In Ysleta Del Sur Pueblo v. Texas the U.S. Supreme Court held 5-4 that per the Restoration Act Texas may only prohibit particular types of gaming on Indian reservations where Texas law prohibits that type of gaming throughout the rest of the state.
The Ysleta del Sur Pueblo is one of three federally recognized Indian Tribes in Texas. In 2016 it began to allow electronic bingo until Texas shut down its operations. Under Texas law bingo is permissible “only for charitable purposes and only subject to a broad array of regulations.”
Six months before Congress passed the Ysleta del Sur and Alabama and Coushatta Indian Tribes of Texas Restoration (Restoration Act) the U.S. Supreme Court decided California v. Cabazon Band of Mission Indians (1987). That case involved Public Law 280 which allowed a “handful of States to enforce some of their criminal—but not certain of their civil—laws on particular tribal lands.” Applying the statute to Indian gaming Court held that, if a state law prohibits a particular game, it falls within Public Law 280’s grant of criminal jurisdiction and a state may prohibit the game on tribal lands. But if a state law merely “regulate a game’s availability,” Public Law 280 does not allow a state to enforce its gaming rules on tribal lands.
Subsection 107(a) of the Restoration Act states: “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. Any violation of the prohibition provided in this subsection shall be subject to the same civil and criminal penalties that are provided by the laws of the State of Texas.” Subsection 107(b) states: “Nothing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas.”
Texas argued the Restoration Act subjects the tribe to the “entire body of Texas gaming laws and regulations.” The tribe argued that consistent with Cabazon, “if Texas merely regulates a game like bingo, it may offer that game—and it may do so subject only to the limits found in federal law and its own law, not state law.” A majority of the Supreme Court, in an opinion written by Justice Gorsuch, agreed with the tribe.
The Court reasoned: “Subsection (a) says that gaming activities prohibited by state law are also prohibited as a matter of federal law (using some variation of the word “prohibited” no fewer than three times). On the other hand, subsection (b) insists that the statute does not grant Texas civil or criminal regulatory jurisdiction with respect to matters covered by this ‘section,’ a section concerned exclusively with gaming. The implication that Congress drew from Cabazon and meant for us to apply its same prohibitory/regulatory framework here seems almost impossible to ignore.”
Beyond Cabazon, the majority noted that Texas doesn’t prohibit bingo. “From this alone, it would seem to follow that Texas’s laws fall on the regulatory rather than prohibitory side of the line—and thus may not be applied on tribal lands under the terms of subsection (b).”
Dissenting Justices including Chief Justice Roberts, and Justices Thomas, Alito, and Kavanaugh concluded the “best reading” of the Restoration Act “is that all of Texas’s gambling rules apply in full on the Tribe’s land.” According to these Justices, quoting from subsection 107(b): “’All’ gaming activities prohibited by Texas are prohibited on the reservation. ‘Any’ violation is subject to the same penalties that Texas would ordinarily impose.”