In November 2021, a US District Court judge shuttered the briefly launched Florida sports betting industry.
But a gambling law professor at a Florida university said this was the wrong decision.
And he believes the DC Court of Appeals will reverse the decision. That ruling could come within a couple months, or we might be waiting until the end of 2023. The timeline is up in the air.
The 2021 Florida gaming compact expanded gambling throughout the state. Most notably, it allowed online sports betting in Florida exclusively through the Seminole Tribe’s app.
West Flagler Associates, the ownership group of two Florida pari-mutuel facilities, filed a lawsuit against the compact. Judge Dabney Friedrich ruled that since Floridians can wager from anywhere in the state with an Indian tribe, the deal violated the Indian Gaming Regulatory Act.
Bob Jarvis, a law professor at Nova Southeastern University in Fort Lauderdale, thinks Friedrich butchered the decision.
“I thought she got the law completely wrong,” Jarvis told PlayFL. “I have always said that her decision, her error, will be fixed by the DC Court of Appeals. But if for some reason, the DC Court of Appeals makes the same mistake, the US Supreme Court will fix this problem.”
Friedrich broke from decades of tribal precedent
Gov. Ron DeSantis and the Seminole Tribe negotiated the compact in May 2021.
However, West Flagler didn’t file suit against either DeSantis or the tribe. The owners of Bonita Springs Poker Room and Magic City Casino went after Department of the Interior Secretary Deb Haaland. Haaland approved the compact through inaction in August 2021. As a result, the compact became Florida’s law of the land.
Since the Seminoles are sovereign, suing the tribe is essentially impossible. So West Flagler targeted Haaland and kept the tribe out of the case. They argued Haaland should’ve never approved the compact.
“You have to understand this is a very political case,” Jarvis said. “It has tremendous implications for both Florida and tribes around the country. It really goes against everything that the US Supreme Court has been doing with Native Americans for at least 30 or 40 years.”
Friedrich agreed with West Flagler, citing the IGRA. But a 1985 Supreme Court decision in Montana v. Blackfeet Tribe says that laws dealing with tribal activities are supposed to be interpreted in a way most favorable to tribes.
“IGRA takes the position that if a state and a tribe can agree, well, that really should be the end of the story,” Jarvis said. “Because who knows better than the state what is in the state’s best interest? And who knows better than the tribe what is in the tribe’s best interest?”
The state and the tribe are two sovereign entities. When they agree on a compact, there should be a good reason to block it, Jarvis argued.
Did Friedrich misinterpret the Indian Gaming Regulatory Act?
Friedrich’s reason behind her ruling was the IGRA. In her interpretation of the law, Indian gambling must occur on Indian land. But the compact allowed Floridians to bet from anywhere in the state.
The defendants argued that the servers accepting the bets were on tribal property. Thus, the bets were being placed on Indian land. In her ruling, Friedrich called this defense “fiction.”
Jarvis reiterated that her interpretation of this is almost secondary. Two sovereign entities wanted to make the deal. That should be the end of the discussion, he said.
“Obviously, it’s fiction because I’m sitting in my home on my couch placing a bet and nowhere near a Seminole casino,” he said. “However, the state of Florida was willing to do that deal. The Seminoles were, in fact, very eager to do that deal. So the two sovereigns have decided a bet anywhere in the state constitutes a bet on Indian land because the bet is not considered to have been placed until it is received by the Seminole servers.”
Jarvis expanded on the argument by looking at the history of IGRA.
Certain technology didn’t exist when IGRA was signed into law
“Now, the problem with IGRA is that it was passed in 1988. In 1988, the internet did not exist,” he said.
The problem isn’t specific to IGRA. This conundrum appears in many legal disputes. In these cases, Jarvis said judges are supposed to think about the lawmaker’s intent when the legislation is signed.
This process is what lawyers call an omitted case. It’s a situation that was not foreseen and therefore was not addressed in certain legislation.
“So, if you go back to IGRA in 1988, why was IGRA passed?” Jarvis asked. “IGRA was passed because, in 1987, the US Supreme Court in (California v. Cabazon Band of Mission Indians) said that on Indian land, Indians could pretty much do whatever they wanted, including gambling.”
That ruling scared state lawmakers. They began lobbying Congress to establish a law that would allow states to have some control over the tribes. Consequently, federal lawmakers worked to pass IGRA.
“You have to understand that while tribes and states are on the same footing, Congress sits above both of them,” Jarvis said. “So, Congress can do pretty much whatever it wants to both states and tribes because they are the inferior sovereigns compared to the United States.”
IGRA simply allows tribes and states to create gaming compacts
Some state lawmakers wanted total control over tribal gaming. However, Congress wouldn’t grant states that power and passed IGRA as a compromise.
IGRA forced tribes and states to enter into an agreement, commonly called a compact, to offer Class III gambling.
In other words, lawmakers’ intent of IGRA was for the tribes and states to come to an agreement. The law has nothing to do with where the bets are being placed.
“In order for Friedrich to reach the decision she did, she had to sit there and say, ‘Not only do I read IGRA as preventing off-reservation betting, but I also read IGRA to prevent a state and a tribe from fixing this omitted case, this technological gap that exists because IGRA was passed 35 years ago,’ and she decided to do that,” Jarvis said.
Friedrich could point to California case to back up ruling
While Jarvis argues that IGRA shouldn’t be used to restrict compacts, a Ninth Circuit appeals case commonly called the Desert Rose Bingo case gave Friedrich some ability to make her ruling.
In Desert Rose, a California tribe was prohibited from offering online bingo because bets weren’t taking place on Indian land. But Desert Rose isn’t an apples-to-apples comparison of what happened in Florida.
“The tribe wanted to engage in this fiction while the state of California said, ‘No, absolutely not,’” Jarvis said. “You did not have a meeting of the minds.”
There was no previous agreement to offer this type of betting. Furthermore, the state was against offering it anyway.
By comparison, the Seminole Tribe and the state of Florida agree about the types of gambling allowed. In Jarvis’ words, the Desert Rose case has “no precedental value” when ruling on the Florida situation.
Aside from Desert Rose, Friedrich claims literal interpretation of IGRA
Friedrich didn’t mention Desert Rose in her ruling. Proponents of her decision used it as evidence she was correct.
Friedrich’s argument comes from the literal interpretation of IGRA and her decision to ignore the omitted case. Regardless of her intentions, Jarvis believes that her actions were one of an activist. Not a judge.
“Think about how crazy this is,” Jarvis said. “A person who is elected by no one who does not actually know anything about Florida decided that the people of Florida, who is represented by their government, and the Seminoles, who live in Florida and represented by their government, do not have the power to make a deal that both sides believe will benefit their people. I tend to give judges a lot of deference because I’m a law professor. But there does come a point where a judge acts as a super legislature and that is not the job of a judge.”
How confident is Jarvis that Friedrich will get overturned by an appellate court?
“If I’m wrong and the DC Circuit rules in favor of Friedrich and if the US Supreme Court either doesn’t hear the case or takes it up and affirms, well, I’ll eat my hat,” Jarvis said. “But I’ve always thought that these cases were hopeless and ridiculous.”