The recent Supreme Court decision overturning a legal standard that gave federal agencies the authority to interpret statutes has Indian country nervous about the future impact on tribal gaming and expected legal challenges.
The high court in June struck down a landmark precedent known as the Chevron doctrine and Chevron deference, decided in 1984, that has wide-ranging implications for the gamut of federal regulations and the agencies issuing them. This pivotal decision marks a significant transformation in administrative law and could have extensive implications for tribal nations and the Department of Interior. Previously, federal courts could defer to an agency’s interpretation of a statute or regulation if it was ambiguous or sketchy; now, parties can file lawsuits challenging equivocal or inconclusive regulations.
The issue is expected to be discussed at the Indian Gaming Association mid-year conference Sept. 16-18 in Washington, D.C., at G2E in Las Vegas Oct. 7-10, and at the National Congress of American Indians in Las Vegas Oct. 27-Nov. 1, all prior to the presidential election.
Ahead of those gatherings, the Indian Gaming Association explored what’s considered a monumental shift during its “The New Normal” webcast: “The Supreme Shift – How Overturning Chevron Affects Indian Country.”
Tribal-gaming attorney Scott Crowell, based in Arizona, said the Chevron case was landmark because when a federal regulation is at issue, the deference has always been given to an agency’s interpretation of any ambiguity in the statutes, meaning the court upholds that as long as it’s reasonable or even wrong with congressional intent.
“When you’re in a position of challenging a federal action, the Chevron doctrine has worked against you,” Crowell said. “When you’re supporting a federal action, it’s worked in your favor.”
Crowell said there are more than 100 federal court cases involving Indian law in which the Chevron doctrine has been an issue. In two-thirds of those cases, the Chevron doctrine was used to argue against tribal interests and the rest were used to defend tribal interests.
“Anytime this Supreme Court is going to overturn long-term precedent, I’m very cautious and scared,” Crowell said. “But I don’t think it’s going to have that much of a direct impact on federal Indian law for a variety of reasons.”
Victor Rocha, the Indian Gaming Association conference chairman, said he’s still concerned about how it will be used against tribes when it comes to the land they hold in trust, environmental issues, and gaming.
“As a layman, it’s a mixed bag,” Rocha said. “Bureaucrats handle the process, but you’re at the mercy of the courts. We should be concerned about the new (Department of Interior) rules and regs, especially for (enabling) online gaming. I think that’s a lot of challenges for those who don’t want the tribes to be online.”
Crowell said tribes have been “at the mercy of the courts” to begin with when it comes to interpretation of federal statutes. He cited a previous ruling that federal courts are to give respect to agencies’ interpretation of statutes. While it’s a lesser standard than Chevron, it makes the agencies’ interpretation relevant.
Jason Giles, CEO of the Indian Gaming Association and a lawyer, said removing the Chevron defense will open more avenues for lawsuits against regulations, now that there’s a lower standard to do so. He added the fear is that every time an administration changes, a wave of lawsuits will challenge what was done before.
“This does impact our industry, both commercial and tribal, and I think it’s a new frontier,” Giles said. “It’s crazy how they’re taking out a decades-old precedent like it was never there.”
Crowell isn’t sure about the concern that there will be a “flood of lawsuits” filed because of the ruling, but he admits changes in administrations could mean more. The motivation for someone to challenge a regulation didn’t rise or fall on the Chevron doctrine, but only on statutes that are ambiguous, he added.
“You still have the argument that the agency’s interpretation was unreasonable under Chevron and I think those who were going to sue are still going to sue, but those who weren’t going to sue, they’re probably not going to sue,” Crowell said. “When it comes down to deference for agency bureaucrats, on factual matters, they deserve a lot of deference and their decisions deserve respect.”
Congress has understood that Chevron was the law and didn’t have to get that specific on their intent, believing federal agencies were capable of filling in the gap, Crowell said. They drafted legislation with that in mind, but that will impact the way laws are constructed today and create a record of congressional intent.
Giles questioned what tribal-gaming laws a commercial gaming operator or local government could challenge. He cited the new Department of Interior regulations issued earlier this year that pave the way for tribes to offer online wagering off reservations, as long as servers are on tribal lands. The DOI gave its blessing to Florida’s compact with the Seminole Tribe to offer sports betting statewide.
“It could have been challenged before, but it’s more vulnerable to be challenged now,” Crowell said. “On one hand, although they’re relatively new and pro-tribal, with the exception of the analysis on mobile sports betting, it really didn’t provide anything new. The department made it clear that it’s an updated codification of the practices they’ve been engaged in for a number of years. I don’t know if the Chevron deference would make a difference in the outcome of the challenges that we already expected.”
Crowell said when it comes to sports betting and mobile wagering in compacts and the location of the servers, that’s relatively new, but with a decision out of the U.S. Court of Appeals D.C. Circuit (overturning a challenge to the Florida compact and thus) paving the way for sports betting in Florida and with the Supreme Court denying review, the D.C. Circuit didn’t rely on Chevron deference in reaching the conclusion that it was lawful.
“It didn’t find an ambiguity in the statute and the need for some deference,” Crowell said.
Rocha said tribal gaming has given tribes the resources to fight legal challenges and wonders whether their mentality should change.
Crowell said lawyers will have to change their analysis to statutory interpretation if the language is clear and, if not, look at other factors and at congressional intent.
“All of those things become more important now because of the loss of Chevron deference,” Crowell said.
Going forward, it’s important to work with Congress on the passage of tribal legislation that is as “clear and plain” as possible and develop a record of congressional intent with the idea that it will be used later on in court, Crowell said. “The judge still has the same question ahead of him: What did Congress intend when they adopted this specific language?”
Giles worries about judges who have their own interpretation of tribal policy and that the issue has to play out over a couple of years.
Crowell responded that the federal courts have more authority. The result of the presidential election will have an impact on the type of judges who are nominated, including those who use their personal views in their decision making.
“That’s my pitch to vote for Kamala Harris,” Crowell said. “If we have a crazy judiciary, the lack of Chevron deference will embolden those judges that believe they can usurp the authority of both the administrative and congressional branches.”
Crowell another concern is that tribes get favorable rulings out of the Department of Interior and undergo significant capital investment in reliance on that decision, only to have someone file a lawsuit five years later. “That’s a bigger concern now.”
Not all judges appointed by former President Donald Trump are bad, Giles said in pointing out that Neil Gorsuch, a Trump appointee, has been good for tribes. Justice Brent Kavanaugh has been considered hostile to tribes.
“He may be the most objective and knowledgeable Supreme Court justice as it relates to Indian law matters that we’ve seen in decades,” Crowell said of Gorsuch. “If we had a court full of Gorsuches, I’d feel pretty confident. Despite this conservative Supreme Court, the tribes have done pretty well with it.”
