Washington Court Reaffirms Tribal Sovereignty In Sports Betting Case, But Differences Among Courts Begin To Emerge

• Jurisdiction: United States,Federal,Washington
• Law Firm: Pillsbury Winthrop Shaw Pittman
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Sovereign Immunity: Public Sector Government, Sport, Gaming
• Author: Mr Blaine I. Green, Emily Harwell and Allan Van Vliet
• Published date: 26 April 2023

TAKEAWAYS

The Supreme Court's overturning of the Professional and Amateur Sports Protection Act in 2018 has led to renegotiations of tribal-state gaming compacts to allow tribes to offer sports betting.

In February 2023, a federal court in Washington rejected a lawsuit challenging certain compact amendments between tribes and the State of Washington relating to sports betting, affirming tribal sovereignty.

Differing results among courts now pose the question of whether tribes are indispensable in lawsuits challenging their contracts.

Over recent decades, tribal gaming has developed into a $32 billion industry, providing economic stability and tribal government funding for sovereign nation building. More recently, the U.S. Supreme Court's decision (in 2018) to overturn the Professional and Amateur Sports Protection Act has sparked renegotiations of tribal-state gaming compacts across the country to allow tribes to enter the online sports betting arena.

Washington was one of the first states to enter into new compacts to allow sports betting at tribal casinos. On February 21, 2023, the U.S. District Court for the Western District of Washington at Tacoma rejected a lawsuit that challenged the Washington compact amendments for sports betting. The decision has important implications for the future of Indian gaming'specifically, tribal sports betting'and tribal sovereignty more generally.

The Indian Gaming Regulatory Act

The Indian Gaming Regulatory Act (IGRA) addresses the types of gaming activities which may be offered in Indian Country under federal law. Enacted for the purpose of "promoting tribal economic development, self-sufficiency, and strong tribal governments," IGRA created a regulatory framework consisting of three tiers: Class I gaming (traditional and ceremonial games), Class II gaming (bingo and non-banked card games) and Class III gaming (all other games, including casino games such as slot machines, card tables and sports betting). IGRA requires states to negotiate class III gaming compacts with tribes in good faith, and prohibits states from using the compacting process to impose any tax, fee, charge or other assessment on tribal gaming operations.

Washington Sports Betting Legislation and Amended Tribal Gaming Compacts

In March 2020, the Washington legislature passed a bill allowing sports betting at tribal-owned casinos. In passing this new law, the legislature declared that "the policy of [Washington] to prohibit all forms and means of gambling except where carefully and specifically authorized and regulated ..." is furthered "by authorizing sports wagering on a very limited basis by restricting it to tribal casinos." House Bill 2638, signed by the governor on March 25, 2020, permits tribal casinos to accept wagers from mobile applications and the internet, but requires the customer placing the wager to be physically present on the premises of that tribe's gaming facility. The legislation further limits...