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May 13, 2020 Feature

Murphy v. NCAA and Legalization of Sports Betting in States and Indian Country

By Matthew A. King

In 2018, the U.S. Supreme Court in Murphy v. NCAA struck down the Professional and Amateur Sports Protection Act (PASPA) of 1992 on states’ rights grounds.1 For nearly three decades, the federal law prevented all but four states and the vast majority of Tribes from legalizing wagering on collegiate and professional sports competitions. Tribes and states now have the opportunity to share in a market estimated to be worth tens of billions of dollars.2 If Tribal nations choose to participate in this new form of gaming, they must enter into compacts with states or have existing compacts in place that allow for sports wagering.

A few Tribes have already opened sports books, and it is likely that more are contemplating that change. Gaming is an important source of revenue for many Tribal governments, funding housing, medical care, education, and other governmental services for Tribal members. Gaming revenues also support charitable organizations and local government agencies in communities neighboring Tribal nations.3 In states like California, where gaming Tribes share a portion of gaming revenues with nongaming Tribes, gaming serves as an economic driver for gaming and nongaming Tribes alike.

The market for Indian gaming is sizable. The National Indian Gaming Commission reported that in 2018 (the last year for which complete figures were available), nationwide gross gaming revenues rose 4.1 percent to $33.7 billion.4 Of the 574 federally recognized Tribes, 257 Tribes in 29 states operate gaming operations on Indian lands.5 Because of the size of the market and the number of Tribes benefitting from gaming, developments in gaming law have the potential to greatly impact Tribal economies—for better or for worse.

Indian gaming is governed by the Indian Gaming Regulatory Act (IGRA) of 1988, but the true source of Tribes’ authority to game stems from their inherent sovereignty as nations predating the formation of the United States.6 IGRA imposed limits on Tribal sovereignty for gaming Tribes. While IGRA represented a paradigm shift in the gaming industry, arguably the most significant change since then was PASPA in 1992, followed by Murphy invalidating PASPA in 2018.

This article first discusses the history of PASPA and litigation leading up to the Murphy decision. Then, Murphy is evaluated in the context of the Court’s Tenth Amendment jurisprudence and, specifically, the origins and interpretation of the anti-commandeering principle. That is followed by a review of state and federal legislative efforts in the wake of Murphy. Thereafter, the legal framework for gaming on Indian lands is evaluated with a view to assessing the decision’s impact on Tribal gaming rights. Finally, the debate over sports wagering is highlighted within the economy of Native iconography in professional and amateur sports. In surveying the legal, political, and cultural forces at play in the legalization movement, this article grounds the question of whether to wager on sports in the wider context of Native efforts to address representational and economic inequality.

Professional and Amateur Sports Protection Act of 1992

In October 1992, Congress enacted PASPA, making it unlawful for states to authorize, regulate, or license sports betting.7 PASPA also prohibited Indian Tribes from operating sports betting on reservations and trust lands.8 Furthermore, states, Tribes, and individuals were prohibited from sponsoring, advertising, or promoting sports betting.9

Congress did not criminalize sports books or ban them outright. Instead, it grandfathered established operations in Delaware, Oregon, Montana, and Nevada where sports betting was offered at some point between January 1, 1976, and August 31, 1990.10 Additionally, the act created a one-year period following its enactment for New Jersey to open a sports book in Atlantic City, which the state declined to do.11 PASPA gave professional and amateur sports organizations and the U.S. Attorney General the ability to bring a civil action to enjoin violations.12

Over PASPA’s lifetime, national sports leagues sued at least Delaware and New Jersey for infringing PASPA. Delaware’s Sports Lottery Act of 2009 partially survived the challenge, while New Jersey’s efforts to bring sports betting to racetracks and Atlantic City suffered a string of legal defeats for half a decade before the state won Murphy. That victory paved the way for all states and Tribes to join the multibillion-dollar market for sports betting.

In Delaware’s case, the state permitted multigame (or parlay) betting on professional football games for four months in 1976. In August of that year, the Delaware State Lottery announced its intention to sell tickets based on National Football League (NFL) games.13 The NFL filed suit in federal district court to enjoin the state’s betting scheme, claiming, among other things, that the lottery harmed the NFL by associating its brand with gambling, misappropriated its trademark, and ran afoul of federal antigambling laws, Delaware’s constitution, and its lottery statute. A decision would not issue until August 1977, but in September 1976, Delaware opened betting to professional football fans through two lottery games marketed under the names “Football Bonus” and “Touchdown” (replaced midseason by “Touchdown II”). High sales of both games were reported in the lottery’s first month, but by the fourth month, Delaware had signaled an end to its experiment.14 In December 1976, the State Lottery Commission’s director abruptly canceled a weekend pool because the lottery’s “easygoing odds seemed likely to cost the state heavily.”15 The state’s attorney general nullified the action, and the lottery was forced to pay 70 percent of the take partly from the lottery’s emergency fund.16 While the legal validity of sports betting in Delaware had yet to be decided, public confidence in the games collapsed.17

In August 1977, the district court ruled that Touchdown II violated Delaware’s lottery scheme because, as a fixed-payoff game (rather than a game where prizes were determined on a pari-mutuel basis), the lottery could not ensure that it paid the state-mandated 45 percent of sales as prize money.18 Delaware’s Football Bonus and Touchdown were found to be operating legally under Delaware and federal law.19

After the state’s fraught experience with sports betting, Delaware stayed on the sidelines for over 30 years before trying to restart its sports lottery. In 2009, the state enacted the Sports Lottery Act to revive parlay betting, institute single-game wagering, and allow betting on other sports in addition to football.20 The NFL, National Basketball Association (NBA), National Hockey League (NHL), Office of the Commissioner of Baseball (MLB), and National Collegiate Athletic Association (NCAA) sued Delaware to enjoin the Sports Lottery Act. The district court denied the leagues’ motion for a preliminary injunction, prompting an interlocutory appeal to the Third Circuit Court of Appeals.

The Third Circuit found that Delaware’s Sports Lottery Act partially violated federal law because it expanded the games that Delaware operated beyond what games were in operation in 1976. 21 PASPA prevented states from authorizing sports wagering but exempted wagering schemes that were authorized and conducted at some point between 1976 and 1990.22 The Third Circuit held that Delaware’s lottery violated PASPA to the extent it allowed single-game betting (on any sport) or parlay betting (on games other than NFL games) because in 1976 only parlay betting on NFL games was permitted and conducted by Delaware. The Third Circuit was not called upon to decide the constitutionality of PASPA, only whether Delaware’s Sports Lottery Act complied with the act.

In New Jersey, challenges to PASPA were pitched as states’ rights. Early lawsuits, dismissed for lack of standing, were brought by private citizens and gaming associations well before the state moved to legalize sports betting.23 In November 2011, 64 percent of voters approved a constitutional amendment that allowed New Jersey lawmakers to legalize sports wagering.24 Two months later, the state enacted the Sports Wagering Law. It instituted “a comprehensive regulatory scheme, requiring licenses for operators and individual employees, extensive documentation, minimum cash reserves,” and oversight for sports books at racetracks and Atlantic City casinos.25

In August 2012, before New Jersey could implement regulations, the NCAA, NBA, NFL, NHL, and MLB sued New Jersey Governor Chris Christie, the directors of the state’s Division of Gaming Enforcement and Racing Commission, and the New Jersey Assistant Attorney General to enjoin implementation of the law.26 The state made several arguments against PASPA, principal among them that the law violated the Tenth Amendment.27 In January 2013, the United States intervened and filed a brief defending PASPA.28

New Jersey’s Tenth Amendment argument centered on an anti-authorization provision of PASPA, which provided that “[i]t shall be unlawful for a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact” sports betting.29 New Jersey argued that this provision commandeered its lawmaking power by both preventing it from (1) repealing its laws prohibiting sports gambling (resulting in authorization by implication) and (2) passing new laws expressly authorizing sports gambling.

The district court found that PASPA did not violate the Tenth Amendment’s anti-commandeering principle because New Jersey was not required to pass legislation, issue regulations, or take executive action.30 The district court construed the act as expressing Congress’s desire to preempt state regulation on the subject.31

Christie I

New Jersey appealed the decision, and the Third Circuit Court of Appeals affirmed. The Third Circuit held that PASPA preempted state law but did not commandeer state legislative processes in violation of the Tenth Amendment.32 New Jersey argued that PASPA commanded the state to keep its sports wagering ban on the books because if it repealed it, it would effectively authorize sports wagering (by virtue of decriminalization). The Third Circuit accepted that in some circumstances, stopping a state from repealing an existing law could violate the anti-commandeering principle, but it found that in the case of PASPA, New Jersey could repeal its laws banning sports betting without thereby authorizing the activity.33 The court did “not see how having no law in place governing sports wagering [was] the same as authorizing it by law.”34 In the court’s view, the “lack of an affirmative prohibition of an activity [did] not mean [the activity was] . . . affirmatively authorized by law.”35 The Third Circuit held that PASPA did not “prohibit New Jersey from repealing its ban on sports wagering” and it was “up to each state to decide how much of a law enforcement priority it want[ed] to make of sports gambling, or what the exact contours of the prohibition will be.”36

New Jersey sought review in the Supreme Court, and the United States opposed. The federal government argued that PASPA did not require New Jersey “‘to leave in place the state-law prohibitions against sports gambling that it had chosen to adopt prior to PASPA’s enactment. To the contrary, New Jersey [was] free to repeal those prohibitions in whole or in part.’”37 The high court denied review.38

In 2014, New Jersey accepted the Third Circuit’s invitation and repealed criminal and civil provisions banning sports wagering at racetracks and Atlantic City casinos.39 Once New Jersey selectively deregulated and decriminalized sports betting, the NCAA, NBA, NFL, NHL, and MLB filed an application with the federal district court to enjoin New Jersey from giving effect to its law. While the application for a permanent injunction was under review, a temporary restraining order was issued to halt one of the state’s racetracks from accepting wagers. The district court held that PASPA preempted the 2014 law and the leagues were entitled to a permanent injunction.40

In deciding to issue the permanent injunction, the district court looked to both Congress’s motives for enacting PASPA (preventing the spread of sports wagering) and New Jersey’s intent behind the 2014 law (enabling sports wagering by removing legal obstacles to its exercise).41 The court stated, “New Jersey’s attempt to allow sport wagering in only a limited number of places, most of which currently house some type of highly regulated gambling by the State, coupled with New Jersey’s history of attempts to circumvent PASPA, leads to the conclusion that the 2014 Law is in direct conflict with the purpose and goal of PASPA and is therefore preempted.”42 New Jersey appealed the district court’s decision.

Christie II

The Third Circuit affirmed in a divided opinion that was later vacated.43 The case then was heard by the Third Circuit sitting en banc.44 The court held that New Jersey’s repeal of rules and regulations that prohibited sports betting violated PASPA because the repeal applied only in favor of racetracks and Atlantic City casinos, thereby authorizing sports wagering at those venues.45 The court rejected its prior reasoning that a repeal could not constitute an authorization and stated that states could “not use clever drafting or mandatory construction provisions to escape the supremacy of federal law.”46 The Third Circuit failed to draw a clear line between a permissible and impermissible repeal, concluding only that PASPA did not require New Jersey to do anything and therefore did not commandeer the state’s legislative process.47 New Jersey petitioned the Supreme Court for certiorari, and this time the Court granted review.

Murphy v. NCAA

The Supreme Court issued its decision in Murphy v. NCAA in May 2018. The Court held that both a partial and a complete repeal of a ban on sports wagering amounted to an authorization prohibited by PASPA. Because the Court was convinced that PASPA prevented New Jersey from changing its laws—whether by partially repealing a ban, as New Jersey did in 2014, or authorizing a comprehensive sports wagering program, as the state tried in 2012—the Court held that PASPA commandeered New Jersey’s legislative processes. The Court invalidated the entire federal scheme because it could not sever PASPA’s offending provision without doing violence to the act.

The Court held that Congress did not have the power to prevent New Jersey from changing its laws because of the anti-commandeering principle of the Tenth Amendment.48 It noted that in 1992, “all forms of sports gambling were illegal in the great majority of States, and in that context . . . [t]he repeal of a state law banning sports gambling not only ‘permit[ted] sports gambling . . . it also g[ave] those now free to conduct a sports betting operation the ‘right or authority to act.’”49 Because a repeal of a ban would authorize sports wagering and an express authorization would do the same, PASPA unconstitutionally prevented New Jersey from modifying its laws. While Congress could enact legislation under the Commerce Clause preventing individuals from engaging in sports wagering, it could not “unequivocally dictate[] what a state legislature may and may not do.”50 The Court likened PASPA to federal officers being installed in “state legislative chambers . . . armed with the authority to stop legislators from voting on offending proposals.”51

The Court rejected the NCAA’s suggestion that PASPA operated to preempt state law, explaining that “every form of preemption is based on a federal law that regulates the conduct of private actors, not the States.”52 Because PASPA’s anti-authorization provision applied to states, not individuals, the provision was not a valid preemption of state law, but an invalid attempt to directly control state lawmaking.53

The Court analyzed the offending provisions of PASPA and concluded they could not be severed from the rest of the act.54 Key to its conclusion was the fact that severing the provision preventing states from authorizing sports betting while keeping in place PASPA’s prohibition on individuals sponsoring, operating, advertising, or promoting sports betting would lead to the perverse result that an individual could not lawfully sponsor, operate, advertise, or promote an activity that was lawful under his state’s laws.55 Because Congress could not have intended such a result, the Court completely invalidated PASPA.56 The Court acknowledged that Congress could “regulate sports gambling directly,” but until it did so, “each State [was] free to act on its own.”57

State and Federal Legislation After Murphy v. NCAA

Seven months after Murphy, Senators Orrin Hatch (R-UT) and Chuck Schumer (D-NY) introduced Senate Bill 3793, the “Sports Wagering Market Integrity Act of 2018.”58 The bill’s findings recognized that after the Supreme Court’s decision, any state could “legalize and regulate sports wagering,” and that seven states already had done so.59 The bill would have prohibited sports wagering except for social gambling and gambling operated pursuant to a state program approved by the U.S. Attorney General.60 The bill also would have prohibited wagering on amateur athletic competitions with the exception of college sports and the Olympics.61 The bill was referred to the Senate Committee on the Judiciary but went no further. No other federal legislation has been advanced to answer Murphy.

With PASPA invalidated and no federal legislation replacing it, 21 states seized the opportunity to legalize sports wagering. Currently, there are 17 states that authorize and conduct single-game sports betting.62 A further four states and the District of Columbia have authorized sports books that are not yet operational.63 Seventeen states have ballot initiatives or legislation in the works.64

The Court’s decision invalidating PASPA on states’ rights grounds freed states to legalize sports wagering, but it also empowered Indian Tribes to do the same through Tribal-state compacts. The requirement that Tribes enter into compacts with states before offering certain types of gambling is a feature of IGRA.

Post-Murphy Developments

With PASPA invalidated, the law regarding Indian gaming reverted back to IGRA, enacted in 1988. Before IGRA, a Tribe’s decision over gaming on Indian lands did not depend on state input.65 IGRA shifted that dynamic in favor of state participation. IGRA divides gaming into three classes. Class I gaming consists of “social games [played] solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, Tribal ceremonies or celebrations.”66 Class II gaming means bingo and state-sanctioned card games but excludes slot machines, blackjack, and other banking card games, as well as video poker and other “electromechanical facsimiles of any game of chance.”67 Class III gaming is defined as “all forms of gaming that are not class I or class II gaming.”68 Because sports wagering is not listed in the definitions of class I or class II gaming, it falls within class III gaming.69

Class III gaming is lawful on Indian lands only if the Tribe passes a resolution or ordinance authorizing gaming, the Tribe resides within a state that “permits such gaming for any purpose by any person, organization, or entity,” and the gaming operation is “conducted in conformance with a Tribal-State compact.”70 If a Tribal nation chooses to operate sports wagering on Indian lands, it must reside in a state that permits class III gaming and must have a Tribal-state compact that allows sports wagering.71

The Mississippi Band of Choctaw Indians was the first Tribe to operate a sports book after PASPA’s invalidation.72 In that case, the state of Mississippi had enacted legislation authorizing sports books. By contrast, New Mexico’s Pueblo of Santa Ana started sports wagering at its gaming facility despite the absence of state law legalizing sports betting. The Tribe interpreted its preexisting compact as permitting sports wagering because the compact allowed the Tribe to operate “any or all forms of Class III Gaming” and the federal ban contained in PASPA was invalidated.73 Other Tribal-state compacts may not be susceptible to such an interpretation. In California, for instance, Tribal-state compacts specifically enumerate the types of class III games that are allowed.74 In addition, California’s constitution currently prohibits sports wagering.75 In states like California, changes to state law, including potential constitutional amendments, will be necessary before sports betting can be included in Tribal-state compacts.

Whether to Bet on Sports

In light of Murphy, the legalization of sports betting has become a political and legal question for states, Tribes, and their constituents. Strong views exist over where, by whom, and to what extent sports betting should be conducted. The threat of infiltration of organized crime, corruption of sporting, enticement of minors, as well as more abstract objections, such as tainting the perceived purity of sports by association with gambling, figure prominently in the discourse.76 Equally prominent are concerns over the sustainability of gaming revenues and respecting Tribal sovereignty in the debate over legalization.77

It may be suggested too that opposition to Tribal-run sports books should be read in a wider context that recognizes how sports franchises have commodified and profited off of the misrepresentation of Native peoples.78 Only in 2005 did the NCAA restrict the use of Native-inspired team names, mascots, and logos that lacked the namesake approval of a specific Tribe.79 In California, public schools could (and four did) use the slur Redsk*ns for school and athletic team names, mascots, and nicknames prior to the enactment of the California Racial Mascots Act of 2016, which ordered a gradual phaseout of the slur’s use.80 The professional football team the Washington Redskins still uses the epithet despite calls from the National Congress of American Indians and others to change the name.81 There are over 100 amateur and professional sports teams that have used the term at some point in their history.82 Of course, gaming profits alone cannot excuse or repair the harm of misrepresentation and cultural appropriation. Nor should they slow efforts to eradicate harmful stereotypes in sports. But the prospect that sports betting may bring positive change to Indian Country by supporting Tribal Courts, museums, language programs, health care, and other governmental programming should be weighed against opposition based on the perceived purity of sports.


The Supreme Court’s invalidation of decades-old law ushered in a national movement for legal sports betting. That a decision based on states’ rights could lead to an expansion of Indian gaming speaks to the complex interplay of state and Tribal interests in the area of gaming. As more states decide if they will legalize sports books, Tribes and sports leagues will play an important role in the decision making. While it remains to be seen whether sports betting will be a winning proposition for states, Indian Country, and sports themselves, it is certain that the subject will invite the views of diverse stakeholders, and perhaps serve as a catalyst to deepen the dialogue over Native American representation in sports. And should sports fans find themselves on Indian lands because of the opportunity to place a wager, perhaps the opportunity will not be missed to further the conversation. n


1. 138 S. Ct. 1461 (2018).

2. Oxford Econ., Economic Impact of Legalized Sports Betting (May 2017), (last visited April 23, 2020).

3. 25 U.S.C. § 2710(b)(2)(B).

4. News Release, Nat’l Indian Gaming Comm’n, 2018 Indian Gaming Revenues of $33.7 Billion Show a 4.1% Increase, (last visited Jan. 25, 2020).

5. Nat’l Indian Gaming Comm’n, Gaming Tribe Report (Sorted by State) (Jan. 13, 2020), (list of 257 gaming Tribes). “Indian lands” means land taken into trust for the benefit of an Indian Tribe. See Oklahoma v. Hobia, 775 F.3d 1204 (10th Cir. 2014) (the Indian Gaming Regulatory Act (IGRA) concerns gaming conducted on Indian lands). See also Bureau of Indian Affairs, Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 85 Fed. Reg. 5462 (Jan. 30, 2020) (list of 574 Tribes).

6. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 205 (1987).

7. Professional and Amateur Sports Protection Act of 1992, Pub. L. No. 102-559, 28 U.S.C. §§ 3701–3704, invalidated by Murphy v. NCAA, 138 S. Ct. 1461 (2018).

8. 28 U.S.C. §§ 3702(1) (“governmental entities” targeted), 3701(2) (“governmental entity” includes Indian Tribes).

9. Id. § 3702(1)–(2).

10. Id. § 3704(a); NCAA v. Christie, 926 F. Supp. 2d 551, 556 (D.N.J. 2013).

11. Id. § 3704(a)(3); Murphy, 138 S. Ct. at 1471.

12. 28 U.S.C. § 3703.

13. NFL v. Governor of Del., 435 F. Supp. 1372, 1375 (D. Del. 1977).

14. Delaware Sales in Lottery High: Checks of Agents Find the Football Tickets Popular, N.Y. Times, Sept. 2, 1976.

15. Ben A. Franklin, Delaware Will Pay Off on Lottery That Was Canceled and Reinstated, N.Y. Times, Dec. 15, 1976.

16. Id.; NFL, 435 F. Supp. at 1387.

17. Franklin, supra note 15.

18. NFL, 435 F. Supp. at 1387 (the court observed that “if those who play Touchdown II are extraordinarily successful, payouts may run far over the 45% mark . . . [but] if the players fare very poorly, it is conceivable that there would be no prizes awarded at all”).

19. Id. at 1391.

20. Office of the Comm’r of Baseball v. Markell, 579 F.3d 293, 304 (3d Cir. 2009).

21. Id.

22. 28 U.S.C. § 3704(a)(1).

23. The first challenge to PASPA’s prohibitions on sports wagering in New Jersey came from a New Jersey citizen who filed suit against the U.S. Attorney General and New Jersey’s future governor, Chris Christie, who was then the U.S. Attorney for the District of New Jersey. The plaintiff contended that PASPA violated the Tenth Amendment because, as the argument went, regulating gambling was a power reserved to the states because it was not an enumerated power of the federal government. He also contended that the Commerce Clause did not permit federal regulation of gaming confined to a single state because it did not affect interstate commerce. In an unpublished decision, the district court found that the New Jersey citizen did not have standing because (1) he could not show that he had a legally protected interest in sports betting, (2) he could not show that he had or was about to suffer any injury, and (3) he could not establish that a decision striking down PASPA would have enabled him to bet on professional and amateur athletic contests (because, at the time, New Jersey did not allow such wagering). Flagler v. U.S. Atty., 2007 U.S. Dist. LEXIS 70916, at *6 (Sept. 25, 2007) (unpublished). The second challenge to PASPA’s prohibitions affecting New Jersey came from a nonprofit gaming association, an association of horse track owners, and two New Jersey senators. In March 2011, the plaintiffs filed suit in federal district court arguing that PASPA violated the Commerce Clause as well as the First, Tenth, and Eleventh Amendments; the Due Process Clause; and the Equal Protection Clause. Interactive Media Entm’t & Gaming Ass’n v. Holder, 2011 U.S. Dist. LEXIS 23383, at *2, 5 (Mar. 7, 2011) (unpublished). In an unpublished decision, the district court found the plaintiffs lacked standing. The gaming association and association of horse track owners could not show that they would suffer civil liability from merely advocating for the legalization of sports betting. The court declined to take up the plaintiffs’ Tenth Amendment claim because only New Jersey could assert federal encroachment under the Tenth Amendment. Id. at 23. And the New Jersey senators lacked standing because they could not show a personal injury in fact—that their ability to legalize sports wagering was preempted by PASPA. The court observed that the senators’ injury was abstract because a constitutional amendment had yet to be approved by New Jersey voters, a necessary step before the state could authorize sports wagering.

24. New Jersey Sports Betting Amendment, Public Question 1 (2011),,PublicQuestion1(2011).html (last visited Jan. 26, 2020). See also Murphy v. NCAA, 138 S. Ct. 1461, 1471 (2018).

25. NCAA v. Governor of N.J., 799 F.3d 259, 262 (3d Cir. 2015).

26. NCAA v. Christie, 926 F. Supp. 2d 551, 553–55 (D.N.J. 2013).

27. Id. at 554.

28. Id.

29. 28 U.S.C. § 3702 (emphasis added), invalidated by Murphy, 138 S. Ct. 1461.

30. NCAA, 926 F. Supp. 2d at 555, 562.

31. Id. at 571.

32. NCAA v. Governor of N.J., 730 F.3d 208, 231 (3d Cir. 2013) (Christie I).

33. Id. at 232.

34. Id.

35. Id.

36. Id. at 232 (repealing not prohibited), 233 (law enforcement priority).

37. Murphy v. NCAA, 138 S. Ct. 1461, 1472 (2018).

38. Christie v. NCAA, 134 S. Ct. 2866 (2014), cert. denied.

39. NCAA v. Christie, 61 F. Supp. 3d 488, 507–08 (D.N.J. 2014). See also NCAA v. Governor of N.J., 832 F.3d 389, 393–394 (3d Cir. 2016) (describing the repealer).

40. NCAA, 61 F. Supp. 3d at 507–08.

41. Id. at 499.

42. Id. at 506.

43. NCAA v. Governor of N.J., 799 F.3d 259, 266 (3d Cir. 2015), vacated by NCAA v. Rebuck, 2015 U.S. App. LEXIS 17839 (3d Cir. Oct. 14, 2015).

44. NCAA v. Governor of N.J., 832 F.3d 389 (3d Cir. 2016) (Christie II).

45. Id. at 394, 396.

46. Id. at 397, 398.

47. Id. at 402.

48. Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018). See also U.S. Const. amend. X. (The anticommandeering principle is derived from the Tenth Amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”)

49. Murphy, 138 S. Ct. at 1474.

50. Id. at 1478.

51. Id.

52. Id. at 1481.

53. Id.

54. Id. at 1484 (28 U.S.C. § 3702(2) could not stand alone).

55. Id. at 1482–84. See 28 U.S.C. § 3702(2).

56. Murphy, 138 S. Ct. at 1482–84.

57. Id. at 1484–85.

58. S.B. 3793, 115th Cong. (2018). See also Press Release, Senate Democrats, Schumer, Hatch Introduce Bipartisan Sports Betting Integrity Legislation (Dec. 19, 2018),

59. S.B. 3793, § 2.

60. Id. §§ 3(23), 101(b)(1)–(2).

61. Id. §§ 102 (application to Attorney General), 103(b)(2)(D)(i) (betting on intercollegiate sports and the Olympics).

62. Interactive Map: Sports Betting in the U.S., Am. Gaming Ass’n, (last visited April 23, 2020).

63. Id.

64. Id.

65. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (states like California, which regulate but do not prohibit gaming, cannot enforce gaming laws against Tribal gaming operations on Tribal lands, notwithstanding Public Law 280).

66. 25 U.S.C.S. § 2703(6) (2019).

67. Id. § 2703(7)(A)–(C). See also Wisconsin v. Ho-Chunk Nation, 784 F.3d 1076 (7th Cir. 2015).

68. 25 U.S.C.S. § 2703(8).

69. Id.; 25 C.F.R. § 502.4(c).

70. 25 U.S.C.S. § 2710(d)(1)(A)–(C).

71. Nat’l Indian Gaming Comm’n, IGRA and Sports Book Operations, Bull., No. 2020-1 (Jan. 29, 2020), The Ninth Circuit’s holding in Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250 (9th Cir. 1994), alters this analysis for states within its jurisdiction because the court held that only games specifically permitted by the state can be the subject of Tribal-state compacts: If a “state does not permit gaming activities sought by Tribe, Tribe has no right to engage in those activities, and state has no duty to negotiate with respect to them.” In other circuits, a Tribal-state compact may include any class III game if the state permits one or another type of class III gaming activity.

72. News Release, Choctaw Cmty. News, Tribal Publication of the Mississippi Band of Choctaw Indians (June 2018),

73. N.M. Gaming Control Bd., Indian Gaming Compact Between the State of New Mexico and the Pueblo of Santa Ana (June 2015),; (last visited April 23, 2020). See also Phillip Conneller, New Mexico Tribe to Launch Sports Betting Despite Legal Uncertainty, (Oct. 9, 2018),

74. Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian Reservation, Amended Tribal-State Compact § 3.1(d) (2016) (if the state authorizes new class III gaming, the Tribe will have to negotiate to amend compact to include the new gaming type), (last visited Jan. 30, 2020).

75. Cal. Const. art. IV, § 19.

76. Murphy v. NCAA, 138 S. Ct. 1461, 1469–70 (2018) (Court describes the changing attitudes over gambling and opposition to sports wagering based on the presumed need to protect young people and “safeguard the integrity of sports”).

77. Sports betting “has long had strong opposition. Opponents argue that it is particularly addictive and especially attractive to young people with a strong interest in sports, and in the past gamblers corrupted and seriously damaged the reputation of professional and amateur sports.” Id. at 1470.

78. Roxanne Dunbar-Ortiz & Dina Gilio-Whitaker, “All the Real Indians Died Off” and 20 Other Myths About Native Americans 92–99 (2016).

79. Id. at 197 n.7.

80. Cal. Ed. Code § 221.3 (starting in January 2017, schools were prohibited from using the word Redsk*ns on team uniforms and school signage unless they agreed to change the name, in which case they could order a limited number of replacement uniforms and keep signage in place until it reached the end of its useful life). See also Diana Marcum &, Zahira Torres, “Redskins” Ban Angers Fans of California Schools Still Using the Mascot, L.A. Times (Oct. 13, 2015),

81. Ending the Era of Harmful “Indian” Mascots, Nat’l Cong. of Am. Indians, (last visited Jan. 26, 2020). See also Ken Belson, Obama Points to “Legitimate Concerns” over Redskins’ Name, N.Y. Times, Oct. 6, 2013; Emmarie Huetteman, Lawmakers Press N.F.L. on Name Change for Washington Redskins, N.Y. Times, Feb. 9, 2014; Roxanne Dunbar-Ortiz, An Indigenous People’s History of the United States (2014) (redsk*ns refers to the “mutilated and bloody corpses . . . left in the wake of scalp-hunts” for the scalps of Native men, women, and children as young as 10 years old).

82. Redskins, MascotDB, (last visited Jan. 30, 2020).

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Matthew A. King

Matthew A. King is a government consumer protection attorney based in Los Angeles. He is a member of the Confederated Tribes of Siletz Indians of Oregon and a graduate of Notre Dame Law School and the University of Southern California.