Stockbridge-Munsee Community v. Wisconsin
| Decision Date | 30 April 2019 |
| Docket Number | No. 18-1449,18-1449 |
| Citation | 922 F.3d 818 |
| Parties | STOCKBRIDGE-MUNSEE COMMUNITY, Plaintiff-Appellant, v. State of WISCONSIN; Tony Evers, Governor of Wisconsin; and Ho-Chunk Nation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Scott David Crowell, Attorney, Crowell Law Office - Tribal Advocacy Group, Sedona, AZ, Bridget M. Swanke, Attorney, Stockbridge-Munsee Community, Legal Department, Bowler, WI, Bryan Newland, Attorney, Fletcher PLLC, East Lansing, MI, for Plaintiff - Appellant.
Thomas C. Bellavia, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Colin Thomas Roth, Attorney, Wisconsin Department of Justice, Special Litigation and Appeals, Madison, WI, for Defendants - Appellees State of Wisconsin, Scott Walker.
Lester J. Marston, Attorney, Rapport & Marston, Ukiah, CA, Jeffrey McIntyre, Attorney, Husch Blackwell, LLP, Madison, WI, for Defendant - Appellee Ho-Chunk Nation.
Before Easterbrook, Rovner, and St. Eve, Circuit Judges.
The Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 – 21, establishes a framework under which tribes may conduct gambling on land held in trust for their use. Some kinds of gambling may be conducted by every tribe, in every state, without prior approval. But class III gambling, which includes slot machines and table games such as blackjack, may be offered only in states that allow at least some non-Indian groups to conduct similar gambling, and then only if tribe and state enter into a compact or contract covering the operation. 25 U.S.C. § 2710. Both a federal commission (the National Indian Gaming Commission) and the federal judiciary oversee this process. See generally Michigan v. Bay Mills Indian Community , 572 U.S. 782, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014).
Since 1992 Stockbridge-Munsee Community (the Community), a federally recognized tribe, has conducted gaming at North Star Mohican Casino Resort in Shawano County, Wisconsin. In 2008 Ho-Chunk Nation (the Nation), another federally recognized tribe, opened Ho-Chunk Gaming Wittenberg in Shawano County. Both casinos feature class III gaming; both are authorized by contracts between the tribes and Wisconsin. In 2016 the Nation announced plans to add more slot machines and gaming tables, plus a restaurant, a bar, and a hotel. The Community responded with this suit under the Act, seeking an injunction against the expansion if not against the Wittenberg casino as a whole.
The Community has two legal theories. First, it contends that Ho-Chunk Gaming Wittenberg is not located on a parcel of land that was held in trust for the tribe on or before October 17, 1988, a critical date under 25 U.S.C. § 2719(a). The parcel was conveyed to the Nation in 1969, but with a condition that the Nation did not satisfy and that was not lifted until 1989—too late, the Community asserts, even though the Department of the Interior declared in 1986 that the parcel is part of the Nation's trust lands. Second, the Community observes that the contract between the Nation and the State treats the Wittenberg casino as an "ancillary" gaming facility, a word that the contract defines as a place where gambling is not the primary business. The Community insists that gambling is the primary business at Wittenberg and faults the State for failing to enforce this contractual limitation.
The district court did not reach the merits. Instead it first dismissed the suit as untimely with respect to the Nation, 299 F.Supp.3d 1026 (W.D. Wis. 2017), and later did the same with respect to the State. 2018 WL 708389, 2018 U.S. Dist. LEXIS 17278 (W.D. Wis. Feb. 2, 2018). As the court saw things, the Community knew or easily could have learned no later than 2008, when the Wittenberg facility opened, that it was on land to which the Nation did not obtain definitive title until after October 1988. The judge also observed that, if the Nation's gaming operation was the primary business at Wittenberg, the Community knew that too as soon as the facility opened. After observing that the Act does not contain a statute of limitations, the judge concluded that the two likely possibilities—the time to sue for breach of contract in Wisconsin, Wis. Stat. § 893.43, absorbed into federal law on the approach of Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson , 501 U.S. 350, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), or the time to sue under the Administrative Procedure Act, 28 U.S.C. § 2401(a) —each set a six-year limit, which this suit, filed in 2017, exceeded.
In this appeal the Community contends that it is not subject to any time limit, both because it is a sovereign (and Wisconsin does not set time limits for its own suits) and because it seeks equitable relief against an ongoing violation of law. See Holmberg v. Armbrecht , 327 U.S. 392, 396, 66 S.Ct. 582, 90 L.Ed. 743 (1946). Wisconsin replies that, because the dispute involves commercial operations, the state itself would be subject to a time limit, so tribes are equally obliged to sue promptly. And the Nation leads with an argument that the federal court lacks subject-matter jurisdiction. That is where we must start.
The Act provides for jurisdiction over "any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact entered into under paragraph (3) that is in effect". 25 U.S.C. § 2710(d)(7)(A)(ii). The Community invoked jurisdiction under this statute—wrongly, the Nation insists, because the provision is limited to gaming "on Indian lands". By contending that the Nation's land was not (properly) taken into trust until after October 17, 1988, the Community disqualified itself from using this grant of jurisdiction.
Bay Mills Indian Community holds that this grant of jurisdiction is indeed limited to disputes about gambling "on Indian lands". But the Nation is wrong to contend that the Community has pleaded itself out of court. The Community alleges—and the Nation agrees—that the Wittenberg facility is located on land held in trust for the Nation. There is a dispute about when trust status became effective—1986, as the Department of the Interior believes; 1989, when the condition was waived; perhaps as late as 1993, when the grantor gave the Nation a quitclaim deed. But that the parcel is now part of "Indian lands" is beyond debate. There is accordingly no problem with subject-matter jurisdiction under § 2710, and we need not consider whether 28 U.S.C. § 1331 also supplies jurisdiction to resolve the parties' dispute, which after all arises under a federal statute. See Bay Mills , 572 U.S. at 787 n.2, 134 S.Ct. 2024.
The dispute about the use of § 2710 led us to wonder, however, about a question that the parties did not address directly, but that seems essential to the Community's theories: whether a tribe seeking protection from competition is within the zone of interests protected by the Act. See Lexmark International, Inc. v. Static Control Components, Inc ., 572 U.S. 118, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). The Act's provisions concern rights that tribes may assert against states and circumstances under which states may block gaming that tribes want to offer. But none of the Act's substantive rules seems to protect one tribe from competition by another. The Act does not say, for example, that a state must not allow more than one casino in a rural area such as Shawano County, which in the last census had a population slightly under 42,000 and is a good distance from the population centers of Milwaukee (metro area population 1.56 million) and Madison (metro area population 605,000).
Sokaogon Chippewa Community v. Babbitt , 214 F.3d 941, 947 (7th Cir. 2000), observed that "it is hard to find anything in [the Act] that suggests an affirmative right for nearby tribes to be free from economic competition." We therefore directed the parties to file supplemental briefs addressing whether the Community's claims are within the Act's zone of interests.
The Nation relies on Sokaogon for the proposition that the Act does not protect the interests of business rivals. The Community, for its part, distinguishes Sokaogon as involving intervention rather than a party's claims and contends that the Act as a whole protects every tribe's interest in "fair competition." This observation about Sokaogon is true enough but not helpful; we held that one tribe could not intervene in another's suit precisely because the Act does not protect any tribe's interest in avoiding competition from another. That is true whether the tribe that seeks to avoid competition is a plaintiff or an intervenor. And it is not possible to characterize the Act as designed to ensure "fair competition." What part of the Act says so? The Community does not tell us. To the contrary, it acknowledges that if the Nation's land was properly in trust before October 1988, and the State of Wisconsin authorized gaming there, then the Community would just have to grin and bear it.
The zone-of-interests doctrine asks whether the statute arguably protects the sort of interest a would-be plaintiff seeks to advance. See National Credit Union Administration v. First National Bank & Trust...
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