If I were representing a tribe that was entering into negotiations with a state to do this, I would try to replicate that model as closely as possible with little, if any, derivation because it’s not clear to me what would lead you off the proven path. What potential legal hurdles might tribes in other states face in replicating the Florida model, particularly concerning the Indian Gaming Regulatory Act (IGRA)? Behnam Dayanim: The DOI 2024 amendments to IGRA put to rest any argument that remote intrastate wagering in which the servers are located on tribal lands and regulated by the tribe violates the statute. Any challenge to such an arrangement would need to rest on state law – in particular, whether under state law the wager will be deemed to take place where the server or where the patron is located. The amendments also appear to signal greater scrutiny of revenue-sharing arrangements between tribes and the states. Derril Jordan: They really shouldn’t face any major hurdles. One of the things that the Supreme Court looks at in deciding whether to grant cert to review a case in a court of appeal is whether there’s a disagreement between the circuits. I suppose that would be the way to go if you were an opponent of a tribal-state compact. You just challenge it somewhere outside of the D.C. Circuit (where the West Flagler case reversed the lower court decision in August 2023 and reinstated the gaming compact) and see if you can get a different decision from the District Court and then ultimately from the Circuit. How might the Florida ruling influence negotiations between tribes and states regarding future gaming compacts, particularly in areas like revenue sharing and exclusivity? Behnam Dayanim: DOI has made clear its intention to scrutinize carefully revenue-sharing arrangements to ensure that tribes retain the principal economic benefit of the gaming activity and that any revenue to the state beyond actual costs associated with regulating the tribe’s gaming activity reflects the value of some meaningful concession to the tribe. Exclusivity might be one of those concessions in many states. There certainly will be a push and pull between the competing desires for a greater share of revenue and, at least in some states, for a competitive, multi-operator marketplace. Derril Jordan: Well, 25 C.F.R. Part 293 has some language in there about revenue sharing, which was essentially an attempt to sort of codify, if you will, the department’s practice regarding revenue sharing. According to the regulation and according to the various letters that the department has sent out over the years, the department gives very close scrutiny to any situation where there’s revenue sharing. If there’s a situation where the state has legalized mobile sports betting, then I don’t think there’s any meaningful concession to be made by the state to a tribe that would justify revenue sharing. In states where mobile sports betting has not yet been legalized, the decision could have a significant impact, both in lessening tribal opposition and in creating markets in which tribes dominate. TRIBAL TRIUMPH 24
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