Chairman Ernie Stevens, Jr. of the National Indian Gaming Association, stands with the color guard at the opening of the organization's annual membership meeting in Las Vegas, Nevada, on April 18, 2018. Photo: NIGA

Legislation | Litigation | Regulation

Supreme Court opens the door for sports betting for states and for tribes

Monday, May 14, 2018

A closely-watched U.S. Supreme Court case has resulted in victory for the sports betting industry, opening the door for states and tribes to legalize wagers on everything from college basketball to professional football.

By a vote of 6 to 3 on Monday, the justices ruled that states like New Jersey can legalize sports betting without running afoul of a federal law known as the Professional and Amateur Sports Protection Act (PAPSA). The majority held that the law, which dates to 1992, violates the so-called "commandeering" doctrine because it forces states to act in a certain way, thus depriving states of their sovereign authority.

"Congress can regulate sports gambling directly, but if it elects not to do so, each state is free to act on its own," Justice Samuel Alito wrote in the opinion for the court. "Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not."

The National Indian Gaming Association (NIGA) was among the many groups paying attention to the issue. The inter-tribal organization has been supportive of efforts to address the status of PASPA, in order to ensure that Indian Country is at the table as more and more states consider sports betting.

“The bottom line is we are ready to mobilize our industry and we are anticipating that it will come down in accordance to the law, recognizing us as sovereign governments," NIGA Chairman Ernie Stevens Jr., a citizen of the Oneida Nation from Wisconsin, said at the organization's convention last month in Las Vegas, Nevada, one of the few states where sports betting has already been legal.

Indianz.Com on SoundCloud: Christie v. National Collegiate Athletic Association- U.S. Supreme Court - December 4, 2017

The Supreme Court's decision in Murphy [Christie] v. NCAA and New Jersey Thoroughbred Horsemen’s Association, Inc. v. NCAA largely fell along ideological lines, with conservative-leaning justices joining Alito in the majority opinion In recounting the history of gambling in the United States, he gave a brief mention to Indian Country.

"With the enactment of the Indian Gaming Regulatory Act in 1988, casinos opened on Indian land throughout the country. Some were located within driving distance of Atlantic City and nearby states (and many others) legalized casino gambling," Alito wrote. "But Nevada remained the only state venue for legal sports gambling in casinos, and sports gambling is immensely popular."

Justice Clarence Thomas, a conservative-leaning member of the court, also wrote separately to agree with the majority.

Justice Ruth Bader Ginsburg authored a dissent, which was joined by Justice Sonia Sotomayor, who almost always sides with tribal interests in Indian law cases. They questioned the majority's reliance on the "commandeering" doctrine, saying the court delivered a "wrecking ball" to PAPSA.

"When a statute reveals a constitutional flaw, the court ordinarily engages in a salvage rather than a demolition operation," Ginsburg wrote.

Justice Stephen G. Breyer filed a separate opinion, in which he agreed with parts of the majority but also dissented, arguing that Congress has the power to ban sports betting without violating state sovereignty. He also joined parts of Ginsburg's dissent.

U.S. Supreme Court Decision in Murphy v. NCAA:
Syllabus | Opinion | Concurrence [Thomas] | Concurrence / Dissent [Breyer] | Dissent [Ginsburg]

Supreme Court Documents:
Oral Argument Transcript: Christie v. NCAA / New Jersey Thoroughbred Horsemen’s Association, Inc. v. NCAA (December 4, 2017)