The Fallout from the Florida Decision

In our last post, we explained the Florida Supreme Court's recent ruling that Gov. Crist exceeded his state constitutional authority in authorizing banked card games through the tribal-state compact with the Seminoles. That must mean that the Seminoles can't offer banked card games, such as blackjack, right? Not necessarily. There are at least three considerations that make this more complicated, both legally and politically.

First, the compact was negotiated, signed, and approved by the Interior Secretary. Under IGRA, this was a valid compact. The Seminoles have taken the position that a state court decision cannot invalidate a duly approved compact. So, they continue to offer all the games authorized under the compact, including banked card games.

Second, Florida's options for attempting to enforce the court's decision are limited. Florida has no independent state authority over the tribe's casino. At the same time, IGRA states that Class III gaming, such as banked card games, is legal only if it is operated in accordance with a valid compact. But only the federal government can enforce IGRA. The state of Florida can bring suit in federal court to stop unauthorized Class III gaming, or it can try to convince the NIGC or the local U.S. Attorney to shut down any unauthorized Class III gaming.

And third, though the compact contains a severability clause (meaning that even if the court invalidated the portion of the compact that authorized banked card games, the rest of the compact should remain valid), the compact also contains a revenue-sharing provision. The validity of a revenue-sharing provision should turn on whether the state gave the tribe anything above and beyond what the tribe is entitled to under IGRA -- typically, this is some measure of exclusivity, such as the ability to operate banked card games when no one else can. In other words, if the state tries to shut down the tribe's blackjack games, it runs the risk of forfeiting a great deal of revenue -- some $375 million over the first three years of the compact.

Next up: Why was a private casino was unsuccessful in trying to enforce the court's decision?

Read more in this article in the South Florida Sun-Sentinel in which Kathryn is quoted: Does Court Ruling Put Hard Rock in a Hard Place? Also, see Court Strikes Down Florida-Seminole Gaming Deal in the Miami Herald.