Backed by top-tier advocates, two Native American tribes in Texas will be urging the U.S. Supreme Court on Tuesday to allow them to restore their sovereign immunity and permit certain gaming such as bingo on tribal land.
“The tribes have fought for decades for the right to conduct their own affairs consistent with the Restoration Act and their federally recognized sovereign status, and to manage their tribes in the best interests of their members,” wrote Brant Martin, partner of Wick Phillips in Austin, in his petition to the court on behalf of the Ysleta del Sur Pueblo tribe. The case is titled Ysleta del Sur Pueblo v. Texas.
Martin, whose practice includes gaming litigation, will be arguing before the high court on Tuesday. His December 2021 merits brief lists Sidley Austin partner Carter Phillips as working with Martin in the case, though he will not be arguing. Carter has argued 79 cases before the Supreme Court, more than any other lawyer in current private practice. Virginia Seitz, another veteran Sidley advocate, is also on the brief.
Joining Ysleta in the case is the Alabama-Coushatta Indian Tribe of Texas, which submitted a friend-of-the-court brief authored by Danny Ashby, formerly at Morgan Lewis & Bockius in Dallas, who switched to O’Melveny & Myers in Dallas on Feb. 1. Naskila Gaming, the tribe’s bingo enterprise in Livingston, has “proven transformative” for the tribe and its members, Ashby wrote. He said it has boosted employment, housing, health care and education opportunities that “would not be possible without Naskila Gaming.” Ashby won’t argue before the high court.
The tribes are challenging a 1994 ruling by the Fifth Circuit U.S. Court of Appeals that interpreted the Restoration Act and other precedents to mean that all of Texas’s gaming laws and regulations would “operate as surrogate federal law on the Tribe’s reservation in Texas,” rather than just restricting gaming activities that have been prohibited by Texas law.
Bingo has not been prohibited, so the tribes want to be free of Texas regulation of it. The Fifth Circuit’s ruling, Ashby wrote, compelled tribes to adhere to bingo regulations and should be reversed as “an unauthorized grant of regulatory jurisdiction to Texas.”
Martin’s brief states, “The Fifth Circuit misread the Restoration Act, and that misreading has infected every decision it has issued regarding the Tribes’ gaming activities for almost three decades, continuing to the instant case. The result has been enormous damage to the Tribes’ efforts to govern themselves, fund their essential operations, and provide much-needed services for their members.”
In the brief filed by Texas, principal deputy Texas solicitor general Lenora Pettit, counsel of record, asserted, “Absent a congressional change of course, [the Supreme Court] should uphold the rule that has existed in Texas for a generation: the Pueblo may operate gaming facilities only if they fully comply with Texas law.” The Texas Constitution, she noted, only authorizes bingo for churches, volunteer fire departments and the like. Pettit is scheduled to argue in the Ysleta case, her first argument before the high court.
The National Indian Gaming Association and other Native American organizations argue the Fifth Circuit ruling “undermines tribal sovereignty by limiting Tribes’ ability to control activities that occur on Indian lands, and it frustrates [the legislative] policy goal of establishing a uniform regulatory regime for tribal gaming activities.”
Former U.S. Solicitor General Seth Waxman, a veteran Supreme Court advocate, now partner at Wilmer Cutler Pickering Hale and Dorr, is counsel of record in the gaming association’s brief. He too has a Native American law practice among others.
The Biden administration also sided with the tribes, submitting an amicus brief that the Fifth Circuit incorrectly ruled that Texas can “regulate forms of gaming that the State does not prohibit outright.” Anthony Yang, assistant to the U.S. Solicitor General, will argue in the case.