In Ysleta del Sur Pueblo v. Texas, the U.S. Supreme Court ruled 5-4 on June 15, 2022 that Texas cannot enforce its gaming regulations on the Ysleta del Sur Pueblo’s reservation near El Paso unless Texas outright bans the game in question. The decision ended nearly three decades of litigation and cleared the way for the Pueblo, along with the Alabama-Coushatta Tribe of Texas, to offer bingo and other games Texas regulates rather than forbids, under federal rather than state oversight.1Justia. Ysleta del Sur Pueblo v. Texas, 596 U.S. ___ (2022)
The Statute at the Heart of the Case
Congress passed the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act on August 18, 1987. The Act restored federal recognition and the federal trust relationship for both tribes.2GovInfo. Public Law 100-89 – Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act
Section 107 of that Act became the fight. It says all gaming activities “prohibited by the laws of the State of Texas” are also prohibited on the tribe’s land, with the same civil and criminal penalties. The next subsection says nothing in the section grants Texas regulatory jurisdiction over the tribe.3GovInfo. U.S.C. Title 25 – Indians, Section 1300g-6
Everything turned on the word “prohibited.” Did it mean any game Texas hadn’t affirmatively permitted, dragging Texas’s full regulatory code onto the reservation? Or did it mean only games Texas flatly bans?
The Prohibitory Versus Regulatory Line
The Supreme Court had drawn that distinction earlier the same year Congress passed the Restoration Act. In California v. Cabazon Band of Mission Indians, the Court held that a state can enforce a law in Indian country if it generally prohibits the conduct, but not if the state generally permits the conduct and only regulates how it happens.4Justia. California v. Cabazon Band of Indians, 480 U.S. 202 (1987)
The shorthand: does state policy forbid the activity, or allow it under rules? A state that licenses charitable bingo has not prohibited bingo. It has chosen to regulate it.
How the Majority Ruled
Justice Gorsuch wrote the majority opinion, joined by Justices Breyer, Sotomayor, Kagan, and Barrett. The Court vacated a Fifth Circuit decision that had reaffirmed a 1994 precedent treating all Texas gaming law as “surrogate federal law” on the reservation, and sent the case back for reconsideration.1Justia. Ysleta del Sur Pueblo v. Texas, 596 U.S. ___ (2022)
The reasoning came down to a concession. Texas acknowledged that its bingo laws do not “forbid,” “prevent,” “effectively stop,” or “make impossible” bingo in the state. Texas allows bingo under rules fixing the time, place, and manner in which it may be conducted. That concession, the majority found, placed Texas bingo law on the regulatory side of the Cabazon line.5Supreme Court of the United States. Ysleta del Sur Pueblo v. Texas – Syllabus
Because Texas regulates bingo rather than banning it, Section 107 does not reach bingo on the Pueblo’s land. The Act’s ban only kicks in for games Texas completely forbids. The Court instructed the Fifth Circuit to “revise its precedent and reconsider this case in the correct light.”1Justia. Ysleta del Sur Pueblo v. Texas, 596 U.S. ___ (2022)
The Dissent
Chief Justice Roberts dissented, joined by Justices Thomas, Alito, and Kavanaugh. He argued that a straightforward reading of Section 107 applies all of Texas’s gambling rules on the tribe’s land. Congress wrote “all gaming activities” prohibited by Texas law, Roberts noted, not “all types of gaming” or games Texas “flatly” or “categorically” bans. If Congress meant the narrower reading, it could have said so.1Justia. Ysleta del Sur Pueblo v. Texas, 596 U.S. ___ (2022)
Roberts also raised a structural point. A different section of the Restoration Act already incorporates the general framework for state jurisdiction in Indian country, which includes the Cabazon distinction. If that framework already covered gaming, Roberts asked, why write a separate gaming provision saying the same thing? In his view, Section 107 must reach further, or it does nothing.
What Tribes Can Offer Now
The practical effect depends on the category of game. The Indian Gaming Regulatory Act sorts tribal gaming into classes, and the ruling changes what happens in each.
Bingo and Other Class II Games
Class II gaming covers bingo (including electronic bingo), pull-tabs, and certain non-banked card games.6Office of the Law Revision Counsel. 25 U.S.C. 2703 – Definitions Under IGRA, a tribe may offer Class II games if the state permits that type of gaming for any purpose by any person or organization, and the tribe adopts a gaming ordinance approved by the chairman of the National Indian Gaming Commission.7Office of the Law Revision Counsel. 25 U.S.C. 2710 – Tribal Gaming Ordinances No compact with the state is required. Because Texas allows charitable bingo, the ruling clears the path for the Pueblo to operate Class II bingo under NIGC oversight rather than Texas regulation.
Slot Machines and Other Class III Games
Class III covers slot machines, blackjack, roulette, and other casino-style games. IGRA requires a negotiated tribal-state compact before a tribe can offer Class III gaming.7Office of the Law Revision Counsel. 25 U.S.C. 2710 – Tribal Gaming Ordinances Texas has historically refused to negotiate such a compact. The ruling does not automatically authorize Class III gaming on the Pueblo’s land. Where Texas law completely prohibits a type of game, Section 107 still bars it on the reservation. Offering such a game would require either a change in state law or a successful compact.
The line between Class II and Class III is not always obvious, and it matters. Electronic bingo machines can look almost identical to slot machines. In 2017, when Texas inspected the Pueblo’s Speaking Rock Entertainment Center, officials found more than 2,000 machines that looked like Las Vegas-style slots; after a federal court enjoined those operations, the tribe announced a transition to bingo.1Justia. Ysleta del Sur Pueblo v. Texas, 596 U.S. ___ (2022) Whether a particular machine qualifies as Class II bingo with electronic aids or a Class III electronic facsimile of a slot machine is a question the NIGC evaluates case by case.
Who the Ruling Covers
The 1987 Restoration Act applies to both the Ysleta del Sur Pueblo and the Alabama-Coushatta Tribe of Texas, so the Court’s interpretation of Section 107 covers both.2GovInfo. Public Law 100-89 – Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act The Alabama-Coushatta had been operating electronic bingo at its Naskila Gaming facility in Livingston, Texas, and after the ruling, tribal leadership publicly affirmed the right to continue those operations under federal oversight. The decision does not extend to tribes governed by different federal statutes; it interprets the specific language of the Restoration Act.
Why the Case Matters
The decision reinforced that the prohibitory-versus-regulatory framework from Cabazon remains the default lens for reading federal laws that reference state gaming prohibitions in Indian country. For tribes governed by restoration acts or other tribe-specific legislation, the ruling signals that courts should not read ambiguous language as importing a state regulatory code onto tribal land. “Prohibited” means banned, not regulated.
The ruling also replaced an unworkable status quo. Nearly three decades of lower courts trying to enforce Texas gaming rules on the Pueblo had produced contempt proceedings and what one district court called judicial oversight of “the minutiae of the Tribe’s gaming-related conduct.”1Justia. Ysleta del Sur Pueblo v. Texas, 596 U.S. ___ (2022) The new framework draws a cleaner line. If Texas bans a game outright, the tribe cannot offer it. If Texas allows the game under rules, the tribe operates under federal oversight instead. How cleanly that line holds at the blurry boundary between Class II and Class III is a question still being tested at Speaking Rock.