Background & Facts
The Ysleta del Sur Pueblo (also known as the Tigua) was restored to federal recognition in 1987 under the Restoration Act. The Act contained a provision about gaming, stating that "all gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the lands of the Ysleta del Sur Pueblo."
Texas argued this meant that all gaming activities regulated by Texas — not just those prohibited by Texas — were barred on Pueblo lands. This interpretation would have effectively subjected the tribe to the full scope of Texas gaming regulations, preventing the tribe from operating bingo and other games that Texas allowed but regulated.
The question was whether "prohibited" meant criminally prohibited (the Cabazon prohibitory/regulatory distinction) or regulated in any way (Texas's broader reading).
The Court's Holding
Justice Gorsuch, writing for a 5-4 majority, sided with the Pueblo. The Restoration Act's use of "prohibited" incorporated the Cabazon prohibitory/regulatory distinction: only gaming activities that Texas criminally prohibits are banned on Pueblo lands. Activities that Texas merely regulates — like bingo — are not "prohibited" and can be conducted by the tribe.
Key Holding:
The Restoration Act's gaming provision uses the Cabazon prohibitory/regulatory distinction. Only state laws that criminally prohibit gaming activities apply on tribal land — state laws that merely regulate gaming do not. If a state allows an activity but regulates how it's conducted, the tribe can conduct that activity free of state regulatory control. This is the same framework that governs P.L. 280.
Key Language
"A law that prohibits an activity altogether is a 'prohibitory' law. A law that merely regulates an activity — allowing it subject to conditions — is 'regulatory.' Under the Restoration Act, only prohibitory laws apply."
"The distinction between 'prohibitory' and 'regulatory' is hardly novel. This Court drew the same line in California v. Cabazon Band in the context of P.L. 280, and IGRA later codified a version of it."
"If a State allows an activity under its own regulatory conditions, it has chosen to permit — not prohibit — that activity. The tribe may then conduct the activity under its own regulatory framework."
How This Case Supports ATN's Cannabis & Regulatory Strategy
Ysleta is the most recent SCOTUS reaffirmation of the Cabazon prohibitory/regulatory framework — the exact framework ATN's cannabis licensing relies on.
- 1. California regulates cannabis — it doesn't prohibit it. Since 2016 (Prop 64), California has legalized and regulated recreational cannabis. Under the Cabazon/Ysleta framework, California's cannabis regulations are regulatory, not prohibitory. They do not apply on ATN's reservation land.
- 2. ATN can regulate its own way. Ysleta confirms that when a state allows an activity under regulatory conditions, the tribe can conduct that activity under its own regulatory framework. ATN's tribal cannabis licensing system replaces California's — it doesn't need to comply with it.
- 3. 2022 — extremely recent. This is the most current SCOTUS statement on the prohibitory/regulatory distinction. It's not dusty 1987 law — it's 2022, post-cannabis-legalization. Courts applying this framework to tribal cannabis questions will look to Ysleta.
- 4. Gorsuch continues tribal sovereignty wins. McGirt (2020), Brackeen (2023 concurrence), and now Ysleta (2022) — Justice Gorsuch has established a consistent record of supporting tribal sovereignty. ATN's arguments align with his jurisprudence.
- 5. Federal prohibition complicates — but doesn't defeat. Cannabis remains federally prohibited (Schedule I). However, federal enforcement policy (Cole Memo framework, congressional spending riders) has treated state-legal cannabis as effectively regulatory. The prohibitory/regulatory distinction is evolving in this space.
Related Cases
- California v. Cabazon Band (1987) — Origin of the prohibitory/regulatory distinction
- Bryan v. Itasca County (1976) — P.L. 280 grants no regulatory authority
- McGirt v. Oklahoma (2020) — Another Gorsuch tribal sovereignty majority opinion
- Haaland v. Brackeen (2023) — Gorsuch concurrence on tribal sovereignty
- Seminole Tribe v. Florida (1996) — IGRA enforcement and state sovereign immunity context