again in general and poker in particular is played prevalently throughout the state of wisconsin the state has its lottery and despite the only explicit prohibition against poker in wisconsin in the constitution which says a state may not offer either poker or simulated poker as part of the lottery it has offered several to riot e s of simulated poker as part of the state lottery charities play poker are expressly authorized to play poker as part of the raffle in wisconsin video poker is played with impunity in class b taverns private poker games are played again with impunity and yet the district court said that poker non bank poker cannot be played on the sovereign land of my client's territory because it is not permitted and is express not authorized in prohibited in the state of wisconsin we believe that ruling to be a rony us as a matter of fact and law and i'm asking you today to reverse what does it mean to say that something is not explicitly prohibited your honor in our opinion first of all the constitution and that's where the genesis from judge crab's decision came about through addition was that it was prohibited and yes that there isn't any language in after the one thousand nine hundred three amendment to the constitution that says that it is prohibited it only says explicitly prohibited with poker and we believe that after ca the word prohibited has to be considered in the context at the time so so are you is it your argument that the that the word prohibited is somehow ambigu my argument that post cabazon it is ambiguous so you need to decide pursuant to cabazon you're saying whether it's privet it in the regulatory sense of that term or whether it's privet in the criminal law sense of the term i am saying that your honor i'm saying that cabazon started with two games poker and bingo both of which were indisputably prohibited one into the riverside county ordinance which was poker and the other under state law which was being go they were prohibited and they would in the united states supreme court said but if the public policy of the state of their california was such that gaming was allowed in fact to the benefit of california just like wisconsin then it is regulated it is not expressly prohibited and of course the state argues that the cabazon case itself is pretty aggressive so it does the fact that the indian gaming regulatory act happens after cabazon make any difference here it makes a significant difference and it's contrary to what the state said there is really no dispute that eager a cane as a result of the caps on kicks  cabazon is not just just mentioned several places in the senate bill which i'll talk about a minute but is part of if you look at twenty seven zero one five as part of the legislative findings it says that one of the legislative findings underlying it growth is that the tribe has exclusive authority to regulate gaming on its lane unless the criminal laws of the state and the state public policy together prohibit that's cabazon that's a part of the group so you see that i mean actually your brief spent a lot of time talking about legislative history but it sounds to me like you're now saying that actually the text of the statute itself provides some support for your position i am saying it provides support for the position but i'm not ignoring the legislative history right he obviously legislative history is something of a third rail for some people maybe not necessarily me but it's it's something that needs to be used with caution and certainly if the statute says something contrary to what was in the legislative history we need to go with the language of the statute i agree with that your honor in judge easter brooks decision in in race and claire what he would make tell me i'm wrong but the way i read his decision is that legislative intent is really irrelevant because the legislature could've blown  it they may not have done what they intended but legislative meaning is very significant because it tells what the words meant at the time and if at that time words are terms of art and the legislative history will show that to be the case then legislative history is extremely important and judge crabbe said legislative history you don't go to for the plain meaning because treating that was told this prior to in race and clair had been essentially implicitly overruled we think that is in your accurate in race and claire says exactly the opposite but there is support within big right itself before we get to legislative history and that is let's look at the first word if it is authorized under state law which is the first component under twenty seven  only two components of class two and they were carved out for special treatment and that says if they were permitted and remember part of the whole analysis is not just twenty twenty seven zero three seven but also twenty three ten d which says that if it's located in state that permits gaming for any person into to your organization and for any purpose that's part of the whole analysis for the class to non bank poker but there's an issue they're dealing with the compact mean there are some forms of gambling that are in fact permitted in wisconsin but solely because their claims three and there is a compact between the state  it's banked poker but all forms of poker all it says is what kinds of games can be played at class three facilities at that time poker was not being played it was added on has to be played both unbank and non bank that doesn't turn non bank into a classroom all it's saying is what can you offer a class three facilities so our position is complex has nothing to do with this case because complex have nothing to do with class to facilit but what is permitted under for class two facilities permitted under the art of toto jo case out of the ninth circuit says authorized or permitted can be done by  preventing it well that's certainly happening in wisconsin video poker is being played with impunity poker itself is all you know play and that's that's kind of tough for me to buy in that there there is at least this fine for up to five machines there for which or whatever everyone call it that doesn't seem to be an endorsement of that of that activity and it could be assessed day after day after day tavern owner does not lose his license and they can still confiscate those machines even though it's less than five the indisputable facts that we gave to the court shows they are not doing that they are going into those facilities seeing those machines and they are not confiscating those machines now you could say that's because they don't have the resources but are they permitting it by such kind of conduct under the artichoke joe case they certainly are but let's look at it as your ass it makes it sound as though you want the statute interpreted on how how a court view the severity of the state action whether the court sees it as being vigorous and well i think that is part of the analysis if you buy into the artichoke joe analysis in fact judge crabb said the same thing in a lot the flambeau though she didn't apply that here she said it was irrelevant but you know i don't i have a lot of problems with that aspect of your argument seems to me you're a court is capable of looking at a law as the cabazon court did and seeing if it's criminal or regulatory a court is capable of looking at a law and seeing if it's civil or criminal  when when you ask the court to get into the business of how aggressively a law is being enforced and whether you put twenty five revenue agents on it or you put two you don't pay any attention to it at all or whatever i think that's a very dangerous road to go it's not up to the court that's an executive function basically they're almost separation of powers problems with that approach well and i agree with that to a certain extent your honor but when it is as extreme as it is in the wisconsin case where it's very apparent that poker is being played and in the long run they are virtually doing nothing about the legislature the constitution was amended to say the legislature can no longer permit can no more longer authorize but what was already going on charities under the express provision of the raffle were allowed to provide poker and they were doing it pre and they were doing it and are doing it poached is that not permitting under state law they're allowed to do it now the argument on the other side is well they're really not betting that's really poker it is not it is poker it's non bank poker the charities are raising substantial amounts of money and the winners are getting a nice return on playing that game that i think this is your pick and choose  argument that the state can't say well we're allowing poker here hearing here or not allowing poker there they're there and the supreme court has said you can't do that if the state policies to permit some of it then it's committed in the second  certainly judge can be said that and interestingly just a few months later the same ninth circuit took took issue with that in rumsey but only with regard to class three and what he said was when you're in class to the case the state cannot game by game the in minute degrees turn on and off it's public policy and the ninth circuit three months later and rumsey said well that is true but that's only with  with regard to class two and what in fact they said was the senate report replete it repeatedly links the cabazon to class two gaming with brought well remaining silent as to class three a fact that is itself suggests a class two and class re provision should be treated differently meaning there's more flexibility with class two and when you look at the cabazon test or you look at the word prohibited and has our view that that is is in fact has to be taken in the context in from that context and twenty seven zero one five which is the cabazon test then it becomes at the very least ambiguous and you look at the senate report the senate report leaves no doubt this bifurcation of the any person for any purpose part of twenty seven ten b which the district court said should be bifurcated from the definitional section the senate report says that the intent is that the provisions of twenty seven zero three seven are not intended to be additional requirements on twenty seven  three b or b and that use cabazon you have any person in the state is allowed to do it for any purpose then the state cannot prevent it being done on sovereign property and at the very least charities are doing it all over the state of wisconsin and that state is doing it as part of its lottery that means is class two and it should be allowed by my client and my client sovereign property thank you thank you may please the court good morning good morning so it's an attorney general clay kosky appearing on behalf of the state of wisconsin and i have three points first this court should affirm the district court's judgment second it should do so because the electronic form of poker that the nation offered at its madison wisconsin casino is a class three game under the indian gaming regulatory act why is it a class three game i mean it grew requires this first to figure out what's close one we all agree this isn't that and then what's class two which includes non bank to games allowed under state law with this specific definition of what allow me and then close three is other you know so you have to figure out class one close to first and for close to and i don't see why non bank poker isn't a class two game the reason is that it is not it is explicitly prohibited by wisconsin law let's see i know that's your argument that maybe i'm just crazy but when i think of the word explicit what i think of is something that says and non bank poker may not be played in wisconsin and it doesn't that was constant constitution and we don't have a nice clean provision such as maybe the utah situation you know if wisconsin was just a state that said there shall be no gambling of any kind whatsoever in the state of wisconsin period full stop ok i mean that sounds clear enough but wisconsin has chosen a much more nuanced approach where some things are you know scratch off poker is fine lotteries are fine parimutuel betting is fine all sorts of things are fine and you're finding some how explicit something that looks to me at best implicit and i think that argument with regard to explicit is that it doesn't mean the same thing as specifically why because in this case we have i in any case what why can't we take a common meaning of the word explicit well first of all explicit in this case is a betting is explicitly prohibited wisconsin law and as we point out in our brief with stat nine forty five point zero two subsection one makes a bet a crime so gambling in poker by definition involves betting and the cases in other circuits that actually do spend quite a bit of time with indian law if you wind up with a state whose public policy permits a permits b and permits c all in the form of perhaps exemptions from a general prohibition you wind up with the state under cabins on whose policies regulatory not criminal had the tory i know wisconsin is a public  and i think the way i'd like to address that is that we don't get the state's position here is that we don't get to cabazon we would look specifically at the statute and that i could see how you can avoid cabazon actually because you have findings you have the concept of prohibited which the supreme court addresses directly in cabazon what does it mean to say something's ribbit california made a big push in that case for saying we prohibit window and you know they did in some ways for having been go but the court says we didn't prohibit it in the way that qualifies for the federal state you know indian jurisdictional allocation i think it's very important to observe how the nation would like this court to get to cabazon they look to section twenty seven ten sub b you want and they don't quote that in their brief and it's very telling because that section actually says an indian tribe me in gaijin or license and regulate class two gaming on indian lands and then the next section capital letter is sub a is what they say is the cab is incorporating cabazon so to even get to incorporat have to see what's public policy of the state of wisconsin these are the this kind of non bank game not not the kind of game where you know money is going to the house and you have various sorts of organized crime concerns or whatever other concerns one might have with respect to that but i mean i feel like you're saying we prohibit it therefore it's class three and i don't see that the state's position is is definitely that the state explicitly prohibits this type of both gambling and poker and there are two ways and the first way is it and you have to allow you have to convince me you know here's the language of the statute explicitly authorized by the laws of the state clearly not i get that or not explicitly prohibited by the laws of the state or plaited any location  and i think your whole argument hinges on explicit meaning implicit well there you know as i was saying there are two parts to the argument about explicitly prohibited the first is the constitution as you point out and that would be that the legislature is not authorized to offer gambling in any form subject to these exceptions in those exceptions it talks about how as part of a lottery we cannot have poker but what about all the poker lotteries you have you made the argument in your brief that somehow the scratch of poker lotteries weren't really poker and i thought that was crazy actually i envisioned a bunch of people sitting around the table with their texas hold'em lottery tickets and somebody saying you know i bet twenty dollars that yours is going to be straight you know or saturday you could easily sure non bank that on that and actually that is not how those scratch offs work you actually you don't even need to scratch off the game to tell if you're a winner you don't need to scratch off the edges of it and it has a little number on it that i was going to bet on that well it's not really the point is that it's not poker well but it is poker though well structured as poker the state's argument is that it is not poker because it doesn't involve elements of betting playing against other players you're playing by yourself scratching off a ticket again you don't even have to scratch off the portion of the ticket that says which cards you received to know if you're a winner you simply scratch off the edges and at the bottom it has three numbers you take that to a supermarket for example where they have a machine where you would hand them that ticket they scan it and then they punch in those three numbers and it tells you if the card is a winner so you don't have to be playing and you think that this is the way wisconsin is structured this game it's a texas hold'em game you know take it it's no more texas as you point out in our brief if you handed someone a football theme to take it they wouldn't say that they're playing football well but they might be making a football pool that i guess there aren't any offices in wisconsin that run you know sports pools and i want to go back to the second point about explicit prohibition which is that again the criminal law in wisconsin chapter nine forty five point zero two sub one makes making a bet a crime so by definition poker involves it then wisconsin allows many many kind the board prohibition against betting no but it had it be a legislature again may not allow any gambling except for these exceptions poker is not one of those and now now your argument as i understand it is we have to read the word prohibit it in twenty seven zero three as relating specifically to the card game of poker right that's correct actual but i don't understand why we can't interpret the word prohibited in the same manner as cabazon you know it's a term of art is used  cabazon why can't we do that i mean i don't think we're prohibited from doing that you're not arguing that our well the only way you can get to that is through the legislative history and even when you look at the legislative history why why is that when any statu requires us to understand what is congress talking about when it says prohibited and there are two paths you know it's a fork in the road you know we can go down the regulatory fork or we can go down all prohibitions are regulatory then you have seem to think that default is that you get to ban it in the default is the default is it is banned in wisconsin because bats are crimes and you only get to look at the legislative history judge williams if you would conclude that the statute section twenty seven or three sub seven is ambiguous and if it is ambiguous you have to show that you have to conclude that there are two competing interpretations that a enter into a compact prohibiting that permits poker this is there are two two things there first of all chapter fourteen allows the governor to enter compaq's i understand that but you just said that the governor the governor couldn't in a compact i assume stipulate that for purposes of gaming private property can be taken without just compensation that's correct i mean there's there's simply a prohibition for that or a governor can enter all the contacts he wants to but that's not a power he had as i also assume that the governor can't say in a compact that if you violate the rules of the house you can be shot that's not in the governor's powers so it's a criminal probe bishan why can the governor say even though the constitution of wisconsin for him it's betting i have the power to permit it well first of all there's another  statute that first year chapter fourteen allows the governor to enter compaq's on top of that you have which says that if it's a class three game which this compact says that all forms of poker are class three games in that case the federal law would permit the state to negotiate a contract with the tribe so you're saying that the governor's the critic that the constitution of wisconsin to this extent is preempted by it read and it again it's not the constitution because maybe the constitution says the legislature may not authorize it's the statutes chapter nine forty five which makes betting a crime ok i mean and so i don't see why if you think because they put poker in the compact that automatically defined poker is class three and i think that's a little backwards reasoning non bank there is close to or it is close three or it isn't doesn't really have anything to do with whether you know soon they could also put in the compact you know that people could play bin go in the casinos and been goes clearly close to it maybe they put it in there just to make it clear and i think it's a little inaccurate to say that they were just talking about you know what class three games are out there but compact itself and i understand your point you judge would the compact cannot override a pro but it's inaccurate to say that the compact just said when we're talking about where class three gaming occurs the cont well what it says is authorized to close three gamey these various states authorize the nation can offer for play these things a six all forms of poker to the extent that these games are not included in the previous subsection so that's not the same thing as saying all poker is class three saying we are authorizing all forms of poker so you could you could have put in that list bingo if you wanted to also and it wouldn't make bingo either class two or class three it's just clarifying that you can have this and chief judge would i want to point you on page twenty two of our brief again it child have the right to operate the following class three game i'm looking at page all forms of poker it is a class three game under that term of in the well you are inferring that this is an indirect definition  even non bank poker as close to three it doesn't actually say that well it's all forms of poker and that's that's our position is that it does doesn't indicate that poker is a class three and again why was why was the nation negotiating where a game like poker madison location if it was approved by referendum right which is really wild that the voters of dane county should have the power to change either state law or compacts or whatever i thought that was very it's a little bit more nuanced than that because the governor still has in the compact itself it says in that provision the governor still has to approve it even if the referendum passes so the governor still has a role in that and he would look at whether it's in the best states best interests at that point ok just very briefly your honor counsel said that section one forty five point zero one in point zero two are the statutory prohibition against gaming in wisconsin and he did accurately state that there is a carve out for the lottery however there is also a carve out for being go but only if being go is played by charities religious organizations or veterans groups and yet being go is allowed to be played in class to facilities that carve out for being go to be played by casinos was recognized even by the state as a permit ng or at least not prohibiting so that class to bingo could be played at my client's facility it also has a carve out that charities can offer raffles which they are doing by issuing poker games so the  talking about under the statutory prohibitions are exactly the carve outs i am talking about as to why it is has been permitted to be played at class to facilitate the other thing that i wanted to mention was  that council wants the court to essentially eviscerate the entire legislative scheme through the definitional section by reading the definitional section very narrowly and in the cold case of this court in two thousand four in the shack a case of the risk onset of the united states supreme court said that definitional section should not be read so narrowly as to even rate the entire purpose of the legislation and so the what is as you have said the prohibition what does that mean given the legislative finding and given cabazon and given the carve out for the gap cabazon kinds of games that are played you go to the legislative history the legislative history says that it is inaccurate that you bifurcate twenty seven ten away from the rest of it so we have any person is allowed to do class two gaming in wisconsin for any purpose which indisputably is happening here then the exclusive authority to regulate gaming on indian land is with both the tribe and within i g c n n i g c here has said repeatedly that you cannot look at only the definitional section alone you have to read it with twenty seven ten subbie and when you read all of those together that this type of gaming at this very facility is class two and we have never contended that that means the chevron level of deference it's the skidmore but they've been doing it for a long time and we