Argued December 2, 2014
Appeal from the United States District Court for the Western District of Wisconsin. No. 13-cv-334 -- Barbara B. Crabb, Judge.
For State of Wisconsin, Plaintiff - Appellee: Christopher J. Blythe, Attorney, Clayton P. Kawski, Attorney, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.
For Ho-Chunk Nation, Defendant - Appellant: Thomas M. Pyper, Attorney, Whyte, Hirschboeck & Dudek S.C., Madison, WI; Michael P. Murphy, Attorney, Ho-Chunk Nation, Department of Justice, Black River Falls, WI.
For National Indian Gaming Association, Amicus Curiae: Elizabeth L. Homer, Attorney, Homer Law Chartered, Washington, DC.
Before WOOD, Chief Judge, and WILLIAMS and TINDER, Circuit Judges.
Wood, Chief Judge.
The State of Wisconsin sued the Ho-Chunk Nation of
Wisconsin to stop the tribe from offering electronic poker at its Madison gaming
facility. The state maintained that the tribe was violating its agreement with
the state to refrain from conducting Class III gaming at that location. The
tribe responded that its poker is a Class II game that is permitted by law. The
state prevailed in the district court, and the Ho-Chunk Nation now appeals. We
The Ho-Chunk Nation (the Nation) is a federally recognized Indian tribe with land located in fourteen counties in Wisconsin. That land is held in trust for the tribe by the United States. Like a number of tribes, the Nation has pursued gaming as a catalyst for economic development. The Nation established its first bingo hall in 1983 following a judicial ruling that a 1973 amendment to the state constitution legalizing bingo games had the effect of ending the state's authority to restrict and regulate bingo on tribal reservations. By 1992, pursuant to Wis. Stat. § 14.035, the Governor of Wisconsin had entered into gaming compacts with all of the state's tribes, including the Nation. The Nation adopted a gaming ordinance, which it later amended four times, authorizing the tribe to " conduct all forms of Class I and Class II gaming on the Nation's lands."
The gaming classes to which these compacts and ordinances refer are defined in the Indian Gaming Regulatory Act (IGRA), at 25 U.S.C. § 2703(6), (7), and (8). Class I gaming includes social games and traditional Indian gaming; it is regulated exclusively by Indian tribes. 25 U.S.C. § § 2703(6), 2710(a)(1). Class II gaming includes bingo and certain nonbanked card games that are " explicitly authorized
by the laws of the State, or ... are not explicitly prohibited by the laws of the State and are played at any location in the State." 25 U.S.C. § § 2703(7)(A)(ii), 2710(b)(1). (Wisconsin's Legislative Reference Bureau defines nonbanked games as those " in which players compete against one another as opposed to playing against the house." See Wis. Legislative Reference Bureau, The Evolution of Legalized Gambling in Wisconsin, Informational Bull. 12-2 at 24 (Nov. 2012) http://legis.wisconsin.gov/lrb/pubs/ib/12ib2.pdf.) Class III gaming is a residual category that covers " all forms of gaming that are not class I gaming or class II gaming." 25 U.S.C. § 2703(8). This case hinges on the fact that Class II gaming is enforced exclusively by the tribes and the ...