State of Wisconsin v. Ho-Chunk Nation
784 F.3d 1076
7th Cir.2015Background
- The Ho-Chunk Nation (Nation), a federally recognized tribe with trust land in Wisconsin, operates Ho-Chunk Gaming Madison and began offering electronic, nonbanked poker there in November 2010.
- Wisconsin sued to enjoin the Madison poker, claiming it is Class III gaming and therefore barred by the parties’ compact (and county referendum denial), while the Nation claimed the poker is Class II and permissible without state compact approval.
- The district court granted summary judgment for Wisconsin, holding the electronic poker was Class III; the Nation appealed.
- IGRA divides tribal gaming: Class II (bingo and nonbanked card games permitted or not prohibited by state law) is governed by tribes and the NIGC; Class III (banked casino games and residual gaming) requires a tribal-state compact.
- Central legal question: whether Wisconsin’s law “permits” or “prohibits” nonbanked poker for IGRA purposes, requiring application of the regulatory/prohibitory distinction from California v. Cabazon Band.
Issues
| Issue | Plaintiff's Argument (Wisconsin) | Defendant's Argument (Ho-Chunk Nation) | Held |
|---|---|---|---|
| Is the Madison electronic nonbanked poker Class II (permitted) or Class III (prohibited without compact)? | Poker is explicitly or effectively prohibited by Wisconsin law (including the 1993 constitutional amendment) and thus is Class III. | Wisconsin does not wholly prohibit nonbanked poker (decriminalization and statutory practice show it is not expressly banned), so poker is Class II. | Held Class II: Wisconsin does not criminally prohibit nonbanked poker; Cabazon’s regulatory/prohibitory test applies; IGRA permits tribes to offer nonbanked poker on tribal lands. |
| Does Cabazon’s regulatory/prohibitory distinction apply when interpreting IGRA’s “permits such gaming” language? | Cabazon predates IGRA and is inapplicable to the statutory text. | IGRA was enacted against the backdrop of Cabazon; Congress intended the permissive/prohibitory distinction to apply. | Held Cabazon applies; courts must examine whether state law is regulatory or prohibitory when assessing IGRA §2710(b)(1). |
| Do Wisconsin’s constitutional amendments and statutes (including the 1993 poker exclusion) demonstrate an explicit prohibition of poker for IGRA purposes? | The 1993 amendment excludes poker from authorized state lottery-like games and signals prohibition. | Subsequent legislation (1999 Act 9 decriminalizing hosting video poker machines) and state practice indicate poker is not wholly prohibited. | Held the 1993 amendment and statutes do not show a total state prohibition; Act 9 and other state law developments weigh against a categorical ban. |
| What weight should be given to the NIGC’s (Gaming Commission) classification letter finding the poker Class II? | The NIGC letter is informal and only persuasive, not controlling. | The NIGC has expertise under IGRA and its view merits deference (at least Skidmore-level). | Held the NIGC letter is a relevant interpretive factor; it supports treating the game as Class II though formal Chevron deference was not required. |
Key Cases Cited
- California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (establishes regulatory/prohibitory distinction for state laws when applied to tribal gaming)
- Wells Fargo Bank v. Lake of the Torches Econ. Dev. Corp., 658 F.3d 684 (7th Cir.) (IGRA’s framework and Class II/Class III distinctions explained)
- Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wis. v. United States, 367 F.3d 650 (7th Cir.) (Wisconsin’s lottery and state practice demonstrate it permits gaming for IGRA purposes)
- Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (limits federal court enforcement to compel state negotiation of compacts)
- Oneida County v. Oneida Indian Nation of N.Y., 470 U.S. 226 (1985) (Indian-law canons favoring interpretive rules protecting tribal interests)
- Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985) (note on special rules of statutory construction in Indian law)
- Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014) (principles protecting tribal sovereignty in statutory interpretation)
- Diamond Game Enterprises v. Reno, 230 F.3d 365 (D.C. Cir.) (agency role and history in gaming classifications)
- Colorado River Indian Tribes v. National Indian Gaming Commission, 466 F.3d 134 (D.C. Cir.) (limits on NIGC authority over certain gaming regulation issues)