The National Indian Gaming Association, tribal leaders, and gaming representatives came together to conduct the “Preparing for Sports Betting: Tribal Gaming Consideration after Murphy v. NCAA,” panel at the National Congress of American Indians (NCAI) Mid-Year Conference at the Marriott in Kansas City, Missouri last week. The U.S. Supreme Court recently struck down a law that made sports betting illegal in most states. This decision has implications for tribes and states as they consider authorizing sports betting in their jurisdictions.  This session, moderated by Debbie Thundercloud, Chief of Staff at NIGA provided tribal leaders the opportunity to hear about what to expect in light of this recent Supreme Court decision and to participate in the discussion of the issues needed to be considered for existing operations and future ventures.

The panelist included Verlon M. Jose, Treasurer of the Arizona Indian Gaming Association (AIGA) and Vice Chairman of the Tohono O’odham Nation, Sheila Morago, Executive Director of the Oklahoma Indian Gaming Association, Aurene Martin, President of Spirit Rock Consulting, Tana Fitzpatrick, a staff attorney at the National Indian Gaming Commission (NIGC), Loretta Tuell, Managing Principal of Tuell Law and Jonodev Chaudhuri, Chairman of the NIGC, who provided some closing remarks.

National Indian Gaming Association Chairman Ernie Stevens, Jr., opened the dialogue, welcoming the leadership.  He explained that NIGA established the Sports Betting Working Group earlier in the year in anticipation of the potential ruling and they have been preparing tribal governments for sports betting by conducting listening sessions with the tribes which helped develop the common tribal principals. Stevens said, “You leaders are the clearinghouse, you will help us drive this on behalf of your tribal communities.  You are the reason we are here today, to put our thoughts together on this issue.”  He added, “We have to put our minds together to figure out the best approach for Indian Gaming.”  He explained that the tribal gaming industry has proven itself to be the leaders in the industry.  He said, “We are the experts, and we need to analyze the potentials of gaming options and revenues through sports betting.”

Debbie Thundercloud opened up the panel discussion providing an overview of the NIGA Sports betting resolution passed by the member tribes at the recent Indian Gaming Tradeshow Membership meetings in April.  She also outlined the resolution’s principals that the tribes approved that must be included in any proposed legislation considered by states related to Sports Betting. She said, “When NIGA started to look at developing the Sports Betting resolution through the work of the NIGA Sports Betting working group, the priority was putting together principals that the organization could stand behind.”

The principals are: Tribes must be acknowledged as governments with authority to regulate gaming; Tribal Government Sports Betting revenues will not be subject to taxation; Customers may access Tribal Government Sports Betting sites as long as Sports Betting is legal where the customer is located; Tribal rights under IGRA [Indian Gaming Regulatory Act] and existing Tribal-State gaming compacts must be protected; IGRA should not be opened up for amendments; Tribal Governments must receive a positive economic benefit in any federal Sports Betting legalization proposal; Indian Tribes possess the inherent right and protection of the game and patron protections for responsible gaming are of the utmost importance, and any consideration of the use of mobile, online or internet gaming must adhere to these principals.

Aurene Martin provided a historical overview of the Professional and Amateur Sports Protection Act (PASPA).  She said, “The goal of the bill was to stop the spread of sports betting in the United States, and it was found unconstitutional.  The ruling means there is no longer a prohibition on sports betting and it is up to states and Tribes to determine their future in sports betting. Because it is on a state by state basis, it is up to the tribes to determine how they want to deal with sports betting.”

Sheila Morago explained that Tribes in Oklahoma have been trying to get sports betting approved by the state Legislature in the last two sessions but have been unsuccessful.  She said they are now working off-session to educate the Oklahoma State legislature and current candidates running for state seats. They are looking at the market potential in Texas as well because that is where their competition will lie.  She also commented on the hype over Sports Betting “The hype surprises me. The problem between all of us is a hard nut to crack.  There are considerations in every state, and we cannot decide on the same things.” She added, “We have too many different things in our compacts, so we have to find common ground, and it is up to the tribal leadership to put the right people in the room to discuss this.”

Verlon Jose said, “Each state will have to evaluate their situation, and there must be continued evaluation going on to meet the specific tribal options.”  He added, “Our Arizona tribes understand that they must be in dialogue with the Arizona legislature.” Tana Fitzpatrick said the role of the NIGC is to balance out the federal regulatory responsibility and support tribal sovereignty and self-determination.  She said, “The NIGC understands that there are unique and complex issues to tribal gaming.  For the past 25 years, we have worked with gaming tribes on a daily basis and we have encountered questions, and situations that have evolved with the market and sports betting is a new phenomenon for everybody.”  She added, “There is going to be a learning curve. If a tribe is considering a sports betting management contract to run a sports book – we would be involved in reviewing ordinances.  The NIGC has a dedicated staff and can quickly come up to speed in sports betting and will be ready to regulate. We anticipate tribes will be given a seat at the table and the NIGC will continue to cover our responsibilities.”

Loretta Tuell added, “Tribes are vested with great power and how you use that power matters.  What we do and how we do it matters and impacts us all.”  She added that there are a number of questions that need to be asked including authority, gaming classifications, the technical aspects, the risks, and the value and policies related to the expansions of Sports Betting state by state and considerations from the operational and regulatory perspective. The panelist discussed the classification of Sports Betting in that some forms may fall into Class II and some into Class III as a potential for further discussion and debate. The consensus of the group determined that thinking outside the box and being innovative with how tribes choose to expand gaming to include sports betting and under what classification is critical.

NIGC Chairman Chaudhuri spoke about the policy side of PASPA.  We have to figure out what this means for Indian country.  In one sense, nothing changed from the day before the Murphy decision came out to the day after.  “IGRA clearly spells out how Class III gaming needs to be subject to a compact, and our regulations have always listed Sports Betting as Class III – thus subject to a compact.”

Chaudhuri explained that the debate is about a new model and form of gaming and needs to be explored on how this will be relevant to Indian country and Indian gaming with a number of models on the horizon, “This isn’t going to be the last time we are going to be talking about this emerging market or policy and legislative changes that allow for new types of platforms.  It is helpful to talk about things from a 30,000-foot perspective.”  Chaudhuri added that Tribes need to be at the forefront on all these emerging platforms from a technology, compacity and policy perspective to support tribal economic development, tribal self-sufficiency, and strong tribal government, which are the first philosophies outlined in IGRA. He also said, “That needs to be the driving focus on the state and federal level, this distinguishes the difference between Indian Gaming and Commercial gaming. Sports betting provides us an opportunity to think about policy changes that may help position Indian Country to take advantage of other platforms coming down the pipe.”