TRIBAL GAMING IN FLORIDA
governments. 176 This section argues that the government violated its trust duty to the Seminole Tribe by making multiple errors and failing to address the essential administrative deference argument. The court similarly undermined IGRA’s policies and purposes by denying the tribe’s motion to intervene and invalidating the entirety of the 2021 Compact. The compounding errors in representation and analysis by the government and the court denied the tribe the ability to advocate on its own behalf and protect its interests under IGRA. A. The Undeniable Inadequacy of the government’s representation As mentioned previously, a key factor underlying the Seminole Tribe’s motion to intervene was the argument that the federal government would not adequately represent the tribe’s interests during the litigation. 177 The tribe initially argued this point by stating that the Department of the Interior’s general interest was the welfare of the American people while the tribe had particular interests in the economic results of the 2021 Compact and preserving sovereignty. 178 Unfortunately, the course of the litigation showed that the tribe’s concerns were well founded. Through a series of procedural mistakes and the absence of key arguments, the federal government failed to safeguard the tribe’s interests. 1. The government’s failure to address the merits of the case Prior to the motions hearing, the federal government’s briefings did not address the merits of the gaming operators’ complaint and instead argued only that the case should be dismissed on procedural grounds. 179 In doing so, the government ignored the court ordered briefing schedule and failed to present a robust case in defense of the 2021 Compact. This potentially had significant adverse consequences for the government and more so for the tribe. The adverse effects of the government’s failure to address the
merits of the case were most apparent in the court’s decision to invalidate the entire 2021 Compact. Because the government failed to argue beyond its motion to dismiss, no arguments were ever articulated for the proper course of action should the court refuse to dismiss the case. Ironically, the only parties to argue that the mobile wagering provisions could be severed from the rest of the 2021 Compact during the motions hearing were the parimutuel operators. 180 Similarly, only the parimutuel operator’s complaint and motion for summary judgment suggested that invalidating the mobile wagering procedures while leaving the rest of the agreement in place was a possible form of relief in the case. 181 In the motions hearing, the parimutuel operators and gaming opponents offered the arguments for and against allowing severability respectively. 182 The government made no comment on the issue and the court took notice. 183 The court acknowledged the parimutuel operator’s argument that only the mobile wagering provisions could be set aside, but determined that “the Secretary forfeited any request for severance by omitting it from its motions to dismiss, its corresponding replies, and its supplemental briefs.” 184 As a result, the provisions authorizing new forms of gaming and casino locations were invalidated. This harm to the tribe’s economic prospects resulted, at least in part, from the government’s failure to adequately defend the tribe’s interests under the 2021 Compact. During the motions hearing, the court also repeatedly expressed its displeasure at the governments lack of argument on the legal merits. 185 Early in the hearing, it became clear that the government had no plan to address the main question of the case: whether the mobile wagering took place “on Indian lands” as required by IGRA. In fact, the government expected the opportunity to file a subsequent brief on the merits of the case if its motion to dismiss failed. 186 The court expressed shock that the government was only prepared to discuss the motion to dismiss in light of the joint briefing schedule ordered by the court in early September
176 25 U.S.C. §2702. 177 Motion to Intervene, supra note 111. 178 Id . 179 Hearing Transcript, supra note 147. 180 Id . 181 Complaint, West Flagler ; Motion to Intervene, supra note 111.
182 Hearing Transcript, supra note 147. 183 Hearing Transcript, supra note 147. 184 West Flagler at *12. 185 Hearing Transcript, supra note 147. 186 Id . at 7-8.
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IMGL MAGAZINE | APRIL 2023
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