There has been a recent decision on an interesting case involving a challenge to the ability of the federal government to provide benefits or rights to Tribes and other Native organizations.

Maverick Gaming LLC v. United States, Case No. 3:2022cv05325, which is currently before the U.S. District Court for the Western District of Washington, concerns the Indian Gaming Regulatory Act (IGRA), which, generally speaking, authorizes Tribes to provide casino-style gaming on Indian lands so long as the state within which those lands are found permits similar types of gaming and requires the state to enter into compacts with Tribes to regulate said gaming. In effect, IGRA grants Indian Tribes the right to provide games, such as sports betting, that other entities, such as commercial card rooms, cannot.

The Maverick plaintiffs claim that granting Indian Tribes special rights in gaming matters under state law, consistent with the compacting provisions of IGRA, amounts to a racial classification because Tribal membership generally descends lineally from historical Tribal rolls and generally depends on blood quantum as a criterion. Maverick is squarely controlled by Artichoke Joe’s v. Norton in the Ninth Circuit, which held that IGRA relied on the special political status of Tribes, not a racial classification, under Morton v. Mancari. The plaintiffs may be hoping to get before the U.S. Supreme Court, however, and have hired former Solicitor General of the United States Ted Olson as their legal counsel. The plaintiffs are arguing that the provision of benefits to Tribes is based on a racial classification, thus subject to strict scrutiny, as opposed to political classification, which is subject to the much lower rational-basis scrutiny.

On February 21st, the federal district court dismissed the plaintiff’s claims in Maverick Gaming. The district court found that the Tribe whose gaming was being challenged (Shoalwater Bay Indian Tribe) was a necessary party under Federal Civil Rule 19, but could not be joined to the lawsuit due to their sovereign immunity. Accordingly, because the Tribe was a necessary party and could not be joined, the court dismissed the plaintiff’s claims. The district court’s fundamental rationale relied on Dine Citizens Against Ruining Our Env’t v. Bureau of Indian Affs., 932 F.3d 843 (9th Cir. 2019), a case in which Schwabe represented the Navajo Transitional Energy Company and successfully made the argument that the district court relied on to dismiss the Maverick Gaming case.

The decision in Maverick Gaming is important because it affirms the need to have Tribes joined to lawsuits where their interests are at issue, and recognizes their sovereign right not to be sued outside their own courts.

The district court’s decision has been appealed to the Ninth Circuit, and we will continue to provide updates.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for ‎your situation, you should contact an attorney.

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