Opposition Brief — Alabama-Coushatta Tribe of Texas, Petitioner v. Texas

Supreme Court briefDec 9, 2019

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No. 19-403

In the Supreme Court of the United States

A LABAMA -C OUSHATTA T RIBE OF T EXAS , PETITIONER

S TATE OF T EXAS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant

Attorney General

KYLE D. HAWKINS

Solicitor General

Counsel of Record

LANORA C. PETTIT

Assistant Solicitor General

BETHANY C. SPARE

Assistant Attorney General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Kyle.Hawkins@oag.texas.gov

(512) 936-1700

Q U E S T I O N P R E S E N TE D

In the mid-1980s, the Alabama-Coushatta Tribe of

Texas asked Congress to grant it federally recognized

status with all attendant benefits. After several failed attempts, the Tribe “request[ed] its representatives” in

Congress enact a bill that would grant it that status on

the condition, among other things, that “all gaming, gambling, lottery, or bingo, as defined by the laws of the

State of Texas, shall be prohibited” on tribal lands. In

1987, Congress granted that request under those conditions when it enacted the Restoration Act.

Then the Tribe developed buyer’s remorse. It came

to rue that the legislation it asked for prevented it from

operating lucrative casinos in Texas, which has long

barred casinos as a matter of public policy. So the Tribe

and its amici sought a do-over, and they thought they

found one in the Indian Gaming Regulatory Act

(“IGRA”) of 1988, 25 U.S.C. §§ 2701-21. The Tribe’s

amici sued Texas, attempting to leverage IGRA to get

out of the Restoration Act’s strictures. That gambit first

failed 25 years ago in Ysleta del sur Pueblo v. Texas (“Ysleta I”), 36 F.3d 1325 (5th Cir. 1994), cert. denied, 514

U.S. 1016 (1995), which rejected the Tribe’s core theory.

Multiple courts have since reaffirmed Ysleta I.

Now the Tribe and its amici are trying again. The

question presented in this case is:

Whether the Fifth Circuit erred in standing by its 25year-old rule that the Tribe is bound by the specific

terms of the statute by which it gained federal recognition rather than the general terms of IGRA.

(I)

T A B L E O F C O N T E N TS

Question Presented ............................................................... I

Table of Authorities ........................................................... III

Opinions Below ...................................................................... 1

Jurisdiction ............................................................................. 1

Statement ............................................................................... 1

Summary of Argument ......................................................... 9

Reasons for Denying the Petition ....................................... 9

II.

The Fifth Circuit’s Decision is Correct .................. 10

The Restoration Act, not the Indian

Gaming Regulatory Act, controls

this case................................................................ 10

The panel correctly applies Brand X .............. 17

The panel correctly applies Cabazon

Band ..................................................................... 25

There Is No Circuit Split .......................................... 29

III. There Is No Need for This Court’s

Involvement ................................................................ 32

Conclusion ............................................................................ 34

(II)

III

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama-Coushatta Tribe of Tex. v. Texas,

540 U.S. 882 (2003) ................................................ 2

Alabama-Coushatta Tribes of Tex. v. Texas,

208 F. Supp. 2d 670 (E.D. Tex. 2002),

aff’d, 66 F. App’x 525 (5th Cir. 2003) .................... 6

Barker v. Texas,

12 Tex. 273 (1854) ................................................ 28

Bryan v. Itasca County,

426 U.S. 373 (1976) .............................................. 26

Burt Lake Band of Ottawa & Chippewa

Indians v. Zinke,

304 F. Supp. 3d 70 (D.D.C. 2018) ........................ 13

California v.

Cabazon Band of Mission Indians,

480 U.S. 202 (1987) ...................................... passim

Carnival Leisure Indus., Ltd. v. Aubin,

938 F.2d 624 (5th Cir. 1991) ................................ 29

Castaneda v. Souza,

810 F.3d 15 (1st Cir. 2015) (en banc) .................. 21

Chickasaw Nation v. United States,

534 U.S. 84 (2001) ................................................ 14

Council for Urological Interests v. Burwell,

790 F.3d 212 (D.C. Cir. 2015) .............................. 21

Crawford Fitting Co. v. J.T. Gibbons, Inc.,

482 U.S. 437 (1987) .............................................. 15

Page(s)

Cases (continued):

DeCoteau v. District Cnty. Ct.,

420 U.S. 425 (1975) .............................................. 14

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ........................ 15, 20, 23, 24

Estate of Cowart v. Nicklos Drilling Co.,

505 U.S. 469 (1992) ........................................ 33, 34

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) .............................................. 21

Gila River Indian Cmty. v. United States,

729 F.3d 1139 (9th Cir. 2013) .............................. 25

Gonzales v. Oregon,

546 U.S. 243 (2006) .............................................. 23

Greater New Orleans Broad. Ass’n, Inc. v.

United States,

527 U.S. 173 (1999) .............................................. 28

Lechmere, Inc. v. NLRB,

502 U.S. 527 (1992) .............................................. 19

Massachusetts v. Wampanoag Tribe of Gay

Head (Aquinnah),

138 S. Ct. 639 (2018) .............................................. 9

Massachusetts v. Wampanoag Tribe of Gay

Head (Aquinnah),

853 F.3d 618 (1st Cir. 2017) ........................ passim

Morton v. Mancari,

417 U.S. 535 (1974) ........................................ 15, 17

Page(s)

Cases (continued):

Muwekma Tribe v. Babbitt,

133 F. Supp. 2d 42 (D.D.C. 2001) ........................ 13

Nat’l Cable & Telecomms. Assoc. v.

Brand X Internet Servs.,

545 U.S. 967 (2005) ...................................... passim

Passamaquoddy Tribe v. Maine,

75 F.3d 784 (1st Cir. 1996) .......................... passim

PBGC v. LTV Corp.,

496 U.S. 633 (1990) .............................................. 21

Rhode Island v. Narragansett Indian Tribe,

19 F.3d 685 (1st Cir. 1994) ............................ 14, 30

Rice v. Rehner,

463 U.S. 713 (1983) .............................................. 27

Seminole Tribe of Fla. v. Butterworth,

658 F.2d 310 (5th Cir. 1981) ................................ 28

Texas v. United States,

497 F.3d 491 (5th Cir. 2007),

cert. denied sub. nom.,

Kickapoo Traditional Tribe of Tex. v. Texas,

555 U.S. 811 ......................................................... 24

Texas v. Ysleta del sur Pueblo,

431 F. App’x 326 (5th Cir. 2011),

cert. denied, 565 U.S. 1114 (2012) ......................... 2

Traynor v. Turnage,

485 U.S. 535 (1988) ........................................ 15, 16

United States v. Cook,

922 F.2d 1026 (2d Cir. 1991) ............................... 29

Page(s)

Cases (continued):

United States v. Dakota,

796 F.2d 186 (6th Cir. 1986) ................................ 27

United States v. Hagen,

951 F.2d 261 (10th Cir. 1991) .............................. 27

United States v.

Home Concrete & Supply, LLC,

566 U.S. 478 (2012) ........................................ 20, 21

United States v. Mead Corp.,

533 U.S. 218 (2001) .............................................. 24

United States v. Santee Sioux Tribe of Neb.,

135 F.3d 558 (8th Cir. 1998) ................................ 29

United States v. Stewart,

205 F.3d 840 (5th Cir. 2000) ................................ 27

United States v. Wheeler,

435 U.S. 313 (1978) .............................................. 27

Utility Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) .............................................. 23

Ysleta del Sur Pueblo v.

Nat’l Indian Gaming Comm’n,

731 F. Supp. 2d 36 (D.D.C. 2010) ........................ 25

Ysleta del sur Pueblo v. Texas,

36 F.3d 1325 (5th Cir. 1994),

cert. denied, 514 U.S. 1016 (1995) ............... passim

Ysleta del sur Pueblo v. Texas,

532 U.S. 1066 (2001) .............................................. 2

VII

Page(s)

Cases (continued):

Ysleta del Sur Pueblo v. Texas,

537 U.S. 815 (2002) ................................................ 2

Ysleta del sur Pueblo v. Texas,

540 U.S. 985 (2003) ................................................ 2

Constitutional and Statutory Provisions

TEX. CONST. art. III, § 47 ........................................... 28

5 U.S.C. § 551(4) ........................................................ 24

25 U.S.C.:

§ 2 .......................................................................... 24

§ 9 .......................................................................... 24

§ 2701(3) .................................................................. 5

§ 2701(5) ........................................................ passim

§ 2703(6) .................................................................. 5

§2703(7)(A) .............................................................. 5

§2703(7)(B) .............................................................. 5

§ 2703(8) .................................................................. 5

§ 2706(b)(10) ............................................................ 5

§ 2710(b)(1)(A) ............................................. 3, 12, 19

§ 2710(d) .................................................................. 5

28 U.S.C. § 1254 .......................................................... 1

47 U.S.C.:

§151........................................................................ 22

§201(b) ................................................................... 22

VIII

Page(s)

Constitutional and Statutory Provisions (ctd.):

Indian Reorganization Act,

25 U.S.C. § 461, et seq. ....................... 13, 14, 15, 17

Pub. L. No. 280, 18 U.S.C. ............................ 25, 26, 27

§ 2, 18 U.S.C. § 1162(a) ......................................... 26

§ 4, 18 U.S.C. § 1360(a) ......................................... 26

Ysleta del Sur Pueblo and Alabama and

Coushatta Indian Tribes of Texas

Restoration Act, Pub. L. No. 100-89,

101 Stat. 666, 25 U.S.C. § 731 ........................... 1, 3

§ 2, note ........................................................ 4, 22, 24

§ 107(a) ............................................................ 10, 19

§ 203(a) .......................................................... passim

§ 203(c) ............................................................. 12, 13

§ 207(a) .......................................................... passim

§ 207(b) ............................................................ 27, 31

TEX. PENAL CODE § 47.02(a) ...................................... 28

Other Authorities

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL

TEXTS (2012) ......................................................... 20

COHEN’S HANDBOOK OF FEDERAL INDIAN

LAW (Nell Jessup Newton ed., 2012) ................... 13

H.R. Res. 759,

116th Cong., 1st Sess. (Jan. 24, 2019) ................ 33

https://www.naskila.com/#about (last

visited December 3, 2019) ...................................... 7

Page(s)

Other Authorities (continued):

https://www.naskila.com/games/?_ga=2.104

379204.571422360.1575326055858240565.1575326055........................................ 29

Kirsten Matoy Carlson, Congress, Tribal

Recognition, and LegislativeAdministrative Multiplicity, 91 IND. L.J.

955 (2016) ................................................. 16, 32, 33

S. Rep. No. 100-90 (1987) .......................................... 21

Tribal Council Resolution No.-T.C.-86-07 ............ 4, 11

U.S. Dep’t of Interior, Bureau of Indian Affairs,

Mission Statement, https://www.bia.gov/bia ....... 16

U.S. Gov’t Accountability Office, GAO-0249, Indian Issues: Improvements Needed

in Tribal Recognition Process (2001),

https://www.gao.gov/new.items/d0249.pdf

(last visited December 4, 2019) ......................... 16

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-18) is

reported at 918 F.3d 440. The order denying rehearing

and rehearing en banc (Pet. App. 54-55) is unreported.

The opinion of the district court (Pet. App. 19-53) is reported at 298 F. Supp. 3d 909.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254.

STATEMENT

This case concerns the interplay between two federal

statutes that regulate Indian gaming. The first, the Indian Gaming Regulatory Act (“IGRA”), generally permits gaming on tribal lands “if the gaming activity is not

specifically prohibited by” federal or state law. 25 U.S.C.

§ 2701(5). The second, the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act (the “Restoration Act” or the “Act”), specifically

governs gaming by those two tribes. Pub. L. No. 100-89,

101 Stat. 666, 25 U.S.C. § 731 et seq.

A quarter-century ago, the Fifth Circuit correctly

held that when it comes to gaming on Alabama Coushatta tribal land, the specific provisions of the Restoration

Act—which speak directly the Alabama Coushatta

Tribe’s gaming rights—control over the general provisions of IGRA that apply to other tribes. See generally

Ysleta del sur Pueblo v. Texas (“Ysleta I”), 36 F.3d 1325

(5th Cir. 1994), cert. denied, 514 U.S. 1016 (1995). This

Court declined to review that decision at the time, see id.,

(1)

and since then has declined multiple times to review similar decisions by other courts.

This case is just another iteration of the Alabama

Coushatta’s decades-long refusal to accept that plainly

correct result. The court below merely applies Ysleta I.

It rejected the Tribe’s latest argument, that recent letter

guidance from an administrative agency now requires a

different outcome. That argument misunderstands National Cable & Telecommunications Association v.

Brand X Internet Services, 545 U.S. 967 (2005), which

the Tribe’s cert petition ignores until the end. See Pet.

18-19.

Instead, the bulk of the petition rehashes arguments

that have been repeatedly rejected during the twentyfive years since the similarly situated Ysleta del Sur

Pueblo tribe sought certiorari review of Ysleta I. If the

issue presented in the petition is “intractable” and “continues to recur” (Pet. 16 n.2), it is only because of the two

tribes’ continued intransigence in the face of decisions

repeatedly rejecting their attempts to circumvent the

Restoration Act’s gaming limitations. See, e.g., Texas v.

Ysleta del sur Pueblo, 431 F. App’x 326, 331 (5th Cir.

2011) (per curiam) (“Once again, . . . the Tribe’s position

on this issue is simply wrong.”), cert. denied, 565 U.S.

1114 (2012); see also, e.g., Ysleta del sur Pueblo v. Texas,

540 U.S. 985 (2003) (mem.) (denying certiorari); Alabama-Coushatta Tribe of Tex. v. Texas, 540 U.S. 882

(2003) (mem.) (denying certiorari); Ysleta del Sur Pueblo

v. Texas, 537 U.S. 815 (2002) (mem.) (denying certiorari);

Ysleta del sur Pueblo v. Texas, 532 U.S. 1066 (2001)

(denying certiorari).

The court below properly held that Ysleta I conclusively resolved that the Restoration Act’s specific statutory provisions apply to the two Restoration Act tribes,

not IGRA’s general ones. Pet. App. 12-18. Ysleta I construed the relevant statutory language, and its (correct)

holding as to Congress’s intent left no room for ambiguity to be resolved by an administrative agency. In any

event, the agency on whose conflicting letter the Tribe

relies—the National Indian Gaming Commission

(“NIGC”)—has no congressionally delegated authority

to interpret, let alone to abrogate, the Restoration Act.

The Tribe’s claim that it is being singled out for unfair treatment by being denied access to IGRA’s permissive gaming regime ignores that it and the Pueblo are

uniquely situated. Of nearly 600 federally recognized

tribes, only two are governed by the Restoration Act’s

terms that Texas law governs gaming on reservation

lands and that render inapplicable future laws inconsistent with the Restoration Act’s gaming provisions. See

Pub. L. No. 100-89, §§ 203(a), 207(a). The Tribe also ignores that IGRA, by its plain terms, provides a “uniform” regime (Pet. 3, 4, 13, 21) only to the extent that

regime was not “specifically prohibited” by another

“Federal law” such as the Restoration Act. 25 U.S.C.

§§ 2701(5), 2710(b)(1)(A).

1. In 1987, Congress passed the Restoration Act,

which restored the federal trust relationship between

the United States and two specific Indian tribes in

Texas—the Ysleta del Sur Pueblo Tribe (the “Pueblo”)

and the Alabama-Coushatta. Pub. L. No. 100-89, 25

U.S.C. § 731, et seq. Congress’s restoration of federal status—and its attendant benefits—was dependent on

these Tribes’ agreement to refrain from gaming activities that are illegal under Texas law. ROA.2516.1 To secure the Act’s passage, the Alabama-Coushatta pledged

to Congress that it “remains firm in its commitment to

prohibit outright any gambling or bingo in any form on

its Reservation.” Pet. App. 36-37 n.9; see also ROA.103841 (Tribal Council Resolution No.-T.C.-86-07). (The

Pueblo did the same in a nearly identical resolution.

ROA.88-89.)

Congress, in turn, explicitly relied on Resolution No.T.C.-86-07 in adopting the Restoration Act, incorporating it by reference in the statute as the source of the Act’s

specific gaming prohibitions:

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. The provisions of this

subsection are enacted in accordance with

the tribe’s request in Tribal Resolution

No.-T.C.-86.07[.]

Pub. L. No. 100-89, § 207(a); see also Pet. App. 3 & n.3.

Congress charged the Secretary of the Department of

the Interior (“DOI”) with administering the Act. Pub. L.

No. 100-89, § 2, note.

“ROA” refers to the record on appeal for Texas v. Alabama-Coushatta Tribe of Texas, No. 18-40116 (5th Cir.).

2. Meanwhile, other tribes were conducting gaming

on their reservations. Noting that “existing Federal law

does not provide clear standards or regulations for the

conduct of gaming on Indian lands,” 25 U.S.C. § 2701(3),

Congress enacted IGRA “to regulate gaming activity on

Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State

which does not, as a matter of criminal law and public

policy, prohibit such gaming activity,” id. § 2701(5).

IGRA does not expressly repeal prior federal laws, like

the Restoration Act, or preempt the field of state regulation of gambling within state borders.

For tribes whose gaming was not controlled by other

federal law, IGRA created a general system for gaming

divided into three classes. Class I includes traditional

gaming for minimal prizes. Id. § 2703(6). Class II includes bingo and card games “explicitly authorized by

the laws of the State” or “not explicitly prohibited.” Id.

§§ 2703(7)(A), (B). Class III includes all forms of gaming

that are not Class I or II, id. § 2703(8), including “electronic or electromechanical facsimiles of any game of

chance” that might otherwise be Class II as well as “slot

machines of any kind.” Id. §§ 2703(7)(A), (B). While

tribes retain greater ability to offer Class-I and Class-II

gaming, Class-III games are prohibited unless the State

and tribe voluntarily enter into a compact to allow those

games. Id. § 2710(d). IGRA created NIGC to administer

this system but did not extend NIGC’s authority to other

tribe-specific gaming regulations. Id. § 2706(b)(10).

3. Since obtaining federal status, the AlabamaCoushatta and Pueblo have repeatedly conducted gaming that violates the terms of the Restoration Act, which

federalized Texas law. ROA.2518-23. The State has consistently sought to end this activity. E.g., ROA.1036-57.

And courts have consistently rejected the tribes’ attempts to circumvent their legal obligations. E.g.,

ROA.1041-49, 2518-19.

Ysleta I resulted from one such attempt. The Pueblo

sought to force Texas to negotiate a compact that would

allow the tribe to conduct Class-III gaming under IGRA.

Ysleta I, 36 F.3d at 1335. The Fifth Circuit rejected that

request, observing that “the Tribe has already made its

‘compact’ with the State of Texas, and the Restoration

Act embodies that compact.” Id. It unequivocally held

“not only that the Restoration Act survives today but

also that it—and not IGRA—would govern” whether

forms of gaming proposed by the Tribe “are allowed under Texas law, which functions as surrogate federal law.”

Id. The court reached that conclusion by looking to the

“plain language” of the Restoration Act and IGRA, as illuminated by the standard canons of construction. Id. at

1334-35.

Undeterred, the two tribes continued to pursue highstakes gaming in violation of Texas law. ROA.1053-54.

This case originally arose in 2001 when Texas sought a

permanent injunction to close an illegal casino operating

on Alabama-Coushatta land. ROA.20-35. The district

court ordered the Tribe “to cease and desist operating,

conducting, [or] engaging in . . . gambling activities on

the Tribe’s Reservation which violate State law.” Alabama-Coushatta Tribes of Tex. v. Texas, 208 F. Supp. 2d

670, 681 (E.D. Tex. 2002), aff’d, 66 F. App’x 525 (5th Cir.

2003) (per curiam).

4. Ever persistent, the Alabama-Coushatta then

passed a gaming ordinance to redefine its casino as electronic bingo and therefore (supposedly) Class-II gaming

under IGRA. ROA.1493-1521. In 2015, the Tribe, along

with the Pueblo, sought NIGC permission to conduct

gaming under its new ordinance. Pet. App. 8. A few

months later, NIGC’s Chairman sent a short letter purporting to approve the Tribe’s request to engage in

“Class II” gaming subject to NIGC oversight. Pet. App.

173-77. The Chairman implicitly acknowledged that he

lacked authority to provide such oversight under the

Restoration Act but concluded that IGRA’s gaming provisions “impliedly repeal[ed]” the gaming provisions in

the Restoration Act notwithstanding Ysleta I. Pet. App.

176. In support of this conclusion, he cited an opinion letter from the then-Deputy Solicitor of DOI to NIGC’s

General Counsel. See ROA.1472-92.

Thereafter, the Alabama-Coushatta opened the

Naskila Entertainment Center, Pet. App. 9-10, offering

what it advertises as “800 of the hottest electronic games

paying

Texas-sized

jackpots,”

https://www.naskila.com/#about (last visited December

3, 2019). A state inspection revealed that the Tribe’s

“electronic bingo” machines were “virtually indistinguishable from Las Vegas slots,” ROA.1383, and therefore illegal, Pet. App. 10.

5. Following this inspection, the State filed a motion

for civil contempt, alleging that the Tribe’s machines violate longstanding Texas law, in contravention of the

2002 injunction. Pet. App. 29-30. The Tribe filed a motion

seeking relief from the judgment and to dissolve or modify the injunction. See Pet. App. 11-12.

The district court denied the Tribe’s motion and

granted the State summary judgment on the issue of the

Restoration Act’s continued applicability. Pet. App. 1953. The court declined the Tribe’s request to defer to

NIGC’s assertion of jurisdiction, reasoning that Congress did not entrust NIGC with reconciling IGRA

(which it administers) and the Restoration Act (which it

does not). Pet. App. 43-48. The court also observed that

implied repeal was a pure question of statutory law rather than a question of agency discretion, Pet. App. 44;

that “the Restoration Act speaks directly to gaming by

the Tribe,” Pet. App. 46; and that the Tribe remains “obligated to abide by the plain language of the [Act],” Pet.

App. 51. The court followed Ysleta I ’s holding that “the

Restoration Act’s provisions on gaming apply” to the Alabama-Coushatta and “govern[] gaming by the Tribe.”

Pet. App. 46.

The Fifth Circuit affirmed. Pet. App. 1-18. It rejected

the Tribe’s claim that Brand X required deference to

NIGC’s contrary conclusion that IGRA, not the Restoration Act, applies to the Tribe. Pet. App. 15-18. It held that

Ysleta I “employed traditional tools of statutory interpretation and found that Congress spoke to the precise

issue,” leaving no ambiguity for an agency to reach a contrary result. Pet. App. 18.

The Tribe moved for rehearing en banc, asking for

the court (among other things) to overturn Ysleta I. Pet.

App. 54-55. The Fifth Circuit unanimously denied rehearing en banc. No judge so much as requested a poll.

Id.

SUMMARY OF ARGUMENT

Long-settled rules of statutory construction easily

resolve this case. The Tribe reaches its preferred gaming-permissive result only by reading out entire sections

of the Restoration Act and IGRA, and by resorting to the

disfavored doctrine of repeal by implication. The Fifth

Circuit reached the correct result below—just as it did a

quarter-century ago in Ysleta I. The Tribe is wrong that

the Fifth Circuit’s straightforward application of Ysleta

I conflicts with this Court’s decisions and with the decision of another court of appeals. The court faithfully applies controlling law from this Court, and there is no circuit split requiring this Court’s review—as it implicitly

acknowledged when it denied review in Massachusetts v.

Wampanoag Tribe of Gay Head (Aquinnah), 138 S. Ct.

639 (2018) (mem.). Finally, review is unnecessary in light

of pending legislation that may definitively resolve this

longstanding dispute.

REASONS FOR DENYING THE PETITION

The plain text of the Restoration Act and IGRA together with long-held canons of construction compel the

decision reached by the Fifth Circuit twenty-five years

ago in Ysleta I: For the two Restoration Act tribes, the

Restoration Act’s specific gaming provisions control over

IGRA’s general ones. And the court below correctly decided the only issue before it in this case: Brand X does

not require departure from Ysleta I based on NIGC’s

later-in-time conclusion that the Restoration Act no

longer controls. In any event, NIGC lacks jurisdiction to

construe the Restoration Act, let alone deem its gaming

provisions impliedly repealed by IGRA, rendering this

case a poor vehicle in which to refine Brand X. This

Court’s holding in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), and the First Circuit’s

in Massachusetts v. Wampanoag Tribe of Gay Head

(Aquinnah) (“Aquinnah”), 853 F.3d 618 (1st Cir. 2017),

are not to the contrary.

The Fifth Circuit’s Decision Is Correct.

A. The Restoration Act, not the Indian Gaming Regulatory Act, controls this case.

Twenty-five years ago, the Fifth Circuit correctly

concluded that the Restoration Act controls AlabamaCoushatta’s gaming activities in Texas. Ysleta I, 36 F.3d

1325. That court looked to (1) “the plain language of

§ 107(a)” of the Restoration Act, (2) “the tribal resolution

to which § 107(a) expressly refers,” including its discussion of how previous attempts by the Tribe to gain federal status failed due to gaming regulations deemed insufficiently robust, and (3) two separate provisions in

IGRA that “explicitly stated” that it “should be considered in light of other federal law.” Id. at 1334, 1335 &

n.21.

1. The Restoration Act plainly expressed Congress’s

intent to federalize and bind the Tribe to Texas gaming

law:

First, it provides that “[a]ll 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.” Pub. L. No. 100-89, § 207(a).

Second, it adds that “[a]ny 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.” Id.

Third, it states that these provisions “are enacted in

accordance with the tribe’s request in Tribal Resolution

No.-T.C.-86-07.” Id. Congress thus incorporated by reference the Tribe’s resolution that it (a) “remains firm in

its commitment to prohibit outright any gambling or

bingo in any form on its Reservation;” (b) has “no interest in conducting high stakes bingo or other gambling

operations on its Reservation, regardless of whether

such activities would be governed by Tribal law, state law

or federal law;” and (c) “requests its representatives in

[Congress]” enact a bill that “would provide that all gaming, gambling, lottery, or bingo, as defined by the laws

and administrative regulations of the state of Texas,

shall be prohibited on the Tribe’s reservation or on

Tribal lands.” ROA.121-22.

Fourth, the Act ensures that Congress cannot lightly

change these restrictions by stating that only those “laws

and rules of law of the United States of general application to Indians . . . which are not inconsistent with any

specific provision contained in this title shall apply to the

members of the tribe. . . .” Pub. L. No. 100-89, § 203(a)

(emphasis added). That is not to say that Congress could

never change the Restoration Act, but it could not do so

by means of a law of “general application.” Id.; Passamaquoddy Tribe v. Maine, 75 F.3d 784, 789 (1st Cir.

1996).

2. IGRA erected a “fundamentally different regime[]” for tribal gaming, but it did not change the Restoration Act. Ysleta I, 36 F.3d at 1334. IGRA did not

preempt other federal gaming laws. Just the opposite: It

“explicitly states in two separate provisions . . . that [it]

should be considered in light of other federal law.” Id. at

1335. Specifically, IGRA gives tribes the “right to regulate gaming activity” on their lands—but only “if the

gaming activity is not specifically prohibited by Federal

law and is conducted within a State which does not, as a

matter of criminal law and public policy, prohibit such

gaming activity.” 25 U.S.C. § 2701(5); accord id.

§ 2710(b)(1)(A) (allowing gaming “not otherwise specifically prohibited on Indian lands by Federal law”).

Read together, the Restoration Act’s specific rules

govern the Tribe’s gaming activities in Texas. The Restoration Act was at the time of IGRA’s passage, and remains, binding federal law mandating that the Tribe

obey Texas law. See Pet. App. 1-2 & n.1. Under the terms

of the Restoration Act, IGRA is inapplicable to the Tribe

because it is an act of general applicability that is “inconsistent with a[] specific provision[] contained in” the Restoration Act. Pub. L. No. 100-89, § 203(a). Likewise, the

plain terms of IGRA made the Tribe ineligible for its

more permissive gaming regime because gaming on its

lands was already “specifically prohibited” by another

federal law, namely the Restoration Act. 25 U.S.C.

§§ 2701(5), 2710(b)(1)(A).

3. The Tribe’s textual arguments to the contrary ignore many of the Restoration Act’s provisions. In particular, the Tribe points to Section 203 of the Act, which

provides that “[n]otwithstanding any other provision of

law, the tribe . . . shall be eligible . . . for all benefits and

services furnished to federally recognized Indian tribes.”

Pub. L. No. 100-89, § 203(c). The argument goes that because IGRA was passed to benefit federally recognized

tribes, IGRA is a “benefit” for which section 203(c) of the

Restoration Act makes the Tribe eligible. Pet. 6, 13.

But the only reasonable reading of Section 203(c) is

that it refers not to laws but to actual “benefits and services” (Pub. L. No. 100-89, § 203(c)) for which the Tribe

became eligible by receiving federally recognized status.

In other contexts, courts have interpreted this term to

include benefits like “health care, housing, economic development,” Muwekma Tribe v. Babbitt, 133 F. Supp. 2d

42, 42 (D.D.C. 2001), including “eligibility for certain federal funds,” Burt Lake Band of Ottawa & Chippewa Indians v. Zinke, 304 F. Supp. 3d 70, 80 (D.D.C. 2018).

By contrast, a different subsection of the Restoration

Act governs future laws. As discussed above, Section

203(a) provides that “all laws and rules of law of the

United States of general application to Indians” shall apply to the Tribe only if they “are not inconsistent with

any specific provision contained in this title.” Pub. L. No.

100-89, § 203(a). That provision gives the Indian Reorganization Act (“IRA”), 25 U.S.C. § 461, et seq., as an example of a “law[]” or “rule[] of law” that applies to the

Alabama-Coushatta unless inconsistent with the Restoration Act. Pub. L. No. 100-89, § 203(a). The IRA was as

much a “benefit” to Indian tribes as IGRA because it conserved tribal lands, established a credit system, and

granted powers of local governance. COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 1.05, at 81 (Nell Jessup

Newton ed., 2012). And yet the IRA is treated as a

“law[]” or “rule[] of law” under Section 203(a), rather

than a “benefit[]” or “service[]” under Section 203(c).

The Tribe’s reading would result in an odd one-way

ratchet: Any law beneficial to the Tribe would supersede

the Restoration Act, and any law detrimental to the

Tribe would not. Nothing in the Restoration Act or IGRA

suggests that this was Congress’s intent. Rather, like the

IRA, IGRA applies under the Restoration Act only if it

is not “inconsistent with any specific provision” in that

Act. Pub. L. No. 100-89, § 203(a). And the Tribe’s repeated efforts to obtain coverage under IGRA’s permissive gaming regime demonstrate that IGRA is, on its

face, “inconsistent with” the Section 207(a) of the Restoration Act, which requires the Tribe to obey Texas law.

Ysleta I, 36 F.3d at 1333.

4. The Tribe and its amici cannot avoid this conclusion

by pointing to the so-called Indian canon of construction.

Pet 20 n.4; Amicus Br. for Nat’l Cong. of Am. Indians

Fund et al. 21-22. Even the case on which the Tribe’s purported circuit split rests (at 14-16) recognizes that this

canon “has no relevance to a conflict between two federal

statutes.” Aquinnah, 853 F.3d at 627 (quoting Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 704 (1st

Cir. 1994)). Moreover, because the statutory language in

both the Restoration Act and IGRA is clear, the canon

cannot overcome “the intent embodied in the statute

Congress wrote.” Chickasaw Nation v. United States,

534 U.S. 84, 94 (2001); accord DeCoteau v. District Cnty.

Ct., 420 U.S. 425, 447 (1975).

5. Even were the relevant statutory provisions unclear—and they are not—IGRA still should not be read

to repeal the Restoration Act. As this Court has repeatedly recognized, and the Tribe does not dispute, “[i]t is a

basic principle of statutory construction that a statute

dealing with a narrow, precise, and specific subject is not

submerged by a later-enacted statute covering a more

generalized spectrum,” unless (1) “the later statute expressly contradicts the original act,” or (2) “such a construction is absolutely necessary in order that [the]

words [of the later statute] shall have any meaning at

all.” Traynor v. Turnage, 485 U.S. 535, 547-48 (1988)

(cleaned up) (collecting cases); see also, e.g., Epic Sys.

Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (“Congress

will specifically address preexisting law when it wishes

to suspend its normal operations in a later statute.”);

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,

445 (1987) (“[A] specific statute will not be controlled or

nullified by a general one, regardless of the priority of

enactment.”).

This Court’s decision in Morton v. Mancari, 417 U.S.

535, 551 (1974), is instructive. That case concerned the

IRA, which included a preference for qualified Native

Americans at the Bureau of Indian Affairs. Id. at 537.

Congress later passed the Equal Employment Act,

which prohibited racial discrimination in federal employment. Id. Non-Indian employees challenged the preference, claiming that the later enacted statute impliedly repealed the earlier one. Id. at 539. This Court rejected

that claim, recognizing that where “the Indian preference statute is a specific provision applying to a very specific situation,” the Equal Employment Act, “is of general application.” Id. at 550. Without an explicit intention

to do so, the general statute does not repeal the specific

one, “regardless of the priority of enactment.” Id. at 551.

The Tribe grudgingly concedes that “implied repeals

are disfavored.” Pet. 20. Nevertheless, its proposal

would work an implied repeal of the one restriction imposed by Congress—and agreed by the Tribe—as a

condition precedent to restoring the Tribe’s federal status. Pub. L. No. 100-89, § 207(a).

The Tribe’s construction should be rejected because

the Tribe points to no language in IGRA that “expressly

contradicts” the Restoration Act, and its construction is

not “absolutely necessary” to give IGRA meaning. Traynor, 485 U.S. at 547-48. IGRA’s aim was to regulate gaming across any tribes that were not already specifically

subject to restrictions in another “[f]ederal law.” 25

U.S.C. § 2701(5). Applying the Restoration Act as written would not frustrate this purpose. There are currently

573 federally recognized tribes. See U.S. Dep’t of Interior, Bureau of Indian Affairs, Mission Statement,

https://www.bia.gov/bia (last visited December 4, 2019).

Less than a tenth of them gained recognition through

tribe-specific legislation. See Kirsten Matoy Carlson,

Congress, Tribal Recognition, and Legislative-Administrative Multiplicity, 91 IND. L.J. 955, 981 (2016); U.S.

Gov’t Accountability Office, GAO-02-49, Indian Issues:

Improvements Needed in Tribal Recognition Process

25-26 (2001), https://www.gao.gov/new.items/d0249.pdf

(last visited December 4, 2019). And only about half of

those gained recognition before the enactment of IGRA

and could be subject to a similar rule to that of the court

below. Only two are actually subject to the court’s rule.

The Tribe’s amici counter that IGRA is the more specific law because the Restoration Act concerns matters

other than gaming, and IGRA is focused solely on gaming. Amicus Br. for Nat’l Cong. of Am. Indians Fund et

al. 20. That misstates the relevant inquiry. Though the

Restoration Act may address topics other than gaming,

as discussed above (at 3-4), the gaming provisions were

the sine qua non of its passage. Thus, applying the

Mancari framework, IGRA is a law of general applicability analogous to the Equal Employment Act. 417 U.S.

at 550-51. The Restoration Act’s gaming provision, like

that in the IRA, is the “specific provision applying to a

very specific situation” (id. at 550): Among the hundreds

of federally recognized tribes, the Restoration Act concerns just two. See Passamaquoddy Tribe, 75 F.3d at

788.

In sum, adopting the rule advocated by the AlabamaCoushatta and its amici would nullify the purpose of the

Restoration Act’s central provision applying Texas gaming law to two specific tribes. Contra Pet. 15. This would

be inconsistent with the language of the relevant statutes

and longstanding rules of construction, including that “it

is the duty of the courts, absent a clearly expressed congressional intention to the contrary,” to interpret two

statutes as capable of co-existence. Mancari, 417 U.S. at

551. The lower court’s decision fulfilled that duty by holding that the Restoration Act’s specific gaming provisions

control over IGRA’s general ones for the two tribes specifically subject to the Act, and thereby would “give effect to both” the Act and IGRA. Id. This Court does not

need to grant review to do the same.

B. The panel correctly applies Brand X.

Review is also unwarranted because the Fifth Circuit

correctly decided the only issue in the petition that it actually addressed: whether its earlier decision in Ysleta I

or the later contrary conclusion by NIGC controlled. See

Pet App. 11-12, 32. Moreover, even if the Fifth Circuit

erred on this picayune issue of administrative law, this

would not be an appropriate vehicle for this Court to address it.

1. The Fifth Circuit’s decision did not “invert[]” the

analysis this Court established in Brand X. Pet. 18. Indeed, when the Tribe tried to take the issue en banc, not

a single judge even called for a vote about whether the

panel faithfully applies Brand X to the court’s earlier decision in Ysleta I. Pet. App. 12-18.

Brand X addresses whether an agency action is entitled to deference where there is prior circuit-court authority interpreting an ambiguous statutory provision. It

provides that “a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation” leaves “no gap for the agency to fill” and “displaces

a conflicting agency construction.” 545 U.S. at 982-83.

Ysleta I was such a precedent.

Ysleta I conclusively held that the “Restoration Act’s

gaming provisions, and not IGRA, provide the framework for deciding the legality of any and all gaming by

the Pueblo and the Tribe on their Restoration Act lands.”

Pet. App. 17. Reading the two statutes together, the Ysleta I court concluded that “Congress’[s] intention” was

“explicit, clear, unambiguous, plain, and specific.” 36

F.3d at 1334 n.20 (quotations omitted). And, the court

stated, “the unmistakable conclusion [is] that Congress—and the Tribe—intended for Texas’s gaming laws

and regulations to operate as surrogate federal law on

the Tribe’s reservation in Texas.” Pet. App. 15 (quoting

Ysleta I, 36 F.3d at 1334).

The Ysleta I court reached its decision by construing

the text of the relevant provisions in both the Restoration Act and IGRA. Contra Pet. 19. It looked to “the plain

language of § 107(a)” of the Restoration Act as well as

the “the tribal resolution to which § 107(a) expressly refers,” which discussed how insufficient gaming prohibitions had caused earlier versions of the statute to fail.

Ysleta I, 36 F.3d at 1334. The court also construed

IGRA’s plain text, including 25 U.S.C. § 2710(b)(1)(A)

upon which the Tribe’s arguments regarding implied repeal turn. Ysleta I, 36 F.3d at 1335 & n.21. Far from being silent on the issue of earlier gaming statutes, the

court held, IGRA “explicitly stated” that “IGRA should

be considered in light of other federal law”—twice. Id.

In sum, Ysleta I “employed traditional tools of statutory interpretation and found that Congress spoke to the

precise issue” presented in this case. Pet. App. 18. Under

settled law, “judicial precedent holding that the statute

unambiguously forecloses the agency’s interpretation,

and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.” Brand X, 545

U.S. at 982-83. Because Ysleta I already supplied the definitive answer to the Tribe’s question, there was no

room for a contrary agency opinion. See, e.g., Lechmere,

Inc. v. NLRB, 502 U.S. 527, 536-37 (1992) (“Once we have

determined a statute’s clear meaning, we adhere to that

determination under the doctrine of stare decisis, and we

judge an agency’s later interpretation of the statute

against our prior determination of the statute’s meaning.”) (quotations omitted); see also Brand X, 545 U.S. at

984 (citing Lechmere with approval).

2. The Tribe asserts (at 19) that the Ysleta I court

must have found the statute was ambiguous because it

did not focus solely on the literal text. But doing so did

not suggest that there was a gap for an agency to fill with

a contrary interpretation. The court was just doing what

courts do: employing ordinary tools of statutory construction to discern Congress’s intent, including by applying longstanding canons of construction such as the

presumption against implied repeal of a statute. Only if

those tools do not reveal clear congressional intent does

there remain a gap for agencies to fill. See, e.g., Epic

Sys., 138 S. Ct. at 1630 (observing that when “traditional

. . . canons supply an answer, Chevron leaves the stage”)

(quotation marks omitted); id. at 1627 (looking to “contextual clues” to analyze the interplay between two statutes); see also United States v. Home Concrete & Supply,

LLC, 566 U.S. 478, 488 (2012) (plurality op.) (“If a court,

employing traditional tools of statutory construction,

ascertains that Congress had an intention on the precise

question at issue, that intention is the law and must be

given effect.”).

Similarly without merit is the Tribe’s assertion (at 19)

that Ysleta I must have found ambiguity because it examined legislative history. Ysleta I looked to both statutory and legislative history at the express invitation of

the parties, including the Pueblo (amicus here). See Ysleta I, 36 F.3d at 1334. The court properly found the statutory history to be relevant to help discern Congress’s

intent as to the relationship between the Restoration Act

and IGRA. Id.; ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS

256 (2012) (“We oppose the use of legislative history. . . .

But quite separate” is “statutory history,” which may be

considered as “part of the context of the statute.”). By

contrast, the court rejected the Pueblo’s argument based

on contrary legislative history. Ysleta I, 36 F.3d at 1334

(discussing a Representative’s floor statement).

In any event, that court’s reading of legislative history merely bolstered its conclusion, based on the plain

language, that Congress intended the specific prohibitions in that Act to govern gaming on the two tribes’ reservation lands. See, e.g., S. Rep. No. 100-90 at 8 (1987)

(declaring the “central purpose” of the Act’s gaming provisions “to ban gaming on the reservations as a matter of

federal law”). Use of legislative history for this purpose

remains one of the “traditional tools of statutory construction.” PBGC v. LTV Corp., 496 U.S. 633, 649 (1990).

Courts—including the court the Tribe cites as creating a

circuit split—have long recognized that it is permissible

to look to legislative history to determine whether Congress left any gap for agencies to fill under Chevron step

one. FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 147 (2000); Home Concrete, 566 U.S. at 488-89

(plurality op.); Castaneda v. Souza, 810 F.3d 15, 23-24

(1st Cir. 2015) (en banc); accord Council for Urological

Interests v. Burwell, 790 F.3d 212, 221 (D.C. Cir. 2015).

3. But even had Ysleta I been equivocal about

whether the statutes at issue here were ambiguous—and

it was not—this case would remain a poor vehicle to refine the requirements of Brand X. The Tribe’s theory is

premised on a letter from NIGC’s Chairman that proceeds on two shaky premises. First, the Chairman assumes jurisdiction over the question by observing that

because the Restoration Act “applies state gaming laws

to the Tribe’s lands,” it “must be taken into consideration

as part of . . . ordinance review” under IGRA. Pet. App.

174. Second, he looked to an opinion letter from the

former Deputy Solicitor of DOI “to interpret the interface between IGRA and the Restoration Act,” and ultimately to conclude that “IGRA impliedly repeals the portions of the Restoration Act repugnant to IGRA.” Pet.

App. 175-76. The Tribe asserts that the court of appeals

should have ignored the ordinary rules of stare decisis

because under Brand X, it owes deference to this “intervening, authoritative interpretation” that IGRA impliedly repealed the Restoration Act. Pet. 4, 11-12.

In Brand X, the FCC unquestionably had acted

within congressionally delegated authority to interpret

the statutory provision at issue. See 545 U.S. at 980-81.

There, “Congress ha[d] delegated to the Commission the

authority to ‘execute and enforce’ the [relevant provisions of the] Communications Act, and to ‘prescribe such

rules and regulations as may be necessary.’” Id. at 980

(quoting 47 U.S.C. §§ 151, 201(b)). As a result, the Commission could “promulgate binding legal rules[, and] the

Commission issued the order under review in the exercise of that authority.” Id. at 980-81. That is not the case

here for at least three reasons.

First, the Tribe offers no textual basis for NIGC regulatory jurisdiction over the Restoration Act. The Tribe

instead asks this Court to infer jurisdiction from Congress’s limited grant of authority under IGRA. See Pet.

16-17. But whatever else its “broad powers” under IGRA

may include (Pet. 17), it did not provide NIGC authority

to administer or interpret the Restoration Act. Congress

delegated administration of the Act to DOI. See Pub. L.

No. 100-89, § 2, note. And, of course, agency deference is

warranted only when “Congress delegated authority to

the agency generally to make rules carrying the force of

law, and . . . the agency interpretation claiming deference

was promulgated in the exercise of that authority.” Gonzales v. Oregon, 546 U.S. 243, 255-56 (2006) (quotations

omitted). Since Congress did not vest NIGC with authority to administer the Restoration Act, NIGC is not entitled to deference.

Second, neither IGRA nor the Restoration Act gives

NIGC authority to adjudge statutory conflicts between

different federal laws. The Tribe’s argument (at 16-17)

that the short letter from NIGC’s Chairman (Pet. App.

173-77) represents a change in controlling law is based

on a flawed premise. Whatever authority IGRA gives to

NIGC to approve Class-II gaming, see Pet. 9, it does not

give the agency power to abrogate a federal law that it is

does not administer. Cf. Utility Air Regulatory Grp. v.

EPA, 573 U.S. 302, 327 (2014) (stating that agency power

to interpret the law does not permit it to change the law).

This Court has rejected a similar argument in Epic

Systems, which concerned an effort by the National Labor Relations Board (“NLRB”) to construe the National

Labor Relations Act (“NLRA”) in a way that invalidated

portions of the Federal Arbitration Act. 138 S. Ct. at

1620-21. The Court rejected the NLRB’s claim for deference, holding that it has no authority effectively to abrogate portions of an act it does not administer. Id. at 1629.

Agency deference, after all, rests on the “premise that a

statutory ambiguity represents an implicit delegation to

an agency to interpret a statute which it administers.”

Id. (quotations omitted). Like NIGC here, the NLRB

had not sought “to interpret its statute, the NLRA, in

isolation.” Id. Rather, it “sought to interpret th[e] statute in a way that limits the work of a second statute.” Id.

And Congress did not “implicitly delegate[] to an agency

authority to address the meaning” of that second statute.

Id.

Third, the Tribe cannot establish that NIGC had authority to abrogate the Restoration Act because it received an opinion letter from DOI’s then-Deputy Solicitor. Contra Pet. 17. As an initial matter, the Deputy Solicitor of DOI has no more authority to “address the

meaning” of IGRA, a “statute it does not administer,”

than does NIGC’s chairman. Epic Sys., 138 S. Ct. at 1629.

Moreover, the opinion letter does not qualify for deference because it was not adopted through a method permitted by Congress. E.g., United States v. Mead Corp.,

533 U.S. 218, 226-27 (2001). Because the letter contains

“an agency statement of general or particular applicability and future effect designed to implement, interpret, or

prescribe law or policy,” it falls within the Administrative Procedures Act’s definition of a “rule.” 5

U.S.C. § 551(4). The Restoration Act provides that DOI

“may promulgate such regulations,” but only “as may be

necessary to carry out the provisions of this Act.” Pub.

L. No. 100-89, § 2, note. The Deputy Solicitor’s opinion

letter does not purport to be a regulation “necessary to

carry out the provisions” of the Restoration Act. Id. The

general-authority statutes on which the former Deputy

Solicitor’s letter relies—25 U.S.C. § 2, 9—cannot be used

to issue regulations of this type. Texas v. United States,

497 F.3d 491 (5th Cir. 2007), cert. denied sub. nom.,

Kickapoo Traditional Tribe of Tex. v. Texas, 555 U.S.

811 (mem.).

More fundamentally, because the Secretary may decline to adopt the Solicitor’s opinions, such an opinion

letter does not represent DOI’s final position. See, e.g.,

Gila River Indian Cmty. v. United States, 729 F.3d 1139,

1147-48 (9th Cir. 2013) (discussing the interplay between

Solicitor opinions and the Secretary’s final determination where Secretary declined to adopt the letter); see

also Ysleta del Sur Pueblo v. Nat’l Indian Gaming

Comm’n, 731 F. Supp. 2d 36, 38 (D.D.C. 2010) (stating

DOI’s adopted position that the Tribe’s “activities are

governed by the Restoration Act and not IGRA,” and

that the Tribe “was not under NIGC jurisdiction”).

In sum, the Fifth Circuit properly applies Brand X

because Yselta I was based on the unambiguous language of the Restoration Act and IGRA. But, even if it

were not, this would be a poor vehicle to address the issue because NIGC’s letter was anything but an “intervening, authoritative interpretation” of either IGRA or

the Restoration Act. Pet. 4.

C. The panel correctly applies Cabazon Band.

The Fifth Circuit similarly did not impermissibly “depart[]” (Pet. 20) from California v. Cabazon Band of

Mission Indians, 480 U.S. 202 (1987). Cabazon Band

and its framework distinguishing state laws that prohibit

gaming from those that merely regulate it has no applicability to this case. Moreover, even if the Court were

inclined to expand Cabazon Band, this would be a poor

vehicle to do so because Texas unequivocally prohibits

the type of gaming that Alabama-Coushatta seeks to

pursue.

1. The Cabazon Band framework does not apply in

this case. There, the Court examined Public Law 280,

which granted six States broad criminal and somewhat

more limited civil jurisdiction over tribal-reservation

lands. See Pub. L. No. 280, § 2, 18 U.S.C. § 1162(a) (criminal jurisdiction); id., § 4, 28 U.S.C. § 1360(a) (civil jurisdiction). Neither Public Law 280 nor this Court discussed gaming. Instead, the question before the Court

was whether to read the broad criminal jurisdiction provision to cover essentially civil fines, thereby giving

States nearly limitless control over conduct on tribal

land. Cabazon Band, 480 U.S. at 210-11.

This Court has repeatedly found that States may not

exercise limitless control over tribal lands. For example,

in Bryan v. Itasca County—upon which Cabazon Band,

480 U.S. at 208, relied—this Court examined whether the

civil jurisdiction contained in Public Law 280 “subject[ed] reservation Indians to the full sweep of state

laws,” including state property taxes. 426 U.S. 373, 389

(1976). The Court concluded that it did not. Instead, the

Court surmised that Congress’s primary concern was

combating lawlessness on reservations and that Congress did not intend to subject tribes to such broad regulation. Id. at 383, 389.

Cabazon Band examined whether States could avoid

this rule by passing what might otherwise be a civil regulation as a criminal prohibition. 480 U.S. at 211-12.

Again, the Court said that they could not. Id. It was in

this context that Cabazon Band drew a distinction between state laws that prohibit and regulate certain conduct. Given Public Law 280’s lack of specificity in granting regulatory jurisdiction, the Court held that gaming

prohibitions were permissible, but regulations were “not

expressly permitted by Congress.” Id. at 214.

Since Cabazon Band, this Court and others have consistently cautioned against importing the distinction between criminal/prohibitory laws and civil/regulatory laws

from the Public Law 280 context to other, more specific

laws governing tribal affairs. E.g., Rice v. Rehner, 463

U.S. 713, 732 (1983). The Cabazon Band “line of cases”

fashioned a solution unique to the facially broad grant of

civil-regulatory jurisdiction in Public Law 280 “[t]o narrow the reach of that statute.” United States v. Stewart,

205 F.3d 840, 843 (5th Cir. 2000) (“Like the Sixth and

Tenth Circuits, ‘we think it inappropriate to apply here

the criminal/prohibitory-civil/regulatory test which was

developed in a different context to address different concerns.’” (quoting United States v. Dakota, 796 F.2d 186,

188 (6th Cir. 1986))); accord United States v. Hagen, 951

F.2d 261, 264 (10th Cir. 1991).

The court below correctly applies this later, limited

understanding of Cabazon Band. In stark contrast to

Public Law 280, the Restoration Act does not grant

Texas general jurisdiction to regulate all aspects of life

on the Alabama-Coushatta reservation. See Pub. L. No.

100-89, § 207(b). Rather, Congress expressly made the

Tribe subject, as a matter of federal law, to Texas’s gaming restrictions, and authorized Texas to enforce violations in federal court with its “civil and criminal penalties.” Id. § 207(a). When Congress “expressly permit[s]”

specific state regulation by speaking directly to it, the

distinction that Cabazon Band made between prohibitions and regulations of on-reservation activity is inapplicable. Cabazon Band, 480 U.S. at 214; accord United

States v. Wheeler, 435 U.S. 313, 323 (1978) (“[Tribal sovereignty] exists only at the sufferance of Congress.”).

What is paramount is discerning Congress’s intent—precisely the analysis the Ysleta I court conducted long ago.

2. But even if the Court were inclined to extend Cabazon Band’s framework, this would be a poor vehicle to

do so because the Tribe’s claim would still fail. The machines that the Tribe operates are prohibited as a matter

of Texas’s public policy, not merely regulated.

Under Cabazon Band, “the shorthand test” for

whether an act is prohibited “is whether the conduct at

issue violates the State’s public policy.” 480 U.S. at 209.

Texas outlaws lotteries, other forms of gambling, and associated activities, TEX. PENAL CODE § 47.02(a), with

only narrow exceptions for certain forms of charitable

bingo, charitable raffles, and state lotteries, see TEX.

CONST. art. III, § 47.

In particular, Texas’s public policy has long disfavored casino-style gaming. See, e.g., Barker v. Texas, 12

Tex. 273, 276 (1854) (“Gaming is denounced by the law as

an offense against public policy.”); cf. Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 181

(1999) (“[P]rivate casino gambling is unlawful [in

Texas].”). This Texas public policy stands in contrast to

the circumstance in Cabazon Band where the State prohibited only certain games, and the games the plaintiff

tribe offered “flourish in California.” Cabazon Band, 480

U.S. at 210; Seminole Tribe of Fla. v. Butterworth, 658

F.2d 310, 316 (5th Cir. 1981) (Florida had no “statute that

specifically prohibits the act of gambling.”).

This prohibition extends to the Tribe’s gaming devices. The Tribe strains to call the games on offer at its

Naskila Entertainment Center “bingo.” Pet. i, 10, 21, 22.

In reality, the Tribe operates electronic machines

“virtually indistinguishable from Las Vegas slots,”

ROA.1383, lined up in a “casino type atmosphere,”

ROA.1664. The reality of Naskila belies the Tribe’s attempt to pass off its bingo-themed slot machines as anything

resembling

traditional

bingo.

See

https://www.naskila.com/games/?_ga=2.104379204.5714

22360.1575326055-858240565.1575326055.

The Tribe cannot rely on the limited types of gaming

that Texas does allow to avoid this conclusion. Gaming is

not an all-or-nothing affair. See, e.g., Cabazon Band, 480

U.S. at 210 (observing that the prohibition/regulation

distinction “is not a bright-line rule”). Contra Pet. 4. That

Texas law does not prohibit every conceivable form of

bingo does not mean that bingo-themed slot machines

are fair game. On this, no further review is required because the circuits are in agreement. See, e.g., United

States v. Santee Sioux Tribe of Neb., 135 F.3d 558, 564

(8th Cir. 1998) (rejecting argument that video slot machines are permitted by Nebraska law because of “fundamental[ly] differen[t]” state-authorized Keno); accord

Carnival Leisure Indus., Ltd. v. Aubin, 938 F.2d 624,

625-26 n.3 (5th Cir. 1991); United States v. Cook, 922

F.2d 1026, 1035 (2d Cir. 1991).

II. There Is No Circuit Split.

The Tribe’s purported circuit split is illusory. As the

case on which it relies explicitly recognizes, whether

IGRA repeals an earlier tribe-specific statute depends

on the specific language and history of that statute. See

Aquinnah, 853 F.3d at 627-28 (concluding that IGRA repealed law ratifying Massachusetts agreement but not

Maine). Aquinnah, however, never examined or even

mentioned the Restoration Act or Ysleta I. In fact, the

only time the First Circuit has cited Ysleta I was favorably—to support upholding Maine’s gaming laws against

an IGRA challenge. See Passamaquoddy Tribe, 75 F.3d

at 791. Because the Restoration Act differs in several

material respects from the Aquinnah Settlement Act, the

First Circuit would apply Passamaquoddy Tribe to uphold the Restoration Act, eliminating any supposed circuit split.

Like Cabazon Band, the Aquinnah Settlement Act

does not single out gaming for prohibition. Instead, it

provides that the tribe “shall be subject to the civil and

criminal laws, ordinances, and jurisdiction” of Massachusetts. Aquinnah, 853 F.3d at 622. While the general

grant of jurisdiction included a parenthetical that it covered “bingo or any other game of chance,” id., the First

Circuit found this reference was insufficiently specific

and that the agreement did not actually prohibit anything. Id. at 629.2 Moreover, the Settlement Act in

Aquinnah said “nothing about the effect of future federal laws on the [Act].” Id. at 628. Thus, the Aquinnah

court found it “essentially identical” (id.) to a statute that

the court had earlier held impliedly repealed by IGRA,

see Rhode Island, 19 F.3d at 704.

By contrast, when, as here, the earlier statute contains a forward-looking provision, the First Circuit

Notably, Aquinnah addressed the tribe’s claims on the

merits, rather than deferring to NIGC. 853 F.3d at 626 n.6; see

also Passamaquoddy Tribe, 75 F.3d at 794 (holding that nothing suggested that “Congress intended to entrust [NIGC] with

reconciling [IGRA] and other statutes in the legislative firmament”).

follows Ysleta I’s approach. In Passamaquoddy Tribe,

that court rejected the tribe’s claim that IGRA’s general

gaming provisions upended the Maine Settlement Act

absent “explicit language” from Congress “offering a patent indication of its intent to accomplish that result, or,

indeed, by first repealing [the operative section of the

Act].” 75 F.3d at 789. Instead, the First Circuit in Passamaquoddy Tribe, like the Fifth Circuit in Ysleta I, harmonized the Settlement Act and IGRA: The former governs gaming on Passamaquoddy lands, the latter on

other tribal lands. Id. at 791. As support, Passamaquoddy Tribe pointed to Ysleta I, approving its holding

that IGRA “did not impliedly repeal a federal statute

granting Texas jurisdiction over Indian gaming because

Congress never indicated in [IGRA] that it intended to

rescind the previous grant of jurisdiction.” Id. (citing Ysleta I, 36 F.3d at 1335).

Unlike the Aquinnah Settlement Act, the Restoration

Act does not purport to grant Texas general jurisdiction

over tribal lands. Instead, it singles out and specifically

applies Texas’s gaming prohibitions and associated penalties. Pub. L. No. 100-89, §§ 207(a), (b). The distinction

is key because IGRA permits gaming only when not

“specifically prohibited by Federal law.” 25 U.S.C.

§ 2701(5); see Ysleta I, 36 F.3d at 1335 & n.21. Where the

two Restoration Act tribes specifically agreed as a condition for federal recognition to be “prohibited” from

gaming not authorized in the State, Pub. L. No. 100-89,

§ 207(a), the Aquinnah did not, Aquinnah, 853 F.3d at

629. It is, thus, unsurprising that the First Circuit

reached a different conclusion in interpreting different

statutory language.

Moreover, the Restoration Act not only specifically

prohibits gaming but, like the statute in Passamaquoddy

Tribe, speaks to the effect of future federal laws on that

prohibition, making only those “laws and rules of law of

the United States of general application to Indians . . .

which are not inconsistent with any specific provision

contained in this title” applicable to the Tribe. Pub. L.

No. 100-89, § 203(a). As a result, if this case had been

filed in Maine rather than Texas, the First Circuit would

have reached the same outcome. The petition cites no

other circuit court supporting its proposed rule.

III. There Is No Need for This Court’s Involvement.

In addition to touting a non-existent, one-to-one circuit split, the Tribe tries to argue that taking this case is

necessary to “vindicate tribal sovereignty” and “restore

nationwide uniformity on an exceedingly important

question.” Pet. 4. And it suggests that continuing to subject it to the gaming restrictions in the Restoration Act

would leave a gaping hole in IGRA. Pet. 12-13, 21.

But, in fact, the two Restoration Act tribes are

uniquely situated. As discussed above (at 16), there are

nearly 600 federally recognized tribes. Of these, the Restoration Act restricts gaming for only the AlabamaCoushatta and the Pueblo. See Carlson, supra, at 988 &

n.137. The fact that the Tribe is uniquely situated is amply demonstrated by the fact it has only found one case

decided in the last twenty-five years that even raises the

possibility of tension with Ysleta I.

Further belying the notion that IGRA creates a uniform system from which the Alabama-Coushatta is being

unfairly excluded, many of the tribes that have been

restored to federal status in tribe-specific legislation after IGRA’s passage are subject to specific gaming restrictions. See, e.g., Carlson, supra, at 988. IGRA is

meant to address gaming on reservation lands in the absence of such tribe-specific rules, but it simply is not intended “to be the one and only statute addressing the

subject of gaming on Indian lands.” Ysleta I, 36 F.3d at

1335 (discussing 1993 statute imposing similar restrictions on South Carolina tribe). Contra Pet. 3.

Ultimately, the Tribe and its amici are unhappy with

the deal they struck to secure passage of the Restoration

Act and the benefits of federal recognition. The Tribe’s

policy arguments about the economic benefits of tribal

gaming to its reservation (Pet. 21-23) do not change the

analysis. After all, “[i]f the effects of the law are to be

alleviated, that is within the province of the Legislature.”

Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469,

484 (1992).

There is no need for this Court’s involvement to provide the gaming permission the Tribe seeks. The two

Restoration Act tribes have a ready avenue to redress

their grievances through Congress. Indeed, legislation is

currently pending that would allow the Alabama-Coushatta and Pueblo to take advantage of IGRA’s permissive

gaming regime. House Resolution 759, introduced by the

congressman in whose district the Tribe’s reservation

sits, would amend the Restoration Act to provide that

“[n]othing in this Act shall be construed to preclude or

limit the applicability of the Indian Gaming Regulatory

Act.” H.R. Res. 759, 116th Cong., 1st Sess. (Jan. 24,

2019). The House passed that bill in July with bipartisan

support, and it is now awaiting Senate action. Id. (July

24, 2019). If, for whatever reason, Congress chooses not

to adopt this legislation, the Court would have no authority to override that decision. Estate of Cowart, 505 U.S.

at 484 (“It is Congress that has the authority to change

the statute, not the courts.”).

C O N C L U S IO N

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant

Attorney General

KYLE D. HAWKINS

Solicitor General

Counsel of Record

LANORA C. PETTIT

Assistant Solicitor General

BETHANY C. SPARE

Assistant Attorney General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Kyle.Hawkins@oag.texas.gov

(512) 936-1700

DECEMBER 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.