The Indian Gaming Regulatory Act is generally interpreted as governing gaming on tribal lands and gives tribes across the U.S. the right to offer it. In addition, Hamish Hume, an attorney for a pair of Florida parimutuels, said U.S. law defines the location of gambling as where the bet is placed and accepted.
Yet the Seminole Tribe’s 2021 compact with the state of Florida defines wagering as having happened on tribal lands no matter the location of the bettor within the state. That, according to Hume, the attorney for West Flagler and Associates, is at the heart of what makes the compact illegal and is wrong with the decision by the U.S. Department of the Interior (DOI) to deem it approved.
Hume made that argument Wednesday morning before the U.S. Court of Appeals for the the District of Columbia. The case in question, West Flagler Associates vs. Secretary Deb Haaland of the U.S. Department of the Interior, could determine the future of legal sports betting in Florida. Should Hume’s argument hold up and the appeals court uphold a lower-court decision, it’s likely the DOI would appeal.
On the flip side, Rachel Heron, on behalf of the DOI, argued that Haaland had no grounds to reject the compact last year because “it does not violate federal law.” In addition, a lawyer for the state of Florida had a chance to argue for “severability,” meaning the compact could be approved with the gambling sections removed; a lawyer for the Seminole Tribe argued that it deserves the opportunity to intervene in the case; and a lawyer for Monterra AF, which has a bigger interest in casino gaming than sports betting, argued that state constitutional issues go beyond the bounds of what the DOI can consider.
Wednesday’s hearing was the latest step in a Florida betting saga that started in May 2021, when the state legislature approved a compact that at least some in Tallahassee believed would be open to court challenges. The compact gives the Florida Seminoles a monopoly on sports betting and would allow for statewide mobile sports betting, as long as all bets flow through servers on Seminole lands. At issue is the idea that the compact violates IGRA, which governs only gambling that happens on tribal lands.
The Florida Legislature approved a new compact with the Seminole Tribe that will bring sports betting to Florida and $2.5 billion to the state treasury over the next five years. https://t.co/6sB5uENwrJ
— Florida Today (@Florida_Today) May 19, 2021
Pathway to appeals court
Once the legislature approved the compact, it was then sent to the DOI for approval. But rather than sign off on it, Haaland instead chose to let the required 45 days pass and let the compact become “deemed approved.”
From there, lawsuits were filed. And in the middle of this case, when it was before the U.S. District Court for the District of Columbia, the Seminoles launched their Hard Rock Digital app and betting was available in Florida for 34 days before two courts demanded that the Seminoles take the platform down.
Last November, District Court Judge Dabney Friedrich ruled that the compact was illegal and the DOI appealed the decision. The latest iteration of the case has been with the appeals court for more than a year. Wednesday’s arguments were both sides’ opportunity to sway the three-judge panel, but the line of questioning indicated that there is not a consensus on the bench.
Historic day in Florida, Hard Rock Sports betting through the Seminole Tribe went live today on the app anywhere in the state. @MitchMossRadio @paulyhoward pic.twitter.com/iMfJDjdxX8
— Tyler Brumfield (@TylerBrumfiel11) November 1, 2021
Oral arguments opened with Heron arguing on behalf of the DOI, saying that state law is not a reason to reject a compact. But the judges quickly turned Heron’s time into a discussion about whether or not the DOI is adequately representing the Seminole Tribe and the relevance of the post-decision letter supporting its actions from the DOI. The bulk of the questions came from Judge Robert Wilkins, which could indicate that he is leaning toward reversing the district court decision.
Barry Richards, on behalf of the Seminoles, said the tribe would be “pleased” with a reversal and went on to say that the “district court refused to hear from the tribe before making a judgment to destroy the tribe’s most valuable asset.” Meanwhile, Henry Whitaker, on behalf of the state, addressed what the compact authorizes and what is allowed under IGRA.
Judge suggests DOI acted outside its bounds
Hume, who represents the parimutuels that brought the lawsuit, may have had the strongest voice in the courtroom, effectively keeping his arguments on point and hammering home the idea that IGRA only governs gaming on Indian lands.
“IGRA has only one approval provision,” Hume said. “The secretary may approve compacts that allow for [gambling], but there is not a capital A ‘authorize’ on Indian lands and then a ‘wink-wink nudge’ that it’s also legal off Indian lands. The express part of this [compact] is that this makes betting legal off Indian lands.”
Hume got enough questions from Judge Karen Henderson around “ultra vires” action — which is defined as “beyond the power of” — to potentially indicate that she may be leaning toward upholding the lower-court decision that the compact is illegal and that the DOI went beyond its limitations in approving it.
Judge J. Michelle Childs, who was the only one not to tip her hand, could end up being the deciding vote.
Oral arguments lasted just over an hour. A decision by the court is likely weeks, if not months, away.
