In mid-August, the legal team for the Seminole Tribe of Florida had an incredibly busy week.
In just seven days, the tribe filed two briefs in the legal battles related to the 2021 Florida gaming compact. While the court cases are about the compact’s legality, they will, more importantly, decide the fate of Florida sports betting.
The tribe is appealing the D.C. District Court’s decision barring their intervention in the original case. Additionally, it filed an amicus curiae, or friend of the court brief, that argues in favor of the federal government.
The Department of the Interior, which is the agency responsible for approving the deal and listed as the defendant, filed a brief on the same day arguing to overturn the District Court decision that invalidated the compact.
Differences between the two briefs
The briefs address distinctly different issues. The tribe is currently on the outside looking in. Even though they are clearly affected by the decision, they are not listed as defendants in the case.
West Flagler Associates, the ownership group of pari-mutuels that filed suit over the compact, went after DOI Secretary Deb Haaland. They decided to sue the agency that approved the deal, rather than the group that benefitted from it.
The tribe hopes the D.C. Court of Appeals will allow them to intervene. Becoming a relevant party would almost certainly allow them to get the case dismissed. Since the Seminole Tribe is technically a sovereign nation, it’s basically impossible to sue them.
However, advocates for legal sports betting could have a more direct path to victory if the federal government can prevail without the court needing to dig very deep into the tribe’s intervention arguments.
Digging into the Seminoles’ opening brief
In the tribe’s first brief filed as an appellant, it sought a reversal of the District Court ruling that said the Seminoles were not an indispensable party under Rule 19(b) of the Federal Rules of Civil Procedure.
The District Court judge cited factors enumerated in the rule and said it could proceed without the tribe in the interest of “equity and good conscience.” But the Seminole Tribe disagrees.
The basis for the Seminoles’ argument is that the lower court didn’t correctly weigh the tribe’s sovereign immunity. It cites various precedents for the proposition that the tribe’s sovereign immunity is of paramount importance. Thus, it should’ve been afforded greater weight.
The tribe also contended that the federal government failed to adequately represent the tribe’s interests. This included the tribe’s sovereign immunity interests.
Lawyers for the Seminole Tribe cited the DOI’s failure to raise arguments the tribe would’ve raised themselves. Indeed, the tribe’s brief cites repeated instances where the District Court chastised the agency for its “failure to engage on the merits in this litigation.”
They further alleged that when the DOI did engage, it failed to make essential arguments. This included arguing that violative aspects of the gaming compact could be severed.
Can this argument work?
It’s unknown how persuasive this argument will be. The District Court highlighted the deficiencies in presenting the government’s case. However, there is a possibility the appellate court will find the tribe is looking for a second kick at the can.
That thought wouldn’t be far off the mark. As the tribe noted exactly that in the motion.
The Seminole Tribe of Florida used Rule 24(a) of the Federal Rules of Civil Procedure as its justification for intervention. It is using it for the limited purpose of filing a Motion to Dismiss.
This was a very limited motion. The tribe’s argument about the inadequacy of representation focused on divergent interests. Additionally, it cited the government’s inability to represent the tribe’s economic interests.
Parties are not able to advance new arguments at the Court of Appeals. Therefore, the judges will deny the motion the tribe departed from the argued reasons in the District Court case.
The Seminole Tribe’s amicus brief
In their second filing in seven days, the Seminole Tribe helped other tribal groups file an amicus curiae brief.
The National Indian Gaming Association’s filed the brief exactly one week after the Seminoles submitted its first piece of paperwork to the court.
NIGA’s brief noted that NIGA and the Seminole Tribe consulted each other and considered filing a single brief. But the two groups concluded the Seminoles’ issues were unique to the issues raised in the NIGA filing.
Amicus brief is “playing nice”
The appellant’s brief highlighted the federal government’s failures. But the amicus curiae brief had a much more supportive tone.
The tribe’s first “argument” is that the 2021 compact was a landmark achievement that ended years of disagreement. It’s essentially an argument of policy.
The claim is that if tribes aren’t allowed to enter the online gaming market, they risk being left behind. As a result, all the economic benefits of the Indian Gaming Regulatory Act will be lost.
The argument is clear as mud
The filing argues that online sports betting was “clearly” authorized by the IGRA.
However, this is up for debate. There is plenty of skepticism about whether the IGRA permits online wagering. Some are in the camp that the IGRA effectively allows anything that the tribes and state agree to. But it’s certainly up for debate among legal minds.
In the brief, the tribes argue that the compact doesn’t try to avoid state law by deeming a bet to occur on tribal land. Instead, they argue the compact authorizes sports betting because most of the transaction takes place on tribal land.
All the cases involving online gaming are bad comparisons
The tribes cited cases where tribes attempted to offer online gaming only to be shut down by the state. In all of these instances was not authorized by state law.
This is true. However, there is hardly a long line of these cases.
Main takeaways from these two briefs
It is difficult to judge how effective amicus briefs are in general. Interestingly, the Seminole Tribe’s efforts to back the federal government’s case may be the most expedient path to resolve this case favorably.
The appeal over the denial of the motion to intervene could result in a remand back to the District Court. At that point, the case could be dismissed.
However, if the Court of Appeals decides the IGRA permits online sports wagering would be the preferred option. The rest of the tribal gaming community would prefer a narrow decision.