The appeals process in the Florida sports betting lawsuit could have implications on tribes outside of Florida.
At least that’s what a large group of federally recognized tribes is arguing.
The National Indian Gaming Association, the United South and Eastern Tribes Sovereignty Protection Fund, the California Nations Indian Gaming Association, the Arizona Indian Gaming Association and several federally recognized tribes filed an amicus brief with the D.C. Court of Appeals last week.
In the filing, the tribes claim that if the District Court decision isn’t overturned, tribal gaming interests nationwide will suffer.
Last November, Judge Dabney Friedrich invalidated the 2021 Florida gaming compact. Her ruling stated that the ‘hub-and-spoke’ model used for Florida sports betting violated the Indian Gaming Regulatory Act.
However, the tribes claim that her interpretation of the IGRA will be used to limit sovereignty in upcoming disputes.
What is an amicus brief?
An amicus brief is a filing by groups with similar interests to the case. However, they aren’t technically part of the case at hand.
These briefs are supposed to be persuasive. They also add relevant information that was left out of the original filings. These briefs are not part of the scheduled filings and are typically a somewhat last-minute addition by other parties.
As stated by the legal team for these tribal groups:
“This brief provides this court with additional background and argument in addition, and not repetitive of, the arguments made in the Opening Brief of Federal Appellants.”
The Department of the Interior and the Seminole Tribe of Florida filed opening briefs on Aug. 17. The initial District Court lawsuit only had the DOI listed as a defendant. Therefore, the Tribe’s opening brief in the appeal was an attempt to become a relevant party in the case.
If the Seminoles become a defendant, they can expect a favorable ruling from the appellate court.
A closer look at who filed the brief
120 federally recognized tribes with gaming enterprises make up NIGA. The USET SPF is a non-profit organization that represents 33 tribes with gaming interests.
CNIGA represents 42 California tribes and the AIGA is a non-profit representing 8 Arizona tribes with gambling interests.
There were 10 other tribes that added to the brief:
- Confederated Tribes of Siletz Indians
- Coquille Indian Tribe
- Estom Yumeka Maidu Tribe of the Enterprise Rancheria
- Guidiville Rancheria of California
- Redding Rancheria
- Rincon Band of Luiseno Indians
- Tunica-Biloxi Tribe of Louisiana
- Wampanoag Tribe of Gay Head
- Wilton Rancheria
- Yuhaaviatam of San Manuel Nation
Florida’s Seminole Tribe is a member of both NIGA and USET SPF. But the groups said in the filing that a combined amicus brief including the Seminoles was not practical.
A deeper look at the Florida gambling arguments
The tribes’ central point is based upon the interpretation of the IGRA. They say the IGRA intended for tribes to offer all forms of gambling. It’s the same argument a gaming attorney made last July at the National Council of Legislators from Gaming States.
The tribes cited the expansion of online sports betting in the country. Additionally, it said the industry is worth anywhere between $80 billion and $380 billion in annual revenue. These groups worry that if the district court decision holds up, it threatens to exclude tribes from the emerging market.
The brief shows examples of compacts negotiated between tribes and states and eventually approved by the DOI, that allowed for betting off of tribal lands. Furthermore, they cited several court cases that showed tribes have authority over their gaming activity.
The case cited most often was California v. Cabazon Band of Indians. The ruling said states cannot interfere with tribal governance of gaming activity.
“Indian Tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity does not, as a matter of criminal and public policy, prohibit such gaming activity.”
The groups added that Florida changed its state law to allow for a previously prohibited activity. From the groups’ point of view, that’s enough to allow the compact.
West Flagler makes a poor judgment on the IGRA
West Flagler’s legal team argued the IGRA doesn’t allow for a state to give tribes exclusive rights over an activity. But the amicus brief once again cited several cases to argue against that claim.
They referenced Flynt v. California Gambling Control Commission. The 2002 ruling said that Larry Flynt, owner of the popular Hustler Casino in Los Angeles, challenged the compacts between 62 native tribes and the state.
Flynt argued that the agreements violated the IGRA, but the judge ruled in favor of the tribes.
Aside from the lengthy IGRA-based argument, the tribes laid out three other reasons for filing the brief:
- Statewide internet sports betting is soon to be allowed almost anywhere throughout this country, except for a few isolated states.
- Since the passage of the IGRA, compacts have frequently and commonly been approved for games where critical elements of the game occur off Indian Lands.
- The appeals court could give a very specific ruling that upholds the District Court ruling, but also states that IGRA is not used to prevent tribes from operating statewide internet sports betting.
What effect will this have on the court?
It’s tough to say. Anyone saying otherwise either knows one of the appellate judges personally or is just lying to you.
On the bright side, the Seminole Tribe didn’t use any of these arguments in its filing. Giving the judges new information shouldn’t hurt the case for a reversal. But to try and gauge to what extent it is or could help is borderline impossible.
The DOI has until Oct. 3 to file an answering brief. West Flagler must have its own answering brief submitted by Oct. 6.
Experts believe judges won’t decide on this case until 2023.