Revised April 3, 2020

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                   No. 19-50400                       April 2, 2020
                                                                    Lyle W. Cayce
                                                                         Clerk
STATE OF TEXAS,

             Plaintiff–Appellee,

v.

YSLETA DEL SUR PUEBLO; THE TRIBAL COUNCIL; TRIBAL
GOVERNOR MICHAEL SILVAS OR HIS SUCCESSOR,

             Defendants–Appellants.


                Appeal from the United States District Court
                     for the Western District of Texas


Before DENNIS, GRAVES, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      For a generation, the State of Texas and a federally recognized Indian
tribe, the Ysleta del Sur Pueblo, have litigated the Pueblo’s attempts to conduct
various gaming activities on its reservation near El Paso. This latest case poses
familiar questions that yield familiar answers: (1) which federal law governs
the legality of the Pueblo’s gaming operations—the Restoration Act (which
bars gaming that violates Texas law) or the more permissive Indian Gaming
Regulatory Act (which “establish[es] . . . Federal standards for gaming on
Indian lands”); and (2) whether the district court correctly enjoined the
Pueblo’s gaming operations. Our on-point precedent conclusively resolves this
                                         No. 19-50400

case. The Restoration Act controls, the Pueblo’s gaming is prohibited, and we
affirm.

                                       I. BACKGROUND
A.     The Restoration Act
       In 1987, Congress passed and President Reagan signed the Ysleta del
Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration
Act. 1 But the Pueblo’s “restoration” came with a catch: In exchange for having
its federal trust status restored, 2 the Pueblo agreed that its gaming activities
would comply with Texas law.
       Section 107(a) of the Restoration Act is unequivocal:
       All gaming activities which are prohibited by the laws of the State
       of Texas are hereby prohibited on the reservation and on lands of
       the tribe. Any violation of the prohibition provided in this
       subsection shall be subject to the same civil and criminal penalties
       that are provided by the laws of the State of Texas. The provisions
       of this subsection are enacted in accordance with the tribe’s
       request in Tribal Resolution No. T.C.-02-86[.] 3
The Tribal Resolution is similarly clear. The Pueblo requested that Congress
add language to § 107 “which would provide that all gaming, gambling, lottery,
or bingo, as defined by the laws and administrative regulations of the State of


       1 Pub. L. 100-89; 25 U.S.C. § 1300g et seq. The updated United States Code omits the
Restoration Act, but as we noted last year, “the Restoration Act is still in effect.” Texas v.
Alabama-Coushatta Tribe of Tex., 

, 442 n.1 (5th Cir. 2019), cert. denied, 

(2020). The Act is available at https://www.govinfo.gov/content/pkg/STATUTE-
101/pdf/STATUTE-101-Pg666.pdf.
       2 Pub. L. 100-89, 101 Stat 666 (1987); 25 U.S.C. § 1300g et seq. In 1968, Congress
recognized the Pueblo as a tribe and transferred trust responsibilities to Texas. S. Rep. No.
100-90 (1987), at 7. In 1983, however, the Texas Attorney General decided that the State
could not continue a trust relationship with any Indian tribe because such an agreement
discriminates between tribal members and other Texans based on national origin in violation
of the State Constitution. Jim Mattox, Opinion Re: Enforcement of the Texas Parks and
Wildlife Code within the Confines of the Alabama-Coushatta Indian Reservation, No. JM-17
(Mar. 22, 1983). So the Pueblo and another Texas tribe sought a federal trust relationship
instead. See S. Rep. No. 100-90 (1987), at 7.
       3   Pub. L. 100-89, § 107(a); 25 U.S.C. § 1300g-6(a).
                                                2
                                         No. 19-50400

Texas, shall be prohibited on the Tribe’s reservation or on tribal land.” And it
committed “to prohibit outright any gambling or bingo in any form on its
reservation.” Finally, § 107(c) gives Texas a mechanism to enforce the gaming
ban: “bringing an action in the courts of the United States to enjoin violations
of the provisions of this section.” 4
B.    The Indian Gaming Regulatory Act
      Not all tribes fall under the Restoration Act. Many tribes conduct gaming
operations under the less restrictive structure of the Indian Gaming
Regulatory Act. Enacted one year after the Restoration Act, IGRA aimed to
establish uniform standards “to regulate gaming activity on Indian lands if the
gaming activity is not specifically prohibited by Federal law and is conducted
within a State which does not, as a matter of criminal law and public policy,
prohibit such gaming activity.” 5
      IGRA defines three classes of gaming, with varying levels of regulation:
      x “Class I gaming” includes “social games solely for prizes of
        minimal value or traditional forms of Indian gaming”
        associated with “tribal ceremonies or celebrations.” 6 IGRA
        tribes have “exclusive jurisdiction” over class I gaming. 7

      x “Class II gaming” includes bingo and card games “explicitly
        authorized” or “not explicitly prohibited” by state law. 8 But the
        definition excludes “electronic or electromechanical facsimiles
        of any game of chance or slot machines of any kind.” 9 IGRA
        tribes may regulate class II gaming provided that they issue a




      4   Pub. L. 100-89, § 107(c); § 1300g-6(c).
      5   25 U.S.C. § 2701(5).
      6

2710(a)(1).
      7

      8

      9

(B).
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                                         No. 19-50400

            self-regulatory ordinance approved by the National Indian
            Gaming Commission, which administers IGRA. 10

      x “Class III gaming” includes all forms of gaming not included in
        class I or II, such as slot machines, roulette, and blackjack.11
        Class III gaming is prohibited unless the tribe obtains federal
        and state approval. 12

C.     The Pueblo’s Gaming Activities & Prior Litigation
      Since obtaining federal status under the Restoration Act, the Pueblo has
repeatedly pursued gaming, and the State of Texas has repeatedly opposed it:
      x Ysleta I: In 1993, the Pueblo sued Texas, arguing that the State
        refused to negotiate a compact in good faith under IGRA that
        would permit Class III gaming. 13 We disagreed, explaining that
        “the Tribe has already made its ‘compact’ with the State of
        Texas, and the Restoration Act embodies that compact.” 14 We
        concluded “not only that the Restoration Act survives today but
        also that it—and not IGRA—would govern the determination of
        whether gaming activities proposed by the [] Pueblo are allowed
        under Texas law, which functions as surrogate federal law” on
        the lands of Restoration Act tribes. 15

      x Ysleta II: In 1999, Texas sued the Pueblo to enjoin gaming on
        the reservation. 16 The district court granted summary
        judgment for the State. 17 It concluded that the Pueblo’s gaming
        did not comply with Texas laws and regulations and forbade the
        Pueblo from engaging in “‘regulated’ gaming activities unless it


      10

      11

      12

      13   Ysleta del Sur Pueblo v. Texas (“Ysleta I”), 

, 1325 (5th Cir. 1994).
      14

      15

v. del Sur Pueblo (“Ysleta II”), 

, 687 (W.D. Tex. 2001),
modified (May 17, 2002), aff’d sub nom. State v. del sur Pueblo, 31 F. App’x 835 (5th Cir.
2002), cert. denied, 

(2002).
      17

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                                             No. 19-50400

             complies with the pertinent regulations.” 18 After considering
             equitable factors, the district court permanently enjoined the
             Pueblo from continuing its gaming activities. 19 We upheld the
             injunction. 20

       x Other Litigation: Further litigation ensued over the next two
         decades, including two determinations that the Pueblo was in
         contempt of the injunction. 21

D.     The Current Lawsuit
       After a court enjoined the Pueblo’s illegal “sweepstakes” gaming, 22 the
Pueblo announced that it was “transitioning to bingo.” 23 The State inspected
the Pueblo’s Speaking Rock Entertainment Center and found live-called bingo
and thousands of machines that “look and sound like Las-Vegas-style slot
machines” available to the public round the clock.
       Texas sued to enjoin the Pueblo from operating these gaming activities,
arguing that they violate Texas laws and regulations. The district court agreed
and granted the State’s motion for summary judgment. The Pueblo moved for
reconsideration. Two weeks later, we reaffirmed in Alabama-Coushatta “that
the Restoration Act and the Texas law it invokes—and not IGRA—govern the
permissibility of gaming operations” on lands of tribes bound by the




       18   Id. DWï
       19   Id. DWï
       20   Ysleta II, 31 F. App’x at 835.
       21 See generally Texas v. Ysleta del Sur Pueblo, 431 F. App’x 326 (5th Cir. 2011); Texas
v. Ysleta del Sur Pueblo, No. EP-99-CV-320-KC, 

, at *22–26 (W.D. Tex. May
27, 2016); Texas v. Ysleta del sur Pueblo, No. EP-99-CV-320-.&:/DW ï
(W.D. Tex. Mar. 6, 2015).
       22   See Ysleta del Sur Pueblo, 

, at *26–27.
       23See Marty Schladen, Tiguas Ending Sweepstakes, Starting Bingo, EL PASO TIMES
(July   23,   2016),    available   at   https://www.elpasotimes.com/story/news/local/el-
paso/2016/07/23/tiguas-ending-sweepstakes-starting-bingo/87458650/.
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                                           No. 19-50400

Restoration Act. 24 We also noted that “[t]hough Ysleta I arose in the context of
the Pueblo’s trying to conduct IGRA class III gaming, Ysleta I does not suggest
that the conflict between the Restoration Act and IGRA is limited to class III
gaming.” 25
         Soon after Alabama-Coushatta, the district court denied the Pueblo’s
motion for reconsideration and permanently enjoined the Pueblo’s operations.
But the district court granted the Pueblo’s motion to stay the injunction
pending appeal, declaring the permanent injunction “effective ninety (90) days
after all opportunities for appeal have been exhausted.”

                                   II. STANDARD OF REVIEW
         We review a trial court’s grant of a permanent injunction for abuse of
discretion. 26 A district court abuses its discretion if it (1) “relies on clearly
erroneous factual findings” or “erroneous conclusions of law” when deciding to
grant the injunction, or (2) “misapplies the factual or legal conclusions when
fashioning its injunctive relief.” 27 “Under this standard, the district court’s
ruling is entitled to deference.” 28 “[B]ut we review de novo any questions of law
underlying the district court’s decision.” 29

                                         III. DISCUSSION
         As in previous cases, the Pueblo avers that IGRA, not the Restoration
Act, governs its ability to conduct gaming on its reservation. As in previous
cases, we disagree.


         

.
         25

n.5.
         26   Peaches Entm’t Corp. v. Entm’t Repertoire Assocs., Inc., 

, 693 (5th Cir.
1995).
         27

v. Janek, 

, 326 (5th Cir. 2015) (internal quotation marks omitted).
         29

marks omitted).
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                                        No. 19-50400

A.     The Restoration Act governs the Pueblo’s gaming activity.
       Texas insists that the Restoration Act—not IGRA—controls. The Pueblo
argues that the two laws can be read and applied harmoniously, but if not,
IGRA controls. The district court determined that under our precedent the
Restoration Act and IGRA are incompatible and that the specific provisions of
the former prevail over the general provisions of the latter. The district court
is correct.
       Ysleta I—a case between the same two parties—is squarely on point. In
Ysleta I, we determined that “(1) the Restoration Act and IGRA establish
different regulatory regimes with regard to gaming,” 30 and “(2) the Restoration
Act prevails over IGRA when gaming activities proposed by the Ysleta del Sur
Pueblo are at issue.” 31 In other words, the Restoration Act “govern[s] the




       30 We “f[ou]nd it significant that § 107(c) of the Restoration Act establishes a procedure
for enforcement of § 107(a) which is fundamentally at odds with the concepts of IGRA.” Ysleta

. Specifically, under Restoration Act § 107(c), Texas may sue in federal court
to enjoin the Tribe’s violation of § 107(a). 25 U.S.C. § 1300g–6(c).
       31 Ysleta 

. As the Supreme Court has emphasized, “where there is no
clear intention otherwise, a specific statute will not be controlled or nullified by a general
one, regardless of the priority of enactment.” Crawford Fitting Co. v. J.T. Gibbons, Inc., 

, 445 (quoting Radzanower v. Touche Ross & Co., 

, 153 (1976)) (brackets
omitted). Here, Congress did not show a “clear intention” in IGRA (a general statute that
applies to tribes nationwide) to repeal the Restoration Act (a specific statute that only applies
to two Texas tribes). Nor did Congress include a blanket repealer clause as to other laws that
conflict with IGRA. Rather, when enacting IGRA soon after the Restoration Act, Congress
explicitly stated in two different provisions that IGRA should be considered in the context of
other federal law. See 25 U.S.C. § 2701(5) (“The Congress finds that . . . Indian tribes have
the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not
specifically prohibited by federal law.”);

(explaining that tribes may engage
in class II gaming if, among other things, “such gaming is not otherwise specifically
prohibited on Indian lands by Federal law”). Plus, as the Ysleta I court noted, “in 1993,
Congress expressly stated that IGRA is not applicable to one Indian tribe in South Carolina,
evidencing in our view a clear intention on Congress’ part that IGRA is not to be the one and
only statute addressing the subject of gaming on Indian lands.” Ysleta 

.
                                               7
                                        No. 19-50400

determination of whether gaming activities proposed by the [] Pueblo are
allowed under Texas law, which functions as surrogate federal law.” 32
       Just last year—twenty-five years after Ysleta I—we reaffirmed its
reasoning and conclusion in Alabama-Coushatta. 33 And we re-reaffirm today 34:
The Restoration Act and IGRA erect fundamentally different regimes, and the
Restoration Act—plus the Texas gaming laws and regulations it federalizes—
provides the framework for determining the legality of gaming activities on the
Pueblo’s lands.
B.     Under the Restoration Act, all of Texas’s gaming restrictions
       operate as federal law on the Pueblo’s reservations.
       We held in Ysleta I and reaffirmed in Alabama-Coushatta that Texas
gaming law “functions as surrogate federal law” on the land of Restoration Act
tribes. 35 Indeed, the Pueblo agreed to the Restoration Act’s gaming provisions
as a condition necessary to gain the benefits of federal trust status. In this case,
the Pueblo argues that § 107(a) of the Restoration Act does not bar its bingo
activities because Texas regulates rather than prohibits bingo. The Pueblo
contends that (1) “prohibit” has a special meaning in federal Indian law as used
by the Supreme Court in Cabazon Band, 36 and (2) courts should apply the

       32Id. And, as we noted in Ysleta I, “[i]f the [Pueblo] wishes to vitiate [the gaming
provisions] of the Restoration Act, it will have to petition Congress to amend or repeal the
Restoration Act rather than merely comply with the procedures of IGRA.”

918 F.3d at 442.
       34  We follow a consistently applied rule of orderliness. Under this “well-settled Fifth
Circuit rule,” a panel “may not overturn another panel’s decision, absent an intervening
change in the law, such as by a statutory amendment, or the Supreme Court, or [the] en banc
court.” Jacobs v. Nat’l Drug Intelligence Ctr., 

, 378 (5th Cir. 2008). “For a
Supreme Court decision to satisfy [the] rule of orderliness, it must be unequivocal, not a mere
‘hint’ of how the Court might rule in the future.” Mercado v. Lynch, 

, 279 (5th
Cir. 2016) (quoting United States v. Alcantar, 

, 146 (5th Cir. 2013)). And it “must
be more than merely illuminating with respect to the case before” us. In re Tex. Grand Prairie
Hotel Realty, L.L.C., 

, 331 (5th Cir. 2013).
       35   Ysleta I)GDWï

.
       36   California v. Cabazon Band of Mission Indians, 

(1987).
                                               8
                                        No. 19-50400

Cabazon        Band     criminal-prohibitory/civil-regulatory          distinction     as   the
Supreme Court did when applying IGRA.
       This issue was also decided in Ysleta I. We held that “Congress—and the
Tribe—intended for Texas’ gaming laws and regulations to operate as
surrogate federal law on the Tribe’s reservation in Texas.” 37 And again, the
Pueblo’s tribal resolution urged Congress to pass “language which would
provide that all gaming, gambling, lottery, or bingo, as defined by the laws and
administrative regulations of the State of Texas, shall be prohibited on the
Tribe’s reservation or on tribal land.” 38 Under our rule of orderliness, 39 the
Pueblo’s arguments are foreclosed by decades-old precedent. 40 Like the district
court, we conclude that, under Ysleta I, “the [Pueblo] is subject to Texas’s
regulations,” which function as surrogate federal law.




       

(emphasis added). To reach this conclusion, we considered the text
and legislative history of the Restoration Act.

The Ysleta I court emphasized
the Pueblo’s commitment to prohibit all gambling on their reservation, as memorialized in
Tribal Resolution No. T.C.-02-86, which the Restoration Act incorporates in § 107(a).

Ysleta I court noted that, as an enforcement mechanism, “Congress provided in § 107(a)
that ‘[a]ny violation of the prohibition provided in this subsection shall be subject to the same
civil and criminal penalties that are provided by the laws of the State of Texas.’ 25 U.S.C.
§ 1300g–6(a) (emphasis added). Again, if Congress intended for the Cabazon Band analysis
to control, why would it provide that one who violates a certain gaming prohibition is subject
to a civil penalty?”

Resolution No. T.C.-02-86 (emphasis added).
       39 See supra note 34. The Pueblo has argued that the findings in Ysleta I are merely
persuasive dicta, but the district court already rejected that argument in Ysleta II, which we
summarily affirmed. Ysleta 

. Even assuming it was dicta, “[w]e are
free to disregard dicta from prior panel opinions when we find it unpersuasive.” Crose v.
Humana Ins. Co., 

, 349 n.1 (5th Cir. 2016) (internal quotation marks and citation
omitted). Here, we do not.
       40 

n.21 (quoting Ysleta I  )G DW ï 
(recognizing the rule of orderliness and reaffirming Ysleta I’s conclusion).
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                                            No. 19-50400

C.    The district court did not abuse its discretion by granting Texas
      injunctive relief against the Pueblo’s gaming.
      The Pueblo challenges a specific part of the district court’s permanent
injunction analysis: the balancing of equities. Specifically, the Pueblo asserts
that the district court erred because the balance of equities did not favor a
permanent injunction given the significant economic impact of their gaming
operations.
      Here, too, we side with the district court: “[A]lthough the Tribe has an
interest in self-governance, the Tribe cannot satisfy that interest by engaging
in illegal activity.” Allowing ongoing operations would countenance ongoing
violations. Yes, the Pueblo benefits economically from gaming, but even if this
is deemed a public interest rather than a private one, it is only achievable via
unlawful gaming. 41 As the district court noted, Texas “and its citizens have an
interest in enforcing State law, and seeking an injunction is the only way that
the State may enforce its gaming law on the Pueblo reservation.” 42 The balance
of hardships tips unquestionably in the State’s favor.
      The district court in Ysleta II also weighed equitable factors and
determined that “[t]he fruits of [the Pueblo’s] unlawful enterprise are tainted
by the illegal means by which those benefits have been obtained.” 43 We
summarily affirmed. 44 Here, too, “because the Tribe’s operations run contrary
to Texas’s gaming law, the balance of equities weighs in favor of the State.” 45
The district court did not abuse its discretion.



      41   See Idaho v. Coeur d’Alene Tribe, 

, 1046 (9th Cir. 2015).
      42   See Restoration Act § 107(c).
      43   Ysleta 

.
      44   Ysleta II, 31 F. App’x at 835.
      45Texas v. Ysleta del Sur Pueblo, No. EP-17-CV-179-PRM, 

, at *14
(W.D. Tex. Feb. 14, 2019).
                                                10
                                        No. 19-50400

D.     The Texas Attorney General had authority to bring this suit.
       Finally, the Pueblo argues that Texas—through its Attorney General—
lacked authority to seek relief under the Restoration Act. In prior litigation,
the Pueblo has conceded Texas’s authority to sue under the Restoration Act. 46
But in this case, the Pueblo cites a 1999 district court order from a previous
Restoration Act suit brought by Texas. 47 There, the district court initially
questioned the Attorney General’s authority to bring suit, but ultimately
concluded, after Texas amended its complaint to include a state nuisance
claim, that the Attorney General had the authority under both Texas and
federal law to enjoin violations of the Restoration Act. 48
       The Pueblo seems to suggest that the Restoration Act alone doesn’t
provide the requisite authority to sue, yet it acknowledges that courts have
held that Texas nuisance law provides an affirmative basis for the Attorney
General to sue on the State’s behalf. Notably, Texas invoked its nuisance laws
when pursuing this case. So even assuming the 1999 district court order stands
for the claimed proposition, it matters not here.
       Next, the Pueblo argues that Texas nuisance law—as amended in 2017—
no longer provides an affirmative basis for Texas’s suit. The amendments
explain that “[t]his section does not apply to an activity exempted, authorized,



       46 Brief of Appellants at 22, Texas v. Ysleta del Sur Pueblo, 421 F. App’x 326 (5th Cir.
2011) (No. 10-50804), 

(contending that Congress limited Texas’s remedies
to “the right to bring an action in federal court to enjoin alleged violations of the ‘gaming
activities’ section of the Restoration Act”); Brief of Appellants at 19, Ysleta del Sur Pueblo v.
Bush, 

(5th Cir. 1999) (No. 98-50859), 

(acknowledging that
“[t]he State of Texas may bring an action in the courts of the United States to enjoin gaming
activities of the Pueblo under the Restoration Act”).
        See Texas v. Ysleta del sur Pueblo, 

, 714 (W.D. Tex. 1999), aff’d
       47

sub nom. State v. Ysleta del Sur, 

(5th Cir. 2000)).
       48 Ysleta 

(“After the Attorney General filed an Amended
Complaint, the district court, by its order of January 13, 2002, overruled another motion to
dismiss, concluding that the Attorney General had the authority to bring this action.”).
                                              11
                                            No. 19-50400

or otherwise lawful activity regulated by federal law.” 49 Even assuming this
provision reaches gaming activities, the Pueblo’s activity is not “exempted,
authorized, or otherwise lawful activity regulated by federal law.” 50 First, the
Pueblo’s gaming operation is not “exempted” from federal law; rather, it’s
explicitly subject to injunctive action in federal court if it’s impermissible under
Texas law. 51 Second, the Pueblo’s gaming is not “authorized” by federal law;
indeed, the Restoration Act explicitly prohibits the Pueblo’s gaming activities:
“All gaming activities which are prohibited by the laws of the state of Texas
are hereby prohibited on the reservation and lands of the tribe.” 52 Third, the
Pueblo’s gaming is not “regulated” by federal law, nor is it “otherwise lawful.”
As discussed, Texas gaming law—federalized through the Restoration Act—
prohibits the Pueblo’s activities. 53 Any argument that the Pueblo’s illegal
gaming is “exempted” yet also “authorized” by law is absurd. Multiple Federal
courts have repeatedly recognized that Texas—through its Attorney General—
possesses the capacity to sue under the Restoration Act. 54




       49 TEX. CIV. PRAC. & REM. CODE § 125.0015(e). According to the statute, this
provision was added to expand the law to include web-based operations connected to specific
forms of criminal activity, like prostitution. See

There is no indication that
this provision relates to whether gambling is a common nuisance.
       50

       51   25 U.S.C. §§ 1300g-6(a), (c).
       52

       53

e.g., Ysleta del Sur 

(“[T]he Restoration Act allows
the State of Texas to bring suit in federal court to enjoin any such violations [of the
Restoration Act].”); Alabama-Coushatta Tribes of Tex. v. Texas, 

, 680
(E.D. Tex. 2002) (“The injunction sought by the State of Texas is authorized by both state and
federal statutes.”); see also Ysleta del Sur Pueblo, 

, at *27 (upholding the
injunction sought by Texas against the Pueblo pursuant to the Restoration Act).
                                                12
                               No. 19-50400

                             IV. CONCLUSION
     Our settled precedent resolves this dispute: The Restoration Act governs
the legality of the Pueblo’s gaming activities and prohibits any gaming that
violates Texas law. The district court correctly applied that straightforward
precedent, and we AFFIRM the district court’s judgment.




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