    Case: 18-40116    Document: 00514873577    Page: 1   Date Filed: 03/14/2019




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

                                                                        FILED
                                No. 18-40116                      March 14, 2019
                                                                   Lyle W. Cayce
                                                                        Clerk


STATE OF TEXAS,

                                          Plaintiff−Appellee,

versus

ALABAMA-COUSHATTA TRIBE OF TEXAS,

                                          Defendant−Appellant.




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




Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      For almost thirty years, the State of Texas and one of its Indian tribes,
the Alabama-Coushatta Tribe (the “Tribe”), have disputed the impact of two
federal statutes on the Tribe’s ability to conduct gaming on the Tribe’s reser-
vation.   The first statute, the Ysleta del Sur Pueblo and Alabama and
    Case: 18-40116      Document: 00514873577        Page: 2    Date Filed: 03/14/2019



                                    No. 18-40116
Coushatta Indian Tribes of Texas Restoration Act 1 (the “Restoration Act”),
restored the Tribe’s status as a federally-recognized tribe and limited its gam-
ing operations according to state law. The second, the Indian Gaming Regula-
tory Act (“IGRA”), 25 U.S.C. §§ 2701–2721, broadly “establish[ed] . . . Federal
standards for gaming on Indian lands.” Id. § 2702(3).

      Soon after IGRA was enacted, this court determined that the Restoration
Act and IGRA conflict and that the Restoration Act governs the Tribe’s gaming
activities. See Ysleta del sur Pueblo v. Texas (“Ysleta I”), 36 F.3d 1325, 1335
(5th Cir. 1994). Several years later, when the Tribe was conducting gaming
operations in violation of Texas law, the district court permanently enjoined
that activity as a violation of the Restoration Act.

      The Supreme Court then decided National Cable & Telecommunications
Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005), and City of Arlington
v. FCC, 569 U.S. 290 (2013). And the National Indian Gaming Commission
(“NIGC”), which administers IGRA, held, contrary to Ysleta I, that IGRA gov-
erns the Tribe’s gaming activity. Citing those changes in the law, the Tribe
asked the district court to dissolve the permanent injunction. The district
court refused, the Tribe appeals, and we affirm.

                                           I.
                                          A.
      In 1987, Congress passed the Restoration Act to restore “the Federal
recognition of” both the Ysleta del Sur Pueblo (the “Pueblo,” an Indian tribe in
far west Texas) and the Tribe. Pub. L. No. 100-89, §§ 103(a), 203(a), 101 Stat.



      1 Pub. L. No. 100-89, §§ 201–07, 101 Stat. 666 (Aug. 18, 1987). The U.S. Code was
updated while this case was pending in district court and now omits the Restoration Act,
which was previously codified at 25 U.S.C. § 731 et seq. Though no longer codified, the
Restoration Act is still in effect.
                                           2
     Case: 18-40116        Document: 00514873577           Page: 3     Date Filed: 03/14/2019



                                        No. 18-40116
at 667, 670. 2 The Restoration Act’s final section regulates gaming on the
Tribe’s reservation and lands. It provides that “[a]ll gaming activities which
are prohibited by the laws of the State of Texas are hereby prohibited on the
reservation and on the lands of the tribe.” Id. § 207(a), 101 Stat. at 672. 3 It
bars Texas from asserting regulatory control over otherwise legal gaming on
the Tribe’s reservation and lands. Id. § 207(b), 101 Stat. at 672. It also gives
“the courts of the United States . . . exclusive jurisdiction over any offense in
violation” of its gaming restriction and limits Texas to “bringing an action in
the courts of the United States to enjoin violations of the provisions of this
section.” Id. § 207(c), 101 Stat. at 672.

       Congress enacted IGRA the following year. Finding that “existing Fed-
eral law d[id] not provide clear standards or regulations for the conduct of gam-
ing on Indian lands,” 25 U.S.C. § 2701(3), Congress established “Federal stan-
dards for gaming on Indian lands, and . . . a National Indian Gaming Commis-
sion . . . to protect such gaming as a means of generating tribal revenue.” Id.
§ 2702(3). Though its stated purpose is broad, IGRA does not specifically



       2Though the Pueblo has extensively litigated the same questions the Tribe raises, the
Pueblo is not a party to this appeal but appears as amicus curiae.
       3That subsection concludes by explaining that the “provisions of this subsection are
enacted in accordance with the tribe’s request in Tribal Resolution No. T.C.-86-07.” Restor-
ation Act § 207(a), 101 Stat. at 672. That resolution, in turn, was purportedly passed out of
concern that the Restoration Act would not be enacted “unless the bill was amended to
provide for direct application of state laws governing gaming and bingo on the [Tribe’s]
Reservation.” The resolution “respectfully request[ed] [the Tribe’s] representatives” in Con-
gress amend the Restoration Act to “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.”
        The significance of the Restoration Act’s reference to the Tribe’s resolution is disputed.
The state contends that the resolution represents a quid pro quo in which the Tribe agreed
to foreswear gaming for all time in exchange for passage of the Restoration Act. The Tribe
examines the evolution of drafts of the Restoration Act and emphasizes that strong prohibi-
tory language was ultimately deleted. In any event, the stringent prohibition proposed by
the resolution was not included.
                                                3
    Case: 18-40116     Document: 00514873577     Page: 4   Date Filed: 03/14/2019



                                  No. 18-40116
preempt the field of Indian gaming law.

      IGRA defines three classes of gaming that federally recognized tribes
may offer and regulates each differently. Tribes have “exclusive jurisdiction”
over “class I gaming,” which consists of “social games solely for prizes of mini-
mal value or traditional forms of Indian gaming” associated with “tribal cere-
monies or celebrations.” Id. §§ 2703(6), 2710(a)(1). “Class II gaming” includes
“the game of chance commonly known as bingo,” id. § 2703(7)(A)(i), and certain
“card games” either “explicitly authorized” or “not explicitly prohibited” by
state law. Id. § 2703(7)(A)(ii)(I)–(II). Tribes have the authority to regulate
class II gaming, provided that a tribe issues a self-regulatory ordinance
meeting statutory criteria and the NIGC approves that ordinance.               Id.
§ 2710(b)(1)–(2). “Class III gaming” includes all forms of gaming that are not
in class I or II. Class III gaming is lawful on Indian lands only if tribes secure
federal administrative and state approval. Id. § 2703(8); see id. § 2710(d).
IGRA created the NIGC to administer its provisions, instructing the NIGC to
“promulgate such regulations and guidelines as it deems appropriate to
implement the provisions of this chapter.” Id. § 2706(b)(10).

                                       B.
      Notwithstanding the Restoration Act, Texas, the Tribe, and the Pueblo
have long disputed whether IGRA applies to the Tribe and the Pueblo. Texas
avers that IGRA’s permissive gaming structure is inconsistent with Sections
107(a) and 207(a) of the Restoration Act, which prohibit gaming that violates
Texas law on the Pueblo’s and Tribe’s lands, respectively. The Tribe maintains
that IGRA permits it to conduct gaming operations according to IGRA’s three-
class structure.

      This court first considered the relationship between the Restoration Act
and IGRA in Ysleta I.     Under IGRA, the Pueblo had tried to negotiate a
                                        4
     Case: 18-40116       Document: 00514873577         Page: 5     Date Filed: 03/14/2019



                                       No. 18-40116
compact with Texas to permit class III gaming. Texas refused, citing the Res-
toration Act and insisting that state law prohibited the proposed games. The
Pueblo sued to compel Texas to negotiate, and the district court granted sum-
mary judgment for the Pueblo.

       This court reversed, holding that “(1) the Restoration Act and IGRA
establish different regulatory regimes with regard to gaming” and that “(2) the
Restoration Act prevails over IGRA when gaming activities proposed by the
Ysleta del Sur Pueblo are at issue.” Ysleta I, 36 F.3d at 1332. With respect to
the first ruling, this court found it “significant” that “the Restoration Act estab-
lishes a procedure for enforcement of § 107(a) which is fundamentally at odds
with the concepts of IGRA.” Id. at 1334. Based on that finding, we had to
determine “which statute [to] appl[y].” Id. The Pueblo urged “that, to the
extent that a conflict between the two exists, IGRA impliedly repeals the
Restoration Act.” Id. at 1334–35. We rejected that theory, noting that implied
repeals are disfavored and that generally “a specific statute will not be con-
trolled or nullified by a general one.” Id. at 1335 (cleaned up). And “[w]ith
regard to gaming,” we continued, “the Restoration Act clearly is a specific
statute, whereas IGRA is a general one.” Id. 4

       This court thus concluded “that [the Restoration Act]—and not IGRA—
would govern the determination of whether gaming activities proposed by the
Ysleta del Sur Pueblo are allowed under Texas law, which functions as sur-
rogate federal law.” Id. “If the [Pueblo] wishe[d] to vitiate [the restrictive
gaming provisions] of the Restoration Act,” we declared, “it will have to petition
Congress to amend or repeal the Restoration Act rather than merely comply




       4 “The former applies to two specifically named Indian tribes located in one particular
state, and the latter applies to all tribes nationwide.” Ysleta I, 36 F.3d at 1335.
                                              5
     Case: 18-40116       Document: 00514873577         Page: 6     Date Filed: 03/14/2019



                                       No. 18-40116
with the procedures of IGRA.” Id. 5

                                             C.
       The Tribe was not a party in Ysleta I, but, “particularly with regard to
the sections concerning gaming,” its Restoration Act is almost identical to the
Pueblo’s. Id. at 1329 n.3. We thus suggested in Ysleta I that the Restoration
Act—and not IGRA—would govern the legality of any gaming operations of the
Tribe. Despite the Restoration Act’s restrictions, the Tribe maintained a casino
on its reservation after Ysleta I. And in 2001, the Tribe sued Texas, seeking
declaratory relief that its gaming was lawful under IGRA. See Alabama-
Coushatta Tribes of Tex. v. Texas, 208 F. Supp. 2d 670, 672 (E.D. Tex. 2002).
Texas counterclaimed, asking the district court permanently to enjoin the
Tribe’s gaming activities based on Section 207 of the Restoration Act. Id.

       Relying on Ysleta I, the district court held that the Restoration Act gov-
erned the legality of the Tribe’s gaming activities. Id. at 677–78. And because
those activities violated Texas law, the court permanently enjoined them in
2002. Id. at 681. This court affirmed, explaining that it was “bound by the
determination [in Ysleta I] that the Restoration Act precludes [the Tribe] from
conducting all gaming activities prohibited by Texas law on tribal lands.” Ala-
bama Coushatta Tribe of Tex. v. Texas, No. 02-41030, 2003 WL 21017542, at *1
(5th Cir. Apr. 16, 2003) (per curiam) (unpublished). 6




       5 Though 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.
       6 We further ruled that Ysleta I’s holding that “the tribe was precluded from seeking
relief under the IGRA” was binding, contrary to the Tribe’s assertion that it was dictum.
Alabama Coushatta Tribe of Tex., 2003 WL 21017542, at *1. We explained that the Ysleta I
panel was required to decide that question “because the Restoration Act placed greater limits
on the tribe’s ability to conduct gaming operations” than did IGRA. Id.
                                              6
     Case: 18-40116         Document: 00514873577            Page: 7   Date Filed: 03/14/2019



                                            No. 18-40116
                                                D.
       The Tribe ceased all gaming for twelve years. But in 2015, it started the
process outlined by IGRA to secure NIGC’s approval to offer class II gaming.
As IGRA requires, see 25 U.S.C. § 2710, the Tribe adopted an ordinance au-
thorizing class II bingo gaming—which Texas law permits in several forms 7—
and submitted it to NIGC’s Chairman for approval. 8 The Tribe concedes that
by seeking that approval, the Tribe was requesting NIGC’s formal administra-
tive determination of whether, contrary to Ysleta I, the tribe fell within IGRA’s
ambit.

       The Chairman approved the ordinance via letter, explaining that “[n]oth-
ing in the IGRA’s language or its legislative history indicates that the Tribe is
outside the scope of NIGC’s jurisdiction.” 9 He then determined that the Tribe’s
reservation—established through the Restoration Act—counts as “Indian
lands” under IGRA. Those findings, the Chairman continued, demonstrate
that the Tribe’s “lands are eligible for gaming under IGRA.” The Chairman
thus concluded that the Tribe’s ordinance was “consistent with the require-
ments of IGRA and NIGC regulations” and approved it. 10

       Despite initially observing that the Restoration Act and IGRA poten-
tially overlap, 11 the Chairman did not carefully consider whether the Restora-
tion Act limited the jurisdictional reach of IGRA. He opined, instead, that “the


       7   See, e.g., 16 Tex. Admin. Code §§ 402.100−.709.
       8   See 29 U.S.C. § 2710(b)(1)(B).
       9 Letter from Jonodev O. Chaudhuri, Chairman, Nat’l Indian Gaming Comm’n, to Nita
Battise, Chairperson, Alabama-Coushatta Tribe of Tex. (Oct. 8, 2015).
       10Id. The Chairman noted that the Department of the Interior interpreted IGRA as
impliedly repealing the Restoration Act, but the Chairman did not adopt that conclusion.
       11See id. (noting that the Restoration Act “applies state gaming laws to the Tribe’s
lands, with a qualification,” thus raising the question “how to interpret the interface between
IGRA and the Restoration Act”).
                                                 7
     Case: 18-40116       Document: 00514873577         Page: 8     Date Filed: 03/14/2019



                                       No. 18-40116
Tribe possesses sufficient legal jurisdiction over its Restoration Act lands” for
IGRA to apply. In other words, the Chairman determined that the Restoration
Act does not constitute a “Federal law” that is a “specific[] prohibit[ion]” on the
Tribe’s proposed gaming. 25 U.S.C. § 2710(b)(1)(A).

       With NIGC’s approval in hand, the Tribe began to develop Naskila
Entertainment Center (“Naskila”), a class II gaming facility offering electronic
bingo. Before it opened, the Tribe and Texas forged a prelitigation agreement
specifying that the Tribe could operate Naskila pending a state inspection.
Texas committed to “advise the Tribe . . . whether the gambling operation
meets the requirements of Texas law federalized in the Restoration Act” and
reserved the right to seek various forms of relief if it did not.

       Upon inspection, the state determined that the electronic bingo at Nas-
kila violated various provisions of Texas gaming law. Then the state revived
the decades-old case—in which the district court had permanently enjoined the
Tribe’s gaming activities that had violated the Restoration Act—by filing a
motion for contempt, averring that the gaming at Naskila violated the 2002
injunction. 12 Texas also sought a declaration “that IGRA does not apply to the
Tribe because IGRA did not repeal the Restoration Act, and, accordingly,” the
Tribe “may not conduct Class II IGRA gaming on its lands.” The Tribe, in turn,
moved for relief from the 2002 injunction, contending that the “[NIGC’s]
authoritative interpretation” of the Restoration Act and IGRA “both consti-
tutes a change in law and eliminates the sole legal basis for the injunction.”

       Texas moved for summary judgment on issues related to its motion for
contempt, and the Tribe sought partial summary judgment on whether its


       12 The Tribe was the plaintiff (as it had sought a declaratory judgment that its gaming
activities were lawful under IGRA), and Texas was the defendant. When Texas reopened the
case, the court granted its motion to realign the parties, making Texas the plaintiff.
                                              8
    Case: 18-40116          Document: 00514873577          Page: 9    Date Filed: 03/14/2019



                                         No. 18-40116
bingo operations are class II gaming under IGRA. The district court granted
Texas’s motion “with respect to the State’s request for a declaration . . . that
the Restoration Act, and consequently, Texas law, applies to the Tribe’s gam-
ing activities.” The court refused to extend Chevron deference 13 to the NIGC’s
letter concluding that IGRA applied, and it denied the Tribe’s motion for relief
from the permanent injunction.

      The Tribe appeals, asking us to decide whether the district court abused
its discretion by refusing to defer to the NIGC’s determination that IGRA
applies to the Tribe’s gaming. The district court stayed its ruling pending
appeal. 14

                                               II.
      District courts may “relieve a party . . . from a final judgment, order, or
proceeding” if “applying it prospectively is no longer equitable.” FED. R. CIV. P.
60(b), 60(b)(5). Where, as here, “the relief sought is dissolution or modification
of an injunction, the district court may grant a Rule 60(b)(5) motion when the
party seeking relief can show a significant change in statutory or decisional
law.” Cooper v. Tex. Alcoholic Beverage Comm’n, 820 F.3d 730, 741 (5th Cir.
2016) (cleaned up). The “significant change” in this case, according to the
Tribe, is the NIGC’s determination that the Tribe’s lands are eligible for
gaming under IGRA, combined with Brand X and City of Arlington.

      We review for abuse of discretion the denial of a Rule 60(b)(5) motion for
relief from judgment. Moore v. Tangipahoa Par. Sch. Bd., 864 F.3d 401, 405
(5th Cir. 2017). “A district court abuses its discretion if it: (1) relies on clearly



      13   See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 567 U.S. 837 (1984).
      14  We have jurisdiction under 28 U.S.C. § 1292(a)(1), which allows for immediate
appeal of interlocutory orders “refusing to dissolve or modify injunctions.”
                                                9
   Case: 18-40116     Document: 00514873577      Page: 10   Date Filed: 03/14/2019



                                  No. 18-40116
erroneous factual findings; (2) relies on erroneous conclusions of law; or
(3) misapplies the law to the facts.” In re Volkswagen of Am., Inc., 545 F.3d
304, 310 (5th Cir. 2008) (en banc) (citation omitted). “It is not enough that
granting the motion may have been permissible; instead, denial of relief must
have been so unwarranted as to constitute an abuse of discretion.” Moore,
864 F.3d at 405 (internal quotation marks and citation omitted). While review
is highly deferential, “we review de novo any questions of law underlying the
district court’s decision.” Frew v. Janek, 780 F.3d 320, 326 (5th Cir. 2015)
(internal quotation marks and citation omitted).

                                       III.
      This case turns on whether a judicial precedent—holding that the
Restoration Act and IGRA conflict and that the former, not the latter, applies
to the Tribe’s gaming activity—or a later contrary agency interpretation should
control. Brand X supplied the framework: “A court’s prior judicial construction
of a statute trumps an agency construction otherwise entitled to Chevron
deference only if the prior court decision holds that its construction follows
from the unambiguous terms of the statute and thus leaves no room for agency
discretion.” Brand X, 545 U.S. at 982 (emphasis added). We must thus decide
whether Ysleta I is “a judicial precedent holding that the statute unambigu-
ously forecloses the agency’s interpretation.” Id. at 982–83.

                                       A.
      Brand X’s rule that only a prior judicial interpretation adhering to the
unambiguous terms of the statute trumps an agency construction “follows from
Chevron itself.” Id. at 982. “Chevron’s premise is that it is for agencies, not
courts, to fill statutory gaps.” Id. (citation omitted). So to be faithful to that
principle, “judicial interpretations contained in precedents” must be held “to
the same demanding Chevron step one standard that applies if the court is
                                       10
    Case: 18-40116        Document: 00514873577          Page: 11     Date Filed: 03/14/2019



                                       No. 18-40116
reviewing the agency’s construction on a blank slate.” Id. That means that a
judicial interpretation should prevail over a later conflicting agency interpre-
tation if the “court, employing traditional tools of statutory construction, as-
certain[ed] that Congress had an intention on the precise question at issue.”
Chevron, 467 U.S. at 843 n.9. 15

       Consequently, a prior judicial decision need not “say in so many magic
words that its holding is the only permissible interpretation of the statute in
order for that holding to be binding on an agency.” Exelon Wind 1, L.L.C. v.
Nelson, 766 F.3d 380, 398 (5th Cir. 2014) (quoting Fernandez v. Keisler,
502 F.3d 337, 347 (4th Cir. 2007)). 16 To the contrary, where “the exercise of
statutory interpretation makes clear the court’s view that the plain language
of the statute was controlling and that there existed no room for contrary
agency interpretation,” the court’s interpretation should prevail. Id. (quoting
Fernandez, 502 F.3d at 347–48). 17

       Instead of requiring the prior decision to have called the relevant statute
“unambiguous,” reviewing courts have looked for the contrary—whether the
decision called the statute “ambiguous.” For example, this court recently held
that an agency’s interpretation could prevail over a prior judicial interpreta-
tion because the latter had “expressly recognized that the court decided to come


       15Brand X, 545 U.S. at 985, offers the rule of lenity as an example of a “rule of con-
struction” that a court might have applied which “requir[ed] it to conclude that the statute
was unambiguous to reach its judgment.”
       16 See also Silva-Trevino v. Holder, 742 F.3d 197, 201–03 (5th Cir. 2014) (upholding a
prior judicial interpretation in the face of a conflicting agency interpretation even though the
prior decision did not say that the statute was “unambiguous” because the first court was
“confident” that “Congress ha[d] spoken directly to the statutory question at hand” based on
the text of the statute and Congress’s use of the language in other statutes).
       17 See also Council for Urological Interests v. Burwell, 790 F.3d 212, 221 (D.C. Cir.
2015) (citation omitted) (“[A] statute may foreclose an agency's preferred interpretation
despite such textual ambiguities if its structure, legislative history, or purpose makes clear
what its text leaves opaque.”).
                                              11
    Case: 18-40116        Document: 00514873577          Page: 12     Date Filed: 03/14/2019



                                       No. 18-40116
down on one side of a complex debate.” 18 And where other circuits have de-
ferred to an agency’s interpretation under Brand X, those courts have “empha-
size[d] that their prior decisions also noted ambiguity in the text at issue.” See
Exelon Wind 1, 766 F.3d at 398 (collecting citations). 19

                                              B.
       Ysleta I did not find “ambiguity in the text at issue.” Id. Instead, after
applying canons of construction and legislative history to § 107(a) and (c) of the
Pueblo’s Restoration Act—which corresponds to § 207(a) and (c) in the
Tribe’s—this court concluded that “the Restoration Act and IGRA establish
. . . fundamentally different regimes.” Ysleta I, 36 F.3d at 1334. Indeed, this
court was left with “the unmistakable conclusion that Congress—and the
Tribe—intended for Texas’ gaming laws and regulations to operate as surro-
gate federal law on the Tribe’s reservation in Texas.” Id. In other words, this
court summarized, “(1) the Restoration Act and IGRA establish different regu-
latory regimes with regard to gaming, [and] (2) the Restoration Act prevails
over IGRA when gaming activities proposed by [the Pueblo or Tribe] are at
issue.” Id. at 1332.

       Additionally, we cited evidence that Congress did not intend for IGRA to
apply to all Indian gaming. 20 Moreover, we specifically rejected the theory that


       18 Acosta v. Hensel Phelps Constr. Co., 909 F.3d 723, 738 (5th Cir. 2018) (internal
quotation marks omitted) (quoting Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 710
(5th Cir. Unit A Oct. 1981) (discussing the “complex dispute” among courts)).
       19A plurality of the Supreme Court has likewise held that, under Brand X, a court
need not have said that the statute it was interpreting was “unambiguous.” Instead, “[i]f a
court, employing traditional tools of statutory construction, ascertains that Congress had an
intention on the precise question at issue, that intention is the law and must be given effect.”
United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 488 (2012) (plurality opinion)
(quoting Chevron, 467 U.S. at 843 n.9).
       20 See Ysleta I, 36 F.3d at 1335 (citing later enactments expressly excluding certain
tribes from IGRA’s coverage as evidence of “a clear intention on Congress’ part that IGRA is
                                              12
    Case: 18-40116       Document: 00514873577          Page: 13     Date Filed: 03/14/2019



                                       No. 18-40116
“to the extent that a conflict between the two exists, IGRA impliedly repeals
the Restoration Act.” Ysleta I, 36 F.3d at 1335. Repudiating that interpreta-
tion, we cited (1) the presumption against implied repeals and (2) the canon
that a specific statute controls over a general statute. Id. With respect to the
second, we noted that the Restoration Act was “clearly” the specific statute,
“whereas IGRA is a general one.” Id.

       The Tribe counters that, for two reasons, Ysleta I does not foreclose the
NIGC’s determination that IGRA applies to the Tribe. First, the Tribe empha-
sizes that Ysleta I’s holding “was based on nontextual cues from legislative
history and canons of construction” and thus could not have “follow[ed] from
the unambiguous terms of the statute.” Brand X, 545 U.S. at 982. That rea-
soning disregards the fact that the Brand X inquiry stems from Chevron step
one and requires the reviewing court to apply “traditional tools of statutory
interpretation”—like the canons and legislative history—to determine whether
Congress has spoken to the precise issue. See Chevron, 467 U.S. at 843 n.9.
And when “the canons supply an answer, Chevron leaves the stage.” Epic Sys.
Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018) (internal quotation marks and
citation omitted).

       Second, the Tribe asserts that Ysleta I “never had occasion to determine
whether the Restoration Act constitutes a federal law that specifically prohib-
its [c]lass II gaming on Indian lands under IGRA.” That misses what Ysleta I
did hold—that the Restoration Act’s gaming provisions, and not IGRA, provide
the framework for deciding the legality of any and all gaming by the Pueblo
and the Tribe on their Restoration Act lands. Ysleta I, 36 F.3d at 1332. 21



not to be the one and only statute addressing the subject of gaming on Indian lands”).
        The Tribe suggests that the Restoration Act’s application of Texas laws to the Tribe’s
       21

gambling is somewhat empty because Texas does not “prohibit” gaming as defined in
                                             13
    Case: 18-40116       Document: 00514873577          Page: 14     Date Filed: 03/14/2019



                                       No. 18-40116
       In sum, Brand X teaches that a court should not defer to an agency’s
interpretation of a statute if a “judicial precedent hold[s] that the statute un-
ambiguously forecloses the agency’s interpretation.”                 Brand X, 545 U.S.
at 982–83. That requires us to apply Chevron step one to a prior judicial inter-
pretation and to determine whether that court employed traditional tools of
statutory interpretation and found that Congress spoke to the precise issue.
That is what Ysleta I did in holding that “the Restoration Act prevails over
IGRA when gaming activities proposed by [the Pueblo or Tribe] are at issue.”
Ysleta I, 36 F.3d at 1332. Consequently, the NIGC’s decision that IGRA applies
to the Tribe does not displace Ysleta I. We thus reaffirm that the Restoration
Act and the Texas law it invokes—and not IGRA—govern the permissibility of
gaming operations on the Tribe’s lands. 22 IGRA does not apply to the Tribe,
and the NIGC does not have jurisdiction over the Tribe.

       The district court did not abuse its discretion in denying relief from the
permanent injunction. The order denying the motion for relief from judgment
is AFFIRMED.




California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). This court expressly
rejected that theory in Ysleta I, 36 F.3d at 1333−34, holding that “Congress did not enact the
Restoration Act with an eye toward Cabazon Band.” Instead, we were “left with the unmis-
takable conclusion that Congress—and the [Pueblo]—intended for Texas’ gaming laws and
regulations to operate as surrogate federal law on the [Pueblo’s] reservation in Texas.” Id.
at 1334.
       22The Tribe alternatively contends that Ysleta I should be overruled. The rule of
orderliness forbids us from reaching that issue. See Jacobs v. Nat’l Drug Intelligence Ctr.,
548 F.3d 375, 378 (5th Cir. 2008) (citations omitted) (“[O]ne panel of [this] court 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.”).
                                             14
