Just when we thought it was safe to place a bet, West Flagler et al returns from near death for another round against the Seminole Tribe, or should we say IGRA—the Indian Gaming Regulatory Act.
In simple terms—if there is such a thing in this never-ending legal proceeding—it’s West Flagler Associates’ suit charging Interior Secretary Deb Haaland with letting a tribe permit online sports betting off of Indian land in violation.
Then again, maybe it isn’t so simple.
West Flagler is pitching for a date with the U.S. Supreme Court to untangle this mess by ruling in its favor. The parimutuels filed a writ of certiorari, which sounds all Latiny and high falutin but required in this quest.
According to the petition:
“As different jurisdictions make different decisions regarding the legality of sports betting, it is critical that this Court not allow the unlawful approach taken by Florida to become a model, or for the D.C. Circuit decision to create confusing and misleading precedent.”
Since we’re talking about odds in a gambling case, look at these odds.
The U.S. Supreme Court, which ends its session in June, hears only about 80 cases a year, or less than 2 percent of the total petitions. You do the math.
Four of the nine justices must grant the petition. Again, do the math. The math in this case involves West Flagler Associates and Bonita-Fort Myers Corp., a small pair of pari-mutuels who have fought to convince the courts that the U.S. District Court had it right when it sided with West Flagler in negating the 2021 compact between the Department of the Interior and the state of Florida that the Seminole Tribe approach to its monopoly of sports betting rested on letting the online bets count as being on tribal land through electronic servers that are located there.
The Circuit Court of Appeals overturned the decision in June, buying into the Seminole description.
If the decision leaves the decision undisturbed—as an end-run not just around state-law prohibitions on gaming off tribal lands, but also around Congress, said Hamish Hume, attorney for the parimutuels. West Flagler holds three jai alai licenses and Bonita-Fort Myers Corp. does business as Bonita Springs Poker Room in Southwest Florida
One reason the Supreme Court may act is to eliminate conflicts between courts. Another, a case with national importance. Florida-based gaming and sports attorney Daniel Wallach previously told PlayUSA that he believes this case qualifies on both grounds and has a better chance of getting the Supreme Court’s attention than usual.
“The issue will continue to surface, even after this case concludes,” according to Wallach. “Therefore, it would make sense for the Supreme Court to address this issue now and bring much-needed clarity to the divisive question of whether IGRA’s reach extends to tribal-regulated gaming activities outside of Indian lands rather than let the issue further devolve into a maze of conflicting and contradictory federal rulings.”
But there’s this to add to the mix: the DC Circuit Court of Appeals does not often have its rulings called by the high court.
This is not the first encounter between West Flagler and the high court. Back in October, the Supreme Court denied the parimutuels’ call to stay the DC Circuit ruling to stop the Seminoles from re-kindling sports wagers until the U.S. Supreme Court decides if they will take the case. That is never a good sign.
If Supreme Court justices thought they would take the case, putting the DC Circuit ruling on hold would have made sense.
In denying the stay, Justice Brett Kavanaugh issued a statement that opened up the possibility for other legal challenges of the compact but backed the DC Circuit ruling. However, he brought up equal protection concerns as well.
Justice Brett Kavanaugh said this:
“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,” he said.
The crux of the matter—or one of the two cruxes—is that the 2021 compact agreed that should bets reach servers on tribal land, it falls within the definition of being on the reservation.
A compact agreed to by the Seminole Tribe and Governor Ron DeSantis, which received legislative approval in 2021, permits the Seminoles to accept online sports betting wagers placed statewide as long as the server taking the bets is on Indian lands.
The U.S. Department of Interior, which reviews all compacts between a tribe and state under IGRA, allowed the compact to go through even with the gyrations to do so.
West Flagler sued Haaland, for violating IGRA.
District Court Judge Dabney Friedrich sided with the plaintiff, saying the court cannot accept the fiction that all sports betting occurs at the location of the tribe’s servers.
Haaland appealed the ruling. The DC Circuit Court of Appeals agreed with her.
And it’s been an uphill battle ever since.
The DC Circuit determined that the compact only authorizes the betting that occurs on the tribe’s lands. The online sports betting mentioned in the compact is a separate agreement between the tribe and state that doesn’t fall under IGRA.
Following the U.S. Supreme Court’s denial of a stay, the Seminole Tribe relaunched its Hard Rock Bet app in November and sports betting returned to the state.
Whether the U.S. Supreme Court says yay or nay to hear the case, the three-year saga of West Flagler v. Haaland could soon be over. Of course we heard that before.
