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US DoJ: Florida sports gambling case not in your jurisdiction

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The US Department of Justice filed its response to the Florida Sports Betting Case in the Supreme Court late on Monday, 13 May. This is the last piece of evidence before the Supreme Court decides whether it will take up the Florida sports betting case.

West Flagler and Associates filed a certiorari writ with the Supreme Court of Canada in April. The DoJ’s response to WFA essentially states that Florida parimutuel case does not belong before the Supreme Court.

Attorneys from the DoJ, acting on behalf of the Department of the Interior, wrote that the main issue, the validity of the Seminole/Florida 2021 Compact, was not federal. The DoJ attorneys also claimed that the Compact itself was within its bounds, and the DoI’s decision to “deem approved” the agreement did not violate any law.

The question is whether the DoI approved the compact giving the Seminoles exclusive access to online betting. DoJ attorneys said that the Florida sports gambling case boils down to three questions:

  • 1. Is the Indian Gaming Regulatory Act violated by the Compact?
  • 2. Is the Compact in violation of the Unlawful Internet Gaming Enforcement Act?
  • 3. Is the DOI approval in violation of the Fifth Amendment’s equal protection measures?

DoJ: DoI has no reason to reject compact

The DoJ rejects all three, and bases its position on the argument that the “IGRA allows the tribal and state to determine the content of a compact”. The DoI also stated that it can disapprove a tribal-state compact only if the agreement violates federal law or tribe trust obligations.

All parties appear to be in agreement that, despite the fact the case was brought before a federal court of appeals, the issue is one of state rights. Florida voters passed Amendment 3 in 2018, which required that any gaming expansion be put to a vote.

In 2021 however, the state legislature approved this compact in special session after Governor Ron DeSantis signed it. Voters had no voice. Federal courts can’t decide if state laws have been broken.

WFA sued DoI Secretary Deb Haaland in federal court. It claimed that she shouldn’t have approved the Compact. The Florida sports betting lawsuit involves both the Seminole Tribe and the State of Florida. However, they are not parties to the case. This compact allows Seminoles retail casinos to also offer ball and dice games.

A US District Court has ruled in favor of WFA. The court said that the DoI went beyond their limits when it approved. A federal appeals Court disagreed. When SCOTUS refused West Flagler a temporary stay, Justice Brett Kavanaugh strongly implied that this case did not belong in federal courts. WFA filed in Florida’s Supreme Court but that court refused to hear the case last fall. WFA did not file in the lower Florida courts. This could be the route it takes.

DoI did not sign compact

The Seminoles now have a monopoly over digital betting. Seminoles Hard Rock Bet was launched on 7th November 2023. It was an unexpected launch that came just one month before the Seminoles began offering in-person betting on sports, craps and roulette, among other games.

According to the compact, any bet placed in Florida is considered Indian land if it goes through a tribe’s server. The state also changed its law to permit online bets that are not placed on Indian land if the wagers flow through a tribe server. Together, these decisions show that by providing digital sports betting the tribe is operating within state law.

WFA claims that lawmakers have circumvented Amendment 3. If WFA goes back to the state court system, this amendment will play a major role.

In the case of federal issues, the DoJ stated that it was the DoI’s responsibility to “deem approved” the compact. Haaland has not signed off the compact.

She allowed it to be submitted for 45 days, after which it would become “deemed approved”. The DoJ stated that in this scenario the compact was still valid, but only to the extent it complied with IGRA.

The IGRA does not apply to gaming off tribal land. DoJ argues the compact “is consistent” with IGRA. DoJ lawyers wrote that the “court likewise determined correctly that IGRA left fully intact state’s capacious’ regulation power outside Indian Territory”.

Does DoJ have a loophole for Florida’s sports betting case?

A gaming compact can also include “related topics” and “anything else that is directly connected to the operation or gaming activities”. Sports betting on the internet could be considered to be “related” to gaming operations.

If a state has “capacious power” (which can be extended or wide) outside Indian Country then this argument may have some validity.

The DoJ wrote that it cited Michigan v Bay Mills Indian Community, writing “If under state law a state may authorise gaming operations to be conducted on non-Indian land, then the state is also able to authorise gaming activities by the tribe on Indian lands.”

The federal government stated that there wasn’t a violation of the UIGEA according to the court. A UIGEA infraction was not at issue, as the question was “whether or not DoI approved the compact”. On the issue of equal protection the DoJ claims that WFA’s argument is based on “two flawed premises” making it irrelevant.

The DoJ also argues that the Supreme Court is a “court of first review and not a court for the DoJ”. Justices do not need to consider WFA’s concerns because they were never addressed before. Court’s traditional rule “precludes” granting certiorari when the “question was not pressed nor passed on below”.

The Supreme Court does not have a deadline by which it must decide whether to hear the Florida case on sports betting. The Supreme Court has traditionally heard 100-150 of more than 7,500 cases filed each year.

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