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A Florida-based gaming law attorney added his two cents on whether the U.S. Supreme Court should review a case on the Seminole Compact. And he made them official.
Daniel Wallach filed an amicus brief in support of West Flagler’s petition for writ of certiorari with the US Supreme Court in the case of West Flagler v. Haaland.
Wallach argues that the compact authorized off-reservation online sports betting, violating the Indian Gaming Regulatory Act (IGRA).
He felt whether the compact “authorized” the off-reservation tribal gaming activity warranted more detailed treatment than in West Flagler’s petition. Particularly after Justice Brett Kavanaugh referenced it in comments made when SCOTUS denied West Flagler’s request to stay the DC Circuit opinion while the Florida parimutuel company filed its petition with the Court.
Background of Seminole Compact case
The Seminole Compact contains exclusivity for the tribe to offer statewide online sports betting through servers located on tribal lands.
West Flagler sued Department of Interior Secretary Deb Haaland for allowing the compact to take effect.
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.”
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.
The US DC Circuit Court of Appeals 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.
In other words, the compact includes but does not authorize an agreement between the state and tribe regarding online sports betting.
West Flagler filed its petition for writ of certiorari with the U.S. Supreme Court on Feb. 8.
Argument for SCOTUS to hear tribal compact challenge
Wallach relies on the compact’s plain language, detailed legislative history, relevant case law and prior admissions by the compacting parties to argue that the compact authorizes off-reservation tribal gaming activity.
Wallach argues that the compact does authorize off-reservation tribal gaming.
He asserts that the compact lists sports betting as a “covered game.” The compact then defines a covered game as “any such wagering undertaken by a patron physically located in the State but not on Indian Lands using an electronic device connected via the internet, web application or otherwise.”
The compact indicates that the tribe is authorized to operate covered games on Indian lands. And that sports wagers made by players physically located within the state using a mobile device shall be deemed to take place exclusively on Indian lands.
Wallach finds those differences in using “authorized” and “deemed” as important. He writes:
“Applying the ordinary meaning of the word ‘authorize’ in the present case, it is clear that the compact not only “permits” off-reservation sports gambling activities – which were not compacted previously – but also gives the Tribe the “right or authority to act” by granting it the exclusive right to operate such gaming.”
He also cites the tribe’s press release upon signing the compact, which declared:
“The 2021 Compact authorizes the Tribe to accept sports wagers in person and from patrons physically located in the State via mobile devices.”
Wallach added that state law did not independently authorize online sports betting. The statute states that off-reservation sports betting is authorized to be conducted by the tribe under the compact.
The DC Circuit opinion puts online wagering into IGRA’s ancillary provisions, which Wallach also argues against.
Wallach asks for reversal of DC Circuit ruling
Wallach doesn’t only ask SCOTUS to grant the cert petition to hear the case. He asks the court to reverse the DC Circuit decision before hearing the case. Such reversals are issued when a lower court’s interpretation of a statute is “both incorrect and inconsistent with clear instruction in the precedents of this Court.”
Wallach holds that the DC Circuit decision that IGRA can address tribal gaming activities outside of Indian lands directly conflicts with the Supreme Court’s decision in Bay Mills and at least four federal appeals court decisions.
Wallach urges the Supreme Court to act on the case due to a high likelihood of the issue recurring in future cases.
In the Supreme Court filing, Wallach cites a PlayUSA article on how the Seminole decision could eventually facilitate tribal online sports betting in California.
He writes:
“Denying certiorari would encourage tribes and states in other jurisdictions to enter into compacts for internet gaming, similar to the Florida compact, in reliance on the D.C. Circuit’s decision. The resulting compacts could spur new litigation in other circuits over the compactability of internet gaming but yielding different outcomes and exacerbating the already-existing intercircuit conflict over IGRA’s applicability to off-reservation tribal gaming operations.”
What is next in SCOTUS filing
Wallach is the first to file an amicus brief for the Supreme Court petition. More will likely follow.
The Department of Interior’s response to West Flagler’s petition is due March 13.
Odds are against SCOTUS granting cert. The Supreme Court only grants about 2% of such petitions. However, because of the arguments he made in his brief, Wallach has said he believes there is a 20% chance that the high court will take this case.
Wallach expects the Supreme Court to decide whether to grant cert by the end of June.
