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A 3-0 decision by a federal appeals court on June 30 is a milestone which is likely to secure the future of Indian gaming by enabling tribes to compete in the online betting market, a prominent tribal gaming attorney said Wednesday (July 12).
“This notion that every aspect of the gaming must occur on Indian lands has been dispelled, and that is going to be critical as tribes in each state look at what their opportunities might be regarding mobile wagering,” said Scott Crowell, an Arizona-based attorney who filed a brief on behalf of the Indian Gaming Association (IGA) in the case.
Although it may be challenging to negotiate online gaming compacts for tribes on a state-by-state basis, “at least now we have a model on how to get it done,” Crowell said during an appearance on a webcast produced by the IGA.
Crowell was referring to a landmark gambling compact negotiated in 2021 between the Seminole Tribe and Florida Governor Ron DeSantis which, for the first time, expressly allowed a tribe to accept online bets placed outside Indian reservation lands via on-reservation servers.
A federal judge in Washington, D.C. rejected the Florida compact in November 2021, saying the agreement violated the Indian Gaming Regulatory Act of 1988.
But a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit unanimously overturned the lower court’s decision last month and restored the Florida compact.
The reaction from the Seminoles and other Indian gaming officials so far has been relatively restrained, but Crowell said the decision is a “tremendous development” and Indian Country should be “rationally exuberant.”
Crowell, whose legal brief to the appeals court supported the Seminoles, did not seem worried about an appeal by opponents of the Florida compact.
“I think it’s nonsense to say there’s a split in the circuits,” Crowell said.
A split in decisions by federal circuit courts is usually required before the U.S. Supreme Court will accept an appeal and only about 1 percent of all appeals make it to the highest court in the land.
There has been speculation that the 9th U.S. Circuit Court of Appeals 2018 decision in the so-called Desert Rose case conflicts with the D.C. Circuit Court’s ruling on the Seminole compact.
Crowell was one of the attorneys who represented the tribe operating the Desert Rose bingo website which accepted bets from Californian players outside tribal lands.
But California, unlike Florida, had not authorized internet gambling via a compact.
“The 9th Circuit looked at it as purely unlawful internet gambling under UIGEA (the Unlawful Internet Gambling Enforcement Act of 2006),” Crowell said.
There also have been reports that opponents of the Seminole compact will appeal in Florida’s courts.
Amendment 3, passed by Florida voters in 2018, requires a state-wide referendum before any expansion of commercial gambling occurs.
But Crowell noted a provision in Amendment 3 exempts new forms of tribal gaming authorized via compacts negotiated by the governor.
Tom Foley, a former member of the National Indian Gaming Commission who worked with Crowell on the Desert Rose case, agreed that there is not a split in the federal circuits regarding online gaming by tribes.
Foley, who is an attorney with the St. Paul, Minnesota, firm of Foley & Quigley, said the D.C. Circuit Court’s opinion is likely to buttress new Indian gaming regulations proposed in November 2021 by the U.S. Department of the Interior.
The proposed regulations are expected to become effective before the end of the year and include one provision to expressly authorize compacts whereby the state and tribe agree to permit mobile wagering throughout a state so long as servers are on tribal lands.
“I think [the Interior Department was] waiting for this decision on the Seminole case in circuit court [before finalizing the proposed regulations],” Foley said.
“Certainly, many of their proposed regulations kind of dovetail with this decision.”
