Despite a series of legal challenges that have delayed its implementation, the 2021 tribal gaming compact between the Seminole Tribe and the state of Florida stands as a remarkable and landmark agreement, said an attorney who represents the tribe.
“The relationship between the tribe and state, it's fair to say, has had its difficult periods over the years, where at any one time there was litigation going on with the state,” said Joseph Webster, a partner with the firm Hobbs, Straus, Dean & Walker in Washington, D.C.
Webster noted that at one point there was litigation that went to the Supreme Court concerning the tribe’s right to enforce its rights under the Indian Gaming Regulatory Act of 1988. The Seminole Tribe and Florida entered into their first compact in 2007, which was then promptly challenged by the state legislature.
As a result of that litigation, Webster said, the tribe and then Democratic Governor Charlie Crist entered into a new compact in 2010 allowing the tribe to offer slot machines, house-banked card games, and a few other things.
But in May 2019, the tribe halted payments to the state, which totaled nearly $330m, because of so-called designated-player card games offered by many of the state’s pari-mutuel cardrooms.
The Seminoles claim the games violated part of the 20-year compact signed in 2010 that gave the tribe exclusive rights to house-banked card games.
“At that point it was about coming back to the table,” Webster said Tuesday (October 10) during an overview of the recent court decisions affecting the Seminole’s ability to offer mobile sports wagering at the Global Gaming Expo (G2E) at the Venetian Expo in Las Vegas.
On Thursday (October 12), the Seminoles suffered a setback when the U.S Supreme Court issued a temporary order that will prevent the tribe from relaunching a mobile betting platform in Florida.
The 2021 compact between the Seminoles and the state, which was allowed to come into effect by the U.S. Department of the Interior, granted the tribe additional exclusivity rights to offer craps and roulette, as well as retail and mobile sports betting.
Webster said agreeing to have the tribe launch mobile sports betting across the state was “something of significant value” that justified the resumption of revenue-sharing payments to the state.
He said their review of IGRA allowed for the allocation of jurisdiction, so they looked for a way to use that mechanism to provide for mobile sports betting.
“What ultimately the parties came up with, is yes, there is a way to do it. It’s a combination of both the federal compact with IGRA and state law,” Webster said. “So IGRA allows you to allocate jurisdiction, so the state law legalizes the placement of the wager off Indian land.”
He reiterated that IGRA allows for the state to allocate to the tribe the regulatory jurisdiction over the entire transaction and include that in the compact because it is all directly related to the gaming activities that occur on Indian lands.
That argument has been opposed by commercial gaming operators West Flagler Associates and Bonita-Fort Myers Corporation, which are also pursuing a lawsuit against the gaming compact in the Florida Supreme Court.
Kevin King, a partner with Covington & Burling who advises commercial gaming companies and sports leagues on IGRA, told G2E attendees that he agreed that the ruling by the U.S. Circuit Court of Appeals in Washington, D.C., said that tribes can work with the Interior Department and state government to allocate regulatory jurisdiction in compacts.
But King believes that decision also rejects the argument that the 2021 Seminole compact authorizes off-reservation, state-wide mobile sports betting.
“There is a line in the opinion that says, make no mistake that whatever the tribe may believe, that’s not permissible under IGRA,” King said. “That’s significant coming from the D.C. Circuit because that’s a court with nationwide jurisdiction.”
Webster and King were joined for the 50-minute discussion by Christine Masse, an attorney with Miller Nash, and James Siva, vice chair of the Morongo Band of Mission Indians in southern California.
Masse, who represents tribes in Washington state, noted tribes in Washington can offer retail sports betting and mobile betting only on-property. Maverick Gaming, which operates close to 24 cardrooms in Washington state, has sued to overturn tribal gaming compacts on grounds that commercial gaming operators should also participate in sports betting.
The case is pending before the Ninth Circuit Court of Appeals and Masse said the “only brief left is a reply by Maverick that’s due in a couple of weeks."
Masse said there is the same thread of argument running through these cases.
“You’ll see constitutional arguments when it comes to equal protection and an effort to deem tribal nations a race instead of a sovereign government,” she said.
Within West Flagler’s 49-page filing with the U.S. Supreme Court last week, Hamish Hume, an attorney with Boies Schiller Flexner and counsel of record, asked the nine justices to consider if the compact violates the equal protection clause for the secretary of the Interior to approve, or allow automatic approval of, a compact between a state and an Indian tribe that provides the tribe with a state-wide monopoly.
That state-wide offering of mobile sports betting, Hume wrote, would make “such conduct a felony if engaged in by any person who is not a member of that Indian tribe.”
King said the equal protection argument has come up in a number of cases in recent years.
“The Supreme Court is very attuned to preferences along racial and other lines, and I think that will cause some parties to be litigating it,” King said. “The claim definitely has its limitation. I do think we will be seeing more of that.”