Supreme Court Review Sought for Legality of Washington Tribal Gaming Compacts

By Heidi McNeil Staudenmaier

The United States Supreme Court will consider whether to review the legality of the Washington tribal gaming compacts as a result of a petition for writ of certiorari (cert) filed in the lawsuit, Maverick Gaming LLC v. United States.¹ The petition, filed in May, seeks review of the Ninth Circuit Court of Appeals’ decision last year to uphold the federal district court’s dismissal of Maverick’s lawsuit.²

The question presented for cert is “[w]hether Rule 19 [of the Federal Rules of Civil Procedure] requires dismissal of [Administrative Procedures Act (APA)] suits challenging federal agency action whenever a non-party who benefited from that action asserts sovereign immunity.” The lawsuit was initially brought to challenge the legality of Washington tribal-state compacts under the Indian Gaming Regulatory Act (IGRA), the Equal Protection Clause, and the Tenth Amendment of the United States Constitution.

The tribal state compact between Washington State and the various tribes allows for certain types of gaming and sports betting, classified as Class III gaming, on tribal land, which the state does not otherwise permit. Only tribes are permitted to conduct Class III gaming on their lands in the State of Washington. Maverick brought suit against certain Federal Defendants in the Washington District Court concerning the legality of these compacts. There were no tribes included as parties in the suit.

The Shoalwater Bay Indian Tribe (Tribe) sought intervention in the suit, claiming they were a “necessary and indispensable party” because the outcome of the case directly impacted them. The federal district court agreed the Tribe was a required party under Federal Rules of Civil Procedure Rule 19(a)(1)(B), but determined they could not be joined due to the Tribe’s sovereign immunity status. As such, the federal district court dismissed the case, and on appeal, the Ninth Circuit upheld the lower court’s dismissal of the case. The Ninth Circuit agreed the Tribe was a required party because of its protected interest in the outcome and that the case could not continue “in equity and good conscience” without the Tribe.³

The lower court had found the Tribe was a “required party” under Rule 19 “because the Tribe has a legally protected interest in the lawsuit that may be impaired or impeded in the Tribe’s absence.”⁴ The Ninth Circuit agreed, noting the suit “implicates the Tribe’s legally protected economic and sovereign interests.”⁵ Maverick’s suit did not “incidentally affect the gaming tribes [. . . it was] aimed at the tribes and their gaming.”⁶

In determining whether to grant review of the Ninth Circuit decision, the Supreme Court will weigh various factors, including existing decisions among the various circuit courts. The Ninth Circuit decision appears to be at odds with the Tenth, Eighth, Seventh, and District of Columbia Circuits. These circuits have held that a sovereign non-party may not be able to compel the dismissal of an APA action when the Federal Government is ready to defend the agency action.