On the surface, a 7-2 U.S. Supreme Court ruling affirming the validity of the Indian Child Welfare Act (ICWA) would appear to have nothing to do with legal sports betting or other forms of gambling. But beneath that surface, the decision may prove quite relevant to a case concerning commercial operator Maverick Gaming’s challenge to a tribal monopoly over sports wagering and Class III casino gaming in Washington state.
Last month, the Supreme Court upheld a longstanding law granting Native American families priority in situations involving the adoption of foster children from various tribes. In the case, a white Texas couple, Chad and Jennifer Brackeen, who’d adopted a Native American boy and were vying to adopt his biological sister, unsuccessfully argued that the ICWA violated their right to equal protection. Evoking the 10th Amendment, the Brackeens also contended that states, not the federal government, had jurisdiction over family law.
In its decision, the court sidestepped the equal protection argument, saying that no party in the case had legal standing. Instead, the justices based their ruling on a rejection of the Brackeens’ 10th Amendment argument.
“This decision safeguards native children, protects our families and cultures, and confirms that tribal sovereignty is a core tenant of American jurisprudence,” Rebecca George, executive director of the Washington Indian Gaming Association, told Sports Handle. “That said, WIGA has not lost sight of the fact that tribal sovereignty remains under attack in a federal lawsuit filed by neighborhood card room operator Maverick Gaming. Maverick is represented by the same law firm involved in the Brackeen case, and similarly seeks to undercut tribal sovereignty in Washington state and across the country.”
The law firm in question is Gibson Dunn, which employs former U.S. Solicitor General Ted Olson. If Olson’s name rings a bell to gambling aficionados, that’s because he represented the state of New Jersey in its successful 2018 effort to have the Supreme Court repeal the Professional and Amateur Sports Protection Act (PASPA), clearing the way for states outside of Nevada to offer legal, regulated sports wagering.
In its federal lawsuit, which makes many of the same legal arguments put forth by the Brackeens, Maverick claims that Washington state officials have improperly applied the Indian Gaming Regulatory Act by unlawfully handing Native American tribes a monopoly over sports betting and other types of gaming.
“The Indian Gaming Regulatory Act was intended to guarantee parity between tribal and non-tribal gaming, but unfortunately Washington State is misusing IGRA to instead create tribal monopolies on certain types of gaming, such as sports betting,” Olson said in a 2022 press release issued shortly after the lawsuit was filed. “Contrary to IGRA’s own words, the law is being used to insulate tribes in Washington State from competition that exists in many other states with legal gaming marketplaces.”
The suit goes on to claim that Washington’s “tribal monopoly also violates the Constitution’s guarantee of equal protection of the laws by irrationally and impermissibly discriminating on the basis of race and ancestry.”
‘The court is a little exasperated’
Maverick suffered a setback in February when a U.S. District Court judge in Washington state dismissed its suit. But the decision was not especially surprising to Maverick, which immediately appealed and has long said that it expects the fate of its case to ultimately be determined by the U.S. Supreme Court.
Through a spokesperson, Maverick declined to comment on the relevance of the Brackeen case to its own situation. Several legal scholars, however, were more forthcoming.
Stopping short of saying that the Brackeen ruling had lethal implications for Maverick’s case, Addie Rolnick, the faculty director of the Indian Nations Gaming & Governance Program at UNLV’s Boyd School of Law, said, “I would imagine no one has suggested that it would have implications that would make [Maverick’s] lawsuit better situated. A lot of the complaint seems to misunderstand the law, but it has two things — the 10th Amendment challenge and equal protection challenge — that were also in the Brackeen case.
“The court’s holding in Brackeen on the 10th Amendment isn’t super transferable. That analysis was very specific to state child welfare agencies. But with this lawsuit with Maverick, it’s a weaker case. I had a hard time getting my head around just what they were arguing.”
Rolnick went on to say that “not much changes after Brackeen with regard to equal protection” and that she expects that “people will keep making equal protection arguments in Native American cases.” But she added that “a between-the-lines takeaway is the court is a little exasperated by some of these challenges to Indian law.”
Harking back to Artichoke Joe
Monte Mills, the director of the University of Washington’s Native American Law Center, isn’t sure how much of an influence the Brackeen ruling will have on Maverick’s case, telling Sports Handle, “It’s really hard to say what the impacts, if any, might be, particularly because the issue that has the most in common — the equal protection challenges — the Supreme Court in Brackeen said the parties didn’t have standing to bring those claims. So they didn’t really address them, even though Justice Kavanaugh said there might be issues there.”
Mills’ colleague at UW’s Native American Law Center, Eric Eberhard, believes that the Brackeen case should have no bearing on Maverick’s legal effort — mainly because of a 20-year-old ruling that he feels has already rendered it moot.
“The law that governs the claims made by Maverick has been settled for at least 20 years,” Eberhard said in an email. “In 2003, in the case of Artichoke Joe’s v. Norton, the United States Court of Appeals for the Ninth Circuit held that state law authorizing Class III gaming only by Indian tribes on Indian reservations or Indian trust lands complied with Indian Gaming Regulatory Act and did not violate equal protection of the laws under the U.S. Constitution.
“The United States Supreme Court denied review of the decision of the Ninth Circuit in 2004. It is reasonable to expect that the same result will be reached in the Maverick litigation.”
