Twenty GOP state attorneys-general protest proposed federal expansion of tribal casino gaming

Haley Hintze
Published by:
Posted on: March 11, 2023 9:57 pm EST

Twenty of the 28 currently-serving Republican state attorneys-general have co-authored a letter to the Bureau of Indian Affairs protesting a widespread expansion of tribal gambling, both live and online, proposed by the BIA in late 2022.

“The proposed regulations would authorize an unprecedented expansion of tribal casino gaming—and would achieve that outcome by unjustifiably restricting the ability of state governments to adopt and enforce their own policies on gaming matters,” wrote the lead author of the letter, Montana Attorney General Austin Knudsen.

The expansions proposed by the BIA, a division of the Department of the Interior, would significantly expand the forms and channels through which American tribal nations can offer gambling services. The BIA proposals, if adopted, would comprise the largest expansion of tribal gambling since the Indian Gaming Regulatory Act (IGRA) was signed into law in 1988.

Sports betting, online gambling head debate topics

The two largest proposed areas of expansion are sports betting and online gambling, neither of which was addressed — or in online gambling’s case, even existed — when IGRA’s passage kicked off the modern tribal-casino era.

In recent years, fierce legislative and legal battles have ensued in numerous US states, pitting tribal interests against other gambling-industry stakeholders, and in many cases, against state and federal governments themselves.

The two most visible states where the battle over gambling expansion have occurred are Florida and California, though several others face bitter battles as well. In Florida, the “West Flagler” lawsuit against both the Seminole Tribe and the federal Department of Interior forced the Seminole Tribe to suspend sports-betting services it had launched in a deal with the state’s government. In California, both sports betting and online gambling, including online poker, have been stalemated for over a decade in that state’s legislature. The three-way California battle continues between tribal gaming, card rooms, and the state’s pari-mutuel industry.

BIA proposals redefine tribal-gaming parameters

The expanded opportunities proposed by the Bureau of Indian Affairs begin with the arrangement that exists today, where tribal nations negotiate gaming contracts with state governments on a state-by-state basis. One of the changes, however, would declare online gambling to be taking place on tribal lands if the gaming servers are located on the relevant tribal reservations.

The online gambling would then be declared legal, at the federal level, anywhere in that state, with a carveout for lands owned by other tribal nations. It’s this provision that has drawn the ire of the Republican attorneys-general. Most of the states represented by the recent protest letter to the BIA offer tribal gaming that at the present time is limited to live-casino action.

The legal precedents are murky as well. California’s Iipay Nation of Santa Ysabel famously tried to launch an online-bingo platform in 2014. State of California and US federal prosecutors immediately sought and obtained a temporary restraining order, arguing that under the admittedly out-of-date IGRA, online gambling was not deemed to be taking place on Iipay Nation land. The case was decided in 2018 with a ruling declaring the online bingo under IGRA.

That left the original interpretation of IGRA in full force, but the BIA’s opinion suddenly flipped in 2021, when the Florida West Flagler case originated. That battle began when an agreement between the Seminole Tribe and the administration of Florida Governor Ron DeSantis allowed for the same type of remote gambling, albeit for sports betting, to be declared as legal under IGRA.

This time, despite the earlier Iipay Nation precedent, the Department of the Interior issued no opinion on the Seminole-Florida compact, allowing it to stay in force and become an expansion of IGRA by default. Hard Rock’s online sports-betting app, available to most Floridians, then launched in November 2021, but just a month later, it was yanked as the West Flagler case began its ongoing march through the courts.

Land-in-trust restrictions would be eased

Another BIA proposal would remove many of the restrictions governing how tribal nations acquire land in trust and use it to build land-based casinos near population centers. The land-in-trust concept was initially implemented as a way to allow remotely-located tribal nations the chance to build a live casino that could draw reasonable traffic as envisioned under IGRA.

However, the original rules still mandated that the proximity of the land to be acquired and casino-ized to the tribe’s reservation was a factor to be considered. That language would be removed under the BIA’s new proposals. While most metropolitan areas in the US are serviced by one or more casinos, the change could launch a land rush of sorts, with multiple tribal nations looking to acquire and build in the most lucrative remaining areas. Given the parallel pressure of casino licensing that already exists between any pair of neighboring states, and small-to-mid-sized casinos could proliferate, especially in border regions.

Featured image source: BIA