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The U.S. Supreme Court’s recent decision to overturned long-standing precedent that instructed lower courts to defer to federal agencies when laws passed by Congress were not clear have tribes concerned they are vulnerable to legal challenges.
By a vote of 6-3, U.S. Supreme Court justices in June overruled the court's 1984 decision in Chevron v. Natural Resources Defense Council, which became known as the Chevron doctrine.
Under that doctrine, if Congress has not directly addressed the question that was being disputed, a lower court would uphold the relevant federal government agency’s interpretation of the statute as long as it was reasonable.
In an opinion delivered by Chief Justice John Roberts on June 28, the justices rejected 40 years of the doctrine, calling it “fundamentally misguided”.
“Chevron, decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional approach,” Roberts wrote.
“Although exercising independent judgment is consistent with the ‘respect’ historically given to Executive Branch interpretations, Chevron insists on much more. It demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time.”
Justice Elena Kagan dissented, in an opinion joined by fellow liberal Justices Sonia Sotomayor and Ketanji Brown Jackson. Kegan expressed concern the ruling would cause “a massive shock to the legal systems”.
Although the June ruling was not related to tribal gaming, Indian law experts acknowledge that the decision marks a significant change in administrative law and could have significant impacts for tribal nations and the U.S. Department of the Interior, which is responsible for approving tribal gaming compacts and acquiring land for Indian tribes, among other things.
Scott Crowell, founder of Crowell Law Office Tribal Advocacy Group in Arizona, said that overturning the Chevron precedent may not have a direct impact on tribal gaming, but it is reflective of how the current makeup of the U.S. Supreme Court is “extremely dangerous to our future”.
Crowell said his research had found about 100 reported federal cases where the Chevron doctrine has been an issue in a case involving Indian law. However, he said, about two-thirds of those cases involved the Chevron doctrine being used to argue against tribal interests.
“In a lot of the cases that have come since [1984], when you're in a position of challenging a federal action … the Chevron doctrine has worked against you,” Crowell said on a webinar hosted last week by the Indian Gaming Association (IGA). “And when you're supporting a federal action, it's worked in your favor when this decision came down.”
Crowell admitted that he was “very cautious and scared” anytime the Supreme Court overturned long-term precedent, but he did not think the recent ruling was going to have that much of a direct impact on federal Indian law.
Jason Giles, executive director of the IGA, expressed concern that overturning Chevron will open up more avenues for lawsuits and challenges to agency regulations now that there is a “lower standard at the courts”.
“It will impact virtually every [Administrative Procedures Act] case you know that has been filed, whether it involves an Indian law issue or not,” Crowell said.
Kagan in her dissent, raised fear that that there would be a flood of new lawsuits.
“I'm not sure,” Crowell said of that likelihood. “I'm not certain that that's going to pan out.”
Giles asked Crowell if tribal gaming interests were particularly vulnerable to legal challenges from commercial gaming operators or local governments.
He cited the new Department of Interior Bureau of Indian Affairs regulations adopted this year that paved the way for tribes to agree compacts which enable them to offer online sports betting and mobile gaming off-reservation as long as the servers are on tribal lands.
In 2021, the Interior Department allowed Florida’s landmark compact with the Seminole Tribe to offer state-wide online betting to take effect, but without affirmatively approving the agreement.
“It could have been challenged before, but it’s more vulnerable to be challenged now,” Crowell said of the new compact regulations. “On one side, you [have] all those regulations that are relatively new [and] although they're relatively pro tribal, with the exception of the analysis on mobile sports wagering, it really didn't provide anything new.”
In fact, Crowell said, the Interior Department was very clear that the new rules primarily involved an “updated codification of the practices that they'd been engaged in for a number of years. So, I don't know if Chevron deference would actually make a difference in the outcome of the challenges that we already expected.”
Crowell stressed that the 2023 decision by the U.S. Court of Appeals for the District of Columbia to overturn a federal judge’s earlier decision that the Florida compact violated the Indian Gaming Regulatory Act (IGRA) was not based on Chevron deference.
The Supreme Court earlier in June declined to take up an appeal of that ruling.
“It didn’t find any ambiguity in the statute and the need for some deference,” Crowell said.
