The U.S. Supreme Court on Monday agreed to decide whether El Paso’s Tigua Indians can offer some forms of gambling on their land, setting the stage for an end to a nearly 30-year fight between the tribe and the state of Texas.
The high court granted the Tiguas’ request to hear an appeal of the 5th Circuit Court of Appeals 2019 decision that ruled that the bingo-style games at Speaking Rock Entertainment Center in El Paso’s Lower Valley were illegal. It was the latest in a series of such rulings by the New Orleans-based 5th Circuit dating to 1994.
It marks the first time that the Supreme Court has agreed to take up the longstanding fight between Texas and the Tiguas and the Alabama-Coushatta tribe of East Texas. The high court only agrees to hear 2% to 4% of all appeals it receives, a legal process known as granting a petition for certiorari.
Four of the nine Supreme Court justices must agree to hear an appeal for certiorari to be granted. The court is likely to schedule oral arguments in the case in the coming months, with a final decision expected sometime next year.
The two tribes received a huge boost in August when the Justice Department sided with them and urged the Supreme Court to take up the case. The Office of the Solicitor General, which represents the Justice Department before the court, argued that the courts have been wrong since the early 1990s in ruling that the tribes couldn’t offer some forms of gambling.
The Tiguas have a strong chance of winning their appeal, said Todd Curry, a University of Texas at El Paso political science professor whose research includes the Supreme Court and Indigenous rights. He said Justice Neal Gorsuch, the first justice appointed by President Trump, has had a huge influence on Indigenous law.
“Since Gorsuch, I think to have someone who is an honest expert in these areas has made the voting more predictable. As the federal government is supporting the Tiguas, and Gorsuch has yet to vote against Indigenous interests since joining the court, I think the real question will be how big is the majority,” Curry said. “(Justice Samuel) Alito is the only one I don’t see as possibly supporting the Tiguas in the suit.”
At issue is whether a 1987 federal law known as the Restoration Act forbids the two Texas tribes from offering gambling. The law re-established a trust relationship between the tribes and the federal government, and included a provision that said: “All 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.”
The law also said: “Nothing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas.” The tribes have argued that they are offering bingo-style games that are legal but regulated in Texas, and that the state has no power to regulate such gambling on tribal land.
In its August brief — which had been requested by the Supreme Court justices in February — the Justice Department noted that three decades of court rulings have left the Tiguas and the Alabama-Coushatta as the only Indigenous tribes in the nation to be subject to state regulation of what is called Class II gaming. Class II includes bingo and non-banked card games.
The Texas Attorney General’s Office, in a brief filed with the Supreme Court on Sept. 3, argued that the Justice Department was incorrect in its legal reasoning. It said Congress could pass a new law that allows gambling if it so chooses.
“Until then, the Restoration Act as consistently interpreted for a generation is the most accurate reflection of congressional policy with respect to the two tribes within its scope,” the brief said.
The two tribes did not submit a brief in response, but have previously dismissed the argument that Congress, not the courts, should decide the fate of gambling on tribal land.
“Texas’s argument that the Tribes must seek relief through Congress does not counsel against this Court’s intervention. Under that rationale, no case involving a federal statute would warrant the Court’s review, since Congress would always be an available forum for redress,” the Tiguas said in their 2020 petition asking the high court to hear the dispute.
Cover photo: The Speaking Rock Entertainment Center, on Ysleta del Sur Pueblo land, is at the heart of a legal controversy over the legality of gambling on tribal lands. (Corrie Boudreaux/El Paso Matters)