Oneida Tribe of Indians v. State of Wis., 89-C-916-C.

• Decision Date: 17 July 1990
• Docket Number: No. 89-C-916-C.,89-C-916-C.
• Citation: 742 F. Supp. 1033
• Parties: ONEIDA TRIBE OF INDIANS OF WISCONSIN, A Federally Recognized Indian Tribe, Plaintiff, v. STATE OF WISCONSIN; Tommy G. Thompson, Individually and as Governor of the State of Wisconsin; and Donald J. Hanaway, Individually and as Attorney General of the State of Wisconsin, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

742 F. Supp. 1033

ONEIDA TRIBE OF INDIANS OF WISCONSIN, A Federally Recognized Indian Tribe, Plaintiff, v. STATE OF WISCONSIN; Tommy G. Thompson, Individually and as Governor of the State of Wisconsin; and Donald J. Hanaway, Individually and as Attorney General of the State of Wisconsin, Defendants.

No. 89-C-916-C.

United States District Court, W.D. Wisconsin.

July 17, 1990.

Francis R. Skenadore, Oneida, Wis., for plaintiff.

Warren Weinstein, Madison, Wis., for defendants.

OPINION AND ORDER

CRABB, Chief Judge.

This is a civil action for injunctive and declaratory relief and monetary damages brought by plaintiff under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. Plaintiff alleges that defendants have failed to negotiate in good faith a compact governing the conduct of certain gaming activity on plaintiff's reservation. Jurisdiction is asserted under 25 U.S.C. § 2710 of the gaming act and 28 U.S.C. § 1362, the Indian federal question statute.

The case is before the court on cross motions for summary judgment on one aspect of the negotiations for a tribal-state compact as to which the parties have reached an impasse. Although plaintiff has alleged a lack of good faith by defendant in negotiating, plaintiff is not asking at this time to initiate the procedures provided under the Act when a showing of lack of good faith has been made, which include ordering the parties to conclude a compact within 60 days and the appointment of a mediator to select between the tribe's proposed compact and the state's. Rather, both parties have asked the court to determine whether certain games operated by the plaintiff tribe are within the Indian Gaming Regulatory Act's definition of class II or class III gaming.

For the reasons that follow, I conclude that the disputed games conducted by the plaintiff are within the Act's definition of class III games and therefore are lawful only when run in conformance with a tribal-state compact.

For the purpose of resolving their respective motions, the parties have entered into a stipulation of facts. From these facts, and solely for the purpose of deciding this motion, I find there is no genuine issue as to the following material facts.

FACTS

Under the marketing name First American Games, plaintiff operates games of chance called "Big Green" and "Cash-3" on its reservation in Wisconsin. First American Games, Big Green and Cash-3 are conducted at the same location as the Oneida bingo games, that is, in the Irene Moore Activity Center on the reservation. However, players may participate from any one of thirteen terminals located throughout the reservation.

To play Big Green, a player selects six numbers between 1 and 36. The player indicates the numbers selected on a lotto play slip or allows the computer to generate the selection for her through the use of an E-Z Pick feature. The player must present the lotto play slip at an authorized First American Games lottery location. The player pays $1.00 for each play. A player may designate the same numbers for one to twenty consecutive drawings.

The player's election is entered either by manual entry via the terminal keyboard or via the optical mark sense reader that scans the lotto play slip and records the player's numbers. The transaction is registered from a terminal at the reservation by telephone line to plaintiff's Gaming Data Center computer in the Irene Moore Activity Center.

The net sales for the week are the gross sales for the Big Green game less the tribe's operating expense and profit. The gross sales are divided among three prize pools as follows: The jackpot prize is 32.02% of gross sales; the second prize is 9.24% of gross sales; the third prize is 13.74% of gross sales. (The parties do not explain why third prize is larger than second; possibly it is because a greater percentage of persons win third prize.)

Each week plaintiff selects six numbers between 1 and 36. The selection is done through the use of a bingo ball blower using independently tested bingo balls that are pre-cleaned, measured and weighed. Extensive security procedures are in place to ensure game integrity.

Video recordings of each game are made and retained for game integrity. The bingo balls are secured by the Oneida Public Safety Department before and after each game.

Players whose six selected numbers exactly match plaintiff's six selected numbered balls win the jackpot prize. Players whose selected numbers match five of plaintiff's six numbered balls win the second prize. Players whose selected numbers match four of plaintiff's six numbered balls win the third prize.

The jackpot prize consists of the jackpot pool for the week. The initial jackpot is a $500,000, 20-year annuity. It escalates each week by a percentage of gross sales and continues until it is won, at which point the jackpot value starts over at the $500,000 level. If more than one player wins the jackpot prize, second prize or third prize, the amount of the prize money in the prize pool is divided equally among the winners. Typically, the second and third prizes are won every week.

Except for the number selection matrix and prize structure, the operation of the Big Green game is identical to Lotto America/Megabucks, a lottery operated by the State of Wisconsin. Almost all states having a state lottery play this type of game, with the only variation being the range of numbers available to the players to select. For example, in Big Green players may select six numbers between 1 and 36. In Megabucks, players may select six numbers between 1 and 54. Other common ranges throughout the United States are 1 through 39 and 1 through 44.

Plaintiff also operates a game called "Cash-3." This game is similar to lottery games played by state lotteries variously called the "Daily Game" or "Pick-3." In Cash-3 the player selects three numbers between 0 and 9 and the player may bet either $.50 or $1.00. The player must place the bet with his selected numbers at any authorized First American Game lottery location. Plaintiff then selects three numbers between 0 and 9 each day.

The player wins a prize if he or she matches plaintiff's selected numbers as follows:

A. A $1.00 straight bet will pay $500.00. A $.50 straight bet will pay $250.00. A straight bet is a match of all three of the tribe's numbers in the exact order.

B. A $1.00 boxed bet on a number such as 123 (all three digits different) will win $83.00 because there are six ways to win: 123, 132, 312, 213, 231, 321. A $.50 box bet on a number like 123 will pay $41.00.

C. A $1.00 box bet on a number such as 559 (two of three digits the same) will pay $166.00 because there are three ways to win: 559, 595, 955. A $.50 bet on a similar number will pay $41.00.

D. A $1.00 2-Way bet on a number like 123 will pay either $41.00 or $291.00. A 2-Way bet is a match of either the first two or the second two of the tribe's numbers.

E. A $1.00 2-Way bet on a number like 559 will pay either $83.00 or $333.00.

The Cash-3 game is subject to the same strict controls as the Big Green game.

OPINION

The threshold question is whether the parties' dispute constitutes a case or controversy over which this court has jurisdiction. The parties contend that the impasse in their bargaining for a tribal-state compact presents a justiciable dispute. Ordinarily, however, federal courts do not issue opinions advising negotiating parties of the meaning or effect of their proposed agreements. See Barr v. Matteo, 355 U.S. 171, 172, 78 S.Ct. 204, 205, 2 L.Ed.2d 179 (1957) ("An advisory opinion cannot be extracted from a federal court by agreement of the parties....")

The parties assert that jurisdiction is present under 28 U.S.C. § 1362, the Indian federal question statute, in conjunction with 28 U.S.C. § 2201, the declaratory judgment statute. The assertion begs the question. Both statutes require the existence of a "controversy."

On its face, the Indian Gaming Regulatory Act does not provide a jurisdictional basis for plaintiff's suit. The Act gives the federal district courts jurisdiction over "any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact ...," or any cause of action brought by a state or Indian Tribe to enjoin a class III gaming activity on Indian lands that is conducted in violation of any tribal-state compact, and any cause of action initiated by the Secretary of the Interior to enforce the procedures imposed upon states that do not negotiate in good faith. The Act does not purport to give the district courts jurisdiction to render advisory opinions to parties who have disagreements about the meaning of a particular provision of the Act in the course of negotiating gaming compacts.

Despite my reluctance to reach a result in this case that sets a possible precedent for the federal courts' taking on a supervisory role over tribal and state negotiations of gaming compacts, I find that the particular circumstances of this case justify the exercise of jurisdiction over the parties' dispute.

It is a primary purpose of the Indian Gaming Regulatory Act to promote the creation of tribal-state compacts that regularize Indian gaming activity and resolve the troublesome questions of overlapping and conflicting law enforcement by state, federal, and tribal authorities of criminal violations of gaming laws on Indian lands. It would not advance this purpose for the courts to refuse to hear disputes over the scope and application of the provisions of the Act in the course...