Wisconsin v. Nation, 13-cv-334-bbc

• Decision Date: 12 June 2014
• Docket Number: 13-cv-334-bbc
• Court: U.S. District Court — Western District of Wisconsin
• Parties: STATE OF WISCONSIN, Plaintiff, v. HO-CHUNK NATION, Defendant.

STATE OF WISCONSIN, Plaintiff, v. HO-CHUNK NATION, Defendant.

13-cv-334-bbc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

Entered: June 12, 2014

OPINION AND ORDER

The state of Wisconsin has brought this case to enjoin defendant Ho-Chunk Nation from offering electronic poker at Ho-Chunk Gaming Madison (formerly DeJope), the Ho-Chunk Nation's gaming facility in Madison, Wisconsin. The question raised in the parties' cross motions for summary judgment is whether Ho-Chunk Nation's poker game violates a compact with the state. The answer to that question turns on whether electronic poker qualifies as a "class II" or "class III" game under the Indian Gaming Regulatory Act. Class III games are prohibited by the compact except under certain conditions not present in this case, but class II games are permitted. Because I conclude that Ho-Chunk Nation's electronic poker game is a class III game, I am granting the state's motion for summary judgment and denying Ho-Chunk Nation's motion.

The following facts are taken from the stipulation submitted by the parties. Dkt. #17.

UNDISPUTED FACTS

Defendant Ho-Chunk Nation owns a gaming facility in Madison, Wisconsin, called Ho-Chunk Gaming Madison. Games that are classified as "class II" under the Indian Gaming Regulatory Act are permitted at the facility but "class III" games are not permitted.

In 1992, the state and Ho-Chunk Nation entered into a gaming compact. In 2003, the parties executed an amendment to the compact that authorized Ho-Chunk Nation to offer poker at its class III gaming facilities (which do not include Madison). In addition, the compact permitted Ho-Chunk Nation to offer class III gaming at the Madison facility if a referendum authorizing Ho-Chunk Nation to do so was passed by voters in Dane County in 2004. Although the referendum was held, it did not succeed. Approximately 94,000 people voted against allowing class III gaming; approximately 52,000 voted for it. Since that time, neither the state nor Ho-Chunk Nation has taken any action to approve or authorize class III gaming at the Madison facility.

In November 2010, Ho-Chunk Nation began offering a "non-banked" electronic poker game called PokerPro at the Madison facility. In non-banked card games, the house has no monetary stake in the game itself, the house does not place bets and the players play and bet against one another. Playing PokerPro is virtually identical to playing poker on a traditional table, except the cards and chips are maintained in an electronic medium and there is no live, human dealer.

OPINION

The Indian Gaming Regulatory Act divides gaming into three categories. "Class I gaming" includes "social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations." 25 U.S.C. § 2703(6). "Class II" gaming includes certain kinds of bingo as well as "card games" that are (1) "explicitly authorized by the laws of the State" or (2) "not explicitly prohibited by the laws of the State and are played at any location in the State." 25 U.S.C. § 2703(7). "Class III" gaming encompasses all forms of gaming that do not qualify as "class I" or "class II" gaming. 25 U.S.C. § 2703(8). "Class III" games must be authorized by a compact between a state and a tribe. 25 U.S.C. § 2710(d)(1)(C).

The state makes a straightforward argument in support of its view that Ho-Chunk Nation's electronic poker game at the Madison facility is a "class III" card game. (The parties do not dispute that the electronic poker at issue in this case qualifies as a "card game" within the meaning of § 2703(7).) In particular, the state cites art. IV, § 24 of the Wisconsin Constitution, which states that the "legislature may not authorize gambling in any form" except for the games listed in the amendment. Because poker is not one of the listed exceptions, the state says that poker is prohibited under state law, so it cannot meet either definition of card games that qualify as class II gaming under § 2703(7).

Ho-Chunk Nation argues that its electronic poker game is a "class II" game, but it arrives at that conclusion through a more circuitous route. In fact, in its opening brief, Ho-Chunk Nation all but ignores § 2703(7) and focuses instead on a number of other issueswith little explanation of how those issues are relevant to the legal questions before the court. However, from a review of both of its briefs, I understand Ho-Chunk Nation to be making the following arguments:

• First, Ho-Chunk Nation says that the meaning of "explicitly authorized" and "not explicitly prohibited" in § 2703(7)(A)(ii) must be read "in conjunction with" 25 U.S.C. § 2710(b)(1), which permits a tribe to engage in class II gaming if it "is located within a State that permits such gaming for any purpose by any person, organization or entity (and such gaming is not otherwise specifically prohibited on Indian lands by Federal law)."

• Second, Ho-Chunk Nation says that, read together, § 2703 and § 2710, along with relevant legislative history, require courts to apply the standard from California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), to determine whether a particular game qualifies under class II. In particular, Cabazon stands for the proposition that a tribe may engage in gaming if the state's "general policy towards gambling is regulatory or prohibitory." Dft.'s Resp. Br., dkt. #33, at 8.

• Third, Ho-Chunk Nation says that, because Wisconsin does not prohibit all gaming, it follows that the state takes a "regulatory" approach, which means that it cannot prohibit poker either. Alternatively, Ho-Chunk Nation must be allowed to offer electronic poker because Wisconsin allows poker in other contexts and does not enforce its laws that restrict poker.

• Finally, Ho-Chunk Nation says that the Wisconsin Constitution does not "explicitly prohibit" the poker at its Madison gaming facility.

Having reviewed both parties' briefs and the legal authorities they cite, I am persuaded that the state has the better argument. In law, as in many things, the simplest answer is often the best one.

A. Effect of § 2710 on § 2703

Ho-Chunk Nation's argument regarding the proper interpretation of § 2703(7)(A)(ii)is simply untenable. Ho-Chunk Nation says that § 2703(7)(A)(ii) must be read "in conjunction with" 25 U.S.C. § 2710(b)(1), but the statutes serve a different purpose. Section 2703(7)(A)(ii) defines class II gaming; section 2710(b)(1) imposes an additional condition on class II gaming. In other words, it must be determined first whether a particular game meets the definition for a class II game under § 2703(7)(A)(ii). If the game meets that definition, then the game must meet the requirements in § 2710(b)(1) before it can be offered by the tribe. On its face, § 2710(b)(1) does not purport to expand or contract the meaning of a class II game under § 2703(7)(A)(ii).

Distilled, Ho-Chunk Nation's argument is not that the two statutes should be read "in conjunction" with each other, but that § 2710(b)(1) should supplant § 2703(7)(A)(ii). In other words, Ho-Chunk Nation's position is that the questions whether a game is "explicitly authorized by the laws of the State" or "not explicitly prohibited by the laws of the State" in § 2703(7)(A)(ii) should be the same as the question whether the state "permits such gaming for any purpose" in § 2710(b)(1). However, if that were the case, § 2703(7)(A)(ii) would serve no purpose and would be read out of the United States Code. Ho-Chunk Nation's "reading is thus at odds with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant." Corley v. United States, 556 U.S. 303, 314 (2009) (alterations and internal quotations omitted). Why would Congress provide an express definition of a term if it believed it already had defined the term in another provision? Ho-Chunk Nation does not answer that question. Particularly because §2710(b)(1) does not purport to be a definition, I see no reason to conflate the two provisions.

In support of its interpretation, Ho-Chunk Nation cites a Senate committee report for the Indian Gaming Regulatory Act. Dft.'s Br., dkt. #26, at 19-20. This report includes the same language Ho-Chunk Nation has been using, which is that § 2703(7)(A)(ii) and § 2710(b)(1) should be read "in conjunction" with each other. The meaning of the phrase "in conjunction" in this context is not clear, but even if I assume that it means what Ho-Chunk Nation says it does, that piece of legislative history would not be enough to overcome the plain language of the statute.

Ho-Chunk Nation cites Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 10 (1976), for the proposition that, "[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination." However, since Train, both the Supreme Court and the Court of Appeals for the Seventh Circuit have stated repeatedly that a federal court has no discretion to rely on other indicia of legislative intent when the language of a statute is unambiguous. Boyle v. United States, 556 U.S. 938, 950 (2009) ("Because the statutory language is clear, there is no need to reach petitioner's remaining arguments based on statutory purpose, legislative history, or the rule of lenity."); Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) ("[W]hen the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms."); Holder v. Hall, 512 U.S. 874, 932 n.28(1994) ("Resort to legislative history is only justified where the face of the [statute] is inescapably ambiguous."); Patriotic...