Opinion: Maverick Gaming May Be Opening Pandora’s Box

Maverick Gaming is still waiting for the court’s response after it filed for summary judgment in its litigation with the Department of the Interior and various Washington State officials.

The impact of that decision could prove historic.

The case revolves around new compacts between the state and more than a dozen tribes within its borders. These grant the tribes the ability to offer sports wagering at their brick-and-mortar facilities.

Maverick Gaming, a multi-state operator of cardrooms with properties in Washington, says that amounts to an illegal monopoly for the tribes. It has presented a three-pronged argument to support its motion.

The company’s lawyer, Ted Olson, has acknowledged that the first of these are foreclosed on in the Ninth Circuit. They were addressed by a 2003 case originating in California, which was resolved at the Ninth Circuit. That makes it unlikely the court will rule in Maverick’s favor on those points.

The third argument, however, appears to be a novel framing of the issue.

The Indian Gaming Regulatory Act (IGRA) contains a requirement that when a tribe wishes to negotiate a compact with a state to offer Class III (i.e., full casino) gaming, the state shall negotiate.

Maverick argues that this provision violates the anti-commandeering principle found within the Tenth Amendment of the Constitution. If the court agrees, it could have dramatic ramifications for tribal gaming throughout the country.

It’s worth noting that Olson is the same lawyer who argued successfully on behalf of New Jersey to have the Professional and Amateur Sports Protection Act struck down. That case, too, hinged on an anti-commandeering argument and ended up changing the face of US gambling.

What is Maverick Gaming’s Anti-Commandeering Argument?

Olson’s argument notes that the Ninth Circuit has not yet addressed the application of the anti-commandeering principle to IGRA. He cites the decision in the PASPA case to explain the nature of the anti-commandeering principle:

the anti-commandeering doctrine holds that, while “[t]he legislative powers granted to Congress are sizable, … they are not unlimited,” and “conspicuously absent from the list of
powers given to Congress is the power to issue direct orders to the governments of the States.

The provision of IGRA that Olson’s brief hones in on is the mandate that following receipt of a request from a Tribe looking to enter negotiations for Class III gaming:

the State shall negotiate with the Indian tribe in good faith to enter into such a compact.

This requirement to negotiate is one of the most important features of the IGRA. The federal government can sue a state if it does not enter such negotiations in good faith.

Olson argues that such a direct command from the federal government to a state’s officials violates the principles of the anti-commandeering principle.

Old Arguments, New Case

Olson includes quotes from oral arguments from the 1996 Supreme Court case of Seminole Tribe of Florida v. Floridawhere Justice Anthony Kennedy said:

I simply know of no precedent for” “allow[ing] the national Government to order the States to invoke their political processes in behalf of a national goal.

Justice Antonin Scalia – never short on colorful framing – referred to the IGRA scheme as requiring Florida’s government to serve “as a flunky of the Federal Government.”

Olson then brings the argument back to the case at issue. He argues that because the state was mandated to enter into negotiations, there was a violation of the anti-commandeering principle. That, according to Olson, would render the agreements unconstitutional. That, in turn, would mean the Secretary of the Interior has an obligation to disapprove them.

No Harm, No Foul

On the surface, this may seem like a convincing argument.

As I see it, the problem is that Maverick Gaming is not the proper plaintiff to make that argument. In fact, I think they likely lack standing to raise it.

Even if they could theoretically be impacted by the result of an unconstitutional process, federal courts can only hear cases that are justiciable.

Justiciability incorporates four things: standing, ripeness, political questions, and mootness. For our purposes, we’re primarily concerned with the first one.

For a plaintiff to challenge the constitutionality of a statute, they must have standing.

To have standing, a plaintiff must have suffered an injury in fact. That is, there must be a causal connection between the injury and the conduct under consideration by the court. Furthermore, the court must be able to redress the injury through its ruling.

The trouble is that it’s not clear that the state’s requirement to negotiate with the tribes has injured Maverick Gaming. Maverick argues that the state, as a sovereign, cannot be compelled to enter negotiations. However, the state appears to have negotiated willingly, and Maverick Gaming itself was not forced into negotiations. In fact, its complaint is that it was left out.

As a result, it is not clear that the Maverick Gaming group is the ideal plaintiff to advance this claim. To date, successful anti-commandeering cases have been those brought directly by governments and government officials who were themselves directed to take action by the federal government.

I have not been able to find an instance in which a non-governmental third party successfully brought an anti-commandeering claim. If the Governor of a state wished to avoid negotiations, they might have better chances of success with this argument, but no such plaintiff has come forward.

What Would This Argument Mean for the IGRA?

It’s probably good news for tribal gaming that Maverick’s standing looks shaky.

If the anti-commandeering argument were to prevail – either in this suit or a similar one with a different plaintiff – that could be devastating for the IGRA.

It’s the requirement to negotiate that makes the law such a powerful tool for the advancement of tribal gaming. The Supreme Court has only found violations of the anti-commandeering principle on three occasions.

However, the recency of the PASPA decision and the current composition of the Supreme Court could make the “shall negotiate” language problematic if the case were to make it that far.

What would happen if states could no longer be obligated to negotiate gaming with tribes? That’s hard to say, but it would certainly take away much of the leverage tribes currently hold, and be a significant departure from the current paradigm.

About the Author

John Holden

John Holden

John Holden is a writer at Bonus, focused on legal and regulatory issues in the gambling industry. He is a full-time academic but has been writing for a number of gaming publications since 2018. He is the author of more than 50 academic publications and hundreds of mainstream articles on the regulation of the gaming industry.
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