Maverick Gaming LLC, the owner-operator of 19 Washington cardrooms, sued state and federal officials in D.C. federal court Tuesday, alleging violations of the Indian Gaming Regulatory Act (“IGRA”) and equal protection.
Specifically, Maverick argues that the State of Washington’s gaming compacts illegally give tribes a monopoly over roulette, craps, and sports betting—forms of what IGRA refers to as “class III gaming.” In 2021, the State and 16 tribes amended their compacts to authorize sports betting.
IGRA permits tribes to engage in class III gaming only if “such activities are . . . located in a State that permits such gaming for any purpose by any person, organization, or entity, and conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State . . . that is in effect.”
The crux of Maverick’s argument is that tribes cannot engage in roulette, craps, and sports betting because: (1) Washington does not “permit[] such gaming . . . by any person, organization, or entity” as non-tribal actors cannot participate; and (2) the compact amendments permitting sports betting violate IGRA and other federal law.
Whether Class III Gaming by Washington Tribes Violates IGRA Because the State Does Not “permit[] such gaming . . . by any person, organization, or entity”
Maverick’s first argument is that the tribes’ “monopoly” on roulette, craps, and sports betting violates IGRA because Washington does not “permit[] such gaming . . . by any person, organization, or entity.” 25 U.S.C. § 2710(d)(1)(B).
Washington law allows tribes to compact to conduct sports wagering. See RCW 9.46.0364. But Maverick alleges that the State criminally prohibits non-tribal entities from participating in sports wagering.
Courts have applied different tests in determining whether certain state gaming activities violate IGRA.
In interpreting § 2710(d)(1)(B), the Eighth Circuit Court of Appeals asked whether state “gaming law is prohibitory or regulatory in nature.” U.S. v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358, 366 (8th Cir. 1990). If state law prohibits “gambling in general” and the particular activity in question, it violates IGRA to allow a tribe to participate in it. Id. at 368. But if state law merely regulates gambling and the specific activity, there is no IGRA violation. Id. The Second Circuit Court of Appeals has adopted the same test. See Mashantucket Pequot Tribe v. State of Conn., 913 F.2d 1024, 1032 (2d Cir. 1990).
However, the Ninth Circuit Court of Appeals found the statute ambiguous and resolved the ambiguity in favor of tribes under a canon of construction. See Artichoke Joe’s California Grand Casino v. Norton, 353 F.3d 712, 731 (9th Cir. 2003). Thus, the Ninth Circuit held that a state “permits” class III gaming under IGRA even if those activities are only legalized for tribes. Id.
If the U.S. District Court for the District of Columbia adopts the prohibition-regulation dichotomy here, it is possible a judge would find sports betting by tribes in Washington violates IGRA; Maverick has pointed to state law that it reads as prohibiting class III gaming by non-tribal entities. See RCW 9.46.222.
Whether the Compact Amendments Allowing Sports Betting Violate IGRA and Other Federal Law
Maverick alleges the Secretary of the Interior was obligated to disapprove the 2021 compact amendments, which allow tribes to engage in sports betting, for three reasons.
First, as discussed above, Maverick argues the amendments violate IGRA because they purport to authorize class III gaming in a state—Washington—that does not allow non-tribal actors to participate.
Second, Maverick argues the amendments run afoul of the Constitution’s equal protection guarantee through discrimination on the basis of race and ancestry.
Third, Maverick argues that the compact amendments violate the Tenth Amendment because the federal government, through IGRA, required states to negotiate compacts with tribes.
Through the lawsuit, Maverick seeks an order declaring that the compacts and compact amendments violate IGRA, the equal protection clause, the Tenth Amendment, and other federal law.
Matt Slovin is an Associate with Galanda Broadman PLLC. and Harvard Law School graduate. He is a former sports reporter, for MLB.com and The (Nashville) Tennessean.
