SCOTUS Florida Sports Betting Decision Analysis, California Impact

The US Supreme Court’s decision not to take up the issue of legal sports betting in Florida was certain to resonate through tribal gaming companies nationally. It did and still is more than a week after West Flagler Associates’ lengthy battle to shut down the Seminole Tribe’s Hard Rock Bet monopoly appears to have exhausted itself at the federal level.

Key among the questions was how the new interpretation of the Indian Gaming Regulatory Act would impact tribal gambling operations in other states. That 1988 law could not have foreseen the use of the Internet or mobile phones to facilitate gambling off of tribal lands, which is the crux of the Seminoles’ hub-and-spoke sports betting model in Florida and the heart of West Flagler’s dispute.

Tribes have pursued different means to attain the right to offer sports betting in various states. In Florida, it was a 30-year compact ratified by the state and tacitly allowed to pass into law by the Department of the Interior. In Connecticut, Michigan, and Arizona, tribes negotiated commercial deals.

But will any attempt to cut-and-paste the Seminoles’ model? Can they, given the unique nature of gambling in Florida, where the Seminoles enjoy a virtual monopoly? And then there’s California, where more than a hundred tribes would need to be involved in a process to legalize sports betting. On top of that, the state would need to amend its constitution to make legalization even possible.

Gaming Today spoke with tribal gaming expert and former Division of Indian affairs lawyer Derril Jordan and utilized statements from Victor Rocha’s “New Normal” podcast about the impact in Florida and California to analyze the tribal state of play following the SCOTUS rebuke. Rocha’s guests included California Nations Indian Gaming Association chairman James Siva and Tribal Advocacy Group attorney Scott Crowell.

On the Supreme Court Not Taking up West Flagler Associates’ Case:

JORDAN: The Indian Gaming Regulatory Act is being interpreted flexibly to allow for technological developments that have taken place over the 42 years since IGRA was enacted. And I think that’s a good thing.

I don’t really think it’s a game-changer or anything like that. I think it’s just being interpreted the way. And I think that’s reflected in the fact that the Supreme Court refused to grant cert.

CROWELL: [The US Supreme Court] rejected the District court’s analysis and [West Flagler’s] analysis that said all aspects of gaming must have been on Indian lands in order for it to be lawful under the Indian Gaming Regulatory Act.

It’s wrong to begin with. We’ve had off-track betting compacts since the very early years of the Indian Gaming Regulatory Act, where the primary event, the event that determines the outcome of the game, occurs off of Indian lands.

So we think it was a well-reasoned decision. And what this does do now is make clear that tribes are able to engage in statewide mobile gaming under the Indian Gaming Regulatory Act, and don’t need to resort or be at the mercy of state law and state legislatures.

On National Tribal Gaming Implications:

JORDAN: We have gaming that is occurring at least partly off the reservation and coming into servers on tribal land. That does present a model through which to do this. And with the justification given by the United States and agreed to by the DC Circuit, that kind of gaming is related to the gaming that is taking place and authorized by the compact. Therefore, under those specific provisions of the Indian Gaming Regulatory Act are permissible subjects to be addressed in a compact, even though the compact itself does not approve that gaming.

For an unwilling state or a state that says you have to go through the state licensing process, I guess that remains to be seen.

I think in Michigan, it’s my understanding that the path that was chosen … was not necessarily because the state was unwilling to do it any other way, but because it was seen as the best way under the existing legal precedent.

For states that are willing, in my opinion, to follow the law, if they’ve authorized sportsbook and internet gaming and so forth, I think this does provide a template for states and tribes to enter into agreements to allow tribes to engage in internet gaming.

And again, under the explanation of the United States and the arguments of the United States accepted by the DC Circuit, this is not gaming authorized under IGRA. But it is gaming that is related to gaming that can be authorized under IGRA and is therefore a permissible subject in a context.

On How This Applies to California Sports Betting:

JORDAN: There has to be some predicate, if you will, in state law for tribal gambling. California has not yet legalized sports betting and online gaming. They have 110 tribes, and of course, not all of them are involved in gaming. So there are some particular challenges that would be present there.

If the state were to legalize sportsbook and online betting, my interpretation of IGRA is that they would have to negotiate compacts with the tribes to allow them to do that. My belief is that when the legislature passes a law that says online gaming is deemed to occur where the bet is received on a server and so forth, I think that should be good enough to say that the gaming is occurring on Indian lands. And yeah, there’s some ambiguity on that.

JAMES SIVA: I know there was a lot of excitement over this decision. I think it was the right decision. I think a lot of people anticipate this means that we’re going to start having a push for [legal sports betting] immediately. And I think, luckily, everyone realized we’re going to continue the same path of the last few years. We’re going to move carefully, methodically. This opens up some new avenues for us to utilize and look at as potential opportunities. But our timeline remains the same even with this decision.