SUMMARY

After three long years, the Seminole Tribe of Florida, a leader in the fight for Tribal gaming rights, appears to have just won its latest battle – this one over a Tribe’s ability to offer mobile sports betting throughout the State via servers located on Indian land. 

The Seminole compact model may give Tribes in other states like Arizona, New Mexico, and California additional options as they too consider modernizing the gaming industries within their states.   

THE CASE

On Monday, June 17, 2024, the U.S. Supreme Court denied cert in West Flagler Associates v. Haaland, leaving in place the appellate court’s opinion that upheld the approval of the Seminole Tribe’s gaming compact with the State of Florida.

In 2021, the Seminole Tribe entered a gaming compact with the state of Florida that facilitates the Seminole Tribe offering statewide mobile sports wagering by deeming wagers placed throughout Florida to take place at the site of servers on Seminole lands. In November 2021, a United States District Court invalidated the compact finding that statewide mobile wagering was not permissible under the Indian Gaming Regulatory Act (“IGRA”).

In June 2023, the United States Court of Appeals for the District of Columbia overturned the District Court and upheld the validity of the Seminole Compact by determining that the compact only authorized the activities occurring on Seminole land and simply addressed activities authorized by state law on state land. All of these activities were permissible topics of negotiation, the appeals court reasoned, because they are directly related to the operation of gaming activities pursuant to IGRA.

The case was appealed to the U.S. Supreme Court where Chief Justice John Roberts initially granted a motion to stay, but after subsequently polling the Court, all but Justice Brett Kavanaugh voted against the stay. That allowed the mobile sports wagering provisions of the Seminole Compact to go into effect, at least temporarily, while additional state law filings made their way through the Florida court process.

The decision to formally deny West Flagler’s cert petition means the Supreme Court will not hear the case, which leaves in place the June 2023 D.C. Circuit decision.

Throughout this time, the U.S. Department of the Interior was also revising the regulations that govern the review and approval of Tribal-State gaming compacts (the “Part 293 Regulations”). The Department issued the final rule on February 16, 2024, which clarified that compacts may include provisions addressing statewide remote wagering, including provisions allocating State and Tribal jurisdiction for regulatory purposes, so long as:

• It does not alter otherwise applicable federal law;
• State law and the compact or compact amendment deem the gaming to take place, for the purposes of State and Tribal law, on the Tribe’s Indian lands where the server accepting the wager is located;
• The Tribe regulates the gaming; and
• The player initiating the wager is not located on another Tribe’s Indian lands within the State unless that Tribe has lawfully consented.

Elsewhere across the country Tribes have accessed state mobile wagering markets by negotiating a “state-law model” or hybrid model whereby the Tribes operate on state land as a state licensed and regulated entity. The decision provides an additional “hub-and-spoke model” for Tribes to access statewide markets by negotiating with States to deem wagers to take place at the location of the gaming servers.

The Seminole compact model may give Tribes in states like Arizona, New Mexico, and California additional options as they consider modernizing the gaming industries within their states while ensuring the substantial investments the Tribes have already made will continue to benefit their Tribal members and people within those states. Tribal leaders seeking to benefit their members using a “hub-and-spoke model” should continue to focus on the important roles of state law and careful compact negotiation, as well as the continued threats to tribal gaming on equal protection grounds.