On Oct. 9, Maverick Gaming filed a reply brief with the Ninth Circuit, reiterating the reasons it believes its challenge to Washington sports betting and the Indian Gaming Regulatory Act (IGRA) should proceed despite having been thrown out by a lower court. Earlier this year, District Court Judge David Estudillo agreed with the Shoalwater Bay Tribe, which had intervened in the case to seek its dismissal.
On the surface, the case concerns retail sports betting in Washington and Maverick’s desire to participate in the market. In short, Maverick would like to invalidate the compacts that grant exclusivity to federally recognized tribes in the state. However, its strategy for doing so is one that, if successful, could undermine all tribal gaming throughout the US.
Maverick Gaming appealed to the Ninth Circuit in July. A series of written briefs followed, first from Maverick and then from Shoalwater and the defendants. The latter are the federal government and an assortment of state and federal officials.
Maverick has now filed its final reply brief to the counter-arguments put forward by those other parties. For the most part, these documents represent a rehashing of points made in District Court, but they’re a necessary preamble to oral arguments, which will be the next step.
Maverick’s Case is About More Than Sports Betting
In terms of the plaintiff’s motivation, the Maverick case is a lot like West Flagler Associates’ challenge to Florida sports betting. The state granted exclusive rights to tribal gaming interests, causing a retail operator to cry foul.
Framed that way, the stakes are lower in the Maverick case. Retail sports betting markets are never as lucrative as ones where mobile betting is possible.
However, the online aspect gave West Flagler an easy way to approach its challenge. It is attempting to invalidate the claim that online bets
“take place” wherever the gaming servers are. While the outcome of that case is important, it will only impact whether states can authorize online gambling via compacts alone or whether legislation is needed.
Because there’s no mobile betting in Washington, Maverick needed to find a different argument. The one it found challenges the constitutionality of IGRA itself. That law underpins all tribal gaming in the US.
IGRA requires states to negotiate in good faith to craft compacts with tribes wishing to offer gaming legally. Maverick argues that this requirement constitutes “commandeering” of a form prohibited under the 10th Amendment. That Amendment’s anti-commandeering principle says that any powers not granted to the federal government by the Constitution rest with the States.
So, while this fight is about a more limited form of sports betting than the Florida case, the specifics of the argument mean its outcome could be nothing less than earth-shaking. If Maverick were to prevail, it would fundamentally change the way tribal gaming arrangements are negotiated in the future. It could even potentially undermine all of those already in effect.
Shoalwater’s Intervention and Maverick’s Appeal
Shoalwater shot down Maverick’s case by creating a legal Catch-22. The Tribe argued that the outcome of the case was sufficiently relevant to its interests that it could not proceed without the Tribe as a defendant. At the same time, it said that its sovereign immunity prohibits it from being joined to a case without its consent.
In other words, the case could neither proceed without the Tribe nor with it and, therefore, had to be abandoned. Judge Estudillo agreed.
There is precedent for this argument working. However, Maverick points out that these were cases in which the government’s environmental obligations weren’t aligned with the tribes’ financial best interests. It argues that here, unlike those cases, the government and Tribe both have the same goal, so the government can adequately represent tribal interests.
The reply brief’s introduction puts it like this:
On every legal issue presented in this case, the Tribe and the federal government are fully aligned. Yet, under the Tribe’s theory, that is not sufficient. According to the Tribe, any sovereign—Tribe, State, or foreign country—has the power to insulate federal agency action from judicial review. That is not the law.
Maverick also makes a secondary claim. It suggests that the Tribe may have already waived its immunity by intervening in the case. Although this has happened before without the court considering immunity to have been waived, Maverick argues this is because plaintiffs never put the question to the test.
That raises the interesting—though unlikely—possibility that the case could return to District Court with Shoalwater Bay along for the ride.
In any event, the Ninth Circuit won’t be the end of the road. If Maverick wins, it simply means the District Court will have to hear the case on its merits. If not, then surely a Supreme Court appeal is the next step for this dogged plaintiff.
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