Indian Gaming and Mobile Sports Betting Sports and mobile wagering have rapidly expanded in the United States since the Supreme Court’s May 2018 decision in Murphy v. NCAA , which struck down the federal Professional and Amateur Sports Prohibition Act as unconstitutional. In the nearly five years since Murphy , at least 35 states and the District of Columbia have legalized sports betting, with at least 20 offering some form of online sports wagering. Dozens of Tribal Governments have added sports wagering to Indian gaming operations pursuant to existing IGRA compacts. The issue of whether Tribes can operate online sports betting is a topic of ongoing legal debate. Some Tribes have worked through the compacting process to either implement geo-fenced mobile gaming that requires both the bettor and the server to be on Indian lands. Other Tribes have worked with states to participate under state-run mobile licensing and regulatory models that take place outside of IGRA. Tribes are working with Congress, with the Biden Administration, and in federal court to ensure that Indian gaming maintains equal footing as state governments increasingly authorize mobile sports wagers with a goal towards securing authority for Tribes to accept wagers from bettors off Indian lands where the server is located on Indian lands to better ensure that Tribal Governments benefit from mobile gaming revenue. No bill has been introduced to date in the 118 th Congress, but there are efforts to reintroduce some version of the “Removing Federal Barriers to Offering Mobile Wagers on Indian Lands Act” that Rep. Lou Correa (D-CA) with co-sponsor and now former Rep. John Katko (R-NY) introduced in the 117 th Congress. The bill sought to clarify that Tribal Governments can operate online sports wagering under IGRA where the server – that accepts and processes the bet – is located on Indian lands. The bill also qualified that wagers will be considered to occur on Indian lands if the person placing the wager and server are located in the same state, and only if the Tribe and the State have entered into a compact pursuant to IGRA. The bill sought to align current law with the original congressional intent of IGRA to enable Tribal Governments to utilize emerging technology and access emerging gaming markets. The Biden Administration is also working to clarify that IGRA provides enough flexibility for Tribes to add mobile sports wagering to their existing operations. In August of 2021, the Interior Department “deemed approved” a compact between the Seminole Tribe of Florida. That compact included a provision referred to as a "hub and spoke" model, where the Tribe's servers are the hub, and the spokes are the mobile devices and contracted facilities where the wagers originate. The State legislature authorized mobile sports betting exclusively for the Tribe through legislation enacted at the same time it ratified the compact. In its “deemed approved” letter, the Biden Interior Department rightly acknowledged that “other jurisdictions are deeming wagers to occur at a specified location. Multiple states have enacted laws that deem a bet to have occurred at the location of the servers, regardless of where the player is physically located in the state. The compact reflects this modem understanding of how to regulate online gaming.” However, this legal argument faced a setback in the ongoing West Flagler Associates v. Haaland case decided by the U.S. District Court for the District of Columbia. The court narrowly read IGRA to limit this activity. This is a misguided and narrow interpretation of IGRA that directly conflicts with congressional intent and growing practice in other states. The Biden Administration has appealed the case to the D.C. Circuit Court of Appeals. Additional details about this case are posted in the federal litigation update below. Finally, the Interior Department is also seeking to clarify the ability of Tribes to conduct mobile wagering through the IGRA compact process. As noted above, Interior’s proposed rule to change regulations at Part 293 would acknowledge that Tribes can operate mobile wagering originating outside Indian lands where state law and/or the compact or amendment deem the gaming to take place on the Tribe’s Indian lands where the server accepting the wagers is located.
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