The 30-year Florida sports betting pact the Seminole Tribe crafted with the state in 2021 and saw upheld in federal court last week could be an evolutionary moment in the history of Native American gaming in the United States, a former lawyer in the Division of Indian Affairs told Gaming Today.
It might not be the revolution some expected. But it provides a “pathway for a state that wants to authorize sports betting, and for tribes that want to be authorized to do sports betting” Derril B. Jordan said.
The trick is in the wording and how it meshes with this latest interpretation of the Indian Gaming Regulatory Act.
A key impediment to tribes in other states cutting and pasting the Seminole compact is the tribe’s unusual position of holding a monopoly on sports betting in Florida.
“I don’t know whether that would necessarily be the case in other states where the tribes would be granted the exclusive right,” Jordan added. California, which has yet to legalize sports betting, has 76 tribal gambling entities.
Seminoles Could Re-Establish Path for Tribal Gaming
Still, it would stand to reason that the Seminoles — long the vanguard of tribal gaming — would inspire other Native gaming companies to get a similar deal. Mobile gaming comprises as much as 90% of business in many states with legal sports betting, and the ability to expand a reach beyond reservation land would seem good for business.
Eilers & Krejcik Gaming noted in a recent analysis that it was “very likely” that other tribes would soon attempt to include similar sports betting provisions in their compacts, with those in California and Washington using the Seminoles’ as a blueprint and those in Arizona and Michigan as an impetus to renegotiate deals in which they are licensed like commercial operators to offer state-wide mobile.
Said EKG: “Tribes in North Dakota pushed — albeit unsuccessfully — to model sports-betting provision of their compact after the Seminole compact, and we hear similar efforts are underway in Kansas.”
Said Jordan:
The path that [the Florida sports betting] case marks is to deem the bets to be received on the reservation, where the server is. But you base your argument that the compact is legal by referring to the catchall provisions of 2710 (d), iii (C).”
Jordan said the strategy “makes sense and is certainly sustainable” legally, although he believes litigating in Florida courts would have been a wiser decision for West Flagler Associates, the plaintiffs in the case that brought Florida sports betting to a halt after just more than a month after going live in 2021. The plaintiffs still have options, including returning to fight in Florida court or asking the Supreme Court to take up the case.
“The [US District Court of Appeals, District of Columbia Circuit] correctly recognized that IGRA does not and cannot authorize gambling off of Indian lands, but then upheld a compact that purports on its face to do exactly that,” West Flagler attorney Hamish Hume told Gaming Today in an email. “We respectfully disagree with that decision, and are evaluating our possible next steps.”
West Flagler has some time. Circuit Court rules and other procedural issues set Aug. 21 as the earliest date Hard Rock could re-launch sports betting in Florida.
Structure of Court Case Gave Appeals Court Path for Ruling
The opinion of the three-judge panel from the US District Court of Appeals effectively allows the Seminole Tribe of Florida, through its Hard Rock Digital app, to offer sports betting state-wide. It does this by asserting that while IGRA grants tribes the right to offer gambling on tribal land, it doesn’t forbid them from doing so off them.
The ruling didn’t specifically settle the issue of where a bet is placed. It wasn’t asked to because the language of the compact and the rationale used to allow it to pass into law by the Department of the Interior didn’t require it, Jordan said.
While much of the controversy over the compact has been the state-wide mobile aspect, the ruling never addressed whether a bet occurs where the bettor places it, or on tribal land where the servers handling it are located.
“The Interior Department didn’t go there, weren’t willing to rely on that. The court, therefore, didn’t have to make that choice,” Jordan explained.
Instead, the Department of the Interior said in its supporting opinions that IGRA was meant to expand to provide for Native business opportunities. And that mobile sports betting constituted that in the modern gambling business.
“It doesn’t say that the gaming is entirely on Indian lands and qualifies as under IGRA,” he said. “The deeming language qualifies you for the catchall treatment.”
Native legal observers have in the past cited New Jersey’s state-wide mobile sports betting model as applicable in considering the Seminoles compact. State law in New Jersey requires all bets to be handled by servers on casino property in Atlantic City.
Even in punting the issue back to Florida courts, in all likelihood, the Appeals panel seemingly validated Jordan’s long-held belief that IGRA — which was passed in 1988 — was designed to conform to modern capabilities for tribes to generate revenue for themselves.
Jordan said:
With all of the things that the tribes went through in getting to the enactment of the Indian Gaming Regulatory Act, all of the hurdles, all of the challenges, all concerned about not giving states a monopoly, particularly over Class III gaming, if IGRA is interpreted not to allow tribes to engage in internet gaming, then all of that work and all of that concern by both tribes and Congress would’ve been undone. I certainly hope it’s not the case that brick-and-mortar casinos are done because tribes have obviously vast investments in [them].
“But internet gaming is an important component of any kind of gaming business. And I think if tribes could not participate in internet gaming, they would be at a decided disadvantage.”
WWSCOTUSD? Supreme Court Could Make Final Decision
The US Supreme Court took up just 59 cases in its most recent term session. Two involved tribal sovereignty.
Handicapping how the Court would adjudicate this case — whatever year it might arrive — wasn’t simplified by the rulings. In Arizona v. Navajo Nation, the court ruled 5-4 against a tribal request to expedite access to water rights. But the Court rebuffed by a 7-2 vote challenges to the Indian Child Welfare Act that were attacked as discriminatory.
Justice Neil Gorsuch is generally seen as sympathetic to tribal rights issues, and the three liberal Justices would be expected to concur, like in the two cases this term. Then it gets complicated.
“There’s a wide gap, a wide space between those two decisions,” Jordan said. “You’d have four votes for the tribal position, I think, and it’s just a question, could you pull in a fifth vote, and who would that fifth vote be?”
- The reliable/likely votes for tribal positions, according to Jordan: Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson, Neil Gorsuch.
- The variables: Amy Coney Barrett, John Roberts.
- The opposition: Clarence Thomas, Samuel Alito, Brett Kavanaugh.
“It could be Roberts. Maybe,” Jordan said. “But I’m not sure about Amy Coney Barrett. I think Kavanaugh is almost as unlikely as Alito or Thomas. I wouldn’t want to bet on that one way or another.”
Floridians may not be betting on anything afterward.
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