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Upcoming rulings in three Indian gaming cases could have a historic impact on the future of not only tribal but commercial gambling operations across the United States.
All eyes are on the U.S. Court of Appeals for the D.C. Circuit for its decision on whether the Seminole Tribe of Florida can resume internet sports-betting operations.
From November 1 through December 4 last year, the Seminoles accepted sports bets online as part of their new gambling compact negotiated with Republican Governor Ron DeSantis of Florida.
Online wagering ended in Florida after U.S. District Judge Dabney Friedrich of Washington, D.C. ruled the gambling compact violated the Indian Gaming Regulatory Act (IGRA) of 1988.
“Prior to Judge Friedrich’s ruling, many people felt that the compact that the Seminoles negotiated with Florida could be used as a blueprint by other states due to its inclusion of mobile betting by using the spoke-and-hub concept,” said Bob Jarvis, a law professor at Shepard Broad College of Law in Davie, Florida.
Under the spoke-and-hub model, computer servers on tribal land act as the hub for bets placed outside the tribe’s reservation.
“If the D.C. Circuit (Court of Appeals) reverses her (Judge Friedrich) as I have predicted it will, then the spoke-and-hub concept, as well as tribes playing the role of sports betting ‘market maker,’ is back on the table.” Jarvis said.
Oral arguments before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit are expected to occur this fall.
Scott Crowell, a prominent tribal gaming attorney in Sedona, Arizona, agrees with Jarvis that Friedrich’s decision is likely to be reversed.
“I believe the district court got it wrong — very wrong,” Crowell said.
“This litigation is perhaps the most important test of tribal gaming rights since the Cabazon decision in 1987 and the Seminole 11th Amendment decision in 1996,” Crowell said.
Cabazon laid the groundwork for Congress to pass IGRA, and the Seminole case in 1996 still prohibits tribes from suing states for failing to negotiate gambling compacts in good faith.
In the second significant pending Indian gaming case, the U.S. Supreme Court will decide if IGRA allows the Tigua Indians of El Paso, Texas, to operate electronic bingo games.
During oral arguments on February 22, Justice Neil Gorsuch raised eyebrows by suggesting the Cabazon decision should be overturned regardless of the impact on IGRA.
Jarvis and Crowell agreed that Gorsuch, whose previous decisions consistently support Native American rights, was probably playing the role of devil’s advocate and his remarks should not cause alarm in Indian Country.
But Tom Foley, a tribal gaming lobbyist in Washington, D.C. and a former member of the National Indian Gaming Commission, is not so sure.
“The comments by Gorsuch and other justices in the Tigua case showed a lack of understanding of IGRA, but hopefully, the court will issue a narrow decision that does not impact Cabazon or IGRA,” Foley said.
The third case involves Ted Olson, the attorney whose arguments in May 2018 persuaded the U.S. Supreme Court to overturn a federal sports-betting ban in the Professional and Amateur Sports Protection Act (PASPA).
In a lawsuit filed in January on behalf of cardroom and casino operator Maverick Gaming, Olson claimed legislators in Washington State misconstrued IGRA by giving gaming tribes a sports-betting monopoly.
If successful, Olson’s lawsuit could open the door for DraftKings, FanDuel and other commercial gaming companies to do business in Washington state as commercial operators not partnering with tribal casinos.
“Olson’s lawsuit goes to the heart of IGRA and could pose a significant threat to tribal gaming,” Foley said.
Before he became President, Donald Trump failed in a similar challenge to tribal gaming monopolies, according to Jarvis, the law professor in Florida.
“If, however, Olson succeeds, that definitely could be a game-changer in any state that has given any piece of its gambling business exclusively to tribes,” Jarvis said.
Jarvis and Crowell, the Arizona tribal gaming attorney, said Olson’s claims are similar to those included in another lawsuit which failed.
“The 9th (U.S. Circuit Court of Appeals in California) already rejected the exact same arguments in Artichoke Joe’s v. Norton, challenging the monopoly in the California tribal-state gaming compacts,” Crowell said.
