Ysleta Del Sur Pueblo v. Texas
Oral argument transcript · No. 20-493 · October Term 2021 · argued February 22, 2022 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Brant C. Martin, Fort Worth, Texas, for the petitioner
- Anthony A. Yang, Assistant to the Solicitor General, amicus curiae supporting the petitioner
- Lanora C. Pettit, State Solicitor General, for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We'll hear argument first this morning in Ysleta del Sur Pueblo versus Texas. Mr. Martin. ORAL ARGUMENT OF BRANT C. MARTIN ON BEHALF OF THE PETITIONERS
Brant C. Martin: Mr. Chief Justice, and may it please the Court: The question this case presents is whether the Restoration Act subjects the Pueblo to Texas's time, place, and manner restrictions as it relates to games that Texas does not flatly prohibit. It does not. In the Restoration Act, Congress codified the Cabazon Band framework and specifically foreclosed Texas's regulatory authority over the tribe's gaming activities. The plain language of the Act provides us with clear support for this interpretation. On the heels of this Court's decision in Cabazon, Congress changed the language of the Restoration Act to replicate the prohibitory/ regulatory dichotomy struck in Cabazon. Section Official 1 107(a) incorporates the Cabazon framework. It federalizes Texas law but only as to prohibited games. And bingo, in the State of Texas, is not a prohibited game. Section 107(b) clearly forecloses any interpretation of Section 107 in its entirety where Texas would have regulatory jurisdiction over tribal gaming. And Section 107(b) must have meaning in the Act. The problem with the State of Texas's interpretation and the Fifth Circuit's interpretation in Ysleta I is that it reads 107(b) out of the Act entirely. This interpretation is also consistent with Congress's extension of the Cabazon framework to IGRA. The two statutes are not in conflict, and you don't have to choose one over the other. And even if that were the case, and we don't think it is, the plain language of the Restoration Act allows my client to engage in non-prohibited gaming activities. In Sections 107(a) and 107(b), Congress was sending the clear signal that it was incorporating the prohibitory/regulatory construct from Cabazon into a test applicable to Official 1 these tribes. The final text of the Restoration Act reflects the bargain that Congress struck. Each side got something but not everything. Texas was allowed to prevent prohibited games from being played by these tribes. Meanwhile, the tribe was allowed to retain its sovereignty and its freedom from regulation as it related to gaming activities. And, with that, I'd be pleased to answer any questions from the Court.
Justice Thomas: Yes, counsel, the -- in the -- Cabazon was a grant of jurisdiction, right?
Brant C. Martin: Yes, Your Honor.
Justice Thomas: Is there any difference -- where -- is there a grant of jurisdiction in 107(a)?
Brant C. Martin: Your Honor, looking at the text of 107(a), it's specifically dealing with the tribal gaming activities. There's not a specific reference to the grant of the jurisdiction.
Justice Thomas: So what do -- just standing alone, what do you think it's doing?
Brant C. Martin: Your Honor, I think it's Official 1 dictating -- it's showing that Congress was extending the Cabazon framework to this fact pattern where Congress was federalizing state law as to prohibited gaming activities.
Justice Thomas: So --
Brant C. Martin: It's taking the Public Law 280 structure that was explicated in Cabazon and extending it to this fact pattern.
Justice Thomas: So exactly how does it -- how is it doing that?
Brant C. Martin: Your Honor, in the text itself, the first sentence: "All 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 tribes."
Justice Thomas: That seems almost as though it's adopting it as federal law.
Brant C. Martin: It's adopting Texas's prohibitory laws as to prohibited gaming activities. It's -- one of the things that's interesting, Your Honor, is that, compared to previous versions of this Act, this final -- one of the final changes in Section 108 was changing it from "gaming" and "gambling" and those broader terms to the concept of "gaming Official 1 activities" and specifying prohibited gaming activities.
Justice Thomas: Thank you.
Chief Justice Roberts: Well, I mean, you say that 107 was enacted in light of Cabazon. But it was directly enacted in light of the tribal resolution, which said that the tribe was willing at this point, after all the back and forth -- they obviously weren't happy about it, but they were willing to provide that all gaming, gambling, lottery, bingo shall be prohibited. All, regardless of whether there's some that's permitted and some that's -- that's not according to the laws of Texas. So, I mean, this is an odd case. I haven't seen in decades briefs that were so full of legislative history and, you know, pre-enactment this or post-enactment that, but, I mean, if that's what we're going to -- if that's the game that's on, I mean, it looks to me like the tribal resolution had a much more direct connection to the legislation that was actually passed.
Brant C. Martin: Your Honor, if I may, I think the tribal resolution had a much more Official 1 direct connection to previous versions of it. And I would agree with you there's a lot of legislative history in here, and some of it's legislative history and some of it is almost textual evolution on what was actually enacted. And one of the things that I would point out to Your Honor is the tribal resolution, which, again, was dated March 16th of 1986, that total ban or what the State of Texas calls the "operative request" -- and -- and that would have been a total ban. There -- there's no way to deny that. However, that part of the text was incorporated into the Restoration Act into a version that never actually passed, and that was a version that was set forth in its -- this is in our brief on page 9, Your Honor -- that version was September 23rd of 1986. Now that's interesting because Cabazon comes down and Cabazon is handed down on February 25th, 1987, so well after that version which reflected the tribal resolution was handed down. After --
Chief Justice Roberts: Well, do you think the law would have been passed without the tribal resolution, regardless of the particular Official 1 form that it was enacted?
Brant C. Martin: Your Honor, I think I'm focused on the law that was actually passed and the changes that were made by Congress. I -- I don't know that I want to speculate on what would have happened or would not have happened. All I know is I have the text that -- we have the text that we have. And -- and the point that I was going to make was the final version of it is the one that -- no one here thinks that the final version in 107(a) is a total ban. There's no way you can construct it to where it reflects a total ban. So it can't reflect what Texas calls the "operative request." It has to mean something else. And those final changes that were made to 107(a) talk about the prohibited gaming activities, and that's a different story than the prohibited gaming. And, Your Honor, if I may --
Justice Alito: Well --
Chief Justice Roberts: Now I don't know --
Justice Alito: Go ahead. Official
Chief Justice Roberts: I'm sorry -- I was just going to say I don't know who you're including in everybody here, but it says "prohibited." And just as -- I mean, if you had -- under Texas law, you can have bingo games sort of, what, up to $100 at stake, okay, and then what -- what's happening is the tribe is having bingo games up to $1,000. Now, if you told somebody that, that they have games up to $1,000, it would be perfectly natural for that person to say, well, that's prohibited because there's a $100 cap.
Brant C. Martin: Your Honor --
Chief Justice Roberts: And you would tell me that, no, you would say they would be able to, you know, gam- -- have the bingo games up to $1,000.
Brant C. Martin: Your Honor, those are the exact type of restrictions that this Court analyzed in Cabazon and determined to be regulatory. And we believe that that's the exact same application that Congress was --
Justice Kagan: Well, suppose that that's right, Mr. Martin, but I think what the Chief Justice is suggesting is that it's not the Official 1 normal term -- use of the term "prohibited." What you're really relying on is the idea that Cabazon turns this language into a kind of term of art and that Congress was aware of that and that when Congress used the word "prohibited" it was incorporating this distinction that had been made in Cabazon. And let's say that your argument really does depend on that. It's not the normal use of the word "prohibited." It's a Cabazon use of the word "prohibited." So then the question is, what's your best evidence that this Court -- that the -- that Congress, when it passed this statute, really did have Cabazon in mind rather than was using the normal use of the word "prohibited"?
Brant C. Martin: Your Honor, first of all, I -- I think that under Williams versus Taylor, we certainly can assume that Congress was taking language from one of this Court's opinions and incorporating it, especially in the exact same context of Indian gaming, and that they knew what it meant. The second aspect on how I would answer your question, Your Honor, is that under 107(a), we set up the prohibited structure and Official 1 then, in 107(b), we set up the restriction on Texas's regulation. And I think that that clearly evidences --
Justice Kagan: I don't really see 107(b) as doing that. I mean, if I look at 107(b), it seems to me like much more of kind of the mirror image or flip side of 107(c) that says, you know, the federal courts have jurisdiction in -- in 107(c), and in 107(b), it says the state courts don't have jurisdiction. Why shouldn't -- so, on -- on that reading, 107(b) doesn't really help you, does it?
Brant C. Martin: I -- I think 107(b) helps us greatly, Your Honor, and I think that's the issue that we had with the Fifth Circuit's opinion. Regulatory jurisdiction within 107(b) is hearkening back to the -- the broader term of the state's inability to tax, regulate, license. It's the Bryan versus Itasca County test. They don't have that regulatory authority. Whereas, in 107(c), in the title alone, it says jurisdiction over enforcement. I don't think that you can combine -- and this is Official 1 where I -- I respectfully disagree with -- with my friends from the State of Texas. I don't think you can combine 107(b) to say that's enforcement. I think that's confusing jurisdiction with enforcement.
Justice Kagan: Could -- could we go back to the first way you answered the question? Because your first sentence was something like, you know, we presume that Congress knows about the law. And, you know, sometimes we do, and then again, sometimes we don't. Do -- do you have a view of -- of -- of when we should make that presumption and why this case fits within that sphere?
Brant C. Martin: I -- my view, Your Honor, would be that if Congress is using the exact same language, such as the use of the word "prohibit," you can then dictate that, whether you call it a term of art or using the same term in the exact same context --
Justice Barrett: Counsel, "prohibit," though, how many times does "prohibit" appear in the Code, and -- and, you know, one of the briefs counted how many times. I mean, it's not a term of art in that sense, right? Official
Brant C. Martin: But -- it is a term of art, Your Honor, when it's six months after Cabazon and you're talking about Indian gaming. That -- that would be the distinction I would make. I believe that the cite that they gave you, and that was the State of Texas's brief, it talked about it appearing 8,800 times.
Justice Alito: But what would they have -- what -- if you were in Congress and you were aware of Cabazon and you wanted to use "prohibited" in the normal sense of the word and you said, well, I'm afraid that if I use this word "prohibited," people are going to think it has the Cabazon meaning, what would you have -- how would you have written this?
Brant C. Martin: Well, Your Honor, I -- if I -- I would answer it by saying I think that we're talking just about "prohibited" and the use of the word "prohibited." We also need to see what it modifies, which is "prohibited gaming activities," because that was another change --
Justice Alito: Well, maybe what -- what -- Official
Brant C. Martin: -- that affected Cabazon.
Justice Alito: -- what synonym would you have used? All gaming activities which are what? I better say forbidden, I shouldn't say prohibited? Is that the argument?
Brant C. Martin: I -- Your Honor, my submission would be that by using the word "prohibited" in 107(a) and then using no regulatory jurisdiction in 107(b), that it was clear that they were intending to implicate Cabazon.
Justice Barrett: So do you lose without Cabazon?
Brant C. Martin: No, Your Honor, I don't think you lose without Cabazon.
Justice Barrett: So, if you take Cabazon out and were just looking at the ordinary meanings of these words, "prohibited" and "regulatory jurisdiction," you think you still win?
Brant C. Martin: Your Honor, to prohibit under the ordinary meaning is to forbid. Bingo is not forbidden --
Justice Sotomayor: Counsel --
Brant C. Martin: -- in the State of Texas. Official
Justice Sotomayor: -- counsel, why are you relying just on Cabazon? Bryan, in 1976, used the dichotomy of prohibited versus regulatory, correct?
Brant C. Martin: Yes, Your Honor.
Justice Sotomayor: And said, in the Indian context, regulatory doesn't mean prohibited, correct?
Brant C. Martin: Absolutely. Yes, Your Honor.
Justice Sotomayor: So you're not talking about six months before. You're talking about 10 years before.
Brant C. Martin: Yes, Your Honor. Cert --
Justice Sotomayor: And, secondly, why are you not pointing to the examples of legislation passed on the same day as the Restoration Act? The Winnepaug passed the very same day and it used regulations, those laws and regulations which prohibit or regulate. The Seminole, also passed in 1987, also talked about prohibiting and regulating. Correct?
Brant C. Martin: Yes. Yes, Your Honor. When Congress wants to use the word Official 1 "regulations" in this context, it certainly -- it certainly knows how to.
Justice Alito: Well, Mr. Martin --
Brant C. Martin: It was the --
Justice Sotomayor: It showed you it did.
Brant C. Martin: Yes, Your Honor.
Justice Gorsuch: Counsel, could I just ask, if you were to prevail, would Indian gaming be completely free for all, or would there still be -- would the Pueblos still be subject to IGRA?
Brant C. Martin: We believe that the proper reading of the Restoration Act is that the Pueblo would still be subject to IGRA. It's one of the other issues we have with --
Justice Gorsuch: And so what --
Brant C. Martin: -- the official --
Justice Gorsuch: -- what's the upshot of that? As I -- as I understand it, bingo may be allowed, for example, but blackjack wouldn't. Is that -- is that -- is that about right? Class III gaming would still be forbidden?
Brant C. Martin: In a general sense, yes, Your Honor, Class III would still be subject to Official 1 either a negotiation of a compact with the state, or they would only be allowed to engage in Class II gaming under IGRA supervised by the NIGC.
Justice Gorsuch: Okay. And then one more quick question for you. I -- I -- I understand that there's an Ex parte Young possibility of -- of jurisdiction here against the governor of the tribe. But is the tribe itself waiving sovereign immunity? Is it before us?
Brant C. Martin: I don't believe that that issue is before you, Your Honor, and I'm hesitant to waive sovereign immunity when that issue hasn't been briefed.
Justice Gorsuch: Well, I'm not asking you to waive sovereign immunity at -- at -- at the podium. That would be a bit much. (Laughter.)
Brant C. Martin: Okay.
Justice Gorsuch: So -- so it's safe to say we're here proceeding just against the governors, is -- is that -- is that right?
Brant C. Martin: I believe that's right, Your Honor. Official
Justice Gorsuch: Thank you. Appreciate it.
Justice Sotomayor: Can I go to that question, follow up on it? There seems to be a dispute whether this type of bingo by machine is the same as the bingo we know, people in a room calling out numbers. You dispute that. You say it's the same. But assuming that there's -- and I do -- that there's a genuine dispute on that issue, that still would be subject to federal jurisdiction, a court would then decide below whether this type of slot machine is actually bingo, correct?
Brant C. Martin: Well, Your Honor, first, you know, we would obviously dispute that it's a slot machine. But, if Texas continued -- if this Court remands it back down to the trial court for a finding, Texas brought -- continued its action under 107(c) for an injunction, the federal trial court would determine whether or not it was a prohibited gaming activity under Section 107(a). And I'm trying to be very careful and precise with my words here. Whether or not Official 1 that's bingo, whether or not that's not bingo, I think that there's a number of factors that would factor into the consideration by the trial court, but that would be under the federal court's jurisdiction.
Justice Kagan: Mr. Martin, could I take you back to Justice Gorsuch's question about IGRA? If -- if you prevail, the tribe is regulated under IGRA. I take it 107(c) would still separate out Texas from other states, is that correct --
Brant C. Martin: To a certain extent --
Justice Kagan: -- in your view?
Brant C. Martin: -- yes, Your Honor. The third sentence of 107(c), it -- it has a very interesting construction. It's not -- you can't read it as an affirmative grant of an injunctive relief. It says "nothing herein shall preclude the State of Texas from bringing an injunction," almost suggesting that there -- if there was a preexisting right from the State of Texas to have that injunction, that they would still have it. I'm not opining on that, but I'm saying that that would still exist. Official 1 And to the extent that it was read as an affirmative grant or an additional remedy, that the State of Texas would still have that under the Restoration Act.
Justice Kagan: But I guess what I was asking about is it would still be true that Texas -- or is this wrong -- that -- that -- that -- that the -- that the -- when 107(c) gives jurisdiction to the federal courts, is that different from the scheme that prevails in IGRA?
Brant C. Martin: No, Your Honor. We don't --
Justice Kagan: That's the same?
Brant C. Martin: Yes, Your Honor.
Justice Kagan: So, really, it's entirely IGRA. I mean, there's no sense in which Texas comes out worse?
Brant C. Martin: We certainly believe there is no sense in which Texas comes out worse, Your Honor.
Chief Justice Roberts: Counsel, just one last question from me, and I -- I'm sure it's not relevant, but I -- like Justice Sotomayor, I'm pretty curious. You walk in, Official 1 this thing looks like a slot machine, right?
Brant C. Martin: No, Your Honor. I mean --
Chief Justice Roberts: No?
Brant C. Martin: -- I would actually dispute that. I think the State of Texas thinks it looks like a slot machine. And I certainly -- there's been testimony that they think it looks like a slot machine. I could -- I could tell you the difference --
Chief Justice Roberts: What would -- what -- what would you say it looks like?
Brant C. Martin: I would say it looks like an electronic bingo machine that has a bingo card or --
Chief Justice Roberts: What makes it look like a bingo machine? (Laughter.)
Brant C. Martin: Well, there's a -- let -- let me try to --
Chief Justice Roberts: There's a name on it that says bingo?
Brant C. Martin: Well, there's actually a card and you can actually switch the cards by pushing a button to change the cards that you're Official 1 playing. Now are there reels and lights that look -- that would characterize --
Chief Justice Roberts: And are there people --
Brant C. Martin: -- that would fall in that characterization, yes.
Chief Justice Roberts: -- calling out numbers and people -- somebody saying, you know, B-12 or --
Brant C. Martin: There -- there, in fact, is part of our operations, Your Honor, of my tribe's operations is live-called bingo and it's also one of the things that the State of Texas has complained about.
Chief Justice Roberts: But that's something different than the slot -- slot machine bingo, right?
Brant C. Martin: It is different than the electronic machines, Your Honor, but they've complained about all of it.
Chief Justice Roberts: Okay. Thank you. I'm sorry. Justice Thomas?
Justice Thomas: Just one clarification. Who can operate -- under Texas's Official 1 law, who can conduct a bingo game legally?
Brant C. Martin: The Texas Bingo Enabling Act, as you're referencing, it's specific charitable organizations, Your Honor, that are -- that are set forth in that regulatory scheme.
Justice Thomas: So why is this not prohibited if it's not a charitable organization?
Brant C. Martin: Because, if the games under -- under not just the Restoration Act but also under IGRA and under the cases that come out of IGRA, if it's allowed to anyone for any purpose, then it's not a prohibited gaming activity. And that's specifically under IGRA, Your Honor.
Justice Thomas: Thank you.
Chief Justice Roberts: Justice Breyer?
Justice Breyer: I'm curious about the bingo machines. If -- if -- suppose that IGRA applied, and suppose that Texas had a law which said you can play bingo up to -- the one the Chief gave, up to $1,000, but not for more than 1,000. That's a crime. Well, IGRA says -- seems like the same Official 1 problem. It -- it -- it -- it says you have to have -- I guess gaming activity on Indian lands is okay if the -- if you have a compact or under III, I guess, or something, if -- if the gaming activity is conducted within a state, which does not as a matter of criminal law and public policy prohibit the gaming activity. All right. So isn't it the same problem? I mean, it says -- because they do prohibit it over $1,000, but they don't prohibit it under $1,000, but that you want to call regulation, but IGRA doesn't seem to use the word "regulation."
Brant C. Martin: Well, Your Honor, it's -- it's not the same problem, and the --
Justice Breyer: It's not?
Brant C. Martin: It's not, because IGRA actually incorporates that Cabazon prohibited regulatory juris- -- distinction.
Justice Breyer: Yes.
Brant C. Martin: And that distinction is actually critical to the hypothetical that you posed.
Justice Breyer: Right, right, right. I understand that. So I didn't understand that Official 1 IGRA incorporated it, but I guess it doesn't incorporate it in the language I just read you. So where does it incorporate it?
Brant C. Martin: Your Honor, IGRA would be incorporated -- or, I'm sorry, Cabazon would be incorporated into IGRA under 2701(5) and 2710(b)(1)(A).
Justice Breyer: (b)(1)(A), okay.
Brant C. Martin: And 2701(5), Your Honor.
Justice Breyer: Yeah, but that -- that's what I read you, 2701(5).
Brant C. Martin: Right. And there's 20 --
Justice Breyer: It didn't say regulatory.
Brant C. Martin: Right. Well --
Justice Breyer: It said prohibited.
Brant C. Martin: -- I think, if you read those statutes, our submission would be that that's where IGRA specifically incorporates the Cabazon prohibited framework.
Justice Breyer: Okay. Okay.
Chief Justice Roberts: Justice Alito?
Justice Alito: Well, I'm puzzled by both your argument and by Cabazon and, in particular, by how a court is going to decide Official 1 whether these machines, which I don't have a very clear picture of in my mind, are bingo or not bingo. If they are not bingo, they're something else. Let's say they're dingo. (Laughter.)
Justice Alito: And Texas prohibits dingo, then you can't have them, right?
Brant C. Martin: If Texas prohibited --
Justice Alito: Yeah. Under no --
Brant C. Martin: -- dingo --
Justice Alito: -- circumstances can you have a dingo machine.
Brant C. Martin: If it was a criminal prohibition against dingo, you would be correct, Your Honor.
Justice Alito: Okay. And how do you decide whether this thing is bingo? I mean, just like the platonic ideal of bingo?
Brant C. Martin: Your Honor, I -- I think that you don't have to decide the -- this Court --
Justice Alito: No, we don't have to --
Brant C. Martin: -- does not have to -- Official
Justice Alito: -- but somebody does.
Brant C. Martin: -- decide the platonic ideal --
Justice Alito: But how is the person who has to decide this going to decide whether this thing that's not exactly -- it's not the kind of bingo, you know, that you expect people to be playing in church or at the Elks. It's something different. How do you decide whether that's bingo?
Brant C. Martin: Understood, Your Honor. I think let's -- and let's take the hypothetical that this gets remanded down through to the trial court to make that factual determination. I think that court would take into account a number of things. It would take into account the definition of bingo that Texas has under the Texas Bingo Enabling Act, which actually helps us. It would take into account what IGRA considers to be bingo under 2701 and 2710. It would take into account the expert testimony, much like it did in the contempt hearing below. And I would point out to Your Honor, and this is what -- what I think -- Official
Justice Alito: There are experts who they -- they -- they are experts on -- on the identification of the -- you put something before these experts and they can say that's bingo, no, that's not bingo? There are people who can be qualified as experts on that?
Brant C. Martin: The answer to the question -- that question is yes, Your Honor, there are.
Justice Breyer: Did you ask my grandmother? She was -- (Laughter.)
Brant C. Martin: My -- my own mother has asked me questions about those very issues, Your Honor. But there are experts, in fact, that talk about whether or not something has a random number generator or not, whether or not the math makes it bingo, whether or not the evidence of the pattern makes it bingo. All of those things are taken into account. All of those same things, Your Honor, are taken into account by the NIGC. You know, the Kickapoo Tribe, which is the only other out of these -- the three federally recognized tribes in the State of Texas, one of them gets Official 1 to engage under the NIGC under IGRA and then the two that are controlled by the Restoration Act don't because Ysleta I misread the statute and read 107(b) out of it and talked about it being fed -- a surrogate federal law and that all of Texas's laws and regulations are surrogate federal law. We would submit, Your Honor, you can't read the Restoration Act that way. It's not the proper way to read it out of --
Justice Alito: Can I ask you one -- one final question? Because I -- I am -- the -- this -- the Cabazon Band is more subtle than my mind is able to grasp. Do you think that the sale of opioids without a prescription is prohibited, or is it merely regulated?
Brant C. Martin: Your Honor, I -- when I would reference Cabazon Band for Restoration Act -- I -- I don't have an opinion on the -- on your question, and I want to be very honest with you about that because I want to be responsive, but, when you're talking about the Indian gaming context, that is where Cabazon lies. That's where this gauntlet is thrown. And that's what Official 1 Congress was responding to in 1986 when it drafted the Restoration Act.
Chief Justice Roberts: Justice Sotomayor? Justice Kagan?
Justice Kagan: You know, Mr. Martin, I guess just following up on what Justice Alito talked about, this Cabazon distinction presents a wealth of sort of complicated and, quite frankly, weird questions. And the slot machine would just be one of like a thousand of them. I mean, it just -- Cabazon tells us to make a distinction about -- between "prohibition" and "regulation" when most of regulation prohibits certain things. And then you're stuck in the middle of trying to figure out what's a prohibition and what's a regulation. But I -- I -- I guess it's like, well, Cabazon is there, it's not unique to the question of slot machines. I mean, how should we figure in any -- any discomfort about Cabazon and the distinction that it makes itself?
Brant C. Martin: I think the distinction -- Official
Justice Kagan: Because I guess I would have thought that your answer to Justice Alito was like: Welcome to the world of Cabazon. Sorry. You know? And -- and that's it. And it wouldn't really depend on -- at all on whether there were experts about slot machines. So -- so that's sort of random thoughts, but, I mean, this is just the world of Cabazon and how do we take that into account?
Brant C. Martin: Well, if I may, Your Honor -- (Laughter.)
Brant C. Martin: -- I think the distinction here and the difference between the opioid --
Justice Kagan: It wasn't that funny. (Laughter.)
Brant C. Martin: -- the -- the opioid questions or the other questions that you could ask along those same lines, which are fair questions, but the difference is the sovereignty aspect of it. You're talking about sovereign tribes and Congress being the only one that has the plenary power to decide certain aspects of it. Official 1 If you remember in Cabazon, it talked about the fact that Congress made the decision to help -- have the tribes do this in terms of their self-sufficiency. So I think the sovereignty aspect of it shouldn't be and can't be overlooked because that's where 107(b) comes in. That's where the resolution is answered, right? The tribe was willing to give up a certain amount of gaming activities in order to not have Texas state law apply directly and not be subject to its resolu- -- regulation. Congress ultimately decided not to accept their offer and to give them less restrictions than they could have in response to Cabazon. So I think all of those fits as a piece, and it is also why, you know, you could talk about the -- the opioid hypothetical, you could talk about other hypotheticals along those same lines, but this concept of the sovereignty and the tribe's ability to engage in gaming activities I do think is a different story. It's not just here's Cabazon, live with it, right? And as you put it, Your Honor, and much more succinctly than I have in a month Official 1 of prepping for this, it's not just that. It's more there are questions of the sovereignty aspects of it and the regulatory aspects of it, the Public Law 280 aspects of it that I think Congress was answering when it wrote the Restoration Act in response to Cabazon.
Chief Justice Roberts: Justice Gorsuch? Justice Kavanaugh? Justice Barrett? Thank you, counsel.
Justice Barrett: Oh, oh, sorry, I did have a question.
Chief Justice Roberts: Oh, I'm sorry.
Justice Barrett: No, that's okay.
Chief Justice Roberts: You're far away.
Justice Barrett: I'd like to give you a chance, counsel, to respond to the argument that 105(f) -- I mean, we're talking a lot about Cabazon, and 105(f) essentially imports the Cabazon framework itself into the Restoration Act. So, if this isn't surrogate law, surrogate federal law under the Restoration Act, and we have 105(f) importing the Cabazon framework Official 1 directly in, why isn't it then redundant to interpret the Restoration Act as you do?
Brant C. Martin: The -- 105(f) certainly incorporates the Public Law 280 construct, and -- and there's, I don't think, any way to dispute that, nor would we want to. 107(a) and what it does differently, Your Honor, than what 105(f) does is it federalizes Texas law as to prohibited games. I think where the Fifth Circuit went wrong in talking about surrogate federal law was it extended it out to laws and regulations of the State of Texas over all gaming activities. That's not what 107 says. So I think that's one of the differences between 105(f) and 107. The second difference that I would point out to Your Honor is 107(c), which sets up a different enforce -- enforcement mechanism than what would have existed had just 105(f) been imported and 107 didn't exist.
Justice Barrett: So you agree that -- sorry. You agree that the Restoration Act establishes Texas law as surrogate federal law; you're saying that it only does that, however, with respect to prohibitions? Official
Brant C. Martin: To pro -- I'm actually saying it does that with respect to prohibited gaming activity.
Justice Barrett: Right. Thing that are prohibited --
Brant C. Martin: That's what the text says.
Justice Barrett: -- not those that are regulated.
Brant C. Martin: Yes, Your Honor. So the --
Justice Barrett: So the only difference between Cabazon under Section 280 and -- or Public Law 280 and the Restoration Act is simply this enforcement mechanism?
Brant C. Martin: It's the enforcement mechanism and then it is -- it is stating what laws are federal -- what state laws are federalized for the Restoration Act.
Justice Barrett: Okay.
Chief Justice Roberts: Thank you, counsel. Mr. Yang. 25 Official 1 ORAL ARGUMENT OF ANTHONY A. YANG FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS
Anthony A. Yang: Mr. Chief Justice, and may it please the Court: Just six months after this Court drew the distinction in Cabazon under Public Law 280 between gaming activity that is prohibited versus gaming activity that is regulated by state law, Congress enacted Section 107, mirroring that language to draw the same distinction in the exact same Indian gaming context. Section 107(a) forbids a tribe from engaging in gaming activities that are prohibited under Texas law, and Section 107(b) further provides that Section 107(a) does not grant the state civil or criminal regulatory jurisdiction. Texas has conceded in this Court that Section 107(b) restates the limits of Public Law 280. Those limits draw directly from Cabazon, they limit state regulatory jurisdiction, and they make clear that Section 107 adopts the Cabazon framework. Official 1 The Fifth Circuit's contrary view erroneously relies on legislative history and text that Congress once excluded but then removed from the legislation. This Court should correct that error.
Justice Thomas: Mr. Yang, what's the difference between "prohibited" and "regulated"?
Anthony A. Yang: Something that is prohibited is prohibited outright. And the focus, again, is --
Justice Thomas: Okay. So a statute a -- or rule or regulation says all patrons under the age of 21 are prohibited.
Anthony A. Yang: Right. That --
Justice Thomas: Is that a regulation, or is that a prohibition?
Anthony A. Yang: That could be a prohibition but -- but, here, not in this context. The statute focuses on gaming activities that are prohibited. The gaming activity would not be prohibited in that context. That is a method of conducting the gaming activity with people under the age of 21. This is exactly the distinction that Congress -- that this Court in Cabazon drew. Official 1 And I would remind -- I would point to Williams versus Taylor, which -- a unanimous decision of this Court which said that when a later statute on the same subject matter uses words of a prior Supreme Court opinion, those words are given the same meaning unless there's a specific -- specific direction to the contrary. And the word there was "failed." It wasn't -- "failed" can have a lot of different meanings in a lot of different contexts.
Justice Thomas: But -- but let me -- you know, the -- I understand. But going back to what you just said, that if the activity is regulated -- basically, what I'm hearing you say is that if it's permitted in any context, then it's permitted.
Anthony A. Yang: That's --
Justice Thomas: So the -- the mere fact that bingo is permitted to -- for the churches and the military -- the veterans organizations means it is not prohibited?
Anthony A. Yang: That's right, and when Congress took up IGRA shortly thereafter, the same Congress, Congress adopted the same Cabazon distinction that is embodied in the -- the Official 1 provisions you were -- you were just discussing with my friend. The State -- and it does use the term "regulation." It allows Indians -- tribes to regulate games that the state does not, as a matter of criminal law and public policy, prohibit, such gaming activity, again, drawing on the prohibitory/regulatory distinction in Cabazon. And then it brings -- it operationalizes it in 2710(b) and (d) if the state permits such gaming by any person by -- for any purpose.
Chief Justice Roberts: Mr. Yang --
Anthony A. Yang: That -- that's the whole standard that it governs the entire United States with respect to activities on tribal lands, except these two tribes under the Fifth Circuit's reading.
Chief Justice Roberts: Mr. Yang, I think your office is going to be very busy over the next 10 years explaining why the word "prohibited," in 18 U.S.C. whatever, still covers, you know, activities, possession of whatever, even though it's permitted at some level, right? Official 1 I mean, it's prohibited to possess a certain amount of whatever, but, you know, at -- at a level of personal use or medical whatever, it's okay, then you can't prohibit it at all.
Anthony A. Yang: We -- we aren't concerned about that because, with respect to this distinction -- let me take a step back. This distinction exists in Public Law 280. It's done so for a long time. Cabazon was 35 years ago. Public -- Cabazon applied a distinction in Bryan. Bryan understood that there's an important principle at stake here. You need to preserve tribal sovereignty and tribal government and that if you allow state regulatory power on tribal lands, you would destroy tribal sovereignty. That principle in Bryan was extended in Cabazon specifically to the gaming context, where the Court drew this prohibitory/regulatory distinction. We don't think this is a problem with respect to all of 18 U.S. Code -- C because, when you're interpreting a -- a statute like this, particularly a statute enacted directly on the heels of a Supreme Court decision on the same subject matter using the same language, Official 1 what you look to is not some general understanding of the word "prohibit;" you look to the way that this Court has used the term "prohibit."
Justice Gorsuch: Mr. Yang, just to follow up on the Chief Justice's point, I -- I -- I take your argument that this is a unique context and -- and we have to read the language in that context. But Texas -- Texas argues even in this context, the difference between "prohibition" and "regulation" is just unworkable. It's almost an argument perhaps for overruling Cabazon. I'd -- I'd like your thoughts about whether this distinction remains workable in this context. Forget about the others.
Anthony A. Yang: We think it works in this context because it is working under IGRA. This is exactly what goes on under IGRA. If the Court were to agree with our submission and that of the tribe, then the NIGC would get to determine whether this is a bingo activity or -- and, in addition, whether it is Class II bingo or potentially Class III bingo, Official 1 which would require a compact with the state.
Justice Gorsuch: And what would be the negative consequences in the government's view, if any, if we were to elide this distinction, ignore it, overrule Cabazon?
Anthony A. Yang: Wow. If the Court -- first of all, I don't think that's before the Court. This has been a fundamental distinction that's existed in the law of -- of tribal sovereignty and -- and tribal lands for decades upon decades. Again, it goes back before Cabazon. So that's the Public Law 280 context. And then you -- you know, I'm not sure what the Court would do with -- if it was just limited to this specific context because Congress has already spoken in IGRA. IGRA exactly parallels this distinction. It's beyond the stage of rethinking now Cabazon.
Justice Barrett: Are --
Anthony A. Yang: Cabazon is embedded in the law in all kinds of areas.
Justice Barrett: -- are there problems under IGRA or Public Law 280 in drawing the lines that we've been pressing between "prohibit" and "regulate"? Official
Anthony A. Yang: You know, there may be some close cases, but as in the mine run of cases, we've not seen a -- a huge wellspring of problems. Again, this has existed since Bryan and since Cabazon 35 years ago, and, again, IGRA has existed for a long time. There are similar --
Justice Breyer: But if we were --
Justice Gorsuch: So -- so, if I --
Justice Breyer: -- is it because they --
Justice Gorsuch: -- if I understand correctly -- I'm -- I'm -- I'm -- I just want to -- I'm -- please go ahead.
Justice Breyer: No. No. Go ahead.
Justice Gorsuch: I just wanted to follow up real quick. So, in the government's view, if we were to eliminate the distinction between "regulate" and "prohibit" in -- in -- in the Restoration Act, we would all -- also wind up inevitably doing so in IGRA and that that would have more negative consequences than positive ones. Is -- is that -- is that summarizing your view?
Anthony A. Yang: I'm not sure how the Court Official 1 -- I mean, there's -- there's statutory text in IGRA. I'm not sure what the Court's decision would mean for IGRA. It certainly would mean a huge change in the law in terms of governing Public Law 280, which is one of the fundamental statutes governing Indian lands. So I would caution the Court not to be overly ambitious here. This case does not involve a question of rethinking Cabazon. The ultimate question presented is whether Congress, in enacting the -- the Restoration Act, was adopting the Cabazon framework or instead was applying all of Texas law governing gaming.
Justice Gorsuch: Thank you. I'm sorry, Justice Breyer.
Justice Breyer: Is the reason that this is not a problem that when it comes up, it's normally a question of where or when or under what circumstances can you play this game? But it's not normally a question of how do you play because, if it were how do you play, you would have trouble saying, you know, is it bingo or is it, you know, craps or something? I mean --
Anthony A. Yang: Well -- Official
Justice Breyer: -- is it -- is it -- but -- but it's the first three which are usually fairly easy to decide.
Anthony A. Yang: No.
Justice Breyer: Am I right or wrong?
Anthony A. Yang: No, actually, I think --
Justice Breyer: Wrong?
Anthony A. Yang: -- there is the question of whether things do constitute bingo and it arises not infrequently in the context of IGRA. You know, this is not in the QP in terms of is this bingo and we've not briefed it, and so I can give you a thumbnail sketch, but it would be difficult, I think, to give you the whole lay of the land here.
Justice Gorsuch: I'd love to hear what the difference between bingo and dingo is, so please.
Anthony A. Yang: Well, I'd not heard of dingo, but I can tell you that bingo has three primary characteristics. These are actually codified in IGRA. Congress has recognized that these are the three primary characteristics. One, you have a card bearing numbers or designators. Two, you cover those numbers when Official 1 they are drawn or somehow identified. And you win by covering an arrangement of numbers. This is in 2703(7)(A)(i). This is a kind of understanding of what bingo is. And you would ask, is this bingo, or is it a method of conducting bingo when you use a computer? Even Texas, by the way, allows card mining devices, which are these devices where you can, instead of tracking five cards, you can track up to 66 cards under state law at one time. The problem that the district court found was not that this wasn't bingo; it was that Texas law requires that you not submit -- put the money in the device or get paid out by the device. That was the problem under Texas law. There's a legitimate question whether this would be Class II or Class III bingo under IGRA, but, you know, that's not presented here.
Justice Kavanaugh: Mr. Yang, can I ask, to follow up on Justice Gorsuch's and Justice Barrett's questions, assume we don't overrule Cabazon, but if we were to rule for the State of Texas in this case on this statute, would there be any follow-on implications for other statutes, or is it possible to rule for Official 1 the State of Texas narrowly in this case without such follow-on implications in your view?
Anthony A. Yang: You know, I think it would depend on how the Court wrote the opinion. This is a Texas-specific statute, so it might be possible. But I would -- you know, so there are some questions that I'd like to still address. One was about the meaning of 20 -- 107(b). I think 107(b) has to be read in conjunction with 105(f). 105(f) is a grant of civil and criminal jurisdiction to the state under Public Law 280. When they use jurisdiction there, Justice Kagan, it's not with respect to courts. It's with respect to authority, and the use of that term is generally used -- you know, post-Arbaugh we're trying to get away from using jurisdiction when we don't mean court jurisdiction, but this is before Arbaugh and it's quite common both in legislation and in the Court's decisions. Then, if you look at 107(b), it uses that same phrase "civil and criminal jurisdiction" but inserts "regulatory." And that was the exact distinction that Cabazon Official 1 drew. Remember Cabazon was already writing on top of Bryan, which said there's no crim- -- civil regulatory jurisdiction, and it said just because you add a criminal sanction doesn't convert it to a criminal law that you can enforce under Public Law 280. 107(b) directly draws on that same Cabazon distinction, and it says nothing in Section 107 shall be interpreted to grant that authority, which means 107(a), when it says gaming activities prohibited by state law, does not grant regulatory authority, and that is the second half of the Cabazon framework, prohibited, not regulated. The -- I think also, you know, IGRA is worth considering here because Congress enacted IGRA, same Congress, and as the Court -- Justice Scalia explained in Branch versus Smith, when you have a similar statute and the same body of law, you can look at that to clarify the meaning of another statute because it's within the same body of law. You read it in pari materia. And I don't think there's really any dispute that by using the same regulated and prohibit language and the provisions that we've Official 1 talked about, which are at page 9 of our brief, that Congress in IGRA was adopting Cabazon, Congress was doing the same thing here. And there's no reason to distinctly disadvantage these tribes where Congress uses the same language and establishes a --
Justice Gorsuch: Well, but, Mr. Yang, doesn't that -- doesn't that answer Justice Kavanaugh's question? If -- if we were to ignore Cabazon here in 107, on what basis could you continue to recognize that distinction under IGRA? Wouldn't that be pretty hard?
Anthony A. Yang: You know, it's a different statute. I think it --
Justice Gorsuch: That's -- that's the best you got?
Anthony A. Yang: -- I think it would be difficult to draw that distinction. It really would. These are same context in the, you know, same Indian gaming context, written by the same Congress in the same general legal world post-Cabazon, I think it's hard. You know, this -- our view is you should read Public Law 2 -- excuse me, Section 107 the same way that you read IGRA. Official 1 And I would like to talk about the tribal resolution.
Justice Barrett: Can I just ask one follow-up to Justice Gorsuch's question?
Anthony A. Yang: Sure.
Justice Barrett: But, I mean, the common thread in all of these is Cabazon. So, without Cabazon, it sounds like you're taking a slightly different position than your friend. It sounds to me like you're saying Cabazon drives this. Without Cabazon, if we're talking about just the ordinary meaning, then it's a lot harder to make the case for this distinction between prohibit --
Anthony A. Yang: Oh, it -- it's much harder to make the -- that -- the case. You know, you could make the case. It would be a much higher hurdle to cross. I'd like to talk about --
Justice Kagan: But -- but I take your view to be saying Cabazon is all over this statute. In other words, it's not just saying, oh, look, prohibit, six months ago, Cabazon said something about prohibit. But you're making the case that if you just look at this entire Official 1 statute, Cabazon is pretty much all over it?
Anthony A. Yang: And Cabazon was always in this -- this -- well, once it existed. Section 105(f) has always existed in every piece of legislation going back to 1984. 105(f) existed. Congress knew when it was adopting 105(f) which would then incorporate the Public Law 280 framework that that comes with Cabazon. And then, with respect specifically to gaming, it's the specific provision rather than the general provision in 105(f). It again uses Cabazon's language five minutes later. I'd like to talk about the tribal resolution, but --
Chief Justice Roberts: I'll give you a minute.
Anthony A. Yang: Okay. So the tribal resolution, you know, when -- in 107(a), Congress's reference there respects the tribe's strong opposition to the direct application of state law. And the text, you know, there's been debate about the resolution. The text of the statute cannot be read as applying the -- the final request in the resolution because no one thinks and the text does not allow you to read Official 1 107(a) to prohibit all gaming prohibited under Texas law. It's just not what happened. There was also a significant textual change. When Congress first adopted the reference to the tribal resolution, it said pursuant to the tribal resolution -- this is on page 4 of our brief -- all gaming is prohibited if it's as defined under Texas law. Cabazon came, Congress retooled 107, and then it said -- instead of said pursuant to the resolution, it said this is enacted in accordance with the resolution. We think that has some more flexibility, and what it really reflects primarily is the tribe's strong opposition to the direct application of state law. That's why Section 107 is federal law, and that's why federal enforcement generally prevails, with the exception of state enforcement, if the state has a preexisting cause of action that it can assert for an injunction against a tribal officer.
Chief Justice Roberts: Thank you. Justice Thomas?
Justice Thomas: No questions.
Chief Justice Roberts: Justice Breyer, anything further? Official 1 Justice Alito?
Justice Alito: Didn't the tribal resolution ask that the statute include "language which would provide that all gambling" -- "gaming, gambling, lottery, or bingo, as defined by the laws and administrative regulations of the State of Texas, shall be prohibited on the tribe's reservation or on tribal land"? Didn't it say that?
Anthony A. Yang: It did, and Congress in response adopted verbatim that language. This is on page 4 of our brief. That was in 1986. And then, when H.R. 318 was introduced in 1987, again, on page 4 of our brief, that exact language was in the bill.
Justice Alito: But that's -- that's --
Anthony A. Yang: But then Cabazon came.
Justice Alito: -- in 1-0 -- that is referenced in 107(a), is it not?
Anthony A. Yang: Which is?
Justice Alito: The language I just read.
Anthony A. Yang: (a) does not have that language. It reference -- it says that 107(a) Official 1 is enacted in accordance with the tribal resolution.
Justice Alito: Yeah. Okay.
Anthony A. Yang: But the tribal resolution had more -- many things in it, and this is a --
Justice Alito: So -- all right. I understand. I understand.
Anthony A. Yang: Right. And so --
Justice Alito: I understand your point.
Anthony A. Yang: Yeah. Okay.
Justice Alito: I understand your point. One other question. You refer to the Indian canon. Those who favor the interpretation of statutes to mean what the words of the statute are generally understood to mean have some question about some of these substantive canons. Now some of them, like the Rule of Lenity, have a long history. What do you think is the basis for this Indian canon?
Anthony A. Yang: Well, it has a long history in this Court's jurisprudence, and I think it recognizes the special role that -- and our Official 1 relationship historically with Indian tribes. Now I don't think you actually need the Indian canon. We didn't make a big deal out of it in our brief. It's certainly part of the Court's jurisprudence that if there -- if you find this ambiguous, that you should tip the scale. But we think this is pretty -- a pretty clear-cut case of Congress six months after Cabazon adopting the language of Cabazon to apply Cabazon's distinction in the same gaming context.
Justice Alito: Well, that doesn't really answer my question. What is the origin of this? Is it your -- is it your argument that throughout history Congress has always framed statutes in a way that are favorable to Indian tribes?
Anthony A. Yang: I've not -- my research for this case, unfortunately, has not gone that far back. I don't have the original -- no one has challenged the Indian canon's existence here, and we've not gone back to -- to form an argument for it, Your Honor.
Chief Justice Roberts: Justice Official 1 Sotomayor?
Justice Sotomayor: Counsel, the tribal -- 1986 tribal resolution, in my mind, seems to serve a variety of different functions. The first, I think, is that you need Indian approval to have any state law apply on a reservation, correct?
Anthony A. Yang: Yeah, I think that's -- that's part.
Justice Sotomayor: Generally true.
Anthony A. Yang: Yes, and -- but, significantly, you know, the tribe didn't want the state to impose its laws directly on the tribe. That was --
Justice Sotomayor: Exactly.
Anthony A. Yang: -- that was a very significant issue.
Justice Sotomayor: So that's where 107(c) is in accordance with the resolution, because they didn't want the state to be able to regulate or have its laws --
Anthony A. Yang: Well --
Justice Sotomayor: -- applied directly, correct?
Anthony A. Yang: -- I agree with that, but I Official 1 also think 107(a) is because 107(a) applies as federal law certain -- a limited set of state laws that prohibit, and -- and what that does is significant. It makes a federal criminal offense to conduct in prohibited gaming activities.
Justice Sotomayor: If we read this the way the State wants, presume that they are running a bingo game exactly the way the churches do, okay, is it your view that then the federal court would be open to seeing whether or not they have all the signs that are required by the state, whether they have --
Anthony A. Yang: Yeah, that's exactly how things have played out since Ysleta I. And as the district court has -- you know, we -- we -- we cite these cases in our brief, this has not been a good way of providing a regulatory framework through injunctive actions in federal courts where a federal court has to talk about, you know, how many cards can you play and what hours can you play and what's -- that's not what Congress would have intended, we think. Congress would have intended to put a pretty high bar of prohibition, and then, when Official 1 it enacted IGRA, it goes straight to the NIGC and the NIGC, the expert agency, gets to decide these questions.
Justice Sotomayor: I guess Texas would say we only permit not-for-profits to play. This is not for profit, so they shouldn't be playing at all. Isn't that their argument?
Anthony A. Yang: That's, I think, part of their argument. And I would say that Cabazon directly addressed that. Cabazon was a provision in California law that only allowed charities to operate bingo and that set a limit of $250, and the Court said, you know what, that is regulating bingo, it is not prohibiting bingo.
Justice Sotomayor: Thank you, counsel.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: I'm about to take you outside the scope of this case, so I apologize beforehand. But Justice Alito raised what to me is an interesting question that I've been thinking about a good deal about what these substantive canons of interpretation are and when they exist and when they don't exist. Official 1 They're all over the place, of course. It's not just the Indian canon. Next week, we're going to be thinking about this supposed major questions canon. There are other canons. I mean, if you go through Justice Scalia's book, you'll find a wealth of canons of this kind, these sort of substantive canons. Some of them help the government. Some of them hurt the government. Is there any way that the government has of coming in and saying, like, how do we reconcile our views of all these different kinds of canons? Maybe we should just toss them all out, you know?
Anthony A. Yang: Well --
Justice Kagan: I mean, I think kind of we should, honestly. Like, what are we doing here? But is there -- do you have a view of, like, when these canons are the kind that you're going to talk about in your briefs and when these canons are not the kind that you're going to talk about in your briefs?
Anthony A. Yang: Well, I think our briefs generally grapple first with the text, right, as we've done here. And canons, I think, can play Official 1 an important role in certain contexts. I think, for instance, Bryan recognized that in the Indian tribal sovereignty context, there is a very important principle that kind of underlays the body of the law there. You do not want to read statutes to grant state regulatory authority on tribal lands without kind of a clear expression of that. And I think that those types of principles reflect a background body of law that one brings when reading statutes. So it's true, you know, I think I've seen the Court's decision that, you know, sometimes you get canons that conflict, right, that run in contrary directions. These are aids in interpretation, but we always start with the text.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: The government doesn't waive sovereign immunity lightly. That's one of our canons, right?
Anthony A. Yang: That -- that's exactly right.
Justice Gorsuch: And -- and isn't the Official 1 Indian canon very similar in its function in saying that we don't lightly assume that Congress is allowed state authorities to regulate an independent sovereign?
Anthony A. Yang: I think it's similar. There are different underlying principles behind them, but I think there is a similar spirit to the -- that thought.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: Just to follow up on Justice Kagan's question because I think that's important, and Justice Alito's as well, on -- on the Indian canon, I just want to isolate what kind of canon it is, because it seems like our substantive canons fall into two buckets. One bucket are in ambiguity-dependent canons; if a statute's ambiguous, do this. Another bucket of canons are plain statement canons for mens rea, extraterritoriality --
Anthony A. Yang: Right.
Justice Kavanaugh: -- and the like. The former category, the ambiguity-dependent, like our deference, Rule of Lenity, and I want to confirm that you think the Indian canon is an Official 1 ambiguity-dependent canon as it's been traditionally applied.
Anthony A. Yang: I think that's generally true, but there's something else going on here too, which is the -- the principle that Bryan recognized. In the specific context when you're talking about the application of -- of state regulatory authority in -- on Indian lands, you know, you need to be more cautious. Now, admittedly, this is a federal statute that implied -- that applies federal law, but I think some of the caution that Bryan reflects, I think, should -- should guide the Court.
Justice Kavanaugh: So that suggests you need more of a clear statement, and those usually -- those clear statement rules usually reflect some constitutional or quasi-constitutional value, due process, extraterritorial structure, the structure of the country. What would that reflect here, that principle you just described?
Anthony A. Yang: Well, I think it -- it reflects that Indian tribes are sovereign nations, that they have before the founding of Official 1 this country. And, you know, the Court's opinion in Bay Mills tracks some of this. So, you know, whatever you think about the canons in general and whether that should be, you know, plain statement, just, you know, tip the balance in ambiguity, the Indian canon, at least when we're talking about tribal sovereignty and the application of state law on tribal lands, that does have a strong pedigree and I think, ultimately, it traces to the fact that these are sovereign nations.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: I want to follow up on this canon line of questioning. And I'm sorry, I know you said that you weren't thinking about the canons when you came in here today. It was actually my understanding -- you know, Justice Kavanaugh pointed out that our substantive canons fall into these clear statement and ambiguity buckets. It was my understanding that the Indian canon was in the ambiguity bucket.
Anthony A. Yang: Oh. That -- that -- that Official 1 is generally true and that's the way that we used it in our -- our brief. But, in this case, because of Cabazon, Cabazon was built on Bryan. Bryan applied a stronger version of the -- it's -- actually kind of a -- a brother doctrine, I guess, or a sister doctrine.
Justice Barrett: Was its debut in Bryan?
Anthony A. Yang: No, no. This goes back quite a long ways. This goes to, you know, infringements on tribal sovereignty and the recognition that it's generally only the United States that -- that governs dependent sovereigns like tribes.
Justice Barrett: So it's like a sub-Indian canon canon?
Anthony A. Yang: I'm not sure that I'm prepared to put a proper label on it, but I can say that it exists in Bryan, which came through Cabazon, and Bryan itself was -- this is cited actually on pages 16 to 17 of our brief. We discuss Bryan and some of the principles underlying Bryan.
Justice Barrett: Okay. Thank you.
Chief Justice Roberts: Thank you, Official 1 counsel.
Anthony A. Yang: Thank you.
Chief Justice Roberts: Ms. Pettit. ORAL ARGUMENT OF LANORA C. PETTIT ON BEHALF OF THE RESPONDENT
Lanora C. Pettit: Thank you, Mr. Chief Justice, and may it please the Court: In the 1980s, everybody in this case wanted something. The tribe wanted federal recognition and was willing to cede some of its sovereignty. Texas wanted to avoid high-stakes gambling, which it saw as an invitation to organized crime, and was willing to cede some of its jurisdiction. The federal government was split about how to balance these sovereign interests. So every -- so everyone made concessions, which are embodied in the Restoration Act. The tribe got its recognition and may offer gambling to the same extent as other Texans, but further gambling is banned under federal law. The tribe asks to rewrite this legislative bargain based on Cabazon Band, but it's admitted that Cabazon Band did not address how to interpret a statute that federalizes Official 1 state law. Its effort to extend Cabazon Band suffers from three primary faults. First, it ignores that when it comes to gambling, the Restoration Act departs from the Cabazon Band framework by treating both civil and criminal penalties and civil and criminal regulatory jurisdiction the same way. Second, it overlooks that the Cabazon Band test was written to avoid a form of state encroachment into tribal affairs that isn't possible when a federal court is applying federal law. And, third, it depends on a definition of jurisdiction that disregards the close tie between that term in the 1980s and an adjudicator's ability to decide a case. That's how it's used in Public Law 280, in Section 105(f), and, as Justice Kagan noted, in Section 107(c). Applying that same definition to 107(b), regulatory jurisdiction encompasses a state administrative agency's ability to exercise oversight through, among other things, reporting requirements, inspections, and ultimately enforcement actions, not the state's Official 1 larger ability to set substantive limits on gambling. I welcome this Court's questions.
Justice Thomas: Counsel, could you give me an example of a regulatory law or rule that applies -- a gaming -- a regulation of gaming laws that applies to tribes that do not fall under 107(a)?
Lanora C. Pettit: I'm not --
Justice Thomas: I'm sorry, that would be covered -- would not count as a prohibition under 107(a)?
Lanora C. Pettit: To the extent -- so 107 -- prohibition, as it's generally understood, means it's unlawful. There is -- a regulation that would apply to somebody who's not the tribe that wouldn't be a prohibition would, for example, be that the Texas Lottery Commission can typically get access to passwords so that people -- they can have an ongoing oversight into the way that software functions. That's a regulation that wouldn't apply to the tribe because it's not a prohibition relating to gaming activity.
Justice Thomas: Now we -- there's Official 1 been some discussion as to the -- the difference between prohibition and regulation. Would you comment on that? I mean, you've heard all the arguments.
Lanora C. Pettit: So prohibition in this context and as generally understood can include a regulation except for, as Justice Barrett noted a couple of times, Cabazon Band. So the regulation distinction made in Cabazon Band was specific to Public Law 280, which was trying to decide the difference between criminal and civil laws, which is a question not presented by the Restoration Act.
Justice Thomas: So there seems to be by counsel a suggestion that the mere fact that any group could participate in bingo, for example, the veterans organization or the churches, that even if it's outlawed, as to other organizations or for profit, that that is not a prohibition.
Lanora C. Pettit: Under their view, that's my understanding. But it's still a prohibition under Texas law because it goes to a fundamental problem with the public policy shorthand for the criminal/civil jurisdiction distinction that Official 1 Cabazon Band was trying to make because, as Justice Alito pointed out, a -- a prohibition is still a matter of public policy, even if it includes exceptions when it's not -- when the activity is not prohibited.
Justice Thomas: Thank you.
Justice Sotomayor: I'm sorry, counsel. Could you explain that more clearly to me? Just earlier you said to Justice Thomas that a regulation that wouldn't apply to the Indians would be one that required their passwords to play the game, correct?
Lanora C. Pettit: Yes, Your Honor.
Justice Sotomayor: And I assume that's because you recognize that the prohibition is on -- on playing bingo, not on how you play bingo, correct?
Lanora C. Pettit: On the gaming activity, yes, Your Honor.
Justice Sotomayor: All right. So how is that different than what you just said? Meaning --
Lanora C. Pettit: So --
Justice Sotomayor: -- a financial Official 1 requirement, a password requirement, I don't know how you can read that into gaming activities which are prohibited by, because bingo's not prohibited by. What does it matter whether it's a not-for-profit or not?
Lanora C. Pettit: So the bingo outside of the limited affirmative jurisdiction -- sorry. The offense to prosecution is what the Bingo Enabling Act is. So any bingo that is not -- that is not conducted pursuant to the Bingo Enabling Act is prohibited as a matter of Texas criminal law.
Justice Sotomayor: I -- I -- I -- you can't play bingo unless you give the password?
Lanora C. Pettit: No, Your Honor.
Justice Sotomayor: You can't play bingo unless you meet certain financial requirements. You can't play bingo because you're not a not-for-profit.
Lanora C. Pettit: No, Your Honor.
Justice Sotomayor: I don't know where I draw those lines.
Lanora C. Pettit: So the password example that I gave was a regulation applicable in -- to the bingo -- to the -- in the larger bingo Official 1 regulatory framework of Texas law that does not apply to the tribe because it doesn't go to the gaming activity. The gaming activity could for -- to take the Chief Justice's example, be a distinction between low-stakes bingo under $100 or the distinction in Texas of over 750. The state's regulatory interest or the state's prohibitory interest, however you want to frame it, is different between low-stakes and high-stakes gambling. So the use of the term "law" is another -- is another focus under 107(a), and both the tribe and the United States focused on a earlier version of the bill that ultimately became the statute that included the terms "laws" and "regulations." But, under this Court's precedent, the term "laws" typically includes regulations, so you can't really interpret anything by the deletion of redundant language in a draft bill.
Justice Barrett: Counsel, what about the other laws that were passed contemporaneously with this one for other tribes that used broader language like "prohibit" or "regulate"? Why shouldn't we look at the Official 1 contrast between this more precise or narrower language and those?
Lanora C. Pettit: By looking at the context of each of the statutes, each of the statutes they cite is a settlement act that is enabling a preexisting agreement between the parties to litigation. So those -- the language that Your Honor is citing is maybe the language that the parties determined was necessary, but it doesn't give much of an indication, if any, about what Congress would have determined was necessary if it was on its own. And this also goes to the larger context of the Restoration Act because the term "prohibit" and the term "regulate" were in the Restoration Act before Cabazon Band. After Cabazon Band, in the Senate, there was two -- there were two distinct changes to both 107(a) and 107(b) that show a departure from Cabazon Band which expressly linked the concept of civil and regulatory and criminal and prohibitory, that is, the insertion of civil and criminal penalties in respect to prohibitions in 107(a) and the phrase -- and the insertion of Official 1 "and criminal" into a preexisting statute that said "civil regulatory jurisdiction."
Justice Breyer: So, if I -- I take it the difference is you think the words "prohibit" -- "prohibited by the laws" refers to all the prohibitions by the criminal laws. And they think it refers to the -- there is a distinction between regulatory and prohibiting it outright. Okay.
Lanora C. Pettit: Yeah.
Justice Breyer: And the whole key here is are they referring to Cabazon, as they think, or are they thinking back -- back to the resolution, where they said we don't even want Texas. You know, that's the big difference. And everybody is looking at different other statutes which may or may not cast some light. Okay. I think I know the answer, but, look, I'm in an odd position. I'm like the light brigade. I have cannons to the left of me and cannons to the right of me, and I'm going into the valley of death, charged the 400, but, I mean, there used to be ways of finding these things out. You went and you read the report of Official 1 the Senate committee or the House committee or the conference committee, and you read the testimony before the committees, and you read what the Justice Department told them or the Department of the Interior, and you read what other people said on the floor perhaps, and sometimes but not always that, in fact, sheds some light on the proper answer. So my question is, if, pursuing my odd single path perhaps, I did that here, would I find anything?
Lanora C. Pettit: You would find the Senate report, which is the only report that deals with the final version of the statute, and the Senate report said that the addition of civil and criminal penalties, what I just mentioned, was designed to build upon what the House was making -- what the House had originally amended to say just "prohibit" to make clear that civil penalties were also applicable, which we respectfully suggest supports our cause.
Chief Justice Roberts: Well, I -- I -- I pressed your friend, Mr. Martin, a little bit on the tribal resolution, which I think is very strong evidence for you. On the other Official 1 hand, his answer that, well, that wasn't addressed in the final bill, it was a predecessor bill, also seemed pretty good. Do you have an answer to that?
Lanora C. Pettit: Your Honor, the resolution may have been passed in response to the -- to a prior bill, but it is incorporated into the text or it's at least referenced in the text of the actual bill that was passed and became law, so that has to be given some meaning. And the fact that it was aimed at a different bill is not dispositive one way or the other.
Justice Kagan: Ms. Pettit, if -- if, you know, this just said "prohibit" and we were in a world where we didn't have any context on the page or otherwise, I think you would win. The question is, do we have so much context about "prohibit" being used in a specialized way that you lose? And I -- I guess I would just point you to a few things and ask you to address them one by one. So the first is 105(f), which I take it you acknowledge incorporates Public Law 280, and Public Law 280 had just been interpreted in Official 1 Cabazon as having this prohibitory/regulatory distinction.
Lanora C. Pettit: Yes, Your Honor.
Justice Kagan: The second is 107(b), which specifically talks about criminal regulatory jurisdiction. Now there's a question as to what kinds of -- what kind of jurisdiction it's talking about here because jurisdiction is used in two different senses in this statute, but I think that Mr. Yang has an awfully good argument that when they're talking about regulatory jurisdiction, they're not talking about it in the which court sense, they're talking about it in the Cabazon sense. So -- so it says, you know, we don't want to give the state regulatory jurisdiction, meaning the state doesn't have any regulatory power here. Then the third thing would be what Justice Barrett said, I think you've responded to that, the other statutes passed around the same time, actually, on the same day, right, that clearly understand the Cabazon prohibitory/regulatory distinction. So you take all of those together, and Official 1 this is what I meant when I said to Mr. Yang Cabazon is, like, written all over this statute. It's not just like we have a world in which we say: Oh, didn't they know about Cabazon? Would that have affected what they were doing? I mean, Cabazon is in this statute in multiple places. So why isn't it in this statute in a way that defeats your claim here?
Lanora C. Pettit: So, in Cabazon, this Court used the phrase "regulatory authority," not "regulatory jurisdiction." When referring to the power to set laws, this Court has typically used the term "legislative jurisdiction," which is tellingly not the word that Congress had selected. Moreover, the -- and I would point -- he made a comment post-Arbaugh that you try to be more careful about jurisdiction. I think that in the 1980s there was a very clear tie between jurisdiction and an adjudicative officer, not necessarily a court. And I would point you to the Fifth Edition of Black's Law Dictionary, which was published in about 1983, which specifically discusses jurisdiction in those terms. Official 1 So it may not be a court-specific term, but absent the phrase "legislative jurisdiction," it does tend to have an adjudicative meaning. So that is where -- and it's used consistently in 105(f), which Your Honor referenced, in that -- in that sense. And it's used in 107(c) in that sense. And so it would make sense to use it in 107(b) in that sense to avoid the charge of the light brigade with various cannons. So, in that -- in reading it in the larger context of how that term was used in the '80s, as opposed to, for example, in the mid-2000s, after this Court's case of City of Arlington against FCC, where you equated authority and jurisdiction, helps to clarify any ambiguities. So -- that's all I have. I'm happy to answer any --
Justice Kavanaugh: Given -- given Cabazon -- sorry to interrupt. Given Cabazon, why wouldn't it have been obvious to members of Congress to say something like the following if you wanted to do this, like "all Texas law regulating gaming activities applies to gaming Official 1 activities on the reservation and lands of the tribe"? Why --
Lanora C. Pettit: So --
Justice Kavanaugh: I mean, in other words, boy, there's this case, we better be careful. And we're in the world where we're assuming Congress is responding to the case. So why wouldn't the people who wanted this broader authority to extend have been -- we need to -- we need to be careful about this and doesn't the -- then the absence of that suggest something that -- that hurts your case here?
Lanora C. Pettit: Two responses. First, I heard a lot from both the United States and from the tribe that said that Cabazon Band was -- was especially informative because of the context. But Cabazon Band addressed -- may have the facts of Cabazon Band, may have been relating to gambling, but it addressed a statute that applied across the board equally to Texas and to regulation of pharmaceuticals or a number of the other hypotheticals we've had today. So why Congress would have necessarily said: Well, Cabazon Band defines exactly what Official 1 term we have for gambling, it -- it's not nearly as close as that. And I believe Justice Alito asked a few minutes ago how you determine whether you are going to apply a canon about assuming Congress -- or it might have been Justice Kagan -- I apologize -- about when you assume Congress was understanding the particular context. Normally, this Court does that when you have a well-established term that's been used a number of times, whereas, here, you have just the term "prohibit," which is a commonly used statutory term, it's been interpreted once in a case that respectfully is not the most precise case this course -- Court has ever issued. And so assuming that Congress intended to enact and make permanent for all tribes for all uses of "prohibit" based on this one case would be taking that canon too far. And the best way I think I can point this to is differences between the language of IGRA, which, for example, does track Cabazon Band in that it says prohibits "as a matter of criminal law or public policy" in 2701(5). That's not the phrase that we have in Official 1 -- in the Restoration Act. That is -- what we have simply is the use of the common term "prohibit." You see that again in 2710 when you're talking about when -- when Congress is talking about when the state can or the tribe can engage in activity which is whether the state prohibit -- permits it for any purpose, for any person, entity, or organization. Again, that tracks the Cabazon Band prohibition -- prohibition language much more closely than here, where we just have that term "prohibit."
Justice Kavanaugh: Was -- wasn't it obvious or wouldn't it have been obvious that what happens when a state allows an activity but regulates it heavily, can those regulations apply to the tribes? Wasn't that an obvious question and wouldn't that have been addressed in a different way, I guess, again, if we're in this world where we're trying to speculate what Congress was thinking?
Lanora C. Pettit: This is why it's always dangerous to speculate what Congress was thinking.
Justice Kavanaugh: Yeah, that's a Official 1 good answer.
Lanora C. Pettit: But laws -- laws typically does include -- does -- do -- the term "laws" typically does include regulations, unless Congress specifies otherwise, which it didn't do here. And this goes back to a number of the questions we've had today about the signage that is at -- at casinos and whether that would apply to the tribe. And it doesn't because it doesn't go to the gaming activity as this Court defined that in Bay Mills, where it was the -- the -- I think the words of the Court were the throw of the dice or the turn of the wheel, the actual game that's being played and not the offsite administrative or regulatory body, so --
Justice Barrett: But, Ms. Pettit, why would it make sense? You know, here, in 107(c), the federal court is given jurisdiction if the state wants to bring an action for an injunction to stop, in your view, regulatory violations on the gaming activity. Why would it make sense to enlist federal district courts to police all these aspects of gaming? It -- it just seems to me Official 1 like that would be an odd system.
Lanora C. Pettit: So the -- we are only entitled to bring a -- an injunctive action for violations of the substantive limitations on gambling, not the regulations that don't go to the gaming activities, but it does make sense because, as the United States pointed out, the tribe was very against the direct application of state laws in state courts, which was the issue in Cabazon Band. So there isn't the direct application of state law here. There's this third party, a federal judge that is a -- neutral might be a loaded term for this context, but I'll use it anyway -- a neutral arbiter to apply the issue rather than having to, for example, go into the state's home court.
Justice Kagan: But it's a huge --
Justice Barrett: Let me clarify. I think I misspoke. I didn't mean -- I mean, I know that you concede that you don't have regulatory jurisdiction in the sense of an agency oversight and on all these other aspects, but I'm talking about the disputed number of things, once bingo is allowed, is it, you know, Official 1 allowed by non-charitable organizations? Is it allowed for profit? Is it allowed above this amount, those kinds of things? I mean, the district courts in Texas have complained about all of these things heading to the district court.
Lanora C. Pettit: So the district courts have said that a version of the -- a previous injunction issued in 2002 had turned them into a sort of pre-clearance type of regime that hadn't been contemplated by the Restoration Act. We agree that wasn't contemplated by the Restoration Act, but it was necessitated by the tribe's actions, who had not attempted to comply with the Restoration Act. But, fortunately, we're no longer in that regime. We have brought a separate complaint, and most of the issues that are covered in the current injunction before the Court are statutory ones, not regulations.
Justice Kagan: Right. But your position requires you to accept the idea that, for example, if Texas has a statute that says bingo has to end at 1 a.m. and instead it goes to 1:10, that all of a sudden that's a federal Official 1 crime adjudicable in federal court. I mean, that's your position. It's not -- you know, the other side's position is essentially no, the federal courts are there when Texas has a statute that says no table games, and all of a sudden a casino opens up with craps, but your position is like everything, you know, the -- the -- the -- the amount of the betting, the hours, the -- the -- the -- I mean, everything that relates to the turn of the wheel or whatever, and that's a lot of stuff.
Lanora C. Pettit: But it does create a blight -- a bright-line rule, Your Honor, which gets the federal court out of the second question that would be necessitated by applying Cabazon Band, namely whether one particular restriction or another is a matter of fundamental state public policy, and there are law and order concerns that sometimes drive issues like closing down gambling halls at midnight or limiting the amount of money that is at stake because there is a -- there -- it's a different regulatory and a different public policy and a different just risk involved in Official 1 some -- in some forms of gaming.
Justice Gorsuch: Counsel, you argue at some length that the Cabazon distinction between "prohibition" and "regulation" is unworkable. Are you asking us to overturn Cabazon?
Lanora C. Pettit: No, Your Honor, that's not necessary in this case because, as my opposing counsel has conceded, this is about federalizing state law, and Cabazon doesn't -- specifically declined to address that question.
Justice Gorsuch: But that -- but that -- that -- that -- that's not -- that's not quite what I'm getting at. You -- you say the distinction between "prohibition" and "regulation" just generally is not workable.
Lanora C. Pettit: Yes, Your Honor. So --
Justice Gorsuch: Wouldn't that logic seem to suggest, if that's true, then -- then -- then Cabazon, we should just get rid of it and scrap it and -- and the consequences for IGRA be damned?
Lanora C. Pettit: So the consequences for IGRA, I respectfully disagree with the United States, would not be significant because IGRA Official 1 incorporated the pieces of Cabazon Band that it thought were necessary in the language that I previously quoted. But the Court doesn't need to revoke the or repeal -- overturn the Cabazon Band distinction for the -- for the circumstances to which it applies.
Justice Gorsuch: So you're not asking us to overturn Cabazon?
Lanora C. Pettit: No, Your Honor.
Justice Gorsuch: And you're asking us to continue to apply that in the IGRA context?
Lanora C. Pettit: I'm asking you to continue to apply IGRA in the IGRA context, which incorporates pieces.
Justice Gorsuch: Which incorporates Cabazon?
Lanora C. Pettit: Pieces of Cabazon but not necessarily all of it.
Justice Gorsuch: Okay. But just this is the one area where we're not going to apply Cabazon? That's -- that's your view?
Lanora C. Pettit: Yes, because the language of the statute itself departs from Cabazon Band and in response to Justice Kavanaugh's --
Justice Gorsuch: And that -- that Official 1 hinges on whether we -- we -- we agree with your reading of the statute and the enactment the same day involving the tribe in Massachusetts, right?
Lanora C. Pettit: It involves -- it definitely depends on your agreement that by slicing and dicing up civil and criminal regulatory and prohibitory, that Congress intended to depart from Cabazon Band, yes.
Justice Barrett: But -- but, Ms. Pettit, why is it uniquely unworkable in this context? Mr. Yang said, look, this has been humming along, everybody's been living with Cabazon Band and this distinction between "prohibit" and "regulate" in Public Law 280 and in IGRA. So why is it so uniquely unworkable in this context?
Lanora C. Pettit: So the lower courts have suggested that Mr. Yang is incorrect on that point, that, in fact, it's difficult to derive a single rule between what is prohibitory and what is regulatory precisely because many of the things that are nominally prohibitory are very close -- very close concerns of state public policy, so they just don't track. And to -- Official
Justice Gorsuch: Well, isn't that an argument for overturning it in IGRA too and just getting rid of it?
Lanora C. Pettit: So IGRA incorporated a specific part of Cabazon Band that allows the tribe in 2710 to engage in Class II gaming, which permits them to -- if the state permits it under any person, any purpose, any organization. So that is a different term than prohibitory or regulatory and trying to combine --
Justice Gorsuch: I understand that. But -- but -- but if -- you're -- you're -- you're saying it doesn't work well under IGRA. You're disputing Mr. Yang on that.
Lanora C. Pettit: So I'm --
Justice Gorsuch: But you're saying this is somehow unique, and I guess I'm struggling, like -- like -- like my colleague, to understand how -- how it's uniquely problematic here but -- but less problematic, I guess, under IGRA?
Lanora C. Pettit: Maybe I misspoke earlier. IGRA -- the Public Law 280 prohibitory/ regulatory distinction itself is problematic Official 1 outside of IGRA because it doesn't have that any purpose, any person, any language. That creates a bright-line rule, whereas this Court recognized in Cabazon Band itself that the distinction based on what is or is not a matter of fundamental state public policy does not create a blight -- bright-line rule.
Justice Gorsuch: All right. So just back to Justice Barrett's question, does it work well under IGRA or not?
Lanora C. Pettit: Texas doesn't have that much experience under IGRA, so I'm not able to answer that question.
Justice Sotomayor: It has some experience. It has the Kickapoo Tribe that's operating under Class II gaming pursuant to IGRA. So, right now, what you have is one tribe under IGRA, another tribe completely out of IGRA, and even worse, you're saying it wasn't even intended to be run like the regulatory prohibition line that Cabazon approved, correct?
Lanora C. Pettit: Correct.
Justice Sotomayor: So you want a system that's unique to everything, to Cabazon, to Bryan, to every other tribe, and you want to Official 1 create a totally different system now?
Lanora C. Pettit: Congress created a bespoke legislative solution here.
Justice Sotomayor: That's assuming we accept your argument --
Lanora C. Pettit: Yes, Your Honor.
Justice Sotomayor: -- that that was Congress's intent.
Lanora C. Pettit: Yes, Your Honor. That, and the Kickapoo -- the -- my response earlier was that we do not regulate the Kickapoo, so we do not have much insight into what they're doing inside their casino, so it's very difficult for me to say whether it's been a problem.
Justice Sotomayor: Well, anybody can walk in and play.
Lanora C. Pettit: Yes, Your Honor. But that one --
Justice Sotomayor: So you could see what they're doing, whether it -- what it's violating, if you chose.
Lanora C. Pettit: I suspect the tribe would object if we were to send a peace officer in without permission to inspect.
Justice Sotomayor: Who said a peace Official 1 officer? Anybody can walk in. You could send a peace officer, but --
Lanora C. Pettit: A -- a state employee could go in without authority and examine it in their personal capacity, but that's not typically how laws are enforced.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Breyer, anything further? Justice Alito?
Justice Alito: Suppose you scrapped your laws about bingo and you enacted a statute that says that under specified circumstances, a type of gambling called Texas Traditional Board Game is allowed, and you defined that involving a board and et cetera, et cetera. But this is not bingo. This is the Traditional Texas Board Game. Then would bingo be prohibited, or would it be regulated?
Lanora C. Pettit: If we scrapped the Texas Bingo Enabling Act, it would fall within the constitutional prohibitions on lottery and it would be prohibited. It's still prohibited outside the Bingo Enabling Act, but it would be Official 1 flatly prohibited under state law.
Justice Alito: So this all turns on the fact that you've -- you've used the term "bingo" and that in the -- the -- you know, there is the form of bingo up there and so the next court is going to decide whether this is bingo or not?
Lanora C. Pettit: No, Your Honor. This depends on -- the -- the word "bingo" is not the relevant question here. And it may be useful to answer your question to distinguish this from the facts in California's instance in Cabazon Band, where they generally permitted gambling except that which we prohibited. Texas has the exact opposite presumption. We have a strong public policy and all gambling is banned under the constitution unless specifically authorized. This -- the Bingo Enabling Act specifically authorizes small-stakes bingo under very limited circumstances as a defense to prosecution. But, if it -- if we were to scrap that Bingo Enabling Act, it would -- the contact -- the conduct of the tribe in this instance would fall within the state's constitutional ban on Official 1 lotteries.
Chief Justice Roberts: Justice Sotomayor, anything further? Justice Gorsuch? Justice Barrett?
Justice Barrett: I just have one question. If you lost and we vacated and remanded and so then the district court has to face the question of whether these electronic bingo games count as bingo, you just revert to the Texas definition and I gather it's Texas's position that these electronic machines would not count as bingo?
Lanora C. Pettit: Yes, Your Honor, because they are slot machines. They -- they do not have the competitive aspect of bingo because what -- I believe somebody referred to their grandmother earlier, that is a -- you are matching numbers and the first person to reach a particular pattern wins. And, here, you have one card and it is an instant game that is drawn against a historic -- a historic bingo draw, and that's just not bingo.
Justice Barrett: And you'd make that argument based on Texas law? Official
Lanora C. Pettit: Under the Restoration Act, we would. It's the same issue under IGRA, which is why the United States was very careful to say that the question of whether or not this is actually bingo under IGRA is a very close one.
Justice Barrett: Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Martin, rebuttal? REBUTTAL ARGUMENT OF BRANT C. MARTIN ON BEHALF OF THE PETITIONERS
Brant C. Martin: Mr. Chief Justice, and may it please the Court. Four quick points. First of all, in response to a question from the bench, I -- I think that the Justices -- you certainly understand the distinction and the difficulty that the State of Texas has with making the distinction as to where the regulatory line starts and where the regulatory line stops. If they wanted the passwords, they had to get the passwords. When is that not regulation and when is it if they can, in fact, regulate? And the problem is is that their Official 1 position requires them to take the position that the entirety of the regulatory construct of Texas law, and this is the same thing the Fifth Circuit said in Ysleta I, is that the entirety of the regulatory construct applies to the tribes. That's not what 107(b) says. And in response to some of the jurisdictional questions, Section 105(f) grants civil and criminal jurisdiction to grant the Public Law 280 authority. Jurisdiction there means the substantive authority; it's not limited to court jurisdiction. Section 107(b)'s use of the jurisdiction is the same. Section 107(c) is different, and it specifically says jurisdiction over enforcement. And there was one other aspect of -- of what the State of Texas has -- has argued just now in this case that I think is -- deserves to be said. There's been a lot of discussion about whether or not Cabazon applies, you know, are we stuck in the Cabazon context, et cetera. Two things I would point out. Justice Breyer, I would point out that Representative Official 1 Udall, who was the chairman of the applicable subcommittee, stated on the House floor "this is intended to incorporate Cabazon." That's important. The Senate report that was cited by the State of Texas references the old language that Congress excised, and that should be taken into account. Finally, Your Honor, I would point out I can't remember exactly how the State of Texas just put it, but they were talking about Section 107 and they said that it applies to everything, not just gaming. Section 107 is entitled "Indian Gaming." It is -- it is intended to govern that exact situation in response to Cabazon. And if there's no further questions.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:33 a.m., the case was submitted.)