On Wednesday, the United States Supreme Court denied West Flagler Associates’ request for a permanent stay on the Seminole Tribe of Florida re-launching sports betting in the state as it prepares to officially appeal its case to the high court.
The request, made on Oct, 12 was referred by Chief Justice John Roberts to the full court after issuing a temporary stay. The opinion written by Justice Brett Kavanaugh underscored some concerns about the interpretation of the Indian Gaming Regulatory Act. It also could lay the groundwork for West Flagler Associates to file a new federal lawsuit challenging the Seminoles’ monopoly in Florida on equal-protection grounds.
“The application for stay presented to THE CHIEF JUSTICE and by him referred to the Court is denied. The order heretofore entered by THE CHIEF JUSTICE is vacated.
Statement of JUSTICE KAVANAUGH respecting the denial of the application for stay.
I agree that the stay application should be denied in light of the D. C. Circuit’s pronouncement that the compact between Florida and the Seminole Tribe authorizes the Tribe to conduct only on-reservation gaming operations, and not off-reservation gaming operations.
“If the compact authorized the Tribe to conduct off-reservation gaming operations, either directly or by deeming off-reservation gaming operations to somehow be on-reservation, then the compact would likely violate the Indian Gaming Regulatory Act, as the District Court explained.
“To the extent that a separate Florida statute (as distinct from the compact) authorizes the Seminole Tribe—and only the Seminole Tribe—to conduct certain off-reservation gaming operations in Florida, the state law raises serious equal protection issues.
“But the state law’s constitutionality is not squarely presented in this application, and the Florida Supreme Court is in any event currently considering state-law issues related to the Tribe’s potential off-reservation gaming operations.”
Derril B. Jordan, a senior tribal lawyer at mctlaw and former top lawyer for the Division of Indian Affairs told Gaming Today, “It’s obviously good news for the Seminole Tribe.”
Said Seminole Tribe spokesperson Gary Bitner in an email to Gaming Today:
“The denial of the stay by the U.S. Supreme Court is very good news. The Seminole Tribe of Florida is heartened by this decision.”
What Does This Mean for West Flagler at The Supreme Court?
The implementation of an extended stay was seen by some tribal gaming observers as an indication that the Supreme Court might take up the case. That's still possible. Five justices must approve a stay request, but only four are needed to grant certiorari. Kavanaugh's opinion would suggest he's onboard.
West Flagler has promised its writ of certiorari by Nov. 20.
"I think Justice Kavanaugh's reference to the case now pending before the Florida Supreme Court is, perhaps, a good sign that the Court will deny the petition and let the Florida Supreme Court rule on the Florida law questions," Jordan said.
West Flagler had enjoyed a string of legal victories since sports betting was shut down after about a month in 2021. But a three-judge panel reversed those rulings in late June, setting off West Flagler appeals in the Florida and United States Supreme Courts.
Gaming Today is seeking comment from West Flagler Associates.