noted, in Section 107(c). Applying that same definition to 107(b), regulatory jurisdiction encompasses a state administrative agency’s ability to exercise oversight through, among other things, reporting requirements, inspections, and ultimately enforcement actions, not the state’s larger ability to set substantive limits on gambling. I welcome this Court’s questions.
Justice Thomas, concerned over the redundancy of “prohibit” and “Regulate” in these laws, wanted to understand where the line was. So he was like, “Give me an example of a situation where there’s a regulation that doesn’t apply, that’s not a prohibition in your eyes.”
Counsel Pettit responded:
There is a regulation that would apply to somebody who’s not the tribe that wouldn’t be a prohibition would, for example, be that the Texas Lottery Commission can typically get access to passwords so that people—they can—would have an ongoing oversight into the way that software functions. That’s a regulation that wouldn’t apply to the tribe because it’s not a prohibition relating to gaming activity.
So apparently, her idea is that a regulation on how the games are played, fall under the banner of prohibition, but other clerical shit, such as forcing the player to log in with a password first, that’s where Texas agrees it should stay the fuck out of it.
Chief Arguer, Justice Kagan really pressed counsel Pettit on the relationship between the Cabazon precedent, and the Restoration Act written shortly after by congress. It seems quite clear, that there’s plenty of text and history to show congress passed this law, in the wake of Cabazon, to make sure it wasn’t merely precedent, it was the fucking law.
So for Texas to win, SCOTUS would somehow have to ignore all that, and act like The Restoration Act was written in a vacuum, and that their use of “prohibit” was not the same “prohibit” in Cabazon.
Counsel Pettit replied:
So, in Cabazon, this Court used the phrase “regulatory authority,” not “regulatory jurisdiction.” When referring to the power to set laws, this Court has typically used the term “legislative jurisdiction,” which is tellingly not the word that Congress had selected.
In all this hubbub, it should also be noted that the Restoration Act gave the authority to govern these tribes to federal courts. So basically, if Texas has beef with Yseta’s casino, they go to a federal court to get a judgement.
Justice Kagan, Arguer-in-chief was quite argumentative with counsel Pettit, since that’s her default position. She asked:
Your position requires you to accept the idea that, for example, if Texas has a statute that says bingo has to end at 1 a.m. and instead it goes to 1:10, that all of a sudden that’s a federal crime adjudicable in federal court. I mean, that’s your position.
It’s not—you know, the other person—side’s position is essentially no, the federal courts are there when Texas has a statute that says no table games, and all of a sudden a casino opens up with craps, but your position is like everything, you know, the amount of the betting, the hours, the—I mean, everything that relates to the turn of the wheel or whatever, and that’s a lot of stuff.
After she attempted to argue that away, Justice Gorsuch came right out and asker her if she expected them to overrule Cabazon?
Counsel Pettit responded that they didn’t think that was the case. That IGRA’s verbiage breaks with Cabazon on this particular argument enough that the two can coexist peacefully. She argued that whole IGRA incorporates much of, and stems from Cabazon, because they were slightly different issues, Cabazon doesn’t necessarily apply here, IGRA does, with her reading of how it’s written.
Near the end of questioning, counsel Pettit also emphasized that other states like California start from the premise that gambling is legal, except when they say it isn’t. Whereas Texas assumes the opposite. All gambling is illegal, unless Texas says you may, because they think it’s basically an engraved invitation for organized crime to come to Texas and set up shop as they did in Nevada.
So in her mind, if all gaming is banned unless specifically authorized, that means that the casinos on Native American reservations in Texas can only have games which Texas specifically allows.
She also took one final swipe at Ysleta, and was like, “Those fucking Bingo machines, they’re fucking slot machines, and any idiot who sees it and plays it, knows it. The fact that it’s bingo-based doesn’t make it bingo, no different than a baseball-themed slot machine is baseball. They’ve really got to be kidding with this fucking nonsense.
So much for Texas being a liberty-minded state. And that’s an oppressive regime if I’ve ever heard one.
In a 5:4 ruling where Justices Gorsuch and Barrett joined the three Democratic appointees, SCOTUS sided with the Ysleta Pueblo. “Regulated” and “Prohibited” are essentially mutually exclusive. Unless the game is banned altogether in the state, the argument can only mean that it’s regulated, and therefore cannot be regulated away within the reservation. If they want to have their fucking Bingo games, they can have their fucking Bingo games.
Gorsuch literally broke out the dictionary, and included the definitions of “Prohibit” and “Regulate” in his opinion, since Texas clearly don’t understand the meaning of these words, and their rather distinct differences. Although, he did politely congratulate them on their colorful and creative interpretation of those two words, and somehow thinking a regulation could be deemed as a ban of certain types of Bingo, even if they’re clearly wrong as fuck.
Once again, Gorsuch has shown that he is quite possibly the biggest friend of the Native American community.