• Sports betting legislation has so far largely favored commercial casinos over tribal operators.
  • New Mexico’s Tamaya Nation used an allowance in NM and federal law to implement legal sports wagering on their casino grounds.
  • It is possible that other Indian nations could use this same “loophole.”

SANTA FE, N.M. – To date, New Mexico is the only state with tribal sports betting up and running. Most sports wagering legislation so far has completely neglected tribal interests.

There are nearly 500 Indian casinos in the United States. These are owned and operated by roughly 250 of America’s 573 federally recognized tribes.

Indian casinos operate in 29 US states and earn an estimated $32 billion in revenue annually. That’s about 43% of the total casino revenue generated by the entire gambling industry in the country.

Still, tribal gaming operators are very much on the outside looking in when it comes to legal sports betting. Because many state lawbooks have disentangled sports wagering from casino gaming in general, new legislation is going towards commercial considerations first and foremost.

This is causing significant hurdles in some states seeking to roll out sports betting laws within their borders.

The best examples of this are Connecticut and Florida. In both states, sports betting legalization seems inevitable. However, Connecticut’s Mashantucket Pequot Nation and Mohegan Tribe are taking a hardline stance, as is the Seminole Tribe of Florida. In short, the tribes are demanding government compliance with their compacted exclusivity rights.

These tribes hold hundreds of millions of dollars in leverage in these discussions. Should the state governments in question violate the terms of their existing compacts, these nations can simply annul their profit-sharing agreements.

To be clear, most tribal nations are not wealthy or powerful enough to fundamentally sway state sports betting legislation. But even smaller tribes might have a significant edge in the debate.

Such is the situation in New Mexico.

New Mexico Sports Betting: Legal Without Legalization

In October 2018, the 800-member Tamaya Nation simply stopped waiting for “permission” and launched sports betting at its Santa Ana Star casino venue. This happened despite any allowance from the state government.

The decision to do so has gone legally unchallenged from New Mexico lawmakers, and no such challenge is currently looming.

That’s because the Tamaya have acted perfectly legally. This is due to three overlapping factors.

First of all, the tribe has complied completely with the Indian Gaming Regulatory Act (IGRA).

Secondly, the tribe has complied completely with its own New Mexico state-tribal compact.

Finally, New Mexico deferred to the now-overturned Professional and Amateur Sports Protection Act (PASPA) to address any legal questions about the status of sports wagering inside state borders. Because sports wagering was federally barred, New Mexico made no explicit law banning the practice. Such redundancy was deemed unnecessary, and many states took this tack.

A Master Class In Class III Gaming

Per § 2703 of the IGRA, tribal gaming is split up into three different types. These are Class I, Class II, and Class III gaming.

Class I gaming encompass “social games” played “solely for prizes of minimal value” and as “part of, or in connection with, tribal ceremonies or celebrations.”

Class II gaming includes bingo, pull tabs, lotteries, tip jars, and card games “explicitly authorized by the laws of the State” or that “are not explicitly prohibited by the laws of the State.”

Class III gaming means “all forms of gaming that are not class I gaming or class II gaming.”

In the absence of explicitly exclusionary language, sports betting is a form of gaming that is not Class I or Class II gaming.

New Mexico’s tribal compact with the Tamaya Nation (and their compacts with other tribes in the state) uses this same language and adds no inclusionary or exclusionary terms in relation to sports wagering.

Thus, per the IGRA, the New Mexico tribal compacts, and the existing state laws which do not reference sports wagering, the pastime is legal if offered by a tribal gaming venue.

To be clear, some states have specified exactly what constitutes Class III gaming in their compacts, leaving sports wagering off the list. But like New Mexico, not all states have had such foresight.

For any tribal nation in any state that meets the above three criteria, legal sports betting should be a protected activity on their casino grounds. The Tamaya are blazing a distinct trail with sports betting, giving other US tribes a potential blueprint for how to proceed in the absence of agreeable legislation.

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