The pivotal moment has come in a court battle over tribal gaming compacts in Washington.
It was inevitable that the Shoalwater Bay Tribe would file a motion to dismiss upon receiving permission to intervene in the case. They have now done just that.
The original parties in the case are Maverick Gaming as the plaintiff and the Department of the Interior as the primary defendant. The battle is over the status of the Washington State gaming compacts, which allow tribal gaming operators in the State to offer sports betting.
The motion, if granted, would end the case as far as the trial court is concerned. From there, it would almost certainly go to the Ninth Circuit Court of Appeals.
Already, this case could have ripple effects across the country. For instance, if the court grants the motion may provide ammunition for the Seminole Tribe of Florida. The Seminoles have claimed they were improperly denied the right to intervene in litigation over the Florida gaming compact.
Oral arguments have been requested for October 28, 2022, which might provide insight into how the federal district court in western Washington is leaning.
What is the Maverick Gaming Lawsuit About?
The Washington case began when Maverick, a multi-state retail gaming operator, challenged Washington State’s new gaming compacts. These agreements have granted legal sports betting rights to tribes across the State. Maverick’s complaint centers on the idea that the State’s tribal sports betting monopoly amounts to preferential treatment based on race.
The trouble for the plaintiff is that many of Maverick’s arguments appear to be matters that have already been settled. The relevant precedent is a 2003 Ninth Circuit case, Artichoke Joe’s California Grand Casino v. Norton.
However, while those arguments about preferential treatment for Tribes may face long odds, the lawsuit also contains another, more interesting claim. Maverick’s legal team claims that the Indian Gaming Regulatory Act (IGRA) illegally commandeers states into negotiating with tribes who want to offer class III gaming.
This constitutional anti-commandeering argument would not typically deserve special attention. But this particular case comes from former Solicitor General Ted Olson.
That’s the same Ted Olson who successfully argued on behalf of New Jersey that the Professional and Amateur Sports Protection Act impermissibly commandeered state legislatures into maintaining their sports betting prohibitions. His victory in that case led to the wave of legal sports betting currently sweeping the country.
Maverick initially filed its suit in the District of Columbia, where the binding precedent was arguably more favorable. However, a motion by the defendants successfully moved the case to the Western District of Washington, which is within the Ninth Circuit.
Despite the many obstacles the case faces, however, it’s an important one to follow. The stakes are high, as a ruling in favor of the plaintiff could effectively spell the end of IGRA nationwide.
Shoalwater Bay Tribe to the Rescue?
Despite the existential threat to IGRA, the intervention of the Shoalwater Bay Tribe goes a long way towards averting the danger.
The federal court in the Western District of Washington granted the Shoalwater Bay Tribe the right to intervene in the case on a limited basis. The Tribe filed its motion to dismiss the lawsuit almost immediately.
Its argument is, firstly, that it has not waived its sovereign immunity and cannot be joined in the case without its consent. At the same time, it argues that it is a necessary party to the case and that, therefore:
the case cannot in equity and good conscience proceed in the Tribe’s absence.
Without a necessary party, the Tribe argues that the only remedy is for the case to be dismissed.
Background on the Shoalwater Bay Tribe’s Recent Gaming History
The motion notes that the Shoalwater Bay Tribe is a federally recognized Tribe in rural western Washington.
The Tribe attempted to engage with the State of Washington in the 1990s to negotiate a gaming compact. The State resisted its overtures for years. In 1998, the Tribe forced the issue by opening a gaming facility without a gaming compact, ignoring the State’s objections. Eventually, the US Marshall Service arrived to seize the machines on the property.
Finally, in 2002, the Tribe and State met to work out a gaming compact. The Tribe describes this as a “turning point” between itself, the State, and the Federal government. Since that time, it says, the compact has been a boon to the health and prosperity of the community.
Why is the Shoalwater Bay Tribe a Necessary Party?
The Shoalwater Bay Tribe argues that they are a required party to the case because:
The Tribe’s protectable interests in continuing to offer gaming activities on its Indian lands are at stake, and Maverick cannot secure complete relief without joining the Tribe.
The Tribe argues that Maverick’s efforts to litigate this lawsuit represent an attempted end-run around the Tribe’s sovereign immunity. The problem for Maverick is that it cannot sue the Tribe unless it waives its sovereign immunity. It has not, and presumably will not, do this.
The Tribe is relying on Rule 19(b) of the Federal Rules of Civil Procedure to argue that all factors favor supporting the Tribe’s maintenance of sovereign immunity. Indeed, the Tribe argues that its sovereign immunity interest is so great as to trump any interest of the plaintiffs.
What to Expect Next in the Maverick Gaming Case
The motion was followed by an amicus brief filed on behalf of numerous Washington Tribes. These other Tribes offered support for the motion to dismiss.
In the coming days, Maverick is expected to file a brief in response, as will the federal government. If all goes according to plan, oral arguments come next on October 28. After that, the court should render its decision in a matter of weeks.
A win here for the Shoalwater Bay Tribe would cut off proceedings before the court considers the merits of Maverick’s complaint. The status quo would be restored, at least temporarily, though an appeal by Maverick would mean the future of US tribal gaming remains in jeopardy.
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