TRIBAL GAMING
The Wire Act prohibits knowingly using wire communications for the interstate transmission of bets or wagers, 14 while UIGEA prohibits knowingly accepting payments in connection with unlawful internet gambling. 15 The D.C. Circuit rejected the idea that Tribally operated online sports betting would, by definition, violate either of these federal laws, noting instead that any issue would require factual case-by-case review. The court noted that following this argument “to its logical end” would mean Wire Act violations could arise from “even online betting by patrons who are physically located on Indian lands... because some of those bets may be routed off of Indian lands into a state, and then back.” The court balked at this “novel and sweeping argument that the Wire Act poses such a broad obstacle to an Indian tribe’s ability to offer online gambling on its own lands.” The D.C. Circuit similarly dismissed West Flagler’s argument that the 2021 Compact violated the Fifth Amendment’s equal protection requirements, rejecting the notion that the Tribe’s exclusive right to operate statewide online sports betting could constitute a suspect form of discrimination. Relying on well-established precedent that Indian-specific federal laws and policies are based on the political government- to-government relationship between Tribes and the United States, the D.C. Circuit explained that the 2021 Compact’s exclusivity rights promoted the legitimate purpose of Tribal economic development and were rationally related to IGRA’s goal of ensuring that Tribes are the primary beneficiaries of their gaming operations. West Flagler’s significance for Indian country West Flagler set a nationwide precedent for Tribes to operate statewide mobile sports betting and broadened prospective opportunities for expansion into online casino gaming (igaming) and other markets. In March 2024, the Seminole “hub-and-spoke” model became formal federal regulatory
guidance as well as codified into Interior’s new IGRA regulations. 16 Together, West Flagler and the regulations position Tribes on a more equal footing to negotiate with states and compete with commercial gaming operators. Still, the nature of IGRA is that Tribes must navigate legal and political nuances state by state. For many Tribes, West Flagler leads back to the negotiating table — with their respective states and among themselves. While Seminole is just one of two federally recognized Tribes based in Florida, states like Washington, with 29 Tribes, and California, with more than 100, require more of a coalition approach. Relative to California, Washington Tribes are fewer in number and already have the exclusive right to operate retail sports betting in the state (though even this right was recently subject to a West Flagler-like challenge). 17 California, however, with its 100+ Tribes and absence of legal sports betting is an entirely different story. The West Flagler decision may provide precedent for Tribes in states that have already legalized commercial online sports betting, like Arizona and Michigan, to renegotiate compacts with more favorable terms and to incorporate IGRA into future Tribal gaming expansion efforts. Tribes conducting online sports betting under general state licenses do not have the benefit of IGRA’s protections and are pitted against, or must partner with, large commercial operators. Such arrangements have resulted in relatively little profit for Tribal governments and communities.
Unresolved issues State Law Nuances
As a federal court decision, West Flagler did not decide any issues of state law. But many Tribes face state constitutional and other restrictions on what types of gaming can be allowed, and even where that gaming can take place.
While the D.C. Circuit agreed that IGRA allows the parties
14 18 U.S.C. § 1084(a). 15 31 U.S.C. § 5363. 16 See 25 C.F.R. Part 293.
17 Maverick Gaming, a commercial operator, challenged IGRA compacts and associated state law that authorized Tribes, and no one else, to engage in retail sports betting in the state. The district court dismissed the suit on the basis that such exclusivity was allowed under IGRA. Further, the court ruled the suit had to be dismissed for failure to join a required party that could not be joined due to its sovereign immunity—the Shoalwater Bay Indian Tribe, which sought to intervene. The U.S. Court of Appeals for the Ninth Circuit upheld this result in December 2024. Maverick Gam- ing LLC v. United States , 658 F. Supp. 3d 966 (W.D. Wash. 2023), aff’d, 123 F.4th 960 (9th Cir. 2024).
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IMGL MAGAZINE | MARCH 2025
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