Whether the Indian Gaming Regulatory Act (IGRA) permits a state to authorize a Native American tribe to conduct online sports betting off tribal lands through a legal fiction that deems such bets as being placed on tribal lands

No question identified. : compact (“Compact”) in which the State of Florida granted the Seminole Tribe of Florida (the “Tribe”) a statewide monopoly over online sports betting, including at locations off of the Tribe’s reservations throughout the state. See W. Flagler Assocs. v. Haaland, 573 F. Supp. 3d 260, 273 (D.D.C. 2021) (concluding that the Compact “attempts to authorize sports betting both on and off Indian lands”). IGRA only authorizes the Secretary of the Interior (the “Secretary”) “to approve any Tribal-State compact entered into between an Indian tribe and a State governing gaming on Indian lands of such Indian tribe.” 25 U.S.C. § 2710(d)(8)(A) (emphasis added). Here, the Compact provides the Tribe with the right to offer online sports gaming throughout the state of Florida, including all areas that are off the Tribe’s lands. It does so by “deeming” the bets placed from off Indian lands to be treated as if they were placed “exclusively” on the Indian lands of the Tribe. This fiction was adopted to deem the Compact to be solely dealing with gaming on Indian lands, and thereby to circumvent a Florida constitutional ban on the expansion of casino gaming absent a citizens’ referendum, except for casino gaming covered by a valid IGRA compact for gaming “on tribal lands.” See FLA. CONST. Art. X §§ 30(a) & (c). Further, when the Florida Legislature approved this Compact, it increased the criminal penalties on any other business offering online sports gaming in the state from a second-degree misdemeanor to a third-degree felony. FLA. STAT. § 849.14; FLA. STAT. § 775.082 (3)(e). In short, Florida gave the Tribe a statewide monopoly over the business of online sports gaming, to be offered off Indian lands throughout the state, while making the same conduct a felony when done by anyone else. Applicants, who compete with the Tribe for gaming business, filed this Administrative Procedure Act litigation in the United States District Court for the District of Columbia challenging the Secretary’s approval of the Compact as contrary to IGRA, the Unlawful Internet Gambling Enforcement Act (““UIGEA”), and the equal protection guarantees of the Constitution. Complaint, West Flagler Assocs., 573 F. Supp. 3d. 260 (ECF #1). The District Court found that the approval of the Compact was not authorized by IGRA, and therefore granted summary judgment in Applicant’s favor on November 22, 2021. West Flagler Assocs., 573 F. Supp. 3d 260 (Friedrich, J.). On June 30, 2023, the D.C. Circuit reversed. See West Flagler Assocs., Ltd. v. Haaland, 71 F.4th 1059 (D.C. Cir. 2023) (the “Circuit Opinion”). With respect to the Compact provision that “deems” all bets placed off the Tribe’s lands to be treated as if they were “exclusively” placed “on” the lands, the Circuit Opinion held that the provision “simply allocates jurisdiction between Florida and the Tribe, as permitted by 25 U.S.C. § Id. at 1066. It also held that the Compact itself “cannot provide independent legal authority for gaming activity that occurs outside of Indian lands, where that activity would otherwise violate state law.” Id. at 1068 (emphasis added). It also summarily rejected Applicants’ equal protection argument, holding that the Compact “would survive rational basis review, which is the applicable level of scrutiny here.” Id. at 1070. The D.C. Circuit denied a petition for rehearing en banc on September 11, 2023, and denied a motion to stay the mandate on September 28, 2023. On October 6, 2023, Applicants asked the Honorable John G. Roberts, Jr., Chief Justice of the United States, for a stay of the D.C. Circuit’s mandate pending Applicants’ petition for a writ of certiorari, which Applicants committed to file by November 20, 2023 (a commitment that was premised on their being a stay in place, so as to minimize any burden caused by the stay). Chief Justice Roberts granted a temporary stay of the D.C. Circuit's mandate on October 12, 2023, pending the filing of an opposition by R