The US Department of Interior responded Wednesday to an attempt by a commercial Florida gaming company to stop the Seminole Tribe from relaunching Florida sports betting while the US Supreme Court considers hearing the case.
The DC Circuit US Court of Appeals ruled June 30 that the Department of Interior acted within its authority in allowing the Seminole compact with the state of Florida to proceed under the Indian Gaming Regulatory Act (IGRA). It was the first compact submitted to the DOI to include statewide internet gaming.
The DC Circuit issued its mandate Oct. 6. That day, West Flagler filed an application with the US Supreme Court to recall and stay the mandate while the Florida parimutuel company prepares to petition the high court to take the case.
Last week, Chief Justice John Roberts issued a temporary recall and stay of the mandate pending review of the application.
US Solicitor General Elizabeth Proctor responded to the application on behalf of the Department of Interior. She argued that further stay of the mandate was unwarranted because the Supreme Court was not likely to grant certiorari or reverse the Court of Appeals decision.
Now that the DOI response is in, the Supreme Court could decide on the application at any time. If Roberts declines to hold back the mandate any longer, the Seminoles could feel comfortable with relaunching online sports betting.
Arguments made by DOI/DOJ
An application seeking a stay pending a petition to the Supreme Court must establish:
- A reasonable probability that four of the nine Justices will consider the issue worthy of the Supreme Court’s attention.
- There’s a fair prospect that five of the nine Justice will vote to reverse the DC Circuit ruling.
- Irreparable harm could result from denial of the stay.
In applying for the stay, West Flagler presented questions concerning the compact’s violation of IGRA, the Unlawful Internet Gambling Enforcement Act (UIGEA) and constitutional equal protection. Proctor contended that each of these contentions lack merit.
Regarding the inclusion of gaming off Indian lands in a tribal-state compact, Proctor explained that the Supreme Court’s decision in Michigan v. Bay Mills (2014) established that states have “capacious” authority to regulate “tribal gaming outside Indian territory.”
“If a State can authorize a tribe to conduct gaming operations on non-Indian lands, a State can also authorize the portion of a tribe’s gaming activities that occur on non-Indian lands where the balance of the activities occur on Indian lands.”
Proctor added that the compact does not violate UIGEA because it does not address payment methods that might violate UIGEA.
Responding to equal-protection arguments that the state’s agreement to grant a statewide online sports betting monopoly to the Seminoles constitutes a racial preference, Proctor countered that the Supreme Court has held that actions “providing a preference to Indians” are lawful.
As for the claim of irreparable harm, Proctor pointed out that the applicants waited two years to bring a state-court action, which “fatally undermines their claim to the equitable relief of a stay.”
Seminoles won’t have response
Counsel for the Seminole Tribe submitted notice to the Supreme Court that it would not be responding to the application for the stay.
The stay application listed the tribe as a respondent. Tribal attorneys explained that the Seminoles are not a party to the case. West Flagler sued Secretary of the Interior Deb Haaland alleging that she violated IGRA in approving the compact.
In the lower courts, the tribe’s motion for limited intervention in the case was denied.
The Seminoles said they would gladly file a response should the Court request one from the tribe.
No Casinos org provides input for state case
On Monday, No Casinos provided an amicus brief with the Florida Supreme Court in support of West Flagler’s petition.
Last month, West Flagler filed a petition for writ of quo warranto, a Latin phrase meaning “by what authority.” The petition essentially challenges that Gov. Ron DeSantis exceeded the limits of his authority by agreeing to the Seminole compact.
No Casinos opposes the expansion of gambling in Florida. The interest group is led by John Sowinski, who also chaired the political action committee that backed the 2018 passage of Amendment 3, which required that any expansion of gambling in Florida start with a citizen initiative passed by voters.
The Seminoles also supported Amendment 3, which included a carveout for tribal gaming via compact.
In the amicus brief, No Casinos contended that the carveout was only meant to apply to gaming on tribal lands.
“Sports betting that would take ‘Indian gaming’ off the reservation and into everyone’s hand-held device cannot be squared with the will of the people who voted for Amendment 3, and No Casinos, Inc., would assist the Court in seeing how those policy concerns undergird and support the legal arguments, as set forth in the petition.”