How Appeals Work in Tribal Gaming Cases: District Court to Supreme Court

When a tribe, a state, or a technology company loses a ruling in a tribal gaming case, the next question is usually where the case goes from there. Tribal gaming appeals follow the ordinary federal appellate process, but the Indian Gaming Regulatory Act and the geography of the federal circuits give that process some distinctive features. Understanding the steps helps explain why a single trial court ruling can matter for years, and why the same legal question can be decided differently in different parts of the country.

Where tribal gaming cases start

Most disputes begin in a federal district court. IGRA gives federal courts jurisdiction over a tribe's suit against a state for failure to negotiate a compact in good faith, over suits to enjoin Class III gaming conducted in violation of a compact, and over claims related to the statute's requirements. Our explainer on IGRA good-faith negotiation lawsuits describes one common path. Challenges to federal decisions, such as an agency's approval of a management contract or a compact, are generally brought in federal district court under the Administrative Procedure Act, often in the District of Columbia or the district where the tribe's land sits.

Two Supreme Court decisions shape what can be brought at all. In Seminole Tribe v. Florida (1996), the Court held that Congress could not use IGRA to authorize suits against states that refuse to consent, a ruling explained in our article on Seminole Tribe v. Florida. In Michigan v. Bay Mills (2014), the Court held that tribal sovereign immunity barred a state's suit over a casino built off-reservation, covered in our Bay Mills explainer.

The three main appeal routes

The first route is the final judgment. Under 28 U.S.C. 1291, parties generally may appeal once the district court has resolved the entire case. Many tribal gaming cases take years to reach that point, which is why the other routes matter.

The second route is an appeal from an order granting or denying a preliminary injunction, which federal law allows immediately under 28 U.S.C. 1292(a)(1). Injunction appeals are common in gaming disputes because the question is often whether an activity, such as operating a casino or offering a product on tribal land, should be halted or allowed while the case proceeds. The standard for those orders is covered in our analysis of the preliminary injunction ruling in the Ninth Circuit Kalshi case.

The third route is the discretionary interlocutory appeal under 28 U.S.C. 1292(b). A district judge must certify in the order that it involves a controlling question of law with substantial ground for difference of opinion, and that an immediate appeal may materially advance the litigation's end. The party then has ten days to petition the court of appeals, which may decline. This route is in the news in the dispute between Kalshi and the Ho-Chunk Nation, which we cover in our article on the Seventh Circuit petition.

Why geography matters

Federal appeals courts are organized into regional circuits, and a ruling from one circuit binds only the district courts within it. Tribal gaming is concentrated in some circuits and sparse in others. The Ninth Circuit covers California, Washington, Oregon, Arizona, Nevada, Idaho, Montana, and Alaska, which together hold a large share of tribal casinos. The Tenth Circuit covers Oklahoma, Kansas, New Mexico, and neighboring states, as in the Comanche Nation litigation we described in our coverage of the Tenth Circuit decision. The Seventh Circuit covers Wisconsin, Illinois, and Indiana, the Second covers New York and Connecticut, and the Sixth covers Michigan and several neighboring states.

The result is that identical legal questions can have different answers depending on location, at least until the Supreme Court speaks. A tribe in Wisconsin and a tribe in California may be litigating the same question under different controlling precedent. That is the so-called circuit split, and it is the most common reason the Supreme Court agrees to hear a case. Our analysis of the Sixth Circuit split shows how that dynamic appears in current litigation.

Rehearing, review, and finality

After a three-judge panel rules, a party may ask the full court to rehear the case, known as en banc review, which is rarely granted. A party may also petition the Supreme Court for a writ of certiorari, which the Court grants in a small share of cases, typically where circuits disagree or an issue is of national importance. Outside parties may file amicus briefs at both stages, and tribal organizations often do. A denial of review leaves the lower court ruling in place without a statement of the merits.

Timing also affects outcomes. A losing party may ask for a stay pending appeal, which can keep a ruling from taking effect while review continues. Whether a stay is granted can matter as much as the merits, particularly where a casino, a compact, or a product launch is at stake.

How to read a tribal gaming ruling

When reading news about a decision, a few questions help: which court issued it, whether it is a final judgment or an interim order, whether it binds only the parties or other courts in the circuit, and whether an appeal or petition is pending. For definitions of the statute's terms and how federal courts fit within IGRA, see the TribalGaming.com Legal Guide.