Lac du Flambeau Indians v. State of Wis., No. 90-C-408-C.

CourtUnited States District Courts. 7th Circuit. Western District of Wisconsin
Writing for the CourtMilton Rosenberg, Madison, Wis., for Sokaogon Chippewa Community
Citation770 F. Supp. 480
PartiesLAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS; and the Sokaogon Chippewa Community, Plaintiffs, v. STATE OF WISCONSIN; Tommy G. Thompson, Governor of the State of Wisconsin; Donald J. Hanaway, Attorney General of the State of Wisconsin; David Vernon Penn, District Attorney of Vilas County, Wisconsin; and Janet L. Marvin, District Attorney of Forest County, Wisconsin, Defendants.
Docket NumberNo. 90-C-408-C.
Decision Date18 June 1991

770 F. Supp. 480

LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS; and the Sokaogon Chippewa Community, Plaintiffs,
v.
STATE OF WISCONSIN; Tommy G. Thompson, Governor of the State of Wisconsin; Donald J. Hanaway, Attorney General of the State of Wisconsin; David Vernon Penn, District Attorney of Vilas County, Wisconsin; and Janet L. Marvin, District Attorney of Forest County, Wisconsin, Defendants.

No. 90-C-408-C.

United States District Court, W.D. Wisconsin.

June 18, 1991.


770 F. Supp. 481

Bruce R. Greene, Boulder, Colo., for Lac du Flambeau Band.

Milton Rosenberg, Madison, Wis., for Sokaogon Chippewa Community.

Waltraud A. Arts, Asst. Atty. Gen., Madison, Wis., for State of Wis., Tommy G. Thompson, Donald J. Hanaway, David Vernon Penn, Janet L. Marvin.

OPINION AND ORDER

CRABB, Chief Judge.

This is a civil action brought under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., arising out of defendants' alleged failure to bargain in good faith with plaintiffs on the terms of a tribal-state Indian gaming compact. Defendants concede that the state has refused to bargain over certain gaming activities that it believes are not proper subjects of negotiation. They represent, however, that the state is prepared to return to negotiations once the court has determined whether the disputed activities are proper subjects for a compact.

The case is before the court on defendants' motion for summary judgment, and their motions to strike the affidavits of Rita Keshena, Milton Rosenberg and James Landru. Jurisdiction is present. 25 U.S.C. § 2710(d)(7)(A).

The Indian Gaming Regulatory Act is the product of years of legislative effort to devise a comprehensive scheme for regulating gaming activities on Indian lands. It reflects congressional concerns about the increasing reliance of Indian tribes on gaming revenues for the provision of governmental services to tribal communities and the lack of mechanisms for regulating gaming activity. The essential feature of the Act is the tribal-state compact process, the means Congress devised to balance the states' interest in regulating high stakes gambling within their borders and the Indians' resistance to state intrusions on their sovereignty. The structure of the Act conforms to the basic principle that the states and tribes negotiate as sovereigns. See S.Rep. No. 100-446, 100th Cong., 2d Sess. at 13:

After lengthy hearings, negotiations and discussions, the Committee concluded that the use of compacts between tribes and states is the best mechanism to assure that the interests of both sovereign
770 F. Supp. 482
entities are met with respect to the regulation of complex gaming enterprises such as pari-mutuel horse and dog racing, casino gaming, jai alai and so forth. The Committee notes the strong concerns of states that state laws and regulations relating to sophisticated forms of class III gaming be respected on Indian lands where, with few exceptions, such laws and regulations do not now apply. The Committee balanced these concerns against the strong tribal opposition to any imposition of State jurisdiction over activities on Indian lands. The Committee concluded that the compact process is a viable mechanism for setting sic various matters between two equal sovereigns.

The Act divides gaming activities into three classes. Class I includes social games played solely for prizes of minimal value and traditional forms of Indian gaming engaged in as part of a tribal celebration or ceremony. 25 U.S.C. § 2703(6). These activities are within the exclusive jurisdiction of the tribe. § 2710(a)(1). Class II games include bingo and related games and non-banking card games, as well as certain "grandfathered" card games that were operated by Indian tribes in four named states before May 1, 1988. Section 2703(7). Specifically excepted from Class II are non-grandfathered banking games such as baccarat, chemin de fer or blackjack, and video games of chance and slot machines. Class II gaming is within the jurisdiction of the tribes, subject to the requirements of the Act, with some oversight by the National Indian Gaming Commission. Section 2710(a)(2).

Class III includes all other forms of gaming. 25 U.S.C. § 2703(8). Class III gaming activities are lawful on Indian lands only if the activities are (1) authorized by an ordinance or resolution adopted by the governing body of the tribe that meets the requirements of the statute and is approved by the commission chairman; (2) located in a state that permits such gaming for any purpose by any person, organization or entity; and (3) conducted in conformance with a tribal-state compact entered into by the tribe and the state. Section 2710(d).

The parties dispute whether the state is required to include casino games, video games and slot machines in its negotiations with the tribes.1 I conclude that it is required to negotiate those activities because they are permitted under Wisconsin law within the meaning of 25 U.S.C. § 2710(d)(1)(B). Accordingly, I will deny defendants' motion for summary judgment.

For the purpose only of deciding defendants' motion for summary judgment, I find that there is no genuine issue with respect to any of the following material facts set forth under the heading "Facts." In making these findings, I have not taken into consideration any of the averments included in the affidavits of Rita Keshena, Milton Rosenberg or James Landru, because those averments relate to the manner in which the state has negotiated with the tribes or to the state negotiators' understanding of the scope of the negotiations for a tribal-state compact and have no bearing on the issue raised on the motion for partial summary judgment, which is whether the gaming activities at issue are lawful under 25 U.S.C. § 2710(d). It is irrelevant whether the state bargained in good faith because it concedes it has not bargained on the disputed activities and is prepared to conclude a compact once it has been determined which activities must be included in the negotiations. It is irrelevant also what the negotiators thought the statute requires; the requirements of the statute raise an issue of law and not of fact.

FACTS

Plaintiffs Lac du Flambeau Tribe of Lake Superior Chippewa Indians and Sokaogon Chippewa Community are federally-acknowledged Indian tribes with reservations

770 F. Supp. 483
in the State of Wisconsin. Defendant State of Wisconsin is a sovereign state of the United States. Defendant Tommy G. Thompson is Governor of the State of Wisconsin. Defendant David Penn is the District Attorney for Vilas County, Wisconsin. At all times relevant to this suit, defendant Donald J. Hanaway was the Attorney General of the State of Wisconsin, and defendant Janet Marvin was the District Attorney for Forest County, Wisconsin

The Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., became effective October 17, 1988. On November 16, 1988, plaintiff Lac du Flambeau submitted a written request for tribal-state compact negotiations. Although plaintiff Sokaogon never submitted a written request, it was a party to the various efforts at negotiation that were carried out with the plaintiff tribes as well as with other Wisconsin tribes.

On July 19, 1989, plaintiff Lac du Flambeau proposed as class III gaming activities the following games: "Black Jack 21 — cards, Cards, Video/Slots, games such as Black-Jack and Poker, Craps, Roulette, Keno, off track betting parlor, Sports book." On October 18, 1989, the Department of Justice's tribal-state gaming compact negotiator sent plaintiff Lac du Flambeau a final draft of the tribal-state gaming compact between it and the State of Wisconsin.

On November 14, 1989, Michael Allen, plaintiff Lac du Flambeau's tribal president, resubmitted a gaming compact to the State of Wisconsin based on tribal council action of November 13, 1989. The resubmitted compact covered casino games, including video gaming machines, roulette, slot machines, poker and craps.

The final draft gaming compact with plaintiff Sokaogon covered casino games, including video gaming machines, blackjack, roulette, slot machines, poker and craps.

When bill drafts of the tribal-state gaming compacts were requested, legislative lawyers raised questions about the scope of the games that had been negotiated, particularly about the inclusion of activities not conducted by anyone else in Wisconsin. On October 24, 1989, the Wisconsin Lottery Board requested an attorney general's opinion on the scope of gaming permitted in Wisconsin. On February 5, 1990, defendant Hanaway issued an opinion to the effect that class III games were prohibited in Wisconsin with the exception of lotteries and on-track parimutuel wagering. Since then, the State of Wisconsin has refused to negotiate on any class III activities other than lotteries and on-track betting.

At the present time, the Wisconsin Lottery conducts three types of lotteries in which prizes are distributed among persons who purchase tickets: instant scratch games, pull-tab or break-open games, and on-line games. Instant scratch games are lotteries that use preprinted tickets with a latex covering that is scratched off to reveal the play symbols underneath. A player wins when a winning combination of play symbols is printed on the ticket. The lottery also offers additional methods of play such as secondary drawings for persons who hold winning instant scratch tickets.

Pull-tab or break-open games utilize preprinted tickets made of laminated paper that is partially perforated to allow a strip to be torn to reveal the symbols underneath. As in instant scratch games, the player wins if there is a winning combination of symbols on the ticket.

In on-line games, the player chooses (or the computer selects) a subset of six numbers from a larger set of numbers. The winning numbers are determined by a drawing, and prizes are paid for matching, in any order, six, five or four of the numbers...

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26 practice notes
  • Pueblo of Santa Ana v. Kelly, No. Civ. 96-0002 MV/WWD.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 12, 1996
    ...Indians' resistance to state intrusions on their sovereignty. See Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F.Supp. 480, 481 (W.D.Wis.1991), appeal dismissed 957 F.2d 515 (7th Cir.), cert. denied, Wisconsin v. Lac du Flambeau Band of Lake Superior Chippewa Ind......
  • Dairyland Greyhound Park, Inc. v. Doyle, No. 2003AP421.
    • United States
    • Wisconsin Supreme Court
    • July 14, 2006
    ...purposes of this appeal. Following the 1991 decision in Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 770 F.Supp. 480 (W.D.Wis. 1991), appeal dismissed, 957 F.2d 515 (7th Cir.1992),13 and pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. § 2710(d)(3)(c)......
  • Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107 (Wis. 7/14/2006), No. 2003AP421.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 14, 2006
    ...purposes of this appeal. Following the 1991 decision in Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 770 F. Supp. 480 (W.D. Wis. 1991), appeal dismissed, 957 F.2d 515 (7th Cir. 1992),13 and pursuant to the Indian Gaming Regulatory Act, 25 USC § 2710(d)(3)(c)......
  • Panzer v. Doyle, No. 03-0910-OA.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 13, 2004
    ...the state's refusal to bargain over casino games. Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 770 F.Supp. 480 (W.D. Wis. 1991). Judge Barbara Crabb held that the amendments to Article IV, Section 24, in particular the 1987 amendment authorizing the state to......
  • Request a trial to view additional results
26 cases
  • Pueblo of Santa Ana v. Kelly, No. Civ. 96-0002 MV/WWD.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 12, 1996
    ...Indians' resistance to state intrusions on their sovereignty. See Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F.Supp. 480, 481 (W.D.Wis.1991), appeal dismissed 957 F.2d 515 (7th Cir.), cert. denied, Wisconsin v. Lac du Flambeau Band of Lake Superior Chippewa Ind......
  • Dairyland Greyhound Park, Inc. v. Doyle, No. 2003AP421.
    • United States
    • Wisconsin Supreme Court
    • July 14, 2006
    ...purposes of this appeal. Following the 1991 decision in Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 770 F.Supp. 480 (W.D.Wis. 1991), appeal dismissed, 957 F.2d 515 (7th Cir.1992),13 and pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. § 2710(d)(3)(c)......
  • Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107 (Wis. 7/14/2006), No. 2003AP421.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 14, 2006
    ...purposes of this appeal. Following the 1991 decision in Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 770 F. Supp. 480 (W.D. Wis. 1991), appeal dismissed, 957 F.2d 515 (7th Cir. 1992),13 and pursuant to the Indian Gaming Regulatory Act, 25 USC § 2710(d)(3)(c)......
  • Panzer v. Doyle, No. 03-0910-OA.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 13, 2004
    ...the state's refusal to bargain over casino games. Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 770 F.Supp. 480 (W.D. Wis. 1991). Judge Barbara Crabb held that the amendments to Article IV, Section 24, in particular the 1987 amendment authorizing the state to......
  • Request a trial to view additional results

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