You know the June 30 decision by the D.C. Circuit Court of Appeals to reinstate the compact between the state of Florida and the Seminole Tribe? The one that gives the Seminoles a monopoly over sports betting.
Don’t bet that this was the final say on the matter. In fact, smart money insists there will be a challenge in the form of a state lawsuit, or even a federal suit, perhaps eventually heading before the Supreme Court.
And regardless of the legal machinations, the thinking of the appeals court could influence what happens in the battered state of California.
The decision on June 30 found that the district court ruling in November 2021 that the compact violated the Indian Gaming Regulatory Act (IGRA) was wrong. Casino owners West Flagler Associates sued to void the compact. The plaintiffs could file for a rehearing or appeal the case to the U.S. Supreme Court.
Bob Jarvis, a gambling law professor at Nova Southeastern University in Fort Lauderdale, believes the anti-gambling contingent could make a strong case. No Casinos, a force since the late 1970s, could file suit over the validity of the compact, maybe seeking an injunction.
“A lawsuit is coming. For all I know, they’ve already filed it,” Jarvis told PlayFL. “It’s coming very quickly, and it’s going to be in the state court.”
“Whether it is otherwise lawful for a patron to place bets from non-tribal land within Florida may be a question for that state’s courts, but it is not the subject of this litigation and not for us to decide,” the Circuit Court wrote.
Jarvis says No Casinos could hang their case on a 2018 constitutional amendment which passed with 71 percent of the voters. The problem is that the amendment refers to casino gambling, not sports betting.
“(The amendment) talks about casino gambling and any expansion of casino gambling, and then it defines what casino gambling is,” Jarvis told PlayFL. “It defines casino gambling as craps, roulette and slot machines, the things that have always been a part of casinos. The addition of craps and roulette at Seminole casinos is on tribal land so not covered by the amendment.”
Despite the lingering question marks, the Seminole decision could also be a game changer for California tribes, which have had their own sports betting odyssey of late.
“I think this was a really impactful decision for both the Seminoles and Indian Country,” Jacob Mejia, vice president of public and external affairs for the Pechanga Development Corp., told PlayUSA. “It affirms the rights of tribes and the state to enter into IGRA-centric compacts that not only address IGRA issues but also issues of online gaming.”
“Let’s give it to the Seminoles, undefeated since Columbus,” Victor Rocha, owner and editor of Pechanga.net and conference chairman for the Indian Gaming Association, told PlayUSA. “When the deal first came out, I think a lot of people in the industry said, ‘Oh no, that’s too much.’ But the governor signed off on it, the secretary of interior signed off on it, and now the court has signed off on it. Now the big question going forward as it relates to us in California is does it give the template for California tribes to do that hub-and-spoke model?”
Tribes and the state are only half the battle. The decision must go to the U.S. Department of Interior (DOI) for approval. With the Seminoles, the DOI took no action, which is actually action.
West Flagler sued Interior Secretary Deb Haaland claiming the compact violated IGRA and that the secretary violated the Administrative Procedure Act by allowing it to take effect.
The Circuit Court determined that the compact did authorize gaming on Indian lands. And IGRA didn’t require every aspect of the gaming to take place on tribal lands.
Tribal gaming attorney Scott Crowell argued in an amicus brief he co-authored on behalf of the Indian Gaming Association and the California Nations Indian Gaming Association (CNIGA) that the DOI already had approved many compacts where elements of the gaming took place off tribal lands.
Crowell told PlayUSA:
“If any gaming occurs on Indian lands, IGRA applies. But aspects that occur off Indian lands still need to be lawful under the state’s law. We had pointed out in briefs that dozens of states allow tribes to offer off-track betting where the primary aspect of the gaming takes place off Indian lands.”
James Siva, chairman of CNIGA, told PlayUSA that waiting on the Seminole ruling played a factor in the slowdown.
“When the Seminole compact originally came out with their hub-and-spoke model for online sports betting with the location of the servers on tribal land, I think that model had a major appeal to a vast majority of California tribes. And then when that compact was struck down by the original court decision, it really forced a shift of approach in California. That’s why I think you saw most tribes didn’t try to push something online in the last election cycle.”
“In California specifically, I think the timing is such that it’s not going to impact the 2024 election cycle,” Crowell said. “All indications are there won’t be any measures on the ’24 ballot.”
Siva thinks tribes might still be able to apply this decision to an initiative proposal for 2024. And he expects the decision will spark discussion among California tribes.
“I think this really starts us talking in California about what this looks like for online sports betting, probably sooner rather than later. I don’t know if we have time left for ’24. But I definitely wouldn’t say we’re out of time because tribes are very much used to making things happen quickly.”
