Those in Florida undoubtedly remember the brief glimmer of time when the state had legal and regulated sports betting via a shiny new compact between Governor Ron DeSantis and the Seminole Tribe of Florida.
Sunshine Staters also are likely aware that the new compact has been tied up in litigation since 2022. Because of that, they have not been able to wager legally with Florida sports betting apps since that time.
Across the country, folks who watch the tribal gaming space (or of course, avid readers of LSR) are likely aware that shortly after the State of Washington entered into new compacts with many tribes located within the state, prominent gaming operator Maverick Gaming filed suit, arguing that the new compacts were unfair because they showed favoritism to the tribes in violation of the Fourteenth Amendment. Maverick Gaming was also being represented by Ted Olson of New Jersey sports betting fame.
We are still waiting on both the D.C. Circuit Court of Appeals on the case stemming from the Florida compact, and opening briefs are due next month at the Ninth Circuit Court of Appeals in the case centered on the Washington compacts.
But on June 15, the Supreme Court issued a new decision affirming Congress’s power to craft laws related to Native American Tribes and Child Welfare, when it upheld the Indian Child Welfare Act.
What was tribal case about?
The case at issue centered on the Indian Child Welfare Act, which is a federal law that “that aims to keep Indian children connected to Indian families.” The law applied to cases involving both placing children in foster care and for adoption.
The statute effectively says barring a good reason (at the determination of the government,) preference should be given to placing children in need of foster care or adoption of Native American origin with Native American families or institutions. Under the statute, there is not necessarily a preference for placement within the tribe of the child’s birth, but effectively any Tribe can be prioritized.
However, tribal governments can also pass resolutions altering the prioritization order. The Secretary of the Interior was sued, arguing that the statute violates the anticommandeering doctrine (the same basis for striking down the Professional and Amateur Sports Protection Act), as well as that the law exceeded the Secretary’s ability to delegate authority.
The Supreme Court upholding the law was a significant win for tribal sovereignty and the 7-2 decision showed that the majority of the Court found favor in upholding the law.
But what does this mean for tribal gaming?
On its own, it is certainly difficult to take too much from this decision and predict a potential outcome. However, the decision follows a trend of cases involving matters of tribal sovereignty where this Court has found in favor of decisions that maintain tribal rights.
The Florida compact case and the Washington case both sit pending and we are awaiting a decision from the D.C. Circuit Court of Appeals first, followed by a decision likely in 2024 as to the Washington appeal at the Ninth Circuit should that play out. Both of those cases raise important unresolved questions about the federal government’s ability under the Indian Gaming Regulatory Act (IGRA). The Washington-based case, if the plaintiff gaming operator were to score a resounding victory, could effectively gut IGRA.
In the Florida case, should the South Florida gaming operator who sued the Secretary of the Interior prevail, IGRA could effectively lose much of its ability to raise tribes up economically while promoting sovereignty as online sports betting and online casino would require tribes to enter into agreements outside of the compacting process.
This decision is a signal, though not a guarantee, and follows a trend of several very favorable decisions on matters of tribal sovereignty, that the plaintiff litigants who filed suits in the two different cases may not like their odds should appeals end up before the Supreme Court.
Does this change anything for Florida sports betting?
We cannot predict the outcome of future cases; however, of the two major cases affecting sports betting playing out, it seems that given the arguments that were defeated in the matter involving the Indian Child Welfare Act, the case now playing out in the Ninth Circuit is likely to have troubling precedent to overcome.
The case makes arguments about both anticommandeering and preferencing of tribes over non-tribes, while IGRA and the Indian Child Welfare Act involve distinct statutes the similarity of the arguments raised in an effort to strike them down could face (additional) challenging precedent.
The Florida compact case revolves around slightly different issues, which I think the recent case involving the Indian Child Welfare Act shines less light on and it would therefore be difficult to read too much into its predictive ability.