TRIBAL GAMING IN FLORIDA
statements that the Interior Secretary’s decision was not entitled to Chevron deference in the case. 200 As support for this statement, the parimutuel operators cited a previous D.C. District Court case, Connecticut v. Department of the Interior . 201 However, the cited case did not support the parimutuel operators’ position that the Interior Secretary’s decision is not entitled to deference. 202 In fact, it indicates just the opposite. 203 The government further failed to protect the Tribe’s interests by allowing the argument to go without scrutiny. In the two pages of the case cited in the complaint, the Connecticut v. Department of the Interior court determined that the Interior Department’s approval process for compact amendments was not entitled to deference because it was an “unexplained position.” 204 Expounding upon that, the court noted that the Department’s letter disapproving the compact amendments at issue did not explain the reasoning for doing so. 205 This case is easily distinguishable from the Secretary’s decision approving the 2021 Compact which was accompanied by a thirteen-page letter explaining the Department’s interpretation. 206 Unlike in the case cited by the parimutuel operators, the letter devoted two entire pages to the reasoning used for the Secretary’s interpretation of “on Indian lands” requirement. 207 Thus, the only argument asserted against Chevron deference would have completely fallen apart with a simple reading of the relied upon case. Furthermore, there were strong arguments for deferring to the Secretary’s decision under both Chevron steps. With Congress’s intention that gaming technology under IGRA should be flexible and the rapid development of mobile wagering technology, the government could have argued that “on Indian lands” was ambiguous as it applied to mobile sports betting. Furthermore, multiple state laws and federal interpretations provide support for finding that the Secretary’s determination
that the hub-and-spoke model met the Indian lands requirement was reasonable. Several facts show that the “on Indian lands” requirement as it applies to mobile wagering under the 2021 Compact is potentially ambiguous. The Senate Report discussing the bill that would become IGRA stated that “the language [in IGRA] regarding technology [was] designed to provide maximum flexibility.” 208 Additionally, the Senate Report provided direct support for gaming technology that would “broaden the potential participation levels.” 209 Because of Congress’s intention that IGRA be flexible in response to new technological developments, such as the advent of mobile wagering which broadens participation levels, the government could have made a strong argument that the “on Indian lands” requirement was ambiguous as it relates to the development of mobile wagering technology. Multiple sources have also concluded that server locations determine where a wager takes place under IGRA. For instance, the National Indian Gaming Commission determined that a proposed management agreement was subject to IGRA’s requirements because gaming activity, namely the use of servers for an online sportsbook, would take place on Indian lands. 210 In addition, Florida’s amicus brief supporting the 2021 Compact further emphasized that just because the Compact addresses activity occurring off Indian lands does not mean that it “governs” that activity. 211 Essentially, the activity performed on the “spoke” of a mobile device is not governed by the 2021 Compact, but the server’s acceptance is. 212 These interpretations show that the development of server technology has introduced uncertainty over the meaning “on Indian lands” in a way that Congress did not adequately address in the statute. After showing that the statute was ambiguous, the government could also have found ample support that the Secretary’s
200 Complaint, West Flagler . 201 344 F. Supp. 3d 279, 307-08 (D.D.C. 2018).
202 Id . 203 Id . 204 Id . at 308. 205 Id . 206 Newland, supra note 89. 207 Id . 208 S. Rep. No. 100-446 (1988). 209 Id .
210 Michael Hoenig, General Counsel to the Nat’l Indian Gaming Comm., Letter to Rodney Butler Chairman, Mashantucket Pequot Tribal Nation (Aug. 18., 2021), https://www.nigc.gov/images/uploads/ManagementReviewLetters/20210923_Mashantucket-Crown_Final_-_Redacted.pdf. 211 Amicus Brief by State of Florida, West Flagler . 212 Id .
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IMGL MAGAZINE | APRIL 2023
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