Hillary Tomkins talks tribal gaming, sports betting with OPR

Former DOI Solicitor General Discusses The Complexities Of Tribal Gambling

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Passing sports betting legislation is proving to be a difficult lift in states across the country. For many, one of the biggest friction points is how tribes fits into the equation.

Online Poker Report recently discussed the complexities of tribal gaming with former Solicitor General for the US Department of Interior Hilary Tompkins ahead of her panel at the National Indian Gaming Association (NIGA) trade show.

Now a partner at the law firm Hogan Lovells, Tompkins is part of a Tuesday panel titled “A National View On Gaming Litigation in the US.” She shared her thoughts on tribal sports betting, as well as several other issues facing tribal gaming operators.

On tribes and sports betting

Tompkins was bullish on tribal sports betting opportunities but noted that the appetite among Indian nations is likely to be region- and tribe-specific.

“I think we’re going to see some of the major tribal gaming operators work out deals with states, because states can’t afford to say no to that additional revenue,” she said. “Some of the smaller tribal gaming operations and those in rural areas may be less inclined to get on board.”

Tompkins used three examples to highlight the disparate approaches tribes are likely to take:

  • “You see tribes in Connecticut — the Mohegan and Pequot — that are clearly interested in sports betting, but want to do it on terms they can live with.”
  • “California tribes are already in a dispute with the state over card table games at California card rooms, and I think they’re clearly of the view that sports betting would need to be exclusive — not to mention the need for a constitutional amendment to expand gaming.”
  • “Rural tribes are waiting to see if it makes sense. The margins are small so they have to decide do they want to add it in. And is it worth potentially reopening their compacts for that? But there’s more incentive in states that include intrastate online sports betting, allowing rural tribes access to the entire state.”

Opening a tribal compact is never cut and dry

Amending a tribal compact isn’t easy. It starts with the tribe and the governor reaching an agreement. As Tompkins explained, that’s merely the first step in a protracted process prone to going sideways at any point along the way.

“Some states require legislative approval. Tribes need to be thinking about the hurdle of not only renegotiating a compact with the governor, but then also getting approval through the state. And a lot of state legislatures are teeing up bills that have non-Indian sports betting.

“Then you have to get Department of Interior approval on the amendments. DOI will have to confirm that the conditions of sports betting and exclusivity was a necessary amendment to begin with. Or did it already exist under the old compact?

“And they’ll also need to assess whether any increase in revenue sharing is proportional to the addition of sports betting being part of the tribal-exclusive market. Interior will evaluate that at arm’s length and may have a different view on those issues.”

A recent example of how messy this process can get can be found in Connecticut.

The Connecticut tribes are threatening to cut off payment if the state so much as introduces legislation creating an open-bidding process for a new casino or non-tribal sports betting.

Meanwhile, the tribes filed a lawsuit against the DOI (now dropped) claiming the department unduly delayed compact amendments involving a joint casino project.

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Do compacts need to be amended?

According to Tompkins, the difficulties of amending compacts might be avoidable.

“A threshold point of debate with states is whether or not they need to renegotiate a compact,” she said. “I do believe a lot of tribes feel they have the exclusive gaming market and that their current compacts allow for the addition of sports betting — as long as the state legalizes it and it doesn’t affect the current revenue sharing rate.”

Very few tribal compacts specifically mention sports betting, but many authorize all Class III gaming, a category in which the Indian Gaming Regulatory Act (IGRA) definitively places sports betting.

“In that general language, there’s an argument that can be made that that could encompass sports betting,” Tompkins said. “I don’t think the omission of it necessarily means it’s not part of the deal.”

- Steve covers nearly every angle of online poker in his job as a full-time freelance poker writer. His primary focus for OPR is the developing legal and legislative picture for regulated US online poker and gambling.
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