US Supreme Court Could Legalize Tribal Gaming in Texas, Potentially Opening Doors in Other States

By | September 7, 2021

The Biden administration is pushing the US Supreme Court to recognize the gaming rights of two Texas tribes, the Tigua and Alabama Coushatta. But according to Native American gaming experts, the case could have the knock-on effect of legitimizing class II casinos for tribes not only in Texas but other states like Maine, Rhode Island, and Massachusetts.

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The US Supreme Court is highly likely to take the Tigua case. A positive decision for the tribe could have far-reaching implications for tribes beyond Texas. (Image: Samuel Corum/Getty Images)

As reported by Casino.org last week, Acting US Solicitor General Brian Fletcher recently wrote to the Supreme Court recommending it take up the case. In his memo, dated August 25, Fletcher said a previous federal court ruling that barred the tribes from offering gaming was “an error.”

He urged the Supreme Court to deliver clarity on issues that have “impaired the uniformity of a federal regulatory scheme, [and] has uniquely disadvantaged two Indian tribes.”

Following the solicitor general’s memo, the court is now almost certain to take up the case.

Decades-Long Fight

The two tribes have been embroiled in a legal fight with the state of Texas over gaming for decades. That’s because the 1986 federal act that recognized their sovereign status and restored their lands, the Yselta del Sur Pueblo [Tigua] and Alabama and Coushatta Indian Tribes of Texas Restoration Act (TRA), contained clauses barring the tribes from gaming operations.

Two years later, Congress passed the Indian Gaming Regulatory Act. This established a regulatory framework for Native American casinos and protected a tribe’s right to offer class II gaming on its sovereign land, provided those lands were located in a state where such gaming was permitted for any purpose.

In 1994, the Fifth Circuit ruled the Tigua’s gaming rights were governed by TRA not IGRA, which prevented them, and by extension the Alabama-Coushatta, from opening casinos. It is this ruling the Justice Department wants the Supreme Court to review.

If the Supreme Court takes the case, and if it finds for the tribe, then every other tribe that currently is foreclosed from offering gambling because of a pre-IGRA law would have a basis for arguing that the Court’s new decision supports their getting gambling,” Nova Southeastern University Law professor Bob Jarvis told Casino.org.

“I think this would be a quite fair result because no one at the time of these laws could have foreseen the advent of IGRA,” he added.

Far-Reaching Impact

 Jarvis notes the Catawba tribe of South Carolina would not fall into this category because they specifically agreed to waive IGRA. However, a positive Supreme Court ruling would strengthen the gaming claims of tribes in Maine, like the Passamaquoddy, the Penobscot Nation, and the Aroostook Band of Micmac Indians.

This could apply, too, to Rhode Island’s Narragansett Indian Tribe, and the Wampanoag Tribe of Gay Head in Massachusetts, which has been trying to get its Aquinnah Cliffs Casino off the ground for years.

And, speaking to El Paso Matters last week, Todd Curry, a University of Texas at El Paso political science professor, said the odds the Supreme Court would side with the Tigua were good.

Regarding the merits, I can count four votes easily for [the Tigua],” Curry said, citing the court’s three more liberal members and Justice Neil Gorsuch. “Among the other five justices, none truly have strong preferences on Indigenous law issues, so I suspect at least one of them will be convinced by either the solicitor general or Gorsuch and that is the ball game.”

Hurdles Remain

Such a ruling would not be an immediate green light for tribes outside of Texas to roll out gaming operations. For certain tribes, illegal impediments would remain.

One such hurdle is a 2009 US Supreme Court ruling known as “the Carcieri decision.” This held that the federal government could not take land into trust for tribes that were not “under federal jurisdiction” in 1934 when Congress passed the Indian Reorganization Act.

The decision related specifically to land acquired by the Narragansett in Rhode Island, which was officially recognized in 1983, and was recently used to derail the Mashpee Wampanoag’s efforts to build the $1 billion First Light Casino in Taunton, Massachusetts.

In several cases, Congress has passed laws to exempt tribes from the Carcieri decision.

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