As expected, the Department of the Interior has filed a response to West Flagler’s request to the Supreme Court to stay the lower court’s mandate in the case.
While the Supreme Court did grant a temporary stay last week, the brief filed by Solicitor General Elizabeth Prelogar argued the petition should be denied.
The brief posed two key arguments. The first was the likelihood the Supreme Court would grant a writ of certiorari was slim to begin with, while the second was that the DOI believed West Flagler failed to demonstrate that not staying the mandate would cause substantial harm.
The brief listed three reasons why they believe West Flagler would not succeed in petitioning the court:
- Compact is consistent with the Indian Gaming Regulatory Act (IGRA)
- Compact is consistent with the Unlawful Internet Gaming Enforcement Act (UIGEA)
- The Secretary’s Approval Of The Compact Is Consistent With Equal-Protection Principles
The brief relied heavily on the Circuit Court opinion to support its argument, including that IGRA does not prohibit a compact from including details beyond what happens on reservation.
“But there is no apparent reason why a Tribal-State compact that authorizes gaming activities on 16 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,” the brief noted.
As for the argument that the funding of accounts would violate UIGEA, the DOI noted that West Flagler’s argument regarding deposits would ignore the idea that the mechanism for funding accounts might take place in person on tribal lands.
“Applicants fail to address the Compact’s own text which, although it does not specifically address payment methods, requires the Tribe to comply with all “applicable federal laws with respect to the conduct of Sports Betting,” the brief stated.
Finally, on the equal protection front, the brief noted “a sovereign government has no race”.
It is now up to the Supreme Court if it would like to extend the stay of the Circuit Court mandate until West Flagler files its writ with the court. It could choose to lift the stay after reading the DOI brief on the matter.
West Flagler has said it will file its write by Nov. 20.
