The meaning of the word “prohibited” in section 107 of the restoration act matters a great deal to this case. As Justice Kagan noted in a question to the tribe’s counsel:
It’s not the normal use of the word “prohibited.” It’s a Cabazon use of the word “prohibited.”p. 11, lines 8-10
Justice Breyer asked an involved question that sort of encapsulates the issue:
I’m curious about the bingo machines. But 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 problem. It — it — it — it says you have to have, I guess, gaming activity on Indian lands is okay if — if you have a compact or under 3, I guess, or something. 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, 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.pp. 24, lines 11-25 — p. 25, lines 1-6.
Justice Alito, perhaps taking up a thread started by the Chief Justice, who wondered how a machine that looked like a video game can be considered bingo, asked about a hypothetical game called “dingo”:
Well, I’m puzzled by both your argument and by Cabazon. And, in particular, by how a court is going to decide 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. . . . And how do you decide whether this thing is bingo. I mean, just like the platonic ideal of bingo?p. 26, lines 13-20, p. 27, lines 7-9
Justice Kagan sort of came to the tribe’s rescue when she pointed out:
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 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?p. 31, lines 16-24
Counsel for the tribe was spared the deep questions about this case, which were left to the United States. These questions were deeply unsettling, even to the SG’s attorney. The Chief Justice seemed concerned that the indeterminacy of the word “prohibited” was going to lead to a lot of litigation in federal court:
Mr. Yang, I think your office is going to be very busy over the next ten 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? 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.p. 40, lines 5-15
Well, anyone in a PL280 state will tell you it’s not the feds’ problem, the state supreme courts are the ones who have created all the problems with inconsistent interpretations, and SCOTUS does not work to resolve any of them.
In perhaps the most shocking moment of argument, Justice Gorsuch speculated that the indeterminacy in the definition of “prohibited” might be cause to overrule Cabazon(!):
And what would be the negative consequences, in the government’s view, if any, if we were to elide this distinction, ignore it, and overrule Cabazon?p. 42, lines 12-15
The government’s attorney’s response says it all:
Wow.p. 42, line 16
There was a real response that followed, a response that would make sense to a Court that is not right now involved in a total reworking of fundamental constitutional law principles:
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 tribal lands for decades upon decades. Again, it goes back before Cabazon. So that’s the Public Law 280 context.p. 16, lines 16-22
Or maybe it was a slow day for the Court and it needed to offer some idle speculation about ending the case that has propped up tribal economic development for nearly a half century to keep things interesting.
But no. There’s more. Justice Alito wondered where the so-called “Indian canon” comes from and implied that he’s not a fan of a canon that he implies runs afoul of the principle that “statutes . . . mean what the words of the statute are generally understood to mean. . .”:
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?p. 54, lines 24-25 — p. 55, lines 1-7.
Government’s counsel suggested the Court could rule for the tribe and ignore the canon, but Justice Alito wasn’t having it:
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?p. 55, lines 24-25 — p. 56, lines 1-10
The answer is not pleasing to someone who advocated yesterday for Indian law specialists to be hired in the SG’s office:
MR. YANG: 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.p. 56, lines 5-10
Enough for now. Taking a break.