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Instead of deciding whether the Seminole gambling compact in Florida is legal, three federal appeals judges on Wednesday (December 14) seemed more interested in determining whether U.S. Interior Secretary Deb Haaland acted within her authority by allowing the compact to become law without doing anything.
U.S. Circuit Judge Karen Henderson, who participated in Wednesday’s hearing via audio transmission, asked if Haaland still may have acted “ultra vires,” or beyond her legal power.
“If an agency doesn’t have the authority to do something or read something a certain way, that’s ultra vires,” Henderson said.
Henderson asked Hamish Hume, the attorney representing West Flagler Associates, a pari-mutuel group that opposes the compact, if that was his position.
“That is what we’re saying,” Hume said, adding that the U.S. Department of the Interior is trying to “have it both ways.”
“They’re asking this court to reverse the district court and hold that IGRA (the Indian Gaming Regulatory Act of 1988) approves the compact that authorizes gaming off Indian lands even while they say in their legal briefs that IGRA cannot approve gaming off Indian lands,” Hume said.
“What they’re saying makes no sense and it’s going to be a cruel joke if this court accepts the argument.”
But Rachel Heron, an appeals attorney for the U.S. Department of Justice, opened Wednesday’s hearing by saying Haaland acted lawfully by allowing the compact to become law in August 2021 without either expressly approving or rejecting it.
By taking no action on the compact within 45 days after it was signed into law by Florida Governor Ron DeSantis in May 2021, Haaland “deemed” the compact approved.
“The secretary was under no obligation to disapprove the compact that was presented to her,” Heron said.
Heron also said the state-tribal gaming compact, which enabled a temporary launch of online sports betting in Florida in November 2021, complies with IGRA.
U.S. Circuit Judge Robert Wilkins, who presided over Wednesday’s hour-and-a-half hearing and raised most of the questions, asked Heron if Haaland was required to determine if the compact complies with Florida law.
Wilkins also asked if the compact must comply with the U.S. Wire Act of 1961, the Unlawful Internet Gambling Enforcement Act of 2006 and other federal laws.
“We read the statute (IGRA) to mean that the secretary does not have an affirmative duty to disapprove when a compact violates some non-IGRA federal law,” Heron said.
Wilkins also asked Heron about a letter written by the Interior Department’s Assistant Secretary of Indian Affairs, Bryan Newland, shortly after the compact was deemed approved.
In the letter, Newland spells out the gaming activities which the Interior Department considers legal under the compact.
Heron downplayed Newland’s letter, calling it “post decisional,” and said the court should not rely on the letter in deciding whether or not to reverse the November 2021 decision by U.S. District Judge Dabney Friedrich to overturn the compact.
Friedrich’s ruling, which abruptly ended online sports betting by the Seminoles in December 2021, was “based on an error of law,” Heron said.
Heron also continued to push the Justice Department’s argument that the department adequately represented the Seminole Tribe, which Friedrich excluded in the hearing before her decision last year to reject the compact.
Barry Richard, a Tallahassee, Florida-based attorney representing the Seminoles, told the appellate court the exclusion violated tribal sovereignty.
As for Heron’s claim that the Justice Department adequately represented the Seminoles, Richard said Judge Friedrich in the November 5, 2021 hearing, “took considerable time to castigate (the federal attorney) for failing to initially brief the question of the merits (of the Seminole Compact) and refused entirely to hear from the tribe before (issuing) a summary judgment destroying the tribe’s most important asset.”
Despite concerns about a lack of respect for tribal sovereignty, Richard said the Seminoles would not “have a heartache” so long as Friedrich’s opinion is reversed.
About 25 spectators attended Wednesday’s hearing in the U.S. Court of Appeals for the D.C. Circuit, and the court is expected to release its decision sometime in the Spring 2023.
