Opposition Brief — Ysleta del Sur Pueblo v. Texas

Supreme Court of the United States

YSLETA DEL SUR PUEBLO, ET AL.,

Petitioners,

Vv.

STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

JOHN CORNYN JULIE CARUTHERS PARSLEY

Attorney General of Texas Solicitor General

HOWARD G. BALDWIN, JR. Counsel of Record

First Assistant Attorney MELANIE P. SARWAL

General _ Assistant Solicitor General

MICHAEL T. MCCAUL OFFICE OF THE ATTORNEY

Deputy Attorney General GENERAL

for Criminal Justice P.O. Box 12548

JEFFREY S. BOYD Austin, Texas 78711-2548

Deputy Attorney General (512) 936-1700

for Litigation (512) 474-2697

COUNSEL FOR THE STATE OF TEXAS

TABLE OF CONTENTS

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I. Petitioners Have Presented No Reason for the

Court to Exercise Its Discretion and Grant the

Petition for Writ of Certiorari in this Case ......... 6

A. Petitioners’ Issues Do Not Satisfy the

Court’s Prerequisites for Review ............. 6

B. Instead, the Tribe Asks the Court to

Engage in the Extraordinary Task of Error

ee ae Uae 6 aaa haw eae A 7

II. Ysleta ] Was Correctly Decided.................. 9

A. The Fifth Circuit Correctly Decided in

1994 That IGRA Did Not Impliedly

Repeal the Restoration Act .................. 9

B. The Fifth Circuit Correctly Held That the

Restoration Act Was Not Enacted with an

Eye Towards Cabazon Band ............... 13

1. The legislative history of the

Restoration Act establishes that the

Act is not to be read in light of

|S FEE eer ee 13

2. Petitioners’ interpretation of

“prohibited” is not supported by the

canons of statutory construction .........

3. Ysleta J is not at odds with other

Circuit court decisions .................

C. The Fifth Circuit’s Holdings in Ysleta ]

Regarding the Restoration Act’s Gambling

Prohibition Were Neither Unconstitutional

War T7G0Nh. . .tecaaes eee eee eee best ciesae

III. The Fifth Circuit Properly Rejected the

Characterization of Ysleta ] as Dicta .............

ne ree iw FSR As ee

iii

INDEX OF AUTHORITIES

CASES PAGE

Akins v. Penobscot Nation, 130 F.3d 482 (CA1 1997) ...... 12

Ala.-Coushatta Tribes of Tex. v. Texas,

__ F.Supp.2d __, No. 9:01-CV-299,

2002 WL 1369473 (E.D. Tex. June 25, 2002) ...... 13,17

Boag v. MacDougall, 454 U.S. 364 (1982) ................ 8

California v. Cabazon Band of Mission Indians,

oo | En passim

Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984) ................. 4,6

Cheyenne River Sioux Tribe v. S. Dakota,

me 21

Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co.,

ED et ba ce ae bang k hea akeces exe 8

Chickasaw Nation v. United States, 534 U.S. 84 (2001) .. 11, 18

Citation Bingo, Ltd. v. Otten, 121 N.M. 205 (N.M. 1995) ... 21

County of Allegheny v. Am. Civil Liberties Union,

i a ce cee cen beee Hk ek oneness 23

Crane v. Commissioner, 331 U.S. 1 (1947) .............-. 18

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

I sa aah by 66 & 6'0:0.6-0.6.46 6-046 ona 4-0 10

Fla. Cent. R. R. Co. v. Schutte, 103 U.S. 118 (1881)........ 23

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ............ 18

Lac du Flambeau Band v. Wisconsin,

743 F.Supp. 645 (W.D. Wis. 1990) ................. 11

iV

Lapides v. Bd. of Regents of Univ. Sys. of Ga.,

eg CPP eee TT TT Teer Ore rer ee 23

Matsushita Elec. Indus. Co. v. Epstein,

eg TP eT eee rer ee Terre 10

Mo. River Servs., Inc. v. Omaha Tribe,

BT Fi Oe ED oo 6 hae kaks Kacandedevens 21

Morton v. Mancari, 417 U.S. 535 (1974) .......06.ee eee 11

Narragansett Indian Tribe v. Nat'l Indian Gaming

Comm'n, 158 F.3d 1335 (CA D.C. 1998)............. 12

New Mexico v. Johnson, 904 P.2d 11 (N.M.1995) ......... 21

Passamaquoddy Tribe v. Maine,

Fe ade PE RO ai on. a'on Fa od been creciannes 12

Pueblo of Santa Ana v. Hodel, |

Ge Fa, Te Eis FED os weer ccdcresesices 21

Regan v. Wald, 468 U.S. 222 (1984) ......... 2. cece eee 15

Rhode Island v. Narragansett Indian Tribe,

19 F.3d 685 (CAI 1994) .............. erase 11-12

Rumsey Indian Rancheria v. Wilson,

ee BOOED ob ok 6 dead sdavadacaceds 21

Sault Ste. Marie Tribe v. Engler,

Se ee Ce UND 6h 60k as town ccadacweceeas 21

Seminole Tribe of Fla. v. Florida,

gE BPE CC PTT ECCT TET COTTE reer rT 22

South Carolina v. Catawba Indian Tribe, Inc.,

ae Ce PCD bv eck paee evens heueesen viene 18

Vv

Sycuan Band of Mission Indians v. Roache,

54 F.3d 535 (CA9 1994), cert. denied,

Fae Gh PROUD 6.5 6k eae oe eee 11

Texas v. Hopwood, 518 U.S. 1033 (1996) .............000. 6

Texas v. Ysleta del Sur Pueblo, 79 F.Supp.2d 708

(W.D. Tex. 1999), aff'd, 237 F.3d 631

(CAS 2000) (unpublished), cert. denied,

eR Me PEENT T eee e rer rere a3

Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325

(CAS 1994), cert. denied, 514 U.S. 1016 (1995) .... passim

United Keetoowah Band of Cherokee Indians v.

Oklahoma, 927 F.2d 1170 (CA10 1991) ............. 11

United States v. Cook, 922 F.2d 1026 (CA2 1991) ......... 21

United States v. Dakota, 666 F.Supp. 989 (W.D.

Mich. 1985), aff'd, 796 F.2d 186 (CA6 1986) ....... eae

United States v. Dakota, 796 F.2d 186 (CA6 1986) ........ 21

United States v. Farris, 624 F.2d 890 (CA9 1980) ......... 21

United States v. Mead Corp., 533 U.S. 218 (2001) .......... 4

United States v. Nordic Village, Inc., 503 U.S. 30 (1992) .... 18

United States v. Ron Pair Enters.,

PEP ROD PE eC errr rere 18

United States v. Santee Sioux Tribe of Neb.,

SOA ude PE ee PU a ok kn Ke Kao dn een caeeesin 21

United States v. Turkette, 452 U.S. 576 (1981) ............ 18

Weinberger v. Rossi, 456 U.S. 25 (1982) ................ 15

vi

STATUTES AND RULES

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25 UBL. GIIGGR GOOG oc cccccccrvesescvscedesesessos 13

25 USS. SIFTING ic sdndavecscsusansseussions passim

25 USL. SITSGED hk vcencctussvteussesssssuseeee 12

23 USL. F541 GOOG. « «ive decniesdtanvendeevessieee 13

UBL. GM wccictvudsivaiuneeaeee 12

SB UBL. SIDERED oiccccicsiavedsaseetneeeee 14, 18

Sup. Cr. BR. 1 .cecccaansunnasceceucusyeueecseeeee 17

Sup. Cr. BR. 192 scascansesccessausee deus 2

TUX. PENAL COBB S47.G8 GF OOM. oo cccccccssccccusessces 5

OTHER AUTHORITIES

132 CONG. REC. $13634 (daily ed. Sept 25, 1986) ......... 15

BLACK’s LAW DICTIONARY, p. 1228 (7th ed. 1999) ........ 19

OXFORD ENGLISH DICTIONARY, p. 596 (2d ed. 1989) ....... 19

S. Rap. Mk SODGOCIGEAD «ois ccvcccsaccdesetasennet 16, 18

S. REP. NO. FO-8G7O CISGE) oo vcccvcscccvcsssccscovceses 3

No. 01-1671

In Che

Supreme Court of the United States

YSLETA DEL SUR PUEBLO, ET AL.,

Petitioners,

Vv.

STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

Respondent, the State of Texas, submits this brief in opposition

to the petition for writ of certiorari filed by petitioners. The Fifth

Circuit resolved this appeal in a one-sentence, unpublished, per

curiam decision that upheld the district court’s permanent

injunction closing petitioners’ casino as it operated in violation of

both Texas and federal law. Petitioners do not identify an issue on

which courts are divided, nor to they point to an important issue of

federal law that demands the Court’s attention. Instead, they come

to the Court asking first for the review of a 1994 Fifth Circuit

decision, Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325 (CAS 1994)

(“Ysleta I’), cert. denied, 514 U.S. 1016 (1995), and second for

what is essentially “error correction”—asking the Court to correct

the Fifth Circuit’s mistaken application, in their view, of established

rules of statutory construction. For these reasons and those

elaborated below, the Court should deny the writ.

STATEMENT OF THE CASE

I. THe CAasino.'

In 1987, Congress passed the Ysleta del Sur Pueblo and

Alabama Coushatta Indian Tribes of Texas Restoration Act (“the

Restoration Act”), 25 U.S.C. §1300g ef seq., granting to the Ysleta

del Sur Pueblo Indian tribe, which resides in Texas, the status of a

federally recognized American Indian tribe. As a condition of

obtaining this federal recognition, the tribe agreed it would not

engage in commercial gambling. See Ysleta I, 36 F.3d, at 1327-29

& n.2. Accordingly, during its bid to obtain federal recognition, the

tribe adopted Tribal Resolution No. TC-02-86, in which it stated its

firm determination not to engage in gambling on its lands. See id.,

at 1327-28 & n.2 (setting out the resolution). The tribe requested

that Congress embody its resolution in the Restoration Act to assure

that there would be no bingo or high-stakes gambling on its lands:

“The Ysleta del Sur Pueblo respectfully requests its

[congressional] representatives . . . to amend §107(a) of

the Restoration Act . . . [with] language which 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 in the Tribe’s

reservation or on tribal land.” /d., at 1328 n.2

1. The State objects to the argumentative approach and conclusory

statements found in petitioners’ statement of the case. See SUP. CT. R.

15.2. Because the objectionable matters are so numerous, the State

includes a statement of the case, and individually addresses some specific

statements in this opposition. Additionally, the State directs the Court to

the district court’s opinions, which include a fair recitation of the factual

and procedural history of this case. See App., at 6a-7a, 32a-60a.

a

J

The tribe’s resolution was incorporated into the Restoration

Act. Id., at 1329-30; see 25 U.S.C. §1390g-6(a) (“The provisions

of this subsection are enacted in accordance with the tribe’s request

in Tribal Resolution No. T.C.-02-86”), Relying on the tribe’s

commitment, and intending to “‘ban gaming on the reservation{] as

a matter of federal law,’” id., at 1329 (citation and quotation

omitted), Congress restored the tribe’s federal trust status and

recognition by passing the Restoration Act, which prohibits on the

“reservation and on the lands of the tribe,” “[a]ll gaming activities

which are prohibited by the laws-of the State of Texas.” See 25

U.S.C. §1300g-6(a).

Despite the tribal resolution and the terms of the Restoration

Act, in the early 1990s the tribe petitioned then-Governor Ann

Richards to enter into a tribal-state compact under the Indian

Gaming Regulatory Act (IGRA) to allow it to open a commercial

casino. See Ysleta I, 36 F.3d, at 1331 & n.12; Texas v. Ysleta del

Sur Pueblo, 79 F.Supp.2d 708, 710 (W.D. Tex. 1999) (noting that

in spite of Restoration Act, tribe: tried to compel the State to

negotiate a compact permitting gaming under IGRA), aff'd, 237

F.3d 631 (CA5 2000) (unpublished), cert. denied, 532 U.S. 1066

(2001). When Governor Richards rejected the tribe’s entreaties, the

tribe sued. Pet., at 8.

On appeal, the Fifth Circuit reviewed the language and

legislative history of the Restoration Act, and concluded that the

2. Petitioners misstate the purpose of the Restoration Act as enabling

the State “to treat Indians differently from other citizens,” Pet., at 5

(quoting S. REP. NO. 90-1070, at 1 (1968)), but the Act and its legislative

history show that it was intended to restore the tribe’s federal trust status

while ensuring that the State’s ban on commercial casino gambling

remained intact. Moreover, the tribe is not treated differently than any

other citizen in this regard, as no one can lawfully operate a commercial

casino in Texas. See App., at 6l1a-62a & n.12.

4

State had no obligation to negotiate a gaming compact under IGRA

because the Restoration Act, not IGRA, governs gambling by the

tribe. Ysleta J, 36 F.3d, at 1331, 1334. The Fifth Circuit then

dismissed the suit because the Restoration Act did not waive the

State’s Eleventh Amendment immunity /d., at 1335-36.

During the pendency of Ys/eta J, however, and despite its

earlier agreement, the tribe opened the Speaking Rock Casino on its

reservation in El Paso, Texas. Pet., at 10. And, in 1996, despite the

Fifth Circuit’s decision that the Restoration Act codified the tribe’s

commitment to prohibit gambling on the reservation, id. , at 1333-34

& n.19, the Tribal Council enacted a gaming ordinance authorizing

high-stakes gambling on the tribe’s lands.’ App., at 33a & n.2.

3. Petitioners make unsupported and incorrect assertions regarding

the casino’s history. Petitioners contend that the State “was aware of and

did not object to NIGC’s oversight of the Tribe’s Class II gaming

activities,” without record citation; that the State “participated in

activities necessary for the NIGC to approve the Class I] management

agreement,” without citation; and that the State offered to negotiate a

compact under IGRA for Class III lottery and pari-mutuel racing, again

without any record citation. Pet., at 10. These assertions, which are

largely new, have no relevance to the legal issues in the petition.

Petitioners also assert that its “Class II” gaming (bingo) was conducted

under “the auspices of the National Indian Gaming Commission,”

presumably referencing a 1993 letter from the NIGC Commissioner

Chairman that it claims authorized the opening of the casino. The

Chairman’s opinion, however, is conditioned on the application of IGRA

to the tribe and the tribe is mot governed by IGRA. Moreover, his

opinion carries little weight because it is not the product of an

adjudication or rulemaking, and is unsupported by any analysis. Cf, e.g.,

United States v. Mead Corp., 533 U.S. 218, 229-34 (2001). In any event,

“no deference is due” because “Congress has spoken directly to the

question” through the Restoration Act. See Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

seem

5

From 1993 until earlier this year, when its operation was

enjoined, the tribe continuously operated its 24-hour, commercial

casino. /d., at 33a-34a. Open to the public, the tribe advertised the

casino, operated a promotional website, and distributed certificates

redeemable for casino tokens. /d., at 35a, 65a-66a. The casino

offered high-stakes bingo with $1,000 prizes and side games

awarding as high as $15,000; keno games every six minutes with

possible winnings as much as $100,000; craps (“Tigua Dice”); over

1000 slot machines with payoffs ranging up to $25,000; poker

games; off-track betting on horse and dog races; a “Big Six Wheel”;

and Tigua 21 (blackjack). See App., at 33a n.2, 65a. In the year

2000, the casino enjoyed revenues in the range of $50-60 million.

II. THis LAWSUIT. ‘

After the State filed suit in 1999 seeking a permanent

injunction against the casino’s operation, the tribe, without success,

sought to dismiss the case on the basis of tribal immunity. See

App., at 5a-16a, 17a-24a; see also Texas v. Ysleta del Sur Pueblo,

79 F.Supp.2d 708 (W.D. Tex. 1999), aff'd, 237 F.3d 631 (CA5

2000) (unpublished), cert. denied, 532 U.S. 1066 (2001). At the

close of the tribe’s fruitless collateral-order appeal, the district court

took up the case on cross-motions for summary judgment. After a

hearing, on September 27, 2001, the court granted judgment to the

State, denied the tribe’s motion, and permanently enjoined the

casino’s operation as prohibited by Texas law.’ App., at 25a-29a,

31a-80a.

The Fifth Circuit granted the tribe a stay which allowed the

casino to remain open and expedited the tribe’s subsequent appeal.

4. Texas’s anti-gambling laws are found in Chapter 47 of the Texas

Penal Code. TEX. PENAL CODE §47.01 et seq. These provisions are not

set out in this opposition because they are not implicated by petitioners’

arguments.

aN

6

After briefing and argument, the Fifth Circuit, in a one-line, per

curiam, unpublished decision, affirmed the district court’s judgment

in all respects. App., at 2a; see also id., at la. The stay was

subsequently lifted, requiring the casino’s closure on February 11,

2002, as the tribe’s application for a stay of the mandate, which was

submitted to Justice Kennedy due to Justice Scalia’s unavailability,

was denied that day.°

ARGUMENT

I. PETITIONERS HAVE PRESENTED NO REASON FOR THE

COURT TO EXERCISE ITS DISCRETION AND GRANT THE

PETITION FOR WRIT OF CERTIORARI IN THIS CASE.

A. Petitioners’ Issues Do Not Satisfy the Court’s

Prerequisites for Review.

Remarkably, petitioners devote only one paragraph of their

petition to challenging the Fifth Circuit’s decision and judgment in -

this case, Pet., at 25-26, and instead devote the majority of their

energy to challenging the Fifth Circuit’s 1994 decision in Ysleta J.

See, e.g., id., at 4 (“The 1994 decision in Ysleta / is fundamentally

flawed and should be corrected . . .”); id., at 15 (“The Fifth Circuit

committed fundamental errors in Ysleta I’); id., at 15-25 (discussing

claimed errors in Ysleta I). The petition is admittedly aimed at the

decision in Ysleta J, but petitioners completely ignore the clear

principle that this Court “‘reviews judgments, not opinions.’”

Texas v. Hopwood, 518 U.S. 1033, 1033 (1996) (Ginsburg &

Souter, JJ., opinion on denial of petition for writ of certiorari)

(quoting Chevron, 467 U.S., at 842).

5. The district court later modified its injunction to allow the tribe

to engage in certain limited activities at the casino that the court

determined did not violate Texas law. Texas v. Ysleta del Sur Pueblo,

No. 3:99-CV-00320 (W.D. Tex. May 20, 2002) (order modifying

injunction). This appeal does not implicate the district court’s later order.

7

The proper focus of petitioners’ complaint, then, should not be

the 1994 opinion in Ys/eta J, but on the Fifth Circuit’s judgment in

this case. And petitioners do not, and cannot, suggest that the

issues presented in this appeal satisfy any of the Court’s typical

prerequisites for review. See Sup.CT.R. 10. The petition does not

establish a conflict between federal courts of appeals on an

important matter, id., (a); the Fifth Circuit did not create a conflict

on an important federal question with a state court of last resort; id.,

(b); the Fifth Circuit did not abandon the straight and narrow of “the

accepted and usual course of judicial proceedings” so that this

Court’s intervention is needed, id., (a); and the court of appeals did

not decide an important question of federal lawthat has_yet to be

settled by this Court, or in a way that conflicts with this Court’s

decisions, id., (c).

In short, petitioners fail to explain why an unpublished, one-

sentence decision on a statute limited to two tribes in Texas

presents an important question of federal law, represents a

troublesome division among courts, or implicates a question of

widespread public significance. Appreciating their tenuous

position, instead of attempting to meet the strictures of Rule 10,

petitioners readily confess that their petition is a plea for error

correction and ask for ad hoc review of their arguments, a plea the

Court should resist.

B. Instead, the Tribe Asks the Court to Engage in the

Extraordinary Task of Error Correction.

Petitioners, throughout, denounce Ys/leta J as incorrectly

decided and ask the Court to essentially redecide that appeal.

Setting aside the fact that it is not appropriate to review Ysleta |

seven years later, this challenge falls short of demonstrating that the

case is worthy of review for two reasons, First, correcting a misstep

by a court of appeals is simply not the Court’s customary task.

Even the example provided by petitioners in urging the Court to

step into an “error correction” role did not merely require the Court

ee

8

to repair a misapplication of established rules. See Pet., at 14. in

Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S.

311 (1981), the Court considered a question having importance to

far more than just the litigants in that action: whether the Interstate

Commerce Act precludes a state-court action on a matter reached

by the Interstate Commerce Commission. /d., at 331. In any event,

it is beyond doubt that “this Court is not a forum for the correction

of errors.” Boag v. MacDougall, 454 U.S. 364, 368 (1982)

(Rehnquist, J., dissenting).

Second, petitioners do not contend that there has been an

intervening change in the relevant law since 1995, nor that anything

that has transpired in the last seven years makes the case more

worthy of the Court’s review that it was in 1995. The centerpiece

of petitioners’ arguments continues to be the patently incorrect

assertions that IGRA, and not the Restoration Act, applies to

gambling on their lands, and alternatively, if the Restoration Act

reaches petitioners, the statute uses the term “prohibited” in a way

that does not prohibit, but instead permits, their casino operation.

Compare, e.g., Pet., No. 01-1671, at p. i (stating as question

presented: “Does the Indian Gaming Regulatory Act, instead of the

Pueblo’s Restoration -Act, govern gaming activities on the

reservation lands of the Ysleta del Sur Pueblo?) with Pet., No. 94-

1161, at pp. 1, 6 (presenting as question for review whether Fifth

Circuit erred in concluding that Restoration Act governed

petitioners, and not IGRA); compare also Pet., No. 01-1671, at p.

i (posing as question for review whether Restoration Act provisions

should be interpreted consistently with Cabazon Band) with Pet.,

No. 94-1161, at pp. 9-10 (contending that “prohibit” must be

construed in light of Cabazon Band); see also Ysleta I, 36 F.3d, at

1331 (“The Tribe maintains that the term “prohibit” has special

significance in federal Indian law, which is derived from Cabazon

Band ...”). In their present petition to the Court, petitioners simply

repeat their assertions that the Fifth Circuit erred in 1994. These

arguments were unavailing then, and equally ineffectual now.

9

No matter the hyperbolic statements of petitioners,’ the actual

issues of the petition belong to Ys/eta J, and are not appropriate for

the Court’s review. The writ should be denied.

II. YSLETA I WAS CORRECTLY DECIDED.

Although there is no need for the Court to reach the question

of whether Ysleta J was correctly decided, should that issue be

reached, the merit of that decision is easily established. Petitioners

assert that three mistakes occurred in Ysleta J: (1) that the court of

appeals erred in holding that the Restoration Act, and not IGRA,

governs the tribe’s gaming activities; (2) that it wrongly concluded

that Congress did not codify Cabazon Band in the Restoration Act;

and (3) that the Fifth Circuit issued an “unconstitutional advisory

opinion” that should be regarded as dicta. Petitioners are wrong on

all counts.

A. The Fifth Circuit Correctly Decided in 1994 That

IGRA Did Not Impliedly Repeal the Restoration Act.

Because fundamental differences in IGRA and the Restoration

Act prevent them from being read together, the Ys/eta J court

determined which statute controlled. 36 F.3d, at 1335. It correctly

rejected the argument that IGRA impliedly repealed the Restoration

Act, and decided that the Restoration Act, as the more specific of

the two statutes, governs the tribe’s gambling, not IGRA.

Petitioners do not, and cannot, point to any indication in IGRA

that Congress was expressly repealing the Restoration Act. Without

6. See, e.g., Pet., at 3 (“This case asks whether the federal courts can

deny the rights and privileges accorded Indian Tribes by an express act

or Congress.”); id., at 15 (claiming an “abuse of the opinion writing

process in violation of Constitutional strictures” and that the Fifth Circuit

granted the State “regulatory power” on tribal lands despite “a specific

Congressional prohibition”).

10

a clear intention, it is wel!-settled that “[a] specific statute will not

be controlled or nuilified by a general one.” Crawford Fitting Co.

v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987). Petitioners’ only

attack on the reasoning in Ysleta ] on this issue is that the Fifth

Circuit misidentified IGRA as the more “general” of the two

statutory schemes, which led in their view, to the faulty conclusion

that IGRA did not impliedly repeal the Restoration Act as it regards

gambling. See Pet., at 15-19. Petitioners’ characterizations of the

two statutes utterly lack merit.

Petitioners contend that the Fifth Circuit erred in calling the

Restoration Act the more “specific” of the two, attributing that

conclusion to a reliance on Congress’s statement in IGRA that

IGRA should be read in light of other federal law and the absence

in IGRA of a blanket repealer clause. See Pet., at 16-18; see also

Ysleta I, 36 F.3d, at 1334-35. But petitioners’ effort to demonstrate

error is futile. The court of appeals relied on the Restoration Act’s

narrow tailoring to conclude that it was the more specific of the

two, and additionally noted other various indications that Congress

had no intention to repeal the Restoration Act, including the

absence of a repealer clause and the actual language of IGRA that

it should be interpreted in light of other federal law. /d., at 1334-

35. Comparing the two statutory schemes, the Restoration Act is a

“specific” statute, whereas IGRA is a general one. The former

applies to two particular Indian tribes located in one state, and the

latter applies generally to tribes across the country. A statute

having nationwide application cannot be more specific than a law

that specifically addresses particular tribes.

Moreover, in claiming that the Restoration Act was repealed,

petitioners fail to address the central issue of legislative intent.

With the interpretative canon of “implied repeal,” “the primary

consideration is the intent of Congress,” and even indicia of detail

and specificity in a statute cannot override congressional intent.

Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 380 (1996)

11

(citation and quotation omitted); see also Chickasaw Nation v.

United States, 534 U.S. 84, 102 (2001) (canons of statutory

construction are not mandatory rules, but guides to assist courts in

determining legislative intent). Additionally foreclosing

petitioners’ argument is the strong presumption against repeal by

implication. See, e.g., Morton v. Mancari, 417 U.S. 535, 549, 551

(1974).

Petitiouers also cite decisions in which IGRA governed, in an

attempt to support the general proposition that IGRA:trumps other

statutes. Pet., at 18-19 (citing cases). Those decisions: however, do

not illustrate any implied repeals by IGRA, as petitioners admit.

See Pet., at 19 (each of these cases necessarily deals with... a

different question of statutory reconciliation”) (emphasis added).

The two Public Law 280 cases—Lac du Flambeau Band v.

Wisconsin, 743 F.Supp. 645 (W.D. Wis. 1990), and Sycuan Band

of Mission Indians v. Roache, 54 F.3d 535 (CA9 1994), cert.

denied, 516 U.S. 912 (1995)—did not concern a conflict between

Public Law 280 and IGRA, nor consider a repeal by implication.

In United Keetoowah Band of Cherokee Indians v. Oklahoma, 927

F.2d 1170, 1180 (CA10 1991), “implicit repeal analysis [wa]s

inapposite,” and the Tenth Circuit explained that it was well-

established that the Assimilative Crimes Act had application only

when Congress leaves a topic or conduct unaddressed—it “serve[s]

interstitially during congressional inaction,” id., so that there was

no conflict between statutes.’ Lastly, Rhode Island v. Narragansett

7. That court did observe in a footnote that even if the ACA had

continued vitality for Indian gambling after IGRA, the explicit terms of

IGRA establishing the United States’s jurisdiction as “exclusive” over

gambling crimes on reservation lands indicated Congress’s clear intent

to supplant the ACA’s jurisdictional gap-filler. United Keetoowah, 927

F.2d, at 1180 n.19. Petitioners have identified no indication of any such

“clear intent” in IGRA regarding the substance of the Restoration Act.

12

Indian Tribe, 19 F.3d 685, 694, 703-06 (CA1 1994), is easily

distinguished because the pre-existing statute considered in that

case lacked a specific gaming provision, and Congress eliminated

from IGRA a draft provision removing the tribal lands at issue from

IGRA. Conversely, the Restoration Act specifically addresses

gambling by petitioners, and there is no reference to the Restoration

Act in IGRA’s legislative history.

Moreover, IGRA does not apply to tribes universally, as

petitioners would hope, and exci. ‘on of a tribe from IGRA’s

coverage does not render a court decision dubious. In fact,

petitioners acknowledge that some tribes are not reached by IGRA

as Congress has enacted statutes specific to particular tribes. See

Pet., at 19 n.4 (noting 25 U.S.C. §1708(b) (provision applicable

only to Narrangansett Tribe) and 25 U.S.C. §9411 (provision

governing Cavawba tribe)); see also, e.g., Narragansett Indian

Tribe v. Nat'l Indian Gaming Comm'n, 158 F.3d 1335, 1341 (CA

D.C. 1998); Akins v. Penobscot Nation, 130 F.3d 482, 484-85 (CA1

1997); Passamaquoddy Tribe v. Maine, 75 F.3d 784, 787-88, 794

(CA1 1996). In a final confirmation that the Fifth Circuit rightly

recognized that Congress did not impliedly repeal the Restoration

Act’s gambling prohibition, Congress has acquiesced to Ys/eta J for

eight years, and has not, as it has done other times, amended

legislation following what it regards as an incorrect court decision.

E.g., Narragansett, 158 F.3d, at 1335.

With no real doubts about the correctness of the Fifth Circuit

on the implied repeal issue, the question lacks the claimed

importance to litigants faced with conflicting federal statutes. See

Pet., at 19. Although the application of the Restoration Act versus

IGRA may be significant to the two tribes governed by the

Restoration Act,* the issue has been settled since 1994, and has not

8. The Restoration Act also restored the trust relationship between

the federal government and the Alabama-Coushatta Indian Tribes of

13

muddied the waters or enjoyed any recognizable significance in

litigation involving implied repeals.

B. The Fifth Circuit Correctly Held That the Restoration

Act Was Not Enacted with an Eye Towards Cabazon

Band.

1. The legislative history of the Restoration Act

establishes that the Act is not to be read in

light of Cabazon Band.

Petitioners accuse the Fifth Circuit of improper statutory

construction when it decided in Ys/eta / that the Restoraticn Act’s

term “prohibited” did not codify the Court’s analytical approach in

Cabazon Band. Pet., at 20-25. The court of appeals, however,

employed well-established rules of statutory interpretation in an

uneventful and straightforward way to read the Restoration Act’s

gambling prohibition.

In petitioners’ view, the term “prohibited,” as in the provision,

“{a]ll gaming activities which are prohibited by the laws of the

State of Texas are hereby prohibited on the reservation and on the

lands of the tribe,” 25 U.S.C. §1300g-6(a) (emphasis added), carries

a special meaning in the field of Indian law exemplified by the

civil-regulatory/criminal-prohibitory dichotomy in California v.

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

Texas and the provisions pertaining to the Alabama-Coushatta Tribes’

gambling are the same as those in 25 U.S.C. §1300g-6. See 25 U.S.C.

§§731 et seg. Litigation brought by the Alabama-Coushatta Tribes

against the State seeking a declaratory judgment that the federal statute

does not prohibit it from running casino gambling has resulted in a recent

decision adverse to the tribe and a permanent injunction enjoining its

casino gambling operation. See Ala.-Coushatta Tribes of Tex. v. Texas,

__ F.Supp. 2d ___, No. 9:01-CV-299, 2002 WL 1369473 (E.D. Tex. June

25, 2002).

onun*

14

distinction in that decision arose with Public Law 280, a statute that

applied to six states, but not Texas. See Ysleta I, 36 F.3d, at 1330

n.8. In Cabazon Band, the Court considered California’s authority

to enforce its bingo statutes on a reservation under Public Law 280

(18 U.S.C. §1162(a), and 28 U.S.C. §1360(a)), which granted

California authority to (1) enforce its criminal laws on reservations,

and (2) hear in state courts civil cases involving a tribe member.

480 U.S., at 207-08. The critical inquiry for the Court was whether

the state law at issue was “criminal,” so that it applied to

reservations under Public Law 280, or “civil” and therefore

inapplicable. /d. The Court relied on the law’s practical effect for

the answer—it is “criminal” if it generally prohibits conduct, but

“civil” if it regulates the conduct. /d., at 209-10. Applying the

dichotomy, the Court decided that California’s bingo statute was

not “criminal,” because it “generally permits the conduct at issue,

subject to regulation,”id., at 209, and thus Public Law 280 did not

authorize California to prohibit tribes from offering bingo.

Petitioners contend that Cabazon Band’s dichotomy informs

not only the term “criminal law” in Public Law 280, but also

animates the term “prohibited” in the Restoration Act so that it only

means utterly forbidden.’ See Pet., at 21; App., at 50a-Sla. Even

assuming that Cabazon translates to the statutory term

“prohibited,”"° petitioners’ sole indication of Congress’s intent to

9. Petitioners have not suggested that their gambling activities are

not illegal under Texas law—their contention is that the Restoration Act

has a special meaning for “prohibited” so that such activities are

outlawed only if Texas law bans every single gaming activity for all

persons and entities in Texas.

10. The Cabazon Band Court examined the meaning of the statutory

phrase “criminal law,” not the term “prohibited,” and it considered the

term in the context of deciding whether California had authority to

enforce criminal laws on tribal lands. This phrase does not appear in the

Restoration Act provision at issue, nor does the Act extend the State’s

15

import such a meaning is one congressman’s floor comment during

final passage of the Restoration Act—Representative Morris Udall

expressed his understanding that Cabazon Band applied to the

amended Restoration Act.'' Pet., at 15, 24-25.

The Fifth Circuit did not “ignore” the congressman’s statement,

as petitioners claim, Pet., at 25, but correctly held that a single,

twelfth-hour comment by a representative is insufficient to

overcome the plain language and otherwise clear intent of the

Restoration Act. See Ysleta I, 36 F.3d, at 1334. The dangers of

allowing such have been well-noted:

“To permit what we regard as clear statutory language to

be materially altered by such [floor] colloquies . .. would

open the door to the inadvertent, or perhaps even planned,

undermining of the language actually voted on by

Congress and signed into law by the President.” Regan v.

Wald, 468 U.S. 222, 237 (1984).

See also Weinberger v. Rossi, 456 U.S. 25, 35 n.15 (1982)

(“Contemporaneous remarks of a sponsor of legislation are

certainly not controlling in analyzing legislative history.”). Indeed,

the construction urged by petitioners impugns the testimony of

Tigua Governor Miguel Pedraza, given at a congressional hearing

on the Restoration Act:

general civil and criminal jurisdiction like Public Law 280.

11. Petitioners point to a change in the language of the bill’s

gambling prohibition from the 99th to the 100th Congress to contend that

Congress codified Cabazon Band. Pet., at 23-24. The earlier version

provided that “all gaming as defined by the laws and administrative

regulations of the State of Texas . . . shall be prohibited.” Ys/eta I, 36

F.3d, at 1329 (quoting 132 CONG. REC. S13634 (daily ed. Sept 25,

1986)). The change in phraseology is not suggestive of a codification of

Cabazon Band, however, and petitioners rely on the lone floor comment

to make their case.

16

“(T]he new proposed section 107, . . . which would

prohibit, as a matter of federal law, all gambling or bingo

on our reservation. We have requested that such a

prohibition be included because that accurately states our

own tribal custom—we do not now nor have we ever

permitted gambling in any form on our reservation.

Attached to my statement is our Council’s resolution that

more fully states our position on this matter.” Restoration

of Federal Recognition to the Ysleta del Sur Pueblo and

the Alabama and Coushatta Indian Tribes of Texas:

Hearing on H.R. 1344 Before the Senate Select Comm. on

Indian Affairs, 99th Congress, 2d Sess. 102 (1986)

(statement of Miguel Pedraza, Governor, Ysleta del Sur

Pueblo).

And this construction would also disavow the tribal resolution,

which is specifically referenced in the Restoration Act. See 25

U.S.C. §1300g-6(a).

In addition, the relevant committee report contradicts the

congressman’s floor comment. The Senate Committee of the 100th

Congress, which was the source of the amended language of the

gaming prohibition, reported that, even with the alteration in the

phrasing of the gaming prohibition, “the central purpose” of these

two versions, “to ban gaming on the reservations as a matter of

federal law,” remains unchanged. Ysleta J, 36 F.3d, at 1329

(quoting S. REP. No. 100-90, at 8 (1987)). Instead of addressing the

Senate Committee’s explanation of the amendment—that it barred

gambling on the reservation as a matter of federal law—petitioners

rely exclusively on the post-amendment comment of one House

member, erroneously suggesting that the Fifth Circuit should have

given his floor comment decisive weight over those of the Senate

17

Committee that formulated the bill’s language.”

In an effort to excise from the legislative history the tribal

resolution pledging not to gamble and requesting that Congress pass

the Restoration Act and its gambling prohibition, petitioners

contend that in Ysleta I, the Fifth Circuit should not have

considered legislative history related to the earlier version of the

Restoration Act that was not enacted.’ Petitioners disclaim the

resolution’s relevance because the resolution was presented in

congressional hearings during the 99th Congress, before the

language of the gambling prohibition in the bill was amended. The

legislative history, however, does not support such a dismissal. The

extensive testimony offered on the Restoration Act during the 99th

Congress, which included the tribal resolution, was carried over to

12. In support of their claim, petitioners also inappropriately

reference extra-record testimony by congressional staff attorneys offered

at a 2002 hearing in the Alabama-Coushatta case. Pet., at 24 n.7; see,

supra note 8. The State lodged objections to that testimony at the hearing

as improper. More importantly, petitioners offer no authority for the

incredible proposition that a senate staffer’s testimony—given more than

fifteen years after a bill’s passage—should be given any weight in the

reading of a statute, let alone weight that overcomes the plain language

of the statute and its documented, contemporaneous legislative history.

Additionally, this testimony was ultimately unavailing as the federal

district court in the Alabama-Coushatta case recently ordered the closure

of that tribe’s casino under the Restoration Act. See Ala.-Coushatta

Tribes of Tex. v. Texas, _ F.Supp. 2d __, No. 9:01-CV-299, 2002 WL

1369473 (E.D. Tex. June 25, 2002).

13. Petitioners suggest that the district court expressed doubt about

the Fifth Circuit’s review of the Restoration Act’s legislative history in

Ysleta I, Pet., at 26, but fail to acknowledge that the only doubt was about

the need to assess that legislative history, as the language of the statutory

prohibition is plain. See App., at 60a (noting that the statutory “language

used is clear and unambiguous”).

18

the 100th Congress and adopted into the legislative history for the

enacted version of the Restoration Act. See S. Rep. No. 100-90, at

7-8 (1987). Thus, the tribal resolution attached to the eventual

passage of the Restoration Act.'*

2. Petitioners’ interpretation of “prohibited” is

not supported by the canons of statutory

construction.

Further, petitioners’ interpretation of the term “prohibited” is

undermined by familiar rules of statutory construction. Their

reading assumes that Congress intended the term “prohibited” to

mean something counterintuitive and that it chose a meaning that

rendered its gambling prohibition meaningless from day one, and

the rules of statutory construction do not permit robbing the

prohibition of meaning, or allow absurd results. See, e.g., United

States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992); United States

v. Turkette, 452 U.S. 576, 580 (1981).'* The Fifth Circuit was

bound to give the statute its plain meaning, “enforce . . . according

to its terms,” United States v. Ron Pair Enters., Inc, 489 U.S. 235,

241 (1989), and construe in its “ordinary, everyday” sense, Crane

v. Commissioner, 331 U.S. 1, 6 (1947). As a matter of common

14. Moreover, if changes in draft language are to be considered, it

should be noted that Congress rejected an earlier proposed provision that

would have allowed a means for petitioners to deviate from Texas law,

see Ysleta I, 36 F.3d, at 1327-28, a resounding confirmation that

Congress did not intend anything other than a strict prohibition. See, e.g.,

INS v. Cardoza-Fonseca, 480 U.S. 421, 442-43 (1987).

15. The tribe asserts that the term should have been construed in

favor of the tribe, but that canon of statutory construction is utilized only

in cases of ambiguity, e.g., South Carolina v. Catawba Indian Tribe, Inc.,

476 U.S. 498, 506 (1986), which remains unidentified, and in any event,

does not trump other statutory interpretation principles. See Chickasaw

Nation, 122 S.Ct., at 535-36.

19

usage, “prohibited” means forbidden, precluded, or illegal. See,

e.g., OXFORD ENGLISH DICTIONARY, p. 596 (2d ed. 1989); BLACK’S

LAW DICTIONARY, p. 1228 (7th ed. 1999). The meaning of

“prohibit” does not vary, only the object of the prohibition. With no

dictionary or court decision supporting its proposed meaning,

petitioners can hardly accuse the Fifth Circuit of error.

Whether considering the textual command alone, or together

with legislative materials, the court of appeals correctly concluded

that Congress did not import Cabazon Bana’s reasoning into the

Restoration Act.'° If Cabazon Band supplied the meaning of

16. In an effort to marginalize the solid conclusions reached by the

Fifth Circuit in Ys/eta J, petitioners cast aspersions on the appeal process

in that case. They state that the Fifth Circuit “decided an issue that was

never pled, briefed, or argued: that the Restoration Act, and not IGRA,

governs gaming on the Pueblo’s reservation” and that it “effectively

denied [petitioners] [their] day in court[.]” Pet., at 10; see also id., at 9,

15. That is refuted by looking at the briefing in the case, as well as the

opinion’s recitation of the parties’ arguments. See Ysleta I, 36 F.3d, at

1331, 1332-35; see also Pet., at 9 (explaining that in Ys/eta J parties

raised issue of whether IGRA or Restoration Act governed and that State

argued that Restoration Act controlled). Petitioners also complain that

the Fifth Circuit considered the legislative history of the Restoration Act

in Ysleta I without providing petitioners the opportunity to present

arguments regarding the Act’s legislative process. Pet., at 15. Petitioners

do not suggest that the Fifth Circuit somehow rebuffed such briefing, and

like all parties, they had ample opportunity to address legislative history

in their briefing. Moreover, petitioners admit that they were able to

present their version of the legislative history to the district court in this

proceeding. Pet., at 15. And although the district court determined it

was bound by Ys/eta IJ, petitioners also made these same legislative-

history arguments both on appeal to the Fifth Circuit panel and later on

petition for rehearing en banc, complaining strenuously that Ys/eta ] was

incorrectly decided.

20

“prohibited,” then the prohibition would be diluted to prohibit

nothing. Congress enacted a real prohibition, as sought by the tribal

resolution. Indeed, there is an absence of any indication to adopt

Cabazon Band, aside from the comment of one member of

Congress, and instead consistent signs that Congress intended to

put in place a strict gambling prohibition.

“The report’s reference to both the laws and administrative

regulations of Texas is clearly inconsistent with a

contention that . . . the prohibitory-regulatory distinction

of Cabazon Band would be involved in analyzing the

Restoration Act. . . . Congress provided in §107(a) that

‘[a]ny violation of the prohibition shall be subject to the

same civil and criminal penalties that are provided by the

laws of the State of Texas.’ Again, if Congress intended

for the Cabazon Band analysis to control, why would it

provide that one who violates a certain gaming prohibition

is subject to a civil penalty? .... Congress was merely

acceding to the tribe’s request that the tribal resolution be

codified.” 36 F.3d, at 1333-34; see also id. nn.17 & 18.

The Fifth Circuit was entirely consistent with the Court’s

precedent and there is no sign of error on this issue.

3. Ysleta is not at odds with other circuit court

decisions.

Petitioners also point to decisions applying the Cabazon Band

distinction, Pet., at 22 (citing cases), in an effort to suggest some

21

type of division among courts.'’ Those decisions predated the

Ysleta I opinion, and no conflict has developed since that time.

Two of the cited decisions do not represent any division, but

simply apply Cabazon Band to Public Law 280, the very statute

examined in Cabazon Band, and thus are inapposite to the issue of

extending the decision’s analysis beyond Public Law 280. The

district court decision cited likeWise fails to hint at a conflict

because, although it extended Cabazon Band’s analysis to the

Assimilative Crimes Act, it did so only because, like Public Law

280, the ACA “‘is purely a jurisdictional statute” that “entitle[s] the

states to enforce all their laws on the Indian reservations,” and not

a statute, like for instance, the Restoration Act, that extends “only

certain gambling laws on the Indian reservation,” and because

“dilut[ing]” the ACA with “the criminal/prohibitory distinction”

satisfied the need to “more narrowly construe[]” the ACA’s “broad

jurisdictional grant.” Pueblo of Santa Ana v. Hodel, 663 F.Supp.

1300, 1311 n.15 (D. D.C. 1987). Petitioners have not unearthed

any division on this point.

17. Not surprisingly, petitioners fail to acknowledge the many

decisions that, consistent with Ysleta I, have rejected an emasculated

definition of “prohibit” or an extension of Cabazon Band’s analysis. See

United States v. Santee Sioux Tribe of Neb., 135 F.3d 558, 564 (CA8

1998); Rumsey Indian Rancheria v. Wilson, 64 F.3d 1250, 1258 (CA9

1994); Cheyenne River Sioux Tribe v. S. Dakota, 3 F.3d 273, 279 (CA8

1993); see also Mo. River Servs., Inc. v. Omaha Tribe, 267 F.3d 848, 854

(CA8 2001); Sault Ste. Marie Tribe v. Engler, 146 F.3d 367, 372 (CA6

1998); United States v. Cook, 922 F.2d 1026, 1035 (CA2 1991); United

States v. Dakota, 796 F.2d 186, 189 &.4 (CA6 1986); United States v.

Farris, 624 F.2d 890, 897 (CA9 1980); United States v. Dakota, 666

F.Supp. 989, 998-99 (W.D. Mich. 1985), aff'd, 796 F.2d 186 (CA6

1986); New Mexico v. Johnson, 904 P.2d 11, 20-21 (N.M.1995); Citation

Bingo, Ltd. v. Otten, 121 N.M. 205, 207 n.2 (N.M. 1995).

22

C. The Fifth Circuit’s Holdings in Ysleta J Regarding the

Restoration Act’s Gambling Prohibition Were Neither

Unconstitutional Nor Dicta.

Petitioners make a disjointed, and frankly somewhat confusing,

argument challenging 1994's Ysleta J] as an “unconstitutional

advisory opinion” in its holding regarding the Restoration Act’s

gaming prohibition. Understanding that Ysleta J] considered and

rejected their arguments, petitioners resort to characterizing that

decision as nonbinding precedent. To the extent that they are

claiming that the Fifth Circuit’s holding in Ys/eta ] was non-binding

dicta because the court ultimately decided that the federal courts

were barred from hearing the case by the Eleventh Amendment,

petitioners are incorrect.

The Fifth Circuit’s construction of the gaming prohibition was

essential to its resolution of Ysleta J. Although the ultimate holding

was that the Restoration Act did not waive the State’s sovereign

immunity and the tribe’s suit had to be dismissed, Ys/eta J, 36 F.3d,

at 1336-37, the court of appeals was required to reach a series of

preliminary holdings prior to that determination. Among these

necessary, sequential holdings were the determination that the

criminal-prohibitory/civil-regulatory dichotomy of Cabazon Band

did not apply to the Restoration Act, the holding that Texas’s

gambling laws operate as surrogate federal law for petitioners’

gambling, and the conclusion that the Restoration Act, and not

IGRA, governs petitioners’ gambling. See Ysleta J, 36 F.3d, at

1332-35. All this was necessary precursor to the Fifth Circuit’s

decision that the Restoration Act did not waive the State’s

sovereign immunity.

Such incremental holdings are never considered dicta, but are

given the same weight and effect as the ultimate holding in a case.

See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996)

(contrasting dicta with holdings, which include the final disposition

of a case as well as the preceding parts of the opinion “necessary to

23

that result”); Fla. Cent. R. R. Co. v. Schutte, 103 U.S. 118, 143

(1881) (explaining that “[i]t cannot be said that a case is not

authority on one point because, although the* point was properly

presented and decided in the regular course of consideration of the

case, something else was found in the end which disposed of the

whole matter.”); County of Allegheny v. Am. Civil Liberties Union,

492 U.S. 573, 668 (1989) (Kennedy, J., concurring and dissenting)

(“the principle of stare decisis directs us to adhere not only to the

holdings of our prior cases, but also to their explications of the

governing rules of law”). Thus, the Fifth Circuit’s rejection of

Cabazon Band’s analytical approach and its recognition of the

governing force of the Restoration Act over the tribe’s gambling

activities were in no way dicta as they were necessary to its ultimate

sovereign-immunity determination.

Indeed, petitioners implicitly admit as much. They do not

contend that the holdings regarding the meaning of the Restoration

Act were not necessary to Ysleta I’s ultimate holding, but instead

seem to suggest, with the assertion that the Fifth Circuit “lacked

jurisdiction” over the case, Pet., at 20, that the court’s holdings

were dicta because the court determined that jurisdiction was

lacking in the case and dismissed on Eleventh Amendment grounds.

That argument lacks any merit as the court clearly had jurisdiction

to decide jurisdictional questions and necessary subsidiary issues.

See generally, e.g., Lapides v. Bd. of Regents of Univ. Sys. of Ga.,

122 S.Ct. 1640 (2002).

Il. THE FIFTH CIRCUIT PROPERLY REJECTED THE

CHARACTERIZATION OF YSLETA I AS DICTA.

Petitioners do not even address the Fifth Circuit’s judgment in

this case until the end of their petition, and then, as already

discussed, they make a plea for error correction. But the error they

complain of is unrecognizable. Their sole claim to a reviewable

error in this case is that the Fifth Circuit should have recognized

that the portions of Ys/eta Jaddressing the gambling prohibition and

24

Cabazon Band were impermissible dicta. Pet., at 26. The Fifth

Circuit’s careful analysis and holdings in Ysleta J simply cannot be

regarded as dicta, see II.C supra, and the court of appeals rightly

rejected the argument.

CONCLUSION

For these reasons, the State of Texas respectfully requests that

the Court deny the petition for a writ of certiorari.

Respectfully submitted,

JOHN CORNYN

Attorney General of Texas

HOWARD B. BALDwiIn, JR.

First Assistant Attorney General

MICHAEL T. MCCAUL

Deputy Attorney General for

Criminal Justice

JEFFREY S. BOYD

Deputy Attorney General for

Litigation

JULIE CARUTHERS PARSLEY

Solicitor General

Counsel of Record

MELANIE P. SARWAL

Assistant Solicitor General

OFFICE OF THE ATTORNEY

GENERAL

P.O. Box 12548

Capitol Station

Austin, Texas 78711-2548

Telephone: (512) 936-1700

Facsimile: (512) 474-2697

July 15, 2002 COUNSEL FOR THE SATE OF TEXAS