But for now, the Supreme Court’s ruling represents a long-overdue rebuke to the exercise of state sovereignty over Indian Country. In the majority decision, Justice Neil Gorsuch said there was “no evidence” that Texas somehow has special authority to prevent the Alabama-Coushatta Tribe and the Tigua Tribe from offering Class II games on their homelands. “Native American tribes possess ‘inherent sovereign authority over their members and territories,'” Gorsuch wrote in the first sentence of the 20-page opinion, before explaining that Congress — in exercise of its trust and treaty responsibilities — has taken action in certain instances to authorize state jurisdiction in Indian Country. “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,” Gorsuch, a nominee of Republican former president Donald Trump, continued. “In the end, however, we find no evidence Congress endowed state law with anything like the power Texas claims,” Gorsuch concluded. Joining Gorsuch in the majority were the three liberal leaning members of the Supreme Court, including Justice Stephen G. Breyer, who is retiring at the end of the current term in just a matter of weeks. Justices Sonia Sotomayor and Elena Kagan brought the vote in support of tribal sovereignty to four. The fifth — and crucial — vote in Ysleta del Sur Pueblo v. Texas came from Justice Amy Coney Barrett, who is the newest member of the court. Along with Gorsuch, whose record in Indian law is unprecedented, she was nominated to the bench by Republican former president Donald Trump. Barrett, incidentally, delivered her very first Indian law opinion this week, authoring a 6-3 decision in Denezpi v. United States on Monday that reaffirmed the inherent sovereignty of tribal courts to prosecute crimes that are also taken up by the federal government. Despite the notable presence of Barrett in the majority, the rest of the Supreme Court was not convinced. Chief Justice John G. Roberts Jr. led the conservative wing in a dissent that bought into the idea that Texas should be able to ban gaming on two reservations even though another Indian nation, the Kickapoo Tribe, engages freely in the $27.8 billion industry, which took a major hit due to the ongoing COVID-19 pandemic. “Texas has long maintained strict controls on gambling,” Roberts wrote in the 17-page dissent that was joined by Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh. Roberts added: “While the Texas Constitution now contains limited exceptions for charitable bingo and raffles, as well as the state’s official lottery, its ban on casino-style gaming remains absolute.” According to the Texas State Law Library, the Lone Star State is indeed “one of the strictest” when it comes to gambling.
As Democrats and Republicans feuded over Indian Country bills, the Supreme Court made big decision about tribal sovereignty in #Texas.— indianz.com (@indianz) June 15, 2022
By vote of 5-4, nation's highest court confirms that Ysleta del Sur Pueblo and Alabama-Coushatta Tribe can offer Class II games on their lands. pic.twitter.com/waSGib4HJu
But the very first footnote in the dissent advances a major reason for the state’s opposition to gaming near Houston and El Paso, two of the largest population centers in Texas. Along with a black and white photo, Roberts derided the electronic gaming machines at Speaking Rock as far from the stereotypical images of bingo as a low-stakes and easy-going form of entertainment. “A photograph from the record of this version of ‘bingo’ is appended to this opinion,” the footnote reads. “It confirms that the electronic bingo played at the Speaking Rock Entertainment Center is about as close to real bingo as Bingo the famous dog.” In other states — most notably Oklahoma, where some tribes heavily market their casinos to their neighbors across the border in Texas — disputes over electronic forms of bingo led to the legalization of full-scale gambling, such as slot machines and card games. That in turn led to the negotiation of tribal-state agreements, defined as Class III gaming compacts by the Indian Gaming Regulatory Act. Texas has adamantly refused to come to the table when asked by tribes but the oral argument made clear that IGRA’s legal framework is open to the Tiguas and Alabama-Coushattas. The key question was asked by Justice Gorsuch. “Class III would still be subject to either a negotiation of a compact with the state or they would only be allowed to engage in Class II gaming under IGRA,” attorney Brant C. Martin, who represented the state of Texas at the hearing, told the Supreme Court.
In minority was Chief Justice John Roberts, joined by fellow conservatives.— indianz.com (@indianz) June 15, 2022
Dissent includes photo of @SpeakingRockEnt with footnote: "It confirms that the electronic bingo played at the Speaking Rock Entertainment Center is about as close to real bingo as Bingo the famous dog." pic.twitter.com/UPJ9iW62Su
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