The U.S. Department of the Interior had its say with the U.S. Supreme Court regarding a request for a delay of a D.C. Circuit Court s mandate that would legalize .
In its to the U.S. Supreme Court, the U.S. Department of the Interior contends that West Flagler failed to satisfy the necessary requirements for a stay of the mandate and did not present reasonable contentions that would lead SCOTUS to hear the case.
Supreme Court Chief Justice John Roberts a temporary stay of the D.C. Circuit Court’s mandate to restore the state’s gaming compact on Thursday, Oct. 12. SCOTUS will now determine if the full stay will be granted after receiving the DOI s response.
West Flagler Contentions Lack Merit
Solicitor General Elizabeth B. Prelogar represented the DOI in its response to West Flagler. In order to be granted a stay by SCOTUS pending the filing of petition for a writ of certiorari, Prelogar noted that an applicant must establish that at least four SCOTUS justices will consider the issue sufficient to grant certiorari; a majority of SCOTUS will likely vote to reverse the judgement; and the likelihood of irreparable harm will result from the denial of a stay.
West Flagler failed to satisfy any of these requirement in its request, Prelogar wrote.
West Flagler, she noted, presented three questions concerning the Indian Gaming Regulatory Act (IGRA), the Unlawful Internet Gambling Enforcement Act (UIGEA), and constitutional equal protection in its request.
These questions are as follows:
The D.C. Circuit Court’s opinion raises the question of whether the Indian Gaming Regulatory Act (IGRA) authorizes the federal approval of a gaming compact that allows a tribe to conduct sports betting off tribal lands.
The court’s opinion raises the question of whether the Unlawful Internet Gambling Enforcement Act (UIGEA) is violated when a tribe uses the internet to offer gambling in locations off its own land.
The court’s opinion raises the question of whether the Equal Protection Clause of the Constitution is violated by a federal government approval of an IGRA compact in which a state gives a tribe a monopoly to conduct online sports betting while simultaneously making it a felony for anyone else to do so.
Each of those contentions lacks merit, and none presents a conflict with any decision of this Court or another court of appeals. The Court therefore is not reasonably likely to grant certiorari, and there is no fair prospect that the Court would reverse the court of appeals’ judgment if it did grant review, she wrote.
According to Michigan vs. Bay Mills, Prelogar wrote that states have capacious authority to regulate tribal gaming outside Indian territory. If a state can authorize a tribe to conduct gaming operations on non-Indian lands, a state can also authorize the portion of a tribe s gaming activities that occur on non-Indian lands where the balance of the activities occurs on Indian lands.
The gaming activities on Indian lands, of course, must be separately authorized under IGRA. But there is no apparent reason why a tribal-state compact that authorizes gaming activities on Indian lands under IGRA cannot also include provisions that concern the state s (independent and non-IGRA) authorization to conduct directly related gaming activities in the state on non-Indian lands, even though IGRA and the Tribal-State compact would not independently authorize those related activities, she wrote.
So What Happens Now?
SCOTUS will now review the West Flagler request and the DOI response and decide whether or not a stay of the mandate is granted. So what are the possibilities moving forward?
There are two possibilities moving forward. One, SCOTUS grants West Flagler the stay and the mandate is put on hold while the court debates the writ of certiorari. If SCOTUS decides to not take up West Flagler’s case, it would likely make that decision in early 2024 and the mandate would go back into effect and the gaming compact would again become valid.
However, if SCOTUS grants the stay to West Flagler and decides to accept the writ of certiorari to hear its case, the stay would remain in effect throughout the entire process. A final decision on the case likely wouldn’t happen until 2025.
