There is at least one prominent Florida man opposed to the deal to bring legal sports betting to the state.
As potential fans of Florida sports betting hold their breath waiting for the Department of the Interior to review the compact, Miami Beach mayor Dan Gelber is not excited about the potential expansion of gambling in the Sunshine State.
In a story in the Miami Herald, a letter from Gelber to the DOI requests that the federal agency rejects the new compact, and send the Seminole Tribe of Florida and Governor Ron DeSantis back to square one.
What’s in the Florida sports betting story?
The Miami Herald story details the Miami Beach mayor’s objections to the pending compact between the governor and the Seminole Tribe.
The mayor’s concerns center on the potential expansion of casino gambling at the Fountainebleau Hotel and at the Trump Doral property. Gelber argues this expansion via the compact is not in line with what the Indian Gaming Regulatory Act (IGRA) permits and should therefore be rejected by Secretary of the Interior Deb Haaland.
Breaking down the mayor’s letter
The letter dated June 3, 2021, addressed Haaland, and Principal Deputy Assistant Secretary for Indian Affairs Bryan Newland. The letter urges the officials to reject the agreement.
Gelber notes that his objections are both personal and professional, and that while he supports the objectives of IGRA, he argues that this process has been:
hijacked by non-tribal casino interests who fully corrupted the legislative and executive process in order to obtain advantages outside of tribal land and in direct contravention to the interests of Floridians.
Following a brief note to the providing a summary of what was to follow, the letter enters into a background section where it alleges that the closed-door meetings that led to the landmark agreement contained not only the Governor and representatives of the Seminole Tribe but also
representatives of casino interests in my community, including the owners of the Fontainebleau Hotel and the Trump National Doral hotel.
Gelber argues that the state is trying to use an end-run around the 2018 constitutional amendment that required certain gaming expansions to be a question for the voters to answer in a referendum.
Up north for support
The letter moves from the background into an analysis section. The analysis discusses the Supreme Court decision in Michigan v. Bay Mills Indian Community to argue that
Federal decisional law delineating the scope of IGRA focuses on the action of gaming – not the equipment – to define the type of “gaming activity” it regulates.
The argument is that server location is less significant than the bettor’s location.
Going back to Cali
The letter then relies on the Southern District Court of California’s decision in the Iipay Nation case stating:
the phrase “on Indian lands” used in IGRA “was intended to limit gaming to those patrons who participate in the gaming activity while in Indian country” and, therefore, it is the location of the person placing a bet that is “the appropriate measure for determining the situs of gaming activity” under IGRA.
The letter then relies on a 1998 case from the Idaho District Court, AT&T Corp. v. Coeur d’Alene Tribe , latching onto a footnote that seemed to reject the idea that the term “gaming activity” could be defined by a contract.
Letters on letters
To further buttress his argument that IGRA does not support the conduct agreed upon in the compact, the Mayor also cited a March 13, 2001 letter from the General Counsel for the National Indian Gaming Commission (NIGC) arguing that IGRA does not permit the offering of a game to people off tribal lands.
The second letter cited is from is dated June 22, 1999, and is from the Chairman of the NIGC, stating that the extent to which the National Indian Lottery included off-reservation gambling was not compatible with IGRA.
Still more evidence?
The letter also cites an amicus brief from the AT&T case where the federal government reportedly argued:
that ‘gambling’ occurs ‘in both the location from which a bet . . . is tendered and the location in which the bet is accepted or received.’
The letter then concludes its evidence presentation by highlighting the Representative Brindisi legislation from several years ago, which would have permitted mobile wagering, but was ultimately not considered by Congress.
Other areas of federal law too?
The letter then continues by arguing that the proposed compact may violate other areas of federal law including the Wire Act, the Johnson Act, and the Unlawful Internet Gambling Enforcement Act.
The letter’s analysis of these potential violations, however, is far less substantial than the part A analysis.
The letter then circles back to arguing that the compact would facilitate expanded casino gambling in violation of the spirit of Amendment 3 which passed with substantial support in 2018.
How big is this for sports betting in Florida?
Judging the impact of this letter is a bit like trying to predict the weather a year from now.
The letter concludes by arguing that there is no ambiguity in IGRA that all gambling must be conducted “on Indian lands.” The million-dollar question, however, is where does a bet get placed, where the server is or where the bettor is.
We will have a good idea of where the Department of the Interior currently stands on the issue before the middle of July when the 45-day window for review expires.