A Florida pari-mutuel company is asking the US Supreme Court to take a look at the legality of the Seminole Tribe’s gaming compact with the state of Florida.
West Flagler filed a writ of certiorari on Thursday requesting that the nation’s highest court review the case West Flagler v. Haaland, which questions the Department of Interior’s allowing a tribal compact under the Indian Gaming Regulatory Act (IGRA) to contain online sports betting off Indian lands.
Thursday was the deadline for filing the cert petition on the case, which began in 2021 after the Seminole Tribe and state of Florida executed a gaming compact under IGRA to provide the tribe with statewide exclusivity on online sports betting.
According to the petition:
“As different jurisdictions make different decisions regarding the legality of sports betting, it is critical that this Court not allow the unlawful approach taken by Florida to become a model, or for the D.C. Circuit decision to create confusing and misleading precedent.”
Details of Supreme Court petition
West Flagler, represented by attorney Hamish Hume, presents the following three questions to the US Supreme Court:
- Whether IGRA authorizes the approval of a compact that purports to allow for an online sports gambling monopoly throughout the state and off Indian lands.
- Whether an IGRA compact violates the Unlawful Internet Gambling Enforcement Act if it provides for internet sports betting that is unlawful where many of the bets are placed.
- Whether the secretary’s approval of a tribal-state compact violates equal protection principles where it provides a specific tribe with a monopoly on online sports gaming off tribal lands, while state law makes that conduct a felony for everyone else.
Arguments made to grant cert petition
West Flager’s reasons for granting the petition focus on three areas:
- IGRA does not authorize the approval of a compact that provides a statewide tribal monopoly over online sports gambling.
IGRA only authorizes the secretary “to approve any Tribal-State compact entered into between an Indian tribe and a State governing gaming on Indian lands.”
West Flagler argues that the DC Circuit opinion conflicts with the plain text of IGRA, the US Supreme Court’s decision in Michigan v. Bay Mills and other circuit court decisions limiting IGRA to gaming activity on Indian lands.
The petition contends that the DC Circuit opinion creates uncertainty in the law by improperly holding there are two different kinds of IGRA approvals.
- The DC Circuit’s analysis of the Unlawful Internet Gambling Enforcement Act (UIGEA) conflicts with a Ninth Circuit interpretation California v. Iipay Nation.
The Ninth Circuit held that a tribe offering online bingo off Indian lands was in violation of UIGEA.
- The case raises an important national issue regarding the constitutionality of granting a statewide gambling monopoly to an Indian tribe.
West Flagler argues that the court should grant certiorari to ensure clarity in the law regarding the scope of IGRA and UIGEA, and to make clear that providing a statewide gambling monopoly to an Indian tribe while making the conduct a felony for all others is in violation of the Equal Protections Clause in the Constitution.
Supreme Court unlikely to take case Seminole compact case
The US Supreme Court only hears about 70-to-80 cases a year, fewer than 2% of the petitions it receives.
Whether the court takes a case is up to the discretion of its members. Four of nine Supreme Court justices must decide to grant the petition.
Reasons the court typically grant cert include to harmonize conflicting decisions in federal circuit courts or that the case could have national significance. Florida-based gaming and sports attorney Daniel Wallach previously told PlayUSA that he believes this case qualifies on both grounds and has a better chance of getting the Supreme Court’s attention than usual.
“The issue will continue to surface — even after this case concludes,” according to Wallach. “Therefore, it would make sense for the Supreme Court to address this issue now and bring much-needed clarity to the divisive question of whether IGRA’s reach extends to tribal-regulated gaming activities outside of Indian lands rather than let the issue further devolve into a maze of conflicting and contradictory federal rulings.”
However, the DC Circuit, sometimes referred to as the junior Supreme Court, doesn’t often have opinions challenged by the higher court.
In October, the US Supreme Court denied West Flager’s request to recall and stay the DC Circuit ruling to prevent the Seminoles from relaunching online sports betting until the Supreme Court decides whether to take the case.
The denial of stay isn’t a good sign for the petition. If Supreme Court justices thought they would take the case, putting the DC Circuit ruling on hold would have made sense.
In denying the stay, Justice Brett Kavanaugh issued a statement that opened up the possibility for other legal challenges of the compact but backed the DC Circuit ruling. However, he brought up equal protection concerns. Kavanaugh wrote:
“I agree that the stay application should be denied in light of the D.C. Circuit’s pronouncement that the compact between Florida and the Seminole Tribe authorizes the Tribe to conduct only on-reservation gaming operations, and not off-reservation gaming operations.”
How legal challenge of Seminole compact reached this point
A compact agreed to by the Seminole Tribe and Gov. Ron DeSantis, which received legislative approval in 2021, permits the Seminoles to accept online sports betting wagers placed statewide as long as the server taking the bets is on Indian lands.
The US Department of Interior, which reviews all compacts between a tribe and state under IGRA, allowed the compact to go through.
West Flagler sued US Secretary of Interior Deb Haaland, saying she erred in allowing a gaming compact including online sports betting under the Indian Gaming Regulatory Act. IGRA may only authorize gaming conducted on Indian lands.
District Court Judge Dabney Friedrich agreed with the plaintiff, saying the court cannot accept the fiction that all sports betting occurs at the location of the tribe’s servers.
Haaland appealed the ruling. The DC Circuit US Court of Appeals overturned the lower court’s decision.
The DC Circuit determined that the compact only authorizes the betting that occurs on the tribe’s lands. The online sports betting mentioned in the compact is a separate agreement between the tribe and state that doesn’t fall under IGRA.
Following the US Supreme Court’s denial of a stay, the Seminole Tribe relaunched its Hard Rock Bet app in November.
When Supreme Court could decide whether to take case
The 2023-24 term of the US Supreme Court, which began in October, is expected to conclude by the end of June. It’s likely the court will decide on the cert petition before concluding the term in June.
The three-year saga of West Flagler v. Haaland could soon be over.
West Flagler also has an ongoing state challenge at the Florida Supreme Court. The company contends that DeSantis exceeded his authority by entering into a compact granting the tribe exclusivity on statewide online sports betting. DeSantis asked the court to dismiss the challenge.