by Matthew Dorf­man*

It begins with a seem­ing­ly innocu­ous ques­tion: what does it mean to be “on” some­thing? The Semi­nole Tribe of Flori­da (here­inafter the “Semi­nole Tribe”), with the con­sent of Sec­re­tary of the Inte­ri­or Deb Haa­land (here­inafter “Sec­re­tary”), has attempt­ed to stretch the mean­ing of “on” as used in the Indi­an Gam­ing Reg­u­la­to­ry Act (here­inafter the “IGRA”) in order to allow them to pro­mote online sports gam­bling.1 The IGRA gives Native tribes exclu­sive reg­u­la­tion rights for gam­ing activ­i­ties which take place “on Indi­an lands.”2 The Semi­nole Tribe has attempt­ed to extend its exclu­sive juris­dic­tion through the cre­ation of an online sports gam­bling appli­ca­tion which pur­ports to allow patrons to place bets through­out the State of Florida—regardless of whether the patron is phys­i­cal­ly present on Native lands.3 How­ev­er, this inter­pre­ta­tion of the IGRA is incon­sis­tent with both the ordi­nary mean­ing of the word “on” and the word’s mean­ing as it has been used under sim­i­lar statu­to­ry circumstances.

Con­gress enact­ed the IGRA in Octo­ber 1988 in response to a grow­ing trend of gam­ing activ­i­ty tak­ing place on Native lands.4 The IGRA declares, inter alia, that “Indi­an tribes have the exclu­sive right to reg­u­late gam­ing activ­i­ty on Indi­an lands if the gam­ing activ­i­ty is not specif­i­cal­ly pro­hib­it­ed by Fed­er­al law and is con­duct­ed with­in a State which does not, as a mat­ter of crim­i­nal law and pub­lic pol­i­cy, pro­hib­it such gam­ing activ­i­ty.”5 This pro­vi­sion has “create[d] a frame­work for reg­u­lat­ing gam­ing activ­i­ty on Indi­an lands.”6 Large­ly, it has served as a safe har­bor for Native tribes who have sought to pro­mote their own eco­nom­ic inde­pen­dence through gam­ing on “Indi­an lands”7 as a com­mer­cial activ­i­ty.8

In recent years, the lan­guage of § 2705(5) has come under greater scruti­ny. The spe­cif­ic phrase “on Indi­an lands” has led to lit­i­ga­tion in West Fla­gler Asso­ciates v. Haa­land.9 At issue in West Fla­gler Asso­ciates is a 2021 gam­ing com­pact (the “Com­pact”) between the State of Flori­da and the Semi­nole Tribe which “autho­rizes the Tribe to offer online sports bet­ting through­out the State, includ­ing to bet­tors locat­ed off trib­al lands.”10 In August 2021, the Sec­re­tary tac­it­ly approved this com­pact by not exer­cis­ing her pow­er to strike it down.11 Notably, except where Native tribes have exclu­sive juris­dic­tion to reg­u­late gam­ing activ­i­ty, sports gam­bling is oth­er­wise pro­hib­it­ed through­out the State of Flori­da.12

The Com­pact goes even fur­ther in an attempt to cir­cum­vent a require­ment that the bet­tor plac­ing their wagers be phys­i­cal­ly on Native land by deem­ing any bets placed on an elec­tron­ic device as hav­ing tak­en place “exclu­sive­ly where received.”13 Three oth­er states—Michigan, New Jer­sey, and Rhode Island—have enact­ed laws which deem online wagers as hav­ing been placed at the loca­tion of the servers which han­dle the online trans­ac­tion.14 The Sec­re­tary argues that the per­spec­tive put forth by these states and the Com­pact reflects a mod­ern under­stand­ing of online gam­ing reg­u­la­tion.15

The Tribe and Secretary’s inter­pre­ta­tion is a legal fic­tion out of step with the gen­er­al under­stand­ing of gam­ing law. In oth­er con­texts, an activ­i­ty involv­ing two dis­tinct enti­ties that are not locat­ed in the same place results in the act hav­ing tak­en place at both loca­tions. As the Tenth Cir­cuit not­ed in Unit­ed States v. Tomeo, plac­ing a wager is akin to agree­ing to a con­tract since both wagers and con­tracts require mutu­al­i­ty or a meet­ing of the minds.16 Thus, a bet must be legal both where it is ini­ti­at­ed and where it is received; oth­er­wise, this would lead to absurd results. “If a bet mere­ly had to be legal where it was received, a bet­tor could place an ille­gal bet . . . from any­where in the Unit­ed States, so long as the bet was legal in the juris­dic­tion host­ing the servers for a game.”17

While the exis­tence of the statutes in Michi­gan, New Jer­sey, and Rhode Island demon­strates that oth­er states have adopt­ed this legal fic­tion, it also man­i­fests the intent of the remain­ing state leg­is­la­tures to not adopt that legal fic­tion. It illus­trates that leg­is­la­tures are ful­ly capa­ble of spec­i­fy­ing where online sports wagers are deemed to have tak­en place. Fur­ther, the fact that the leg­is­la­tures of those three states felt the need to artic­u­late this legal fic­tion indi­cates that their per­spec­tive is not nat­u­ral­ly derived from the phrase “on Indi­an lands.” Oth­er­wise, there would have been no need to pass leg­is­la­tion to clar­i­fy their state’s position.

While ana­lyz­ing a statute which uti­lized sim­i­lar lan­guage, the Nebras­ka Supreme Court in State ex rel. Sten­berg v. Oma­ha Expo­si­tion & Rac­ing, Inc. held that when the par­ties to a gam­bling activ­i­ty are not phys­i­cal­ly togeth­er, the activ­i­ty is deemed to have tak­en place at the loca­tion of each of the par­ties.18 In Sten­berg, a race­track enabled patrons to place bets using tele­phon­ic wager­ing where­by an indi­vid­ual can wager by call­ing the race­track and hav­ing an employ­ee place the bet for them on the caller’s account.19 The under­ly­ing statute which enabled the state to grant gam­ing licens­es required that any parimutuel bet­ting must take place at the race­track enclo­sure.20 The court inval­i­dat­ed Omaha’s tele­phon­ic wager­ing sys­tem, hold­ing that “the instruc­tions to place the wager must orig­i­nate from with­in the licensed race­track enclo­sure” in order for the gam­ing activ­i­ty to have tak­en place at—or on—the race­track enclo­sure.21

The ordi­nary mean­ing of the statute’s phrase­ol­o­gy also requires courts to impute a phys­i­cal pres­ence stan­dard. Although the phrase “on Native lands” is not itself used in com­mon con­ver­sa­tion, it can be com­pared to a phrase such as “on premis­es,” as both phras­es use the word “on” as it relates to a phys­i­cal­ly defined area of land. Imag­ine a statute which pro­hib­it­ed the use of firearms except for when peo­ple are “on premis­es” of a gun range. If a per­son were to walk across the street and fire their gun at a tar­get which is locat­ed on the premis­es of the gun range, com­mon sense dic­tates that the off-premis­es shoot­er would be in clear vio­la­tion of the statute. Still, the Sec­re­tary and the Semi­nole Tribe insist that the sim­i­lar facts of West Fla­gler should result in a con­clu­sion that defies that com­mon sense under­stand­ing of “on.”22 Although the bets from the mobile appli­ca­tion were received at the casi­no, and the bul­let hit the tar­get at the gun range, in nei­ther sce­nario would the per­son send­ing the bet or shoot­ing the gun be con­sid­ered to be “on” the required area of land.

How­ev­er, if the statu­to­ry lan­guage is deemed to be ambigu­ous, then Native tribes would be giv­en the upper hand. The Supreme Court in Mon­tana v. Black­feet Tribe of Indi­ans instruct­ed oth­er courts to lib­er­al­ly con­strue ambigu­ous statutes in favor of Native tribes.23 There­fore, if the phrase “on Indi­an lands” is deter­mined to be ambigu­ous as to whether the statute impos­es a phys­i­cal pres­ence require­ment, the inter­pre­ta­tion adopt­ed by the Native tribe shall pre­vail. This cre­ates an addi­tion­al obsta­cle for those argu­ing against the inter­pre­ta­tion put forth by the Semi­nole Tribe. If the Semi­nole Tribe can con­vince a judge that there is gen­uine ambi­gu­i­ty, then they may be enti­tled to the Black­feet pre­sump­tion. 24

Even so, the Black­feet pre­sump­tion may still yield to Chevron def­er­ence.25 As it stands, the dis­tinc­tion is irrel­e­vant since Sec­re­tary Haa­land has inter­pret­ed the statute in the same way as the Semi­nole Tribe.26 How­ev­er, if any future Sec­re­tary of the Inte­ri­or dis­agreed with Sec­re­tary Haaland’s and the Semi­nole Tribe’s inter­pre­ta­tion, then the courts would have to deter­mine which canon of con­struc­tion trumps the oth­er, assum­ing that they found an ambi­gu­i­ty in the statute.

The dis­trict court in West Fla­gler held that the IGRA’s lan­guage was not ambigu­ous and that the Com­pact had vio­lat­ed the IGRA’s terms by extend­ing the Semi­nole Tribe’s exclu­sive juris­dic­tion to areas not “on Indi­an lands.”27 Com­pacts which vio­late the IGRA’s terms must be reject­ed by the Sec­re­tary of the Inte­ri­or.28 The court explic­it­ly reject­ed the legal fic­tion sug­gest­ed by the Sec­re­tary and by the Semi­nole Tribe, observ­ing that “[w]hen a fed­er­al statute autho­rizes an activ­i­ty only at spe­cif­ic loca­tions, par­ties may not evade that lim­i­ta­tion by ‘deem­ing’ their activ­i­ty to occur where it, as a fac­tu­al mat­ter does not.”29 The court’s inter­pre­ta­tion com­plies with the com­mon mean­ing and statu­to­ry usage of the word “on,” thus mak­ing it like­ly that its deci­sion will be affirmed in the case’s ongo­ing appeal. How­ev­er, if the Semi­nole Tribe man­ages to poke a hole large enough to cre­ate an ambi­gu­i­ty, this would enable the Semi­nole Tribe—and Native tribes across the country—to oper­ate online gam­bling appli­ca­tions free from the reg­u­la­tion of their home states.

* Matthew Dorf­man is a J.D. Can­di­date (2023) at New York Uni­ver­si­ty School of Law. This Con­tri­bu­tion arose from the prob­lem pre­sent­ed at the 2022 Schreck Gam­ing Law Moot Court Com­pe­ti­tion host­ed by Uni­ver­si­ty of Neva­da Las Vegas William S. Boyd School of Law. The ques­tion pre­sent­ed was whether gam­ing activ­i­ty can be deemed as hav­ing tak­en place exclu­sive­ly on Native lands when a bet­tor places an online sports wager on a serv­er locat­ed on Native lands while not phys­i­cal­ly present on Native lands. This Con­tri­bu­tion presents one of the assigned argu­ments, and the views expressed do not nec­es­sar­i­ly rep­re­sent the views of the author.

1. See W. Fla­gler Assocs. v. Haa­land, No. 21-cv-2192 (DLF), 2021 WL 5492996, at *1–2 (D.D.C. 2021).

2. Indi­an Gam­ing Reg­u­la­to­ry Act, 25 U.S.C. § 2701(5) (2000).

3. W. Fla­gler Assocs., 2021 WL 5492996, at *1.

4. Indi­an Gam­ing Reg­u­la­to­ry Act, Nat’l Indi­an Gam­ing Comm’n,

5. Indi­an Gam­ing Reg­u­la­to­ry Act, 25 U.S.C. § 2701(5) (2000) (empha­sis added).

6. Michi­gan v. Bay Mills Indi­an Cmty., 572 U.S. 782, 785 (2014).

7. Indi­an Gam­ing Reg­u­la­to­ry Act, 25 U.S.C. § 2703(4) (defin­ing “Indi­an lands” as those lands “with­in the lim­its of any Indi­an reser­va­tion,” “held in trust by the Unit­ed States for the ben­e­fit of any Indi­an tribe,” or “over which an Indi­an tribe exer­cis­es gov­ern­men­tal power”).

8. Cheyenne Haslett and Lau­ra Romero, For Tribes, Casi­nos Fund What the Gov­ern­ment Doesn’t. Now They’re Closed, ABC News (Apr. 9, 2020, 1:36 PM), (report­ing that rev­enue from trib­al casi­nos fund pro­grams that the gov­ern­ment fails to cov­er such as “provid[ing] school clothes for chil­dren, sup­port for the elder­ly and health care for thousands”).

9. 2021 WL 5492996.

10. W. Fla­gler Assocs., 2021 WL 5492996, at *1.

11. Id.; see Indi­an Gam­ing Reg­u­la­to­ry Act, 25 U.S.C. § 2710(d)(8)(C) (“If the Sec­re­tary does not approve or dis­ap­prove a com­pact . . . before the date that is 45 days after the date on which the com­pact is sub­mit­ted to the Sec­re­tary for approval, the com­pact shall be con­sid­ered to have been approved by the Secretary . . . .”).

12. See Fla. Stat. § 849.14 (2020).

13. W. Fla­gler Assocs., 2021 WL 5492996, at *2 (“The Com­pact . . . pro­vides that all in-state wagers on sport­ing events ‘shall be deemed . . . to be exclu­sive­ly con­duct­ed . . . where the sports book(s) . . . are locat­ed,’ even those that are made ‘using an elec­tron­ic device’ ‘by a Patron phys­i­cal­ly locat­ed in the State but not on Indi­an lands.’”) (quot­ing Com­pact § III(CC)(2)); see also Com­pact § IV(A) (pro­vid­ing that “wagers on Sports Bet­ting . . . shall be deemed to take place exclu­sive­ly where received”).

14. See Mich. Comp. Laws Ann. § 432.304(2) (West 2019); N.J. Stat. Ann. § 5:12–95.20 (West 2013); 42 R.I. Gen. Laws Ann. § 42–61.2–1(21) (2022).

15. W. Fla­gler Assocs., 2021 WL 5492996, at *10.

16. 459 F.2d 445, 447 (10th Cir.), cert. denied 409 U.S. 914 (1972); see also Brief for the Unit­ed States of Amer­i­ca as Ami­cus Curi­ae Sup­port­ing Appellee, AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899 (9th Cir. 2002) (No. 99–35088), 1999 WL 33622333, at *13 (“A con­trac­tu­al trans­ac­tion, requir­ing mutu­al­i­ty or a meet­ing of the minds, pre­sup­pos­es the exis­tence and appli­ca­tion of two minds.”).

17. Cal­i­for­nia v. Iipay Nation of San­ta Ysabel, 898 F.3d 960, 965 (9th Cir. 2018).

18. 644 N.W.2d 563, 571 (Neb. 2002) (declar­ing the prac­tice of “tele­phon­ic wager­ing” a vio­la­tion of the Nebras­ka State Constitution).

19. Id. at 566.

20. Id.; see also Rice v. Con­nol­ly, 488 N.W.2d 241, 247 (Minn. 1992) (“In its lit­er­al sense, the word ‘on’ as part of the phrase ‘on-track’ is more pre­cise­ly defined as ‘at’ to denote a loca­tion for the place­ment of a . . . bet.”).

21. Sten­berg, 644 N.W.2d at 571.

22. 2021 WL 5492996.

23. 471 U.S. 759, 766 (1985) (hold­ing that Mon­tana could not tax Indi­an roy­al­ty inter­ests aris­ing out of leas­es exe­cut­ed after the adop­tion of the Indi­an Min­er­al Leas­ing Act).

24. Com­pare Nava­jo Nation v. Dep’t of Health & Hum. Servs., 325 F.3d 1133, 1136 n.4 (9th Cir. 2003) (hold­ing that the Black­feet pre­sump­tion did not apply where the under­ly­ing statute was unam­bigu­ous), with Unit­ed States v. San­ta Fe Pac. R.R., 314 U.S. 339, 354 (1941) (apply­ing the Black­feet pre­sump­tion after find­ing an ambiguity).

25. Com­pare, e.g., Williams v. Bab­bitt, 115 F.3d 657, 663 n.5 (9th Cir. 1997) (defer­ring to agency inter­pre­ta­tion under Chevron notwith­stand­ing pro-Native pre­sump­tion), and Sel­dovia Native Ass’n, Inc. v. Lujan, 904 F.2d 1335, 1342 (9th Cir. 1990) (same), with Ramah Nava­jo Chap­ter v. Lujan, 112 F.3d 1455, 1461–62 (10th Cir. 1997) (hold­ing that Black­feet trumps Chevron), and Albu­querque Indi­an Rts. v. Lujan, 930 F.2d 49, 59 (D.C. Cir. 1991) (same).

26. W. Fla­gler Assocs., 2021 WL 5492996, at *1.

27. Id. at *1–2.

28. Id. at *9 (cit­ing Amador Cnty. v. Salazar, 640 F.3d 373, 382 (D.D.C. 2011) (hold­ing that IGRA impos­es “an oblig­a­tion on the Sec­re­tary to affir­ma­tive­ly dis­ap­prove any com­pact” that is incon­sis­tent with its terms).

29. Id.