# Opposition Brief — Ysleta del Sur Pueblo v. Texas

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1186%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 815

## Text

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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FOES EL COT CTT Te ET POET Cree ili
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oN Poa Ek heed Pe RA RENE SAR eR RES ER WO 6

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1186%3A3. Public record. Not legal advice.