TRIBAL GAMING
Good Faith
to treat an entire online sports betting transaction as occurring on Indian lands, it is not clear whether specific “deeming” language is required in every circumstance or whether it was only necessary in West Flagler due to a quirk of state constitutional law. 18 The Southern Ute and Ute Mountain Ute Indian Tribes are testing this question in litigation against Colorado, where statewide online sports betting is legal for commercial operators. 19 The state law that authorized online sports betting is silent as to Tribal operators. The Ute Tribes argue that their existing IGRA compact language is broad enough to encompass online sports betting, and therefore passage of the state law authorizing sports betting for commercial operators triggered the Ute Tribes’ ability to engage in online sports betting as well. The Ute Tribes sued after state regulators sought to shut down their online sports betting operations. The question this case raises is what precisely is required before Tribes can engage in online sports betting and whether IGRA compacts need to be renegotiated to allow for online sports betting in every circumstance. Equal Protection In denying West Flagler’s application for a stay from the U.S. Supreme Court, Justice Brett Kavanaugh noted his concern that the case could implicate “serious equal protection issues” to the extent state law authorized the Tribe’s exclusive right to statewide online sports betting. 20 Justice Kavanaugh would also have granted West Flagler’s petition for certiorari. 21 Notably, however, no other Supreme Court Justice — even the Court’s most conservative — shared Justice Kavanaugh’s view.
It is unclear whether IGRA’s requirement that states negotiate compacts in good faith would extend to allowing Tribes to accept wagers from players located off Indian lands, especially if allowing such wagers would require changes to state law. While there is a good argument that the good-faith requirement would apply if a state otherwise permits mobile gaming, it is also unclear how a tribe would enforce this right. Most states would assert their Eleventh Amendment immunity to foreclose any lawsuits. While in some cases Tribes may be able to request Class III gaming procedures directly from Interior 22 to remedy such situations, two federal circuit courts have held that the regulations for these procedures are invalid. 23 Moreover, a significant question remains as to whether such procedures could authorize a tribe to accept wagers from off Indian lands, since the placement of those wagers is governed by state law. Conclusion The groundbreaking West Flagler opinion provides an important new framework for Tribes as Tribal gaming continues to evolve in the twenty-first century. While the framework may not work for all Tribes, and there are a number of unresolved questions, it is likely to serve as a critical component for upcoming compact negotiations in a number of states.
JOSEPH H. WEBSTER Managing Partner, Hobbs, Straus, Dean & Walker, LLP For information contact: JWebster@hobbsstraus.com 001 202 822 8282 TAYLOUR A. BOBOLTZ Associate, Hobbs, Straus, Dean & Walker, LLP
18 An amendment to the Florida Constitution, often referred to as “Amendment 3” after its 2018 ballot initiative, pro- hibits gambling expansion without prior voter approval. As acknowledged by the D.C. Circuit, however, Amendment 3 “contains an exception for ‘casino gambling on tribal lands’ pursuant to an IGRA compact.” W. Flagler , 71 F.4th at 1068. In March 2024, the Florida Supreme Court dismissed West Flagler’s collateral attack on the 2021 Compact under Amendment 3. W. Flagler Assocs., Ltd. v. DeSantis , 382 So. 3d 1284 (Fla. 2024). 19 S. Ute Indian Tribe v. Poli s, No. 1:24-cv-01886 (D. Col. filed July 9, 2024). 20 W. Flagler Assocs., Ltd. v. Haaland , 601 U.S., 144 S. Ct. 2671 (2023) (statement of Kavanaugh, J.). 21 W. Flagler Assocs., Ltd. v. Haaland, 144 S. Ct. 2671 (2024) 22 See 25 C.F.R. Part 291; 25 U.S.C. § 2710(d)(7)(B). 23 Texas v. United States, 497 F.3d 491 (5th Cir. 2007); New Mexico v. Dep’t of Interior , 854 F.3d 1207 (10th Cir. 2017).
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IMGL MAGAZINE | MARCH 2025
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