A prominent expert in tribal law told an audience at the National Council of Legislators From Gaming States (NCLGS) conference in Boston on Friday that a federal judge in November should not have blocked the Seminole Tribe in Florida from offering mobile sports wagering statewide.
Derril Jordan, an attorney with 35 years of experience representing tribes and a former lawyer for the Division of Indian Affairs, said that the correct conclusion previously had been reached by the U.S. Department of the Interior, which declined to strike down an agreement between Florida Gov. Ron DeSantis and Seminole leaders to legalize sports betting.
Jordan added that in an explanatory letter, DOI officials described the relatively new development of mobile sports betting to be a “novel matter” and that evolving technology should not impede tribes from expanding their revenue opportunities.
The Seminoles’ 30-year compact, which also was approved by the Florida Legislature, guaranteed the state at least $2.5 billion in tax revenue from the first five years of sports betting in what would be the largest U.S. state to legalize it. But under the rules of the Indian Regulatory Gaming Act, sports betting can only be offered on tribal lands.
Separating fact from ‘fiction’
“Although the Compact deems all sports betting to occur at the location of the Tribe’s ‘sports books’ and supporting servers, this Court cannot accept that fiction,’’ Judge Dabney Friedrich wrote in his November ruling. “When a federal statute authorizes an activity only at specific locations, parties may not evade that limitation by ‘deeming’ their activity to occur where it, as a factual matter, does not.”
To this, Jordan said, “Legal fictions don’t keep me up at night or give me heartburn. That’s not a reason why I reach for a Tums.”
Traditionally, according to an unofficial “canon of construction”regarding interpretations of IGRA, Jordan said treaties and laws involving tribes that contain ambiguities “should be construed in favor of the tribes. And this agreement is the definition of ambiguous when it comes to mobile sports betting.”
Jordan — who has represented tribes in Michigan, New York, and the state of Washington — also noted that Friedrich is a judge for the U.S. District Court of Appeals for the District of Columbia, which he said is a popular court for attorneys who seek to challenge federal rulings.
A decade ago in New Jersey, backers of online casino gaming initially expressed concerns that state law declared that gambling was limited to Atlantic City. But legislators passed bills, signed into law by Gov. Chris Christie, declaring that “internet gaming in this State shall be deemed to take place where a casino’s server is located in Atlantic City, regardless of the player’s physical location within this State.”
Jordan told NJ Online Gambling after his presentation that “the trend is to consider the bet as having taken place at the location of the server, so it’s not inconsistent with IGRA. And any ambiguity should be considered in favor of the tribal position.”
He added that while some tribal leaders support efforts to make a variety of amendments to IGRA, including a clarification to open the door for mobile sports betting, he “personally would be very fearful of Congress reopening the Indian Gaming Regulatory Act.”
Reality check on sports betting
Rodney Butler, chairman of the Mashantucket Pequot Tribal Nation in Connecticut and another panel member, advised the dozens of lawmakers in attendance to understand the real tax revenue potential from gambling legalization.
“There’s a fallacy that comes from there being so much excitement about sports betting,” Butler said. “We like it, but it’s an amenity. Show me one casino in Las Vegas that is just based on sports betting — it doesn’t exist. Where we make our money is the casinos.”
Beyond that, Butler added, the two tribes in Connecticut spent three years in talks with state lawmakers making sure that online casino gambling — currently only available in a handful of states — was implemented along with less lucrative mobile sports wagering.