An Indian law attorney doesn’t believe the United States District Court in Washington, D.C., ruled correctly in vacating the Seminole compact with the state of Florida.
Speaking on a tribal panel at July’s National Council of Legislators from Gaming States conference in Boston, Derril B. Jordan explained why he thought Judge Dabney Friedrich erred in her ruling that the Florida online sports betting model violated the Indian Gaming Regulatory Act (IGRA).
“I won’t say the case was poorly reasoned, but it was result-oriented and very well-reasoned if that’s the result you wanted,” Jordan said. “But I don’t think that’s the only way the case could have come out. And I don’t think it should have come out that way.”
U.S. Secretary of the Interior Deb Haaland appealed the ruling in West Flagler Associates vs. Haaland. The DOI and the Seminole Tribe must submit opening briefs to the D.C. Circuit Court of Appeals by Aug. 17.
Jordan’s experience in Indian law
Jordan is a member of the Mattaponi tribe of Virginia. He has more than three decades of legal service to Indian Country.
He has been in-house counsel to three tribes. They are the Saginaw Chippewa Tribe in Michigan, Seneca Nation in New York and Quinault Indian Nation in Washington.
Jordan also served as a presidential appointee in the Department of the Interior’s Office of the Solicitor. There, he was the top lawyer for the Division of Indian Affairs.
He now is on the Indian law team at Maglio Christopher & Toale Law Firm.
Where District Court erred on Seminole compact
Under IGRA, all gambling authorized by state compacts has to take place on tribal lands. The compact with the Seminole included statewide Florida online sports betting by contending that these wagers took place at the server’s location.
The court referred to this as legal fiction. As a result of the verdict, the Seminole ceased offering Florida online sports betting through its Hard Rock Sportsbook app just three weeks after launching.
As someone who practiced Indian law since before Congress passed IGRA, Jordan asserts there are canons of Indian law.
“These canons of Indian law say that when treaties and laws are passed for the benefit of Indians, they should not be construed against them,” Jordan said. “That ambiguity should be construed in their favor. That’s pretty much the bottom line.”
Jordan believes this case is an example of where tribes should get the benefit of the doubt.
“IGRA is legislation passed for the benefit of Indians, and the dictionary definition of ambiguous is when there are two equally plausible definitions. When you take online gaming, you’ve got someone here placing a bet and the bet is not really actually placed until it is received at the server. So one could argue, as the Interior did, that the gaming is really taking place in both places. … If there is an ambiguity and there’s two plausible explanations, I think the tribes generally should get the benefit of the doubt that as long as the server is on tribal lands, it’s gaming under IGRA and it’s legal under IGRA. That’s the way I believe this case should have come out.”
Daniel Wallach, a gaming attorney who watched the panel, disagreed with Jordan. He tweeted that there were no ambiguities, that IGRA defined “Indian lands” and the Supreme Court defined “gaming activity.”
Why the Department of Interior allowed compact through
A year ago, the Department of Interior approved the compact through inaction. So why would the federal agency tasked with evaluating compacts under IGRA allow a compact the court ruled violated IGRA?
Jordan said there were three policy reasons why the Interior didn’t have a problem with the method:
- It was a novel matter. The first time the Interior received a compact including online sports betting under IGRA. Interior said the pursuit of mobile wagering aligned with public policy. And that technology shouldn’t be an impediment to tribes participating in the gaming industry.
- New York, New Jersey and other states had used similar language putting the wager placement at the server’s location.
- Online regulation of wagering is directly related to gaming on the reservation, making it a permissible subject to be negotiated between state and tribe in a compact.
Seminole decision will affect all tribes wanting iGaming
There are 11 federal circuit courts. One circuit court’s ruling is not the law of the land until the Supreme Court eventually decides.
But in the case of tribal compacts, the compact goes through the Department of Interior. Jordan said that anytime someone wants to challenge a compact approved by the Secretary of Interior, they will sue in the D.C. circuit. The location of the tribe or state doesn’t matter.
“If this becomes the precedent in the D.C. Circuit, it means tribes will be effectively shut off from being able to be involved in online gaming in any meaningful way,” Jordan said.
To participate in online gaming, tribes must enter into commercial arrangements with the state. They did this with mobile sports betting in Arizona, Connecticut and Michigan.
Jordan argued that states with tribes that pursue online gaming under state law rather than IGRA should automatically grant all tribes a license. In Arizona, only 10 of 22 tribes got mobile sports wagering licenses.
“Tribes in the state should not have to compete for licenses,” Jordan said. “They should be granted licenses under the state law. Otherwise, if this ruling stands, there’s really no way that tribes will be able to participate in online gaming. As the court noted and the Interior Secretary noted, IGRA was passed before any of us ever uttered the word ‘internet.’”