On Monday, Oct 24, 2022, numerous parties filed briefs in preparation for oral arguments in Maverick Gaming’s lawsuit.
The defendants in the suit are the Department of the Interior, plus several Washington State officials, including Governor Jay Inslee. At issue is whether Washington can grant exclusive rights to sports betting to tribes in the State. Maverick cannot sue the tribes directly due to sovereign immunity.
The coming hearing on Friday, Oct 28, regards the Shoalwater Bay Tribe’s motion to dismiss the case. The Tribe filed for “limited intervenor” status in August and, having received it, filed a motion to dismiss the case earlier this month.
This motion potentially allows the Federal Court in the Western District of Washington to end the case without the need to address any of its thorny constitutional issues. These include one argument by Maverick with the potential to topple the Indian Gaming Regulatory Act in its entirety. Federal courts have a doctrine of “constitutional avoidance” and will try to settle cases in other ways whenever possible.
This week’s flurry of briefs came in response to the Tribe’s motion. Both the federal and State defendants voiced their support for the Shoalwater Bay Tribe’s motion to dismiss. Maverick Gaming, naturally, opposes the motion.
While it’s no surprise that Maverick, as the plaintiff, would not like to see the case dismissed, the federal government’s position is interesting. Its support for the motion here strikes a contrast with its position on the Seminole Tribe of Florida’s attempted intervention in another case relating to similar Florida sports betting compacts.
In that suit, initiated by racetrack owner West Flagler Associates, the government did not support dismissal. That’s particularly ironic in light of the fact that the same DOJ attorney is listed on both briefs.
The Federal Government’s Response
The federal government’s brief begins by setting out the background for the IGRA. It notes that it is a federal framework responsible for regulating gaming activities on tribal land.
The brief notes that drafting IGRA involved balancing the respective rights of two sovereign entities: the States and the Tribes. According to the federal government, IGRA, on the one hand, provides for “tribal economic development, self-sufficiency, and strong tribal governments.” At the same time, it leaves the state and federal entities some supervisory authority to prevent nefarious elements from corrupting gaming operations.
In supporting dismissal, the government notes that the plaintiff’s requested relief would “cripple the Tribe’s economy.”
The government uses its response to argue that the Tribe’s motion to dismiss is consistent with a previous Ninth Circuit case. In that case, Dine Citizens Against Ruining Our Environment, the Court concluded that in the Ninth Circuit – which includes the Western District of Washington – the federal government is not the only indispensable defendant in actions of this type, provided:
- The plaintiffs’ relief could directly affect the interests of the Tribe, and
- The Tribal interests outweigh those of the federal government, such that the latter cannot adequately represent the Tribes’ interests
The government’s concluding statement begins:
The Ninth Circuit’s ruling in Dine Citizens is controlling authority in this case under the current state of the law in the Ninth Circuit and therefore supports the granting of the Tribe’s motion to dismiss.
The State Defendants Agree
The state defendants, which include the Governor of Washington, filed a separate response supporting the Tribe’s motion to dismiss. The State argues that the Shoalwater Bay Tribe is indeed a necessary party under Rule 19(a) of the Federal Rules of Civil Procedure.
Its brief also relies on Dine Citizens for precedent. The State argues that relief requested by the plaintiff would significantly impact the Tribe. The State cites Circuit precedent regarding the inadequacy of government representation for Tribal interests stating:
The Ninth Circuit has consistently held that governmental parties interested in fulfilling their legal obligations or defending their official actions cannot adequately represent a Tribe’s proprietary, economic, or sovereign interests.
It concludes by supporting the Tribe’s argument that they cannot be joined as a party because of their sovereign immunity. Thus, the proper remedy is for the Court to order dismissal.
Maverick Gaming’s Objections
In Maverick Gaming’s brief opposing the motion, they argue that the Tribe is not a Required Party under Rule 19. Therefore, the appropriate course of action would be to have the case proceed in the Tribe’s absence.
Maverick argues that pursuing the case in the Tribe’s absence wouldn’t limit the Tribe’s ability to protect its interests. Indeed, Maverick points explicitly to the D.C. District Court’s decision in the West Flagler case. There, the Court concluded that the federal government does adequately represent tribal interests in IGRA litigation, writing:
Accordingly, federal courts have uniformly held that the federal government adequately represents an Indian tribe in IGRA challenges like this one when it “share[s] the Tribe’s position … that [a] Compact is consistent with [federal law].”
Maverick argues that the Dine Citizens case is fundamentally different. The issues in that case centered on the Endangered Species Act and the National Environmental Policy Act, not IGRA.
The brief also contains a counterargument to the Tribe’s claim that they could not be bound by the Court’s decision. Maverick says the Court could still provide the relief it seeks by allowing it to operate on the same terms as the Tribe. To do so, the Court would have to enjoin the State from enforcing its gaming prohibitions against Maverick.
Key Takeaways as We Wait for Oral Arguments
The plaintiff’s brief is largely predictable. However, the federal government’s brief is sure to raise some eyebrows.
True, the feds cite Ninth Circuit precedent as the basis for supporting the motion to dismiss. Even so, some are undoubtedly watching the West Flagler case play out and wondering whether there’s some hypocrisy in the government’s stance.
The Seminole Tribe ultimately succeeded in having that case dismissed. However, it did so despite the government, not with its help.