El Paso’s Tigua Indians finally got their day before the U.S. Supreme Court on Tuesday, capping a three-decade legal battle with the state of Texas over whether the tribe can offer some type of gambling on its land.
Lawyers for the Tiguas, the state and the U.S. Department of Justice spent just over 90 minutes in oral arguments before the high court. The arguments focused largely on nuanced legal questions, and the justices gave little hint on how they might rule when they decide the case this spring.
Several of the justices noted that El Paso federal judges have expressed frustration with the current system that has led to the state of Texas regularly turning to the courts to determine even minute details of operations at Speaking Rock Entertainment Center, where the Tiguas offer traditional bingo and electronic machines that resemble casino-style slot machines and are based on bingo principles.
“Why would it make sense to enlist federal district courts to police all these aspects of gaming? It just seems to me like that would be an odd system,” Justice Amy Coney Barrett said.
The stakes are high for the tribe, and for El Paso. Speaking Rock employs hundreds of people and is one of the Tiguas’ main revenue sources for tribal health, housing and education programs.
The legal battle over gambling offered by the Tigua and the Alabama-Coushatta tribes of Texas has centered on two events from 1987 – a Supreme Court decision in the case of California vs. the Cabazon Band of Mission Indians, which led to the widespread expansion of tribal gambling operations across the country; and a law passed by Congress a few months later called the Restoration Act of 1987.
The 1987 law, which created a federal trust relationship with the two Texas tribes, included a provision barring the Tigua and Alabama-Coushatta from conducting gambling prohibited in Texas. The Tiguas are formally known as the Ysleta del Sur Pueblo.
The 5th Circuit Court of Appeals has repeatedly ruled since the 1990s that the Restoration Act makes anything other than low-stakes bingo illegal on Tigua or Alabama-Coushatta land. The tribes have argued that they should be allowed to offer forms of gambling that are legal but regulated in Texas, as permitted by the Cabazon Band decision.
The 5th Circuit rulings have meant that the Tigua and Alabama-Coushatta tribes of Texas are the only Indigenous people in the United States without a recognized legal right to offer gambling. Other tribes are permitted to offer gambling under a 1988 law called the Indian Gaming Regulatory Act, which was passed by Congress a year after the Cabazon Band ruling by the high court.
The Supreme Court last year decided to hear the Tigua appeal of the latest 5th Circuit ruling, after declining numerous times over the years to hear previous appeals. That decision came after the Biden administration’s Justice Department told the court it sided with the tribe in the dispute with Texas.
The Tigua and Alabama-Coushatta have continued gambling operations despite court rulings, although they have occasionally closed their doors. The machines currently used by the Tigua and Alabama-Coushatta are based on bingo games, a form of gambling that is legal but highly regulated in Texas. Court orders currently allow the tribes to continue gambling operations while appeals are pending.
The other Indian tribe in Texas, the Kickapoo, was not part of the Restoration Act and operates a casino in Eagle Pass that offers similar games.
During oral arguments Tuesday, several justices explored what would happen if they ruled in favor of the Tiguas and sent the case back to an El Paso federal judge for further action. One question the trial court might have to decide, several justices said, is whether the electronic gambling machines are a form of bingo – which would be allowed under the Indian Gaming Regulatory Act – or a slot machine, which would be illegal unless the tribe negotiated an agreement with the state.
“It’s not the kind of bingo that you expect people to be playing in church or at the Elks. It’s something different. How do you decide whether that’s bingo?” Justice Samuel Alito asked.
Brant Martin, the attorney for the Tiguas, said experts could testify at trial on whether a form of gambling constituted bingo. That seemed to amuse Alito.
“You put something before these experts, and they can say, ‘that’s bingo; no, that’s not bingo?’ There are people who can be qualified as experts on that?” the justice asked.
“The answer to that question is yes, your honor,” Martin said
“Can we ask my grandmother?” Justice Stephen Breyer asked, prompting laughter in the court.
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)