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Martin Lycka, Entain Plc's Senior Vice President for American Regulatory Affairs and Responsible Gambling takes a look at the origins of tribal gambling law and how some momentous decisions sparked a tribal gambling revolution.
The online gambling industry is a universe inhabited by people from all walks of life. It welcomes sports enthusiasts, marketing gurus, technology brainiacs, entrepreneurial loners and law nerds. I may have been a law nerd once; I was particularly passionate about spending long evenings looking through legal books and lists of court judgments.
However, the rather muddled nature of industry regulation, as well as the industry's focus on practical reality, has kept telling me that being at least a reasonably decent gambling attorney takes a lot more than memorizing the wise words of notable judges.
And so I left my study and entered the manic world of online gambling, which is characterized by constant change at the speed of light. I have learned that, despite popular opinion, all this madness has method and being pragmatic is arguably the most efficient way to steer the online gambling ship.
What feels like many moons ago, the online gambling ship was only allowed to anchor in a few European ports; Turning it west toward the American coast would have entangled you in the webs of PASPA and other pre-digital laws. And then the Supreme Court decided to tear down all prohibition signs; the ship has landed and the rest is history, or rather the greatest seismic shock to the industrial universe.
However, there is another legal history that has developed in parallel with PASPA and its eventual repeal; and that is the story of the North American tribal game. The story begins with a property tax bill received by a married couple named Bryan who lived in a motor home on Indian land in northern Minnesota.
The Bryans had never received a property tax bill from the local authorities, in this case from Itasca County; They took the county to court out of dismay. After losing successively on all lower courts, the Bryans showed their courage and determination, not dissimilar to the heroes of the PASPA Revocation Battle, and received a Certiorari-Writ of Certiorari from the Supreme Court.
The case was heard and the court concluded that states do not have the power to tax locals on their reservations. Crucial to our gambling history is that the court went beyond the specifics of the Bryans' claim and ruled that states also have no power to regulate the activities of indigenous people on tribal land. Tribal sovereignty over gambling within their country was subsequently maintained in cases initiated by the California Cabazon Band and the Florida Seminoles.
These momentous decisions sparked the tribal gaming revolution, which resulted in over 200 tribes in Indian areas such as Arizona, California, Connecticut, Florida, Minnesota, New York and Oklahoma offering one form or another of gambling. The revolution found its legal expression in the 1988 Indian Gaming Regulatory Act, or IGRA for short.
The law has preserved tribal sovereignty over gambling on Indian lands, while some of its key aspects have been made subject to treaties between the tribes and their state. In addition, all of these contracts require signature by the U.S. Department of the Interior for Indian Affairs, either by express approval or by taking no action within 45 days of receipt of such a state-negotiated contract.
Similarly, in Canada, the Mohawk Council of Kahnawake exercised its rights to gamble from its country and introduced its gambling regulation in 1996, which is still in force today, regulation over the wire.
The advent of sports betting in the United States, particularly in its mobile form, has woven the legal histories of PASPA and tribal gaming into one, and it has surely made the juices of all law nerds flow among us.
In this regard, the critical part of the IGRA provides that the tribes have the right to offer categories of gambling approved by the state in which they are resident; This is exactly where sports betting comes in. As part of the nationwide expansion of sports betting, tribes in Arizona, Connecticut, New York, or South Dakota have renegotiated their contracts to enable at least some forms of sports betting.
The two states where the heated debate about the interplay between mobile and other forms of sports betting and tribal gaming is most prominent are Florida and California.
The Governor of Florida and the Seminole Tribe recently signed a 30-year contract that gives the Seminoles the exclusive rights to offer mobile sports betting in the state; with the main legal principle behind the contract that bets are made on Indian land because the servers that accept them are located there.
This quite novel approach has already led to litigation in Florida courts by proponents of the historic legal principle that a bet is considered to be placed on tribal land, both the person making the bet and the casino must be on it . Since federal agencies recently signed the Florida Pact, its fate will most likely be judged in court unless Reps Correa and Katko's recent efforts to clarify the IGRA's definition of online tribal gaming through federal law, will succeed.
At the same time, the tribes in the Golden State have been playing a game of control of the future regulated sports betting market by launching a voting initiative that would restrict betting to their brick and mortar casinos and a handful of racetracks. It is said that in order to counter this move, the private gaming industry may be considering a separate vote for mobile sports betting. Whatever happens, showdown time will come next November.
The bottom line is that even the hype world of North American sports betting and the iGaming expansion is pretty much loving people who are infatuated with law books and court precedents. and wiping off some of the rather boring legal theories might come in handy eventually.