The Seminole Tribe in Florida is awaiting a decision from the DC Circuit Court of Appeals that is unlikely to end the standoff over Florida sports betting. The disagreement over Florida’s tribal-state gaming compact’s legality could snowball into a US Supreme Court case that could reshape tribal gaming across the US.
Florida Gov. Ron DeSantis signed a tribal-state compact in 2021 that allowed the Seminole Tribe to offer online sports betting in Florida on and off tribal land. West Flagler Associates and its various gaming entities sued to block the tribal-state compact. The District Court for the District of Columbia ruled against the Seminoles. A three-judge Court of Appeals panel has heard oral arguments, and all parties await a decision.
The likely trajectory for the case is an appeal for rehearing before the full Circuit Court before applying to be heard before the Supreme Court. A Supreme Court ruling has a strong chance of going against the Seminoles and upholding the District Court’s decision. According to Florida sports betting lawyer Daniel Wallach, such a ruling would mean “no sports betting in Florida and [tribal-state] compacts can only include authorization for brick and mortar gambling taking place on Indian lands only. And for internet-based gambling to be authorized for tribal governments, they would have to secure licenses from the state.”
However, there’s a possibility the Supreme Court rules in favor of the tribe and reverses the District Court’s decision. Florida constitutional law and gambling law professor Robert Jarvis predicts the Supreme Court will hear the case and reverse the District Court’s decision, ruling in favor of the Seminoles. That would affirm the Seminole’s right to offer online sports betting to customers off-reservation and provide a blueprint for other tribes who want to offer online sports betting.
How Florida sports betting fell apart
Since the Seminole Tribe operated its first high-stakes bingo hall in the early 1980s, US courts have consistently recognized Native American tribes’ rights to operate gambling on their own land with their own regulations.
In 1981, the Fifth Circuit Court of Appeals ruled that the Seminoles had the right to offer bingo on their reservations. In 1987, the Cabazon Tribe in California faced a similar lawsuit that went to the Supreme Court. The resulting Cabazon decision affirmed the tribe’s right to offer gambling on its own land with its own regulations.
While these lawsuits were occurring, Congress took notice of the tribal monopoly on gambling. By the time the Indian Gaming Regulatory Act (IGRA) passed in 1988, “Congress had already been looking at this issue for years and [the policy effort] was really headed up by Mo Udall,” Jarvis said. “So they were pretty much ready to go, and the Cabazon decision gave [Congress] the impetus to finally get it done.”
IGRA broke gambling down into three classes. Tribes can offer Class I and Class II gambling without state permission. Class III gambling, which includes Vegas-style casino gambling, requires state approval. IGRA requires tribes and states to form tribal-state compacts agreeing on the forms of Class III gambling that tribes can offer. Those compacts are then sent to the US Secretary of the Interior for approval.
IGRA gave states a greater say in gambling on tribal reservations but still allowed tribes to build casinos and profit from them. However, there was a significant innovation unavailable in 1988 that has changed the gambling landscape for tribal and commercial companies alike.
IGRA’s silence on internet gambling
The internet was invented in 1983, but it wasn’t applicable for anything outside of research institutions until the early 1990s. Mobile apps became crucial pieces of software once Steve Jobs released the first iPhone in 2007. Little did IGRA’s authors know how great a technological transformation was just out of their sight.
“The law, any law, is always behind technological innovations,” Jarvis said.
Jarvis argues that lawmakers’ inability to see the future necessitates a form of analysis called omitted case analysis.
“An omitted case is a situation where a law did not anticipate a subsequent change, and a court now has to say, ‘Well, if the legislators who passed this law would have been able to have a crystal ball and anticipate this change, what would they have done?’ ” Jarvis said.
Under this type of analysis, a judge could speculate about the intentions of 1988 legislators in voting in favor of IGRA. A lawmaker who wanted to either give Native American tribes a way to lift themselves out of poverty or reduce federal subsidies paid to tribes may have favored a reading of IGRA that allowed the tribes to accept online wagers from bettors located on non-tribal land to further IGRA’s goals.
“The net effect is the same,” Jarvis said. “The bet is being played at the tribe’s casino. The only difference is the player is sitting on his couch instead of driving over to the tribal casino and placing the bet in person.”
Drawing online boundaries around tribal reservations
Wallach interprets placing wagers outside of tribal land as the type of gambling IGRA does not support.
“[IGRA] applies only to gaming on Indian lands, and the compact included boatloads of gaming that took place off of Indian lands in the form of online sports betting,” Wallach said.
IGRA has always prohibited gamblers from placing wagers from outside of tribal lands. So, a reading of IGRA that prohibited bettors from placing wagers outside of tribal lands would be consistent with the historical understanding of the federal law, too.
One of the questions that the Circuit Court and likely the Supreme Court will have to answer is what counts as the location of the wager. One interpretation holds that it’s the server location because that’s where the bet is processed. The other holds that the wager location is the location of the bettor who places the wager.
IGRA is silent on this issue because there was no widespread internet use when it was written, so the omitted case analysis Jarvis advocates for is applicable. Allowing bets to be placed off-reservation would be a new interpretation of IGRA. Still, there would be a reasonable legal theory supporting that reading because of the transformative nature of the internet and the legal system’s requirement to adapt to it.
It now falls to the courts to decide whether the legislative intent of IGRA or its text is more important.
What the DC Circuit Court will decide
The tribal-state compact that DeSantis negotiated with the Seminoles in 2021 allowed the tribe to partner with a sportsbook company and accept wagers from across the state of Florida. The primary plaintiffs, West Flagler Associates, filed two lawsuits:
- West Flagler Associates v. Interior Secretary Deb Haaland: The case filed in the DC District Court and awaiting judgment from the DC Circuit court;
- West Flagler Associates et al v. DeSantis et al: This was filed and dismissed in the Florida Northern District.
Jarvis cites these filings as evidence of West Flagler’s “forum shopping,” in which a party files in different courts hoping for a favorable ruling from one of several courts. West Flagler found its champion in District Judge Dabney Friedrich in the DC District Court.
Her take was that IGRA did not cover internet gaming that accepted bets off-reservation because the law made no mention of internet gaming. The Circuit Court must decide whether to affirm or reverse Friedrich’s decision.
In either case, the losing party will likely go the route of Murphy v. NCAA, the Supreme Court case that led to the Professional and Amateur Sports Protection Act’s repeal and the spread of sports betting state-by-state.
“In Murphy vs. NCAA, the state of New Jersey sought rehearing en blanc before a three-judge panel and then … after the rehearing occurred, New Jersey lost again,” Wallach said. “Their final option was to pursue … cert relief before the United States Supreme Court.”
The parties that lose in this case will likely take a similar trajectory. The non-prevailing party will seek a rehearing in front of the full Circuit Court, and the non-prevailing party in the rehearing will likely file to be heard in front of the Supreme Court.
Possible Supreme Court cases over Florida sports betting
The Supreme Court operates differently than the courts below it. It can choose to hear a case or not, affirming an appellate decision by default.
It can also hear arguments about specific points within a case rather than an entire case. For example, the Supreme Court could hypothetically hear a case regarding whether IGRA allows online gambling statewide and ignore any questions about the Secretary of the Interior’s powers of compact approval.
The Supreme Court can also choose to hear a question that a lawsuit hasn’t raised, though that seems unlikely in this case.
With such power to shape the case, it’s more pertinent to ask what the most important questions the Supreme Court must answer. The question most needing clarification is whether IGRA authorizes the hub-and-spoke model of tribal gambling, which allows statewide bets if the servers are contained on tribal land. This question is the most likely to attract the Court’s attention because of the national nature of the case.
Why the Supreme Court would hear the Seminole case
The Seminole Tribe’s case affects every Native American tribe that wants to offer online gambling. If the Supreme Court upholds the District Court’s ruling, then no tribe could negotiate a gaming compact that included online gambling to bettors off-reservation. A Supreme Court ruling that favored the tribes would expand the reach of tribal sportsbooks in the US.
The stakes are high. Tribal gambling has transformed tribal reservation life. Some tribes developed new housing and broke employment records. Others donated to other tribes that couldn’t build profitable gambling economies.
Prohibiting online sports betting may not destroy tribal revenue streams alone. Instead, it would prevent tribes from profiting from online casino gaming, which is live in a handful of states and is expected to be the next set of markets that gambling companies want to lobby open. Although those markets would open at a slower rate than sports betting, cutting tribes out of much of the online casino market would be damaging.
Gambling profits go to tribal services to improve reservation life. They also go toward lobbying efforts that give tribes political influence. Reducing tribal gambling revenues would also dilute tribal political influence, damaging the tribes’ abilities to lobby Congress for federal aid that’s still required to catch up with centuries of adverse policy decisions and human rights violations.
The lack of clarity in IGRA about mobile sports betting off-reservation has implications for most states and all the tribes residing in them. The national impact is the kind of case that the Supreme Court would be inclined to hear.
How would the Supreme Court rule?
While the Supreme Court could interpret IGRA’s text literally and decide that IGRA does not allow tribal-state compacts that include online gambling outside of tribal lands, there are compelling reasons to think the Seminole Tribe could win at the Supreme Court.
One is the Blackfeet presumption. Montana v. Blackfeet Tribe was a 1985 Supreme Court case that, in part, established the precedent that when the courts are tasked with interpreting statutes that affect Native Americans, the statutes should be interpreted “liberally in favor of the Indians.”
“What is the way that is most favorable to the tribes?” Jarvis asked. “Give them remote sports betting.”
The conservative supermajority on the Court includes respect for Native rights. Justice Neil Gorsuch, for example, has a history of defending Native rights, including his opposition to dismantling the Indian Child Welfare Act in a case argued to the Court in November 2022. When the Court upheld the Indian Child Welfare Act, Gorsuch and Justice Brett Kavanaugh were part of the 7-2 majority.
“Even [Brett Kavanaugh and Neil Gorsuch] have been very supportive of the Blackfeet presumption and the support for Indian tribes,” Jarvis said.
However, the Blackfeet presumption is a precedent. It can also be overthrown or ignored under a novel pretext. The Seminole Tribe has several important factors in its favor at the Supreme Court level, but none guarantee victory. Chief Justice John Roberts’ Court also has a pro-business stance, and the impact on commercial gambling could sway the Court to rule against the Seminoles.
Options beyond the Supreme Court
Now that a case arguing that a Florida law, the tribal-state compact, violates a federal law, Florida voters can’t circumvent the issue with a ballot initiative. The question of whether IGRA prohibited remote sports betting would still lead to legal problems.
Further, sports betting isn’t prohibited by the state Constitution as groups such as No Casinos have claimed.
“The Florida Constitution defines gambling very narrowly, in my view, as consisting of the types of games typically found in casinos as of the date of the adoption of the amendment, which was in November of 2018,” Wallach said.
Sportsbooks weren’t typically found in casinos in 2018, and Article X, Section 30 of the Florida Constitution includes a clause exempting tribal-state compacts under IGRA from the conditions anyway.
The Seminoles and Disney were also by far and away the largest contributors to the Amendment 3 campaign, which added Article X, Section 30 to the state Constitution. They donated over $20 million each. No Casinos, which was called the “driving force” behind the campaign, contributed over $810,000. The Seminoles backed Amendment 3 because it prevented competition from entering Florida without limiting its ability to expand its own gambling. The tribe wouldn’t have poured so much money into that campaign if it harmed its ability to negotiate under IGRA.
The final alternative is a congressional amendment to IGRA that allows remote betting. It would require a simple majority to pass through Congress, but that could still be difficult to pass. Jarvis believes the bipartisanship that got IGRA through Congress in 1988 still exists on tribal gambling issues. However, the partisan divide is deeper today than in 1988, and it would be easy to overestimate the prospects of a congressional amendment.
A Supreme Court decision would be the most reliable remedy to the Florida sports betting question and the viability of the hub-and-spoke model nationally.
