### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 1 4

- 2529
S TATE OF W ISCONSIN Plaintiff

- Appellee
,

v.

H O

- C HUNK N ATION , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the Western District of Wisconsin

. No. 13

- cv

- 334

— Barbara B. Crabb
, Judge

.

____________________
A RGUED D ECEMBER 2 , 2014

— D ECIDED A PRIL 2 9 , 2015

____________________

Before W OOD , Chief Judge, and W ILLIAMS and T INDER , Ci rcuit Judges

. W OOD , Chief Judge

. The State of Wisconsin sued the Ho

Chunk Nation of Wisconsin to stop the tribe from offering electronic poker at its Madison gaming facility. The state maintained that the tribe was violating its agreement with the state to refrain from conducting C lass III gaming at that location. The tribe responded that its pok er is a C lass II game2 No. 14

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that is permitted by law. The state prevailed in the district court, and the Ho

- Ch unk Nation now appeal s . W e reverse.
I
The Ho

- Chunk Nation (the Nation) is a federally reco gnized Indian tribe with land located in fourteen counties in Wiscon sin. That land is held in trust for the tribe by the United States . Like a number of tribes, the Nation has pu rsued gaming as a catalyst for economic development. The Nation established its first bingo hall in 198 3 following a j udicial ruling that a 1973 amendment to the state constitution legalizing bingo games had the effect of ending the state’s authority to restrict and regulate bingo on tribal reserv ation s

. By 1992, pursuant to Wis. Stat. § 14.035 , the Governor of Wisconsin had entered into gaming compacts with all of the s tate’s tribes
, including the Nation. The Nation adopted a gaming ordinanc e, which it later amended four times, a uthorizing the tribe to “conduct all forms of Class I and Class II gaming on the Nation’s lands.” The g aming classes to which these compacts and ord inances refer are defined in the Indian Gaming Regulatory Act (IGRA), at 25 U.S.C. § 2703(6), (7), and (8). Class I ga ming includes social games and traditional Indian gaming; it is regulated exclusively by Indian tribes. 25 U.S.C. § § 2703(6), 2710(a)(1). Class II gaming includes bingo and certain non banked card games that are “explicitly autho rized by the laws of the State, or ... are not explicitly prohi bited by the laws of the State and are played at any loca tion in the State.” 25 U.S.C. § § 2703(7)(A)(ii), 2710 (b)(1)

. (Wisco nsin’s Legislative Reference Bureau defines non ban ked games as those “in which players compete against one another as opposed to playing against the house.” See Wis. LegislativeNo. 14

- 2529 3

Reference Bu reau, The Evolution of Legalized Gambling in Wi sconsin , Informational Bull. 12

- 2 at 24 (Nov. 2012) http://legis.wisconsin.gov/lrb/ pubs/ib/12ib2.pdf

. ) Class III gaming is a residual category that covers “all forms of ga ming that are not class I gaming or class II gaming.” 25 U.S.C. § 2703(8). This case hinges on the fact that Class II gaming is enforced exclusively by the tribes and the National Indian Gaming Commission ( Gaming Commission ), 25 U.S.C. § 2710(b), whereas Class III gaming is regulated pursuant to tribal

- state compacts, 25 U.S.C. § 2710(d).
The Nation operates several gam ing facilit ies , in cluding one in Madison, now called Ho

- Chunk Gaming Madison. On April 25, 2003, the Nation and Wisconsin executed a document referred to as the Second Amendment to the Compact, which authorized th e Nation to conduct C lass III gaming at the Madison facility
, pro vided Dane County a uthorized it to do so

. But Dane County withheld its authoriz ation after the voters rejected by a margin of nearly two to

one a r eferendum to that effect held on February 17 , 2004

. The current Compact
, as amended on September 16, 2008, does not restrict the ability of the Nation to offer C las s II gaming on its tribal lands , including t he Madison facility ( n or could it as a matter of federal law )

. Since November 2 010, the Nation has offered non banked poker at Ho

- Chunk Gaming Madison

. (The parties’ Joint Statement of Stipulated Facts explicitly recognizes that the type of poker offered at the Madison facility is nonbanked. 1 ) Wisconsin considers

1 Paragraphs 25 and 26 of the Joint Stipulation contain the most i nformation about the type of poker involved here and the parties’ agre ement that it is nonbanked:4 No. 14

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this non banked poker to be a Class III game. It accordingly sought an injunction in federal court to stop the poker, which if properly classified as Class III would violate the Nation’s compact with the state. Both the state and the tribe filed motions for summary judgment bas ed on the stipulated facts. The district court ruled that the electronic poker was
, as the state had contended, a C lass III game, and so it gran ted the state’s motion for summary judgment and denied the tribe’s motion

. The court enjoined the Nation from of fering poker at the Madison facility, but stayed the injunction pending the Nation’s appeal to this Court

.

“ 25. E

- Poker does not use live dealers or paper or plastic cards and gaming chips. Instead, cards are shuffled and dealt in an electronic m edium, with each player viewing his or her cards at their respective player stations located around the table. Gaming chips are also maintained in an electronic medium, and players can view their chip balance on their individual player stations, which contain touch screens for the players to view their cards, chips, and other game information. The players also use the touch screen to input game decisions ( e.g. , to bet, to check, to fold, etc.). A large video s creen in the center of the table displays wagers made by each player, the community cards dealt, and other game information, including the pot total for each hand. Player accounts are maintained at the cashier’s cage or other secure location where players must conduct cash

- in and cash

- out functions.

26. E

- Poker is not house banked. HCG Madison collects a “rake” from the player’s wagers and places all bets in a common poo l or pot from which all player winnings and the rake are paid. All player funds
are tra cked and accounted for by the e

- Poker table system’s automated accounting func tion.”No. 14

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II

We review a district court’s grant of summary judgment de novo

. Prestwick Capital Mgmt. v. Peregrine Fin. Grp. , 727 F.3d 646, 655 (7th Cir. 2013)

. We also review de novo any l egal questions, including those involving statutory interpret ation. Tradesman Int'l, Inc. v. Black , 724 F.3d 1004, 1009 (7th Cir. 2013)

. If the version of poker the Nation offers at its Madison facility is a C lass II game unde r the statute , the N ation has the authority to offer the game without securing Wisconsin’s permission. If it is a C lass III game, the Na tion may not offer it at the Madison facility under the current compact with Wisconsin.

To decide which is the proper c lassification, we begin with IGRA, 25 U.S.C. § § 2701

– 2721. The Act’s “stated goals were to create a comprehensive regulatory framework ‘for the operation of gaming by Indian tribes as a means of pr omoting tribal economic development, self

- sufficiency, and strong tribal governments,’ to ‘shield [tribes] from organized crime and other corrupting influences, to ensure that the I ndian tribe is the primary beneficiary of the gaming oper ation, and to assure that gaming is conducted fairly and ho nestly by both the operator and players.’” Wells Fargo Bank v. Lake of the Torches Econ. Dev. Corp. , 658 F.3d 684, 687 (7th Cir. 2011) (quoting 25 U.S.C. § 2702(1)

– (2))

. As we noted earlier, IGRA divides all Indian gaming (that is, gambling run by federally recogni zed tribes) into three classes, each subject to different levels of tribal, federal
, and state regulation

. As we have noted, w e are concerned with Clas ses II and III

. Class II gaming includes bingo, bi ngo

- like games (such as pull tabs), and non banked car d games allowed under state law. In a non banked game, pla y-6 No. 14

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ers bet against one another
, and the house has no monetary stake in the bets. In a banked game, such as blackjack, pla yers bet against the house. Among C lass II games, IGRA i ncludes card games that

— (I) a re explicitly authorized by the laws of the State, or (II) are not explicitly prohibited by the laws of the State and are played at any loc ation in the State, but only if such card games are played in co nformity with those laws and regulations (if any) of the State regarding hours or periods of operation of such card games or limitations on wagers or pot sizes in such card games.
25 U.S.C. § 2703(7)(A)(ii). Class II gaming is within the control of the tribes, but it is also subject to regulation by the Gamin g Commission , which has the power to bring enforcement actions against tribes. The Commission must oversee a tribe’s C lass II gaming u nless it has granted the tribe a certificate of self

- regulation. Class III gaming (the residual category) includes the types of games that most would associate with casinos: slot machines, craps, roulette, and banked card games like blac kjack. It is permitted if three conditions are met: 1) the tribe has eligible trust lands in the state, 2) the state permits the gaming for any purpose, and 3) the gaming is governed by a
state

- tribe compact. Notably, the first two are identical to the requirements for Cl ass II gaming. To meet the third r equirement, a tribe must enter a compact with the state , andNo. 14

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the compact m ust take effect before the casino opens. Id. § 2710(d)(1) . These compacts sometimes involve extensive negotiation and litigation. See
, e.g. , In Re Gaming Related Ca ses , 331 F.3d 1094 (9th Cir. 2003)

. A state must “negotiate in good faith” with a tribe when it requests a compac t, but a state cannot be forced through lit igation to negotiate. Sem inole Tribe of Fl a

. v. Florida , 517 U.S. 44 (1996) . If the parties succeed in concluding a compact and the Secretary of the I nterior approves it, s he must p ublish notice of the approval in the Federal Register . 25 U.S.C. § 2710(d)( 8 )(D). T he Secretary

m ay disapprove a compact, if it violates IGRA, any other federal law, or the trust obligations of the United States to Indians. Id. § 2710(d)(8)(B). If the Secr etary takes no action within 45 days of the date when the compact is submitted for approval, the compact is considered approved. Id. § 2710(d)(8)(C )

. Wisconsin law does not explicitly au thorize the Nation to offer non banked poker, and so the Nation cannot rely on section 2703(7)(A)(ii)(I). It can prevail , if at all, only under section 2703(7)(A)(ii)(II)

— that is, if the games are not expli citly prohibited by the laws of the s tate and are played at any location in the s tate. One other provision of IGRA is rel evant: section 2710(b)(1), which say s that a tribe may engage in Class II gaming if the state “permits such gaming for any purpose by any person, organization or entity.” Id

. In other words, Class II gaming “is permitted only on tribal lands in states that do not entirely prohibit such gaming and only where the tribal resolution authorizing the operation is a pproved by the Chairman of the Commission.” Wells Fargo Bank
, 658 F.3d at 687 (citing 25 U.S.C. § 2710(b)(1)(A)

– (B)).8 No. 14

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The parties dispute how sections 2703(7)(A)(ii) and 2710(b)(1) should be understood

. The debate arises out of the Supreme Court’s decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) , which drew a distinction between regulatory and prohibitory measures and held that only prohibitory measures can negate the permission r equired by section 2710(b)(1). In Cabazon , the Supreme Court held that California could not impose its gaming regulations on tribal gaming operations becau se the state’s gaming laws

were regulatory
, not criminal

. Id. at 220

– 22. This was i mportant because California is one of the states covered by a statute commonly known as Public Law 280; that law takes away the federal government’s authority under 18 U.S.C. §§ 1152

– 53 to prosecute Indian country cr imes and turns that power over to the listed states. See Pub. L. No. 83

- 280 , 67 Stat. 588 (1953) . Had the gaming regulations been classified as criminal, California would have been entitled to impose its rules on the tribe’s operations. Cabazon concluded t hat

s ince Congress had not explicitly granted the state regulat ory authority over gaming, the state’s laws were preempted in light of the profound federal interests in tribal self

government. The Court’s decision in Cabazon led to a flood of activity, and states and tribes clamored for Congress to bring some order to tribal gaming

. Wisconsin is also a state listed in Public Law 280. The immediate question before the district court was whether it was necessary to go through the analysis required by Cab azon, or if section 2710(b)(1) leaves no room whatsoever for questioning whether the Wisconsin regime is regulatory or pro hibitory . The court decided that “ Cabazon had noth ing to do [with] § 2703 or the meaning of ‘class II gaming.’” It co ncluded that the Natio n’s nonbanked poker game was “e x-No. 14

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plicitly prohibited by the laws of the state” and therefore

was a C lass III game. 25 U.S.C. § 2703(7)(A)(ii) (II)

. T here was no point in consulting the legislative history of IGRA or S upreme Court precedent on Indian gaming
, the court thought, because it understood Wisconsin to have an explicit prohib ition of non banked poker for purposes of IGRA. Our own review of the statutory scheme convinces us that it was error to put the Supreme Court’s Cabazon decision to one side. The reference in section 2703(7)(A)(ii)(II) to “card games that ... are not exp licitly prohibited by the laws of the State ” must be read not just in light of the language itself, but also with attention to “the specific context in which that language is used, an d the broader context of the statute as a whole.” Robinson v. Shell Oil Co. , 519 U.S. 337, 340 (1997) . J ust as Montana did in its litigation with the Blackfeet Tribe thirty years ago , Wisconsin “fails to appreciate

... that the standard principles of statutory construction do not have their usual force in cases involving Indian law.” Montana v. Blackfeet Tribe of Indians , 471 U.S. 759, 766 (1985)

. “The canons of construction applicable in Indian law are rooted in the uni que trust relationship between the United States and the Indians.” Oneida Cnty. v. Oneida Indian Nation of N.Y. , 470 U.S. 226, 247 (1985) ; s ee also Michigan v. Bay Mills Indian Cmty. , 134 S. Ct. 2024, 2032 (2014) ( “Although Congress has plenary authority o ver tribes, courts will not lightly assume that Congress in fact intends to undermine Indian self

governance.” (citations omitted) )

. The leading treatise in the field summarizes the canons that the S upreme Court follows in cases construing laws affecting I ndians as follows :

[ T ] reaties, agreements, statutes, and Executive Orders [must] be liberally construed in favor of10 No. 14

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Indians , and

... all a mbiguities resolved in their favor. In addition, t reaties and agre ements are to be construed as Indians would have unde rstood them , and t ribal property rights and sovereignty are preserved unless Congress’s intent to the contrary is clear and unambiguous.

C OHEN ’ S H ANDBOOK OF F EDERAL I NDIAN L AW § 2.02[1] (2012 ed.) . See Oneida C nty

. , 470 U.S. at 247

– 48 ; see also Minnesota v. Mille Lacs Band of Chippewa Indians , 526 U.S. 172, 196 (1999) ; Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 528 (1832) (McLean, J., concurring).
These canons have been widely accepted. This court has acknowledged the special approach to statutory constr uction that Indian law demands

. See, e.g., Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt , 7 00 F.2d 341, 351 (7th Cir. 1983) (reviewing canons and stating that “ t hese canons mandate that we adopt a liberal interpretation in favor of th e In di ans ”)

. Our sister circuits are in accord. See, e.g. , NLRB v. Pueblo of San Juan , 276 F.3d 1186, 1191

– 92 (10th Cir. 2002); Mashantucket Pequot Tribe v. Connecticut , 913 F.2d 1024, 1030 (2d Cir. 1990) (“We deem this legislative history instructive with respect to the meaning of the identical language in se ction 2710(d)(1)(B), regarding class III gaming, which we must interpret.”)

. Cf. Rancheria v. Jewell, 776 F.3d 706, 713 (9th Cir. 2015) (declining to apply the Indian law canon in light of competing deference required by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc

. , 467 U.S. 837 (1984), but rea ffirming that the Indi an canon “appli[es] when there is a choice between interpretations that would favor Indians on the one hand and state or private actors on the other”).No. 14

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Wisconsin offers a second argument for finding Cabazon inapplicable here: be cause that case pre dates IGRA, it a sserts, the Court’s reasoning does no t illuminate the statut e. We fin d this unpersuasive. It makes more sense to read the statutory language knowing that Congress was legislating against the background of the Supreme Court’s decisions. See , e.g., Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991). Nothing in the text of IGRA supports an i nference that Congress was disapproving or limiting Cabazon. That is reason enough to reject the state’s position. The history of the legislation provides further support for the use of Cabazon. Other courts have found that the legisl ative history leaves no doubt that Congress intended the “permit” language for both C lass II and C lass III gaming in 25 U.S.C. § 2710 to incorporate the Cabazon regulat ory/prohibitory distinction. See, e.g. , Mashantucket Pequot Tribe , 913 F.2d a t 1029 (“[T]he Senate Report specifically adopted the Cabazon rationale as interpretive of the requir ement in section 2710(b)(1)(A) that class II gaming be ‘ located within a State that permits such gaming for any purpose by any person, organization or enti ty. ’ ”); Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin , 770 F. Supp. 480, 485 (W.D. Wis. 1991) (“The Senate committee stated that it anticipated that the federal courts would rely on the Cab azon distinction between regulatory gaming sc hemes and prohibitory laws

. ”)

. A leading scholar in the field has also urged that this is the best reading of the statute. See W ILLIAM C. C ANBY , J R

. , A MERICAN I NDIAN L AW IN A N UTSHELL 338 (2009) (“ T his restriction [of § 2710(b)(1)] is reflective of the rationale in Cabazon Band ; if a state permits bingo or u nbanked card games for any purpose, its public policy cannot be offended by this type of gambling.”)

. We decline Wisco n-12 No. 14

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sin’s invitation to break new ground here. Ca baz on ’s regul atory/prohibitory distinction applies when determining whether state law permits (or does not prohibit) gambling for the purposes of IGRA. We turn now to our inquiry under Cabazon : does Wisco nsin “permit[] such gaming for any purpose by any pers on, organization or entity.” 25 U.S.C. § 2710(b)(1)(a) ; s ee also Cabazon , 480 U.S. at 211 n. 10 (“T he applicable state laws governing an activity must be examined in detail before they can be characterized as regulatory or prohibitory. ”); C ONF

. OF W. A TT ’ Y S G EN ., A MERICAN I NDIAN L AW D ESKBOOK § 12.16 (2014 ed.) ( “The status of nonbanking card games as class II must be determined by reference to state law

... where state law is silent as to the validity of nonbanking card games, they will be valid even if played o nly on Indian lands.”). Just as they took different positions on the applicability of Cab azon , t he parties dispute the proper sources of state law to consult when determining whether Wisconsin “permits” poker within the meaning of section 2710(b)(1 )(a)

. W e think it best to begin with Wisconsin’s Constitution, and then co nsult its stat utes and compact s with the tribes. After that, we discuss the Nation’s suggestion that we should place some weight on the state’s allegedly lax enforcement of vid eo

pok er laws and its poker advertising. The parties disagree about the level of generality we ought to adopt as we examine whether Wisconsin prohibits poker. A general approach, which takes into account Wi sconsin’s approval of pari

- mutuel horse and dog betting
, strengthens the Nation’s argument that Wisconsin has d eparted from its nineteenth

- century constitutional prohibition

on gambling and permits gambling conducted in complianceNo. 14

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with regulations. The Eighth and Ninth Circuits have held that for C lass II gaming under IGRA, “the state cannot reg ulate and prohibit, alternately, game by game and device by device, turning its public policy off and on by minute d egrees .” Sycuan Band of Mission Indians v. Roache , 54 F.3d 535, 539 (9th Cir. 1994) ; s ee also United States v. Sisseton

- Wahpeton Sioux Tribe , 897 F.2d 358, 368 (8th Cir. 1990)

. The Sec ond Ci rcuit has taken the same approach in an analysis of C lass III gaming. See, e.g. , Mashantucket Pequot Tribe 913 F.2d at 1031

– 32 (“So here, the district court concluded , after a careful r eview of pertinent Connecticut law regarding ‘Las Vegas nights,’ that Connecticut ‘permits’ games of chance, albeit in a highly regulated form. Thus, such gaming is not totally r epugnant to the State’ s public policy

. Connecticut permits other forms of gambling, such as a state

- operated lottery, bingo, jai alai and other forms of pari

- mutuel betting.”)

. Some question has been raised about the relevance of d ecisions involving Cl ass III gaming to our analysis here. Gi ven the fact that Class III is defined as “not” Class I or II, we have no reason to refuse to look at the Class III decisions. Cl ass III gaming incorporates the same state

- law analysis used for C lass II. Compare 25 U.S.C. § 2710(b)(1)(a) with § 2710(d)(1)(B) . Moreover, C lass II gaming is less regulated than C lass III gaming . If Wisconsin is a regulatory state for purposes of C lass III gaming, it would be anomalous to co nclude that it somehow becomes prohibitory for purposes of Class II games. What we held a decade ago sti ll applies: “Wisconsin has not been willing to sacrifice its lucrative lo ttery and to criminalize all gambling in order to obtain a uthority under Cabazon and § 2710(d)(1)(b) to prohibit ga mbling on Indian lands .” Lac Courte Oreilles Band of Lake Sup e-14 No. 14

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rior C hippewa Indians of Wis

. v. United States , 367 F.3d 650, 665 (7th Cir. 2004)

. Even if we were to adopt a more exacting level of gene rality, our result would be the same. That would involve an analysis of Wiscon sin law specifically for poker , not for gamblin g in gen eral. The question would then be whether poker is “ explicitly authorized by the laws of the State ” or

“ not explicitly prohibited by the laws of the State and

. . . played at any location in the State.” 25 U.S.C. § 2703(7)(A)(ii) . As we noted earli er, t he Nation cannot point to any law that suggests Wisconsin explicitly authorizes the game , and so it must establish the latter. Wisconsin’s original 1848 constitution prohibited “any lot tery

. ” This provision had been interpreted as prohibiting all gambling. But the state abandoned that absolute position starting in the 1960s, when it legalized various forms of ga ming ( including promotional contests in 1965, charitable bingo in 1973, raffles in 1977 , on

- track p ari

- mutuel betting on horseracing in 1987 , and a state lottery in 1987 ) through co nstitutional amendments. See Wis. Legislative Reference B ureau, Decriminalization of Video Gambling
, Budget Br. 99

- 6 ( Nov. 1999 ); s ee also Oneida Tribe of Indians of Wisconsi n v. Wisconsin , 518 F. Supp. 712, 719 (W.D. Wis. 1981) (citing the 1973 constitutional amendment as evidence that “Wisco nsin’ s bingo laws are civil

- regulatory and

... not enforceable by the state in Indian country”). When the Wisconsin Legi slature’s non

- part isan research service described the state’s approach to gambling two years ago, it had this to say: “The story of gambling in Wisconsin is an evolution from absolute legal prohibition to the present situation in which the state and certain organizations an d entities, including IndianNo. 14

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tribes, may conduct a wide variety of gaming activities.” Wis. Legislative Reference Bureau, The Evolution of Legalized Gambling in Wisconsin , Informational Bull. 12

- 2 at 1 (Nov. 2012) http://legis.wisconsin.gov/lrb/pubs/ib/12ib2.pdf

. We acknowledged these developments i n an earlier IGRA dispute between a different tribe and Wisconsin : “The establishment of a stat e lottery signals Wis consin’ s broader public policy of tolerating gaming on Indian lands

... . [B] ecause IGRA permits gaming on Indian lands only if they are ‘located in a State that permits such gaming for any pu rpose by any person, organization or enti ty,’ the lottery’ s co ntinued existence demonstrates Wiscon sin’ s amenability to Indian gaming.” Lac Courte Oreilles Band
, 367 F.3d at 664 (ci ting Cabazon and quoting 25 U.S.C. § 2710(d)(1)(b) )

. That does not mean that Wisconsin has become a free

for

- all with res pect to gambling. It amended its constitution in 1993 to restrict the types of gambling that could be autho rized by the l egislature. The state correctly points out that th e 1993 constitutional amendment explicitly prohibited “ po ker. ” It hopes, by relying on that amendment, to avoid the otherwise clear implication of the constitutional and statut ory changes from the previous three decades. The 1993

a mendment reads, in relevant part, “Except as provided in this section, the legislature m ay not authorize gambling in any form.” Wis. Const. art . I V, § 24(1). The article goes on to “provide otherwise” in several respects: it permits certain bingo games licensed by the state (§ 24(3)); it permits spec ified raffle games (§ 24(4)); it forbids th e legislature from prohibiting pari

- mutuel on

- track betting (§ 24(5)); and it permits a lottery (§ 24(6)), although it then excludes from the16 No. 14

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definition of the state

- operated lottery several casino

- style games, including poker. Id. art . I V, § 24( 6 ) ( c ).

But Wisconsin cannot overcome two snags in the arg ument based on the 1993 constitutional amendment

. First, the state itself does not treat the prohibition against poker as an insurmountable obstacle to Indian gaming. I f poker were flatly prohibited as a matte r of state constitutional and cri minal law, a municipal referendum could not und o that const itutional prohibi tion. Yet that is what the state proposed to do in 2004, when the state and the Nation amended their compact to allow C lass III gaming at the Madis on facility if the voters of Dane County approved the arrangement in a referendum. The logical inference is that if the voters had said yes, then the Nation could have added poker to the games offered in the Madison casino. IGRA was designed to avoid preci sely that kind of patchwork prohibition
, in which the state banishes gaming in one county or situation and a llows it in anoth er . Wisconsin might argue that poker is not prohibited as a matter of state law in a C lass III game, but there is no language in the state constitution that supports that position. As we discussed earlier
, C lass II and C lass III games are subject to identical “permit” language in IGRA

. Nor can Wisconsin explain, in light of its reading of IGRA, why the Go vernor himself was not flouting the state’s crim inal law when he contracted with the Nation to have them provide poker on other tribal lands.
The second problem with Wisconsin’s posi tion arises out of legislative action in 1999. Act 9, the budget passed by the Legislature that year , decriminalized (though did not fully legalize) the possession of five or fewer video gambling m achines, including video poker, provided that the establis h-No. 14

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ment was licensed to serve alcohol. See Wis. Stat. §§ 945.03(2m) and 945.0 4(2m) ; s ee also Wis. Legislative Re ference Bu reau, Decriminalization of Video Gambling
, Budget Br. 99

- 6 ( Nov. 1999 ). Describing Act 9, the Legislative Refe rence Bureau noted that “[t]he new law decriminalized po ssession of five or fewer video gambling machines ... redu cing the penalty to a civil offense, subject to a forfeiture of up to $500 per machine. It also removed the threat that a tavern could have its alcohol beverage license revoked solely b ecause of the machines.” Wis. Legislative Reference Bu re au, The Evolution of Legalized Gambling in Wisconsin
, Research Bull. 00

- 1 (May 2000). Wisconsin rightly points out that Act 9 retained the criminal penalties for a patron to gamble using a video machine, but the Ho

- Chunk Nation is in the position of the ta vern proprietor , not the tavern patron. Wisconsin cannot have it both ways. The state must e ntirely prohibit poker within its borders if it wants to prevent the Nation or any other Indian tribe from offering poker on the tribe’s sovereign lands. See Lake o f the Torches 658 F.3d at 687

. When the state decriminalized hosting pok er for ta verns, it could no longer deny that game to tribes as a matter of federal law. Wisconsin argues that the Wisconsin Supreme Court ’s decision in Dairyland Greyhound Park v. Doyl e , 719 N.W.2d 408, 428 (Wis. 2006) , reinforces its position that the state pr ohibits poker, but that case simply stands for the proposition that “based on the 1993 Amendment’ s history and the earl iest legislative interpretations of that Amendment, we co nclude that the 1993 Amendment was not intended to pr eclude the Tribes from conducting Class III games pursuant to the Original Compacts.” Id. at 4 28

. In other words, Dairy-18 No. 14

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land confirms that the 1993 amendment to the state constit ution did not affect the le gality of Wisconsin’s gaming co mpacts with the tribes. Justice Prosser’s separate opinion, which both parties cite extensively, is of no help, because a majority of his coll eagues explicitly rejected his reasoning. Id. at 441 (“Justice Prosser’ s arguments regarding the scope of gaming are structurally unsound.”)

. Finally, in the interest of completeness we add a few words about the remain ing arguments the parties have a dvanced

. We reject the Nation’s suggestion that we should place some weight on the exten t to which Wisconsin enfor ces its criminal law (or does not do so)

. The fact that the state delegates to its Department of Revenue the task of enforcing some criminal laws tells us exactly nothing

. We have no i ntention of getting into the business of scrut inizing the vigor of enforcement for every gambling in fraction in every case. Nothing in IGRA suggests the C lass II or C lass III gaming analysis demands any thing beyond positive law. Nor do we rely on the fact that Wisconsin advertises poker on its tou rism websites. To be sure, i t would be odd for a state’s tou rism bureau to advertise an industry it regards as criminal or as against public policy. Nonetheless, it is quite unlikely that the people drafting advertising messages can dictate law e nforcement policy to the state. This is best left out of the calc ulus. Only one thing remains. In a letter dated February 26, 2009, the Gaming Commission concluded that the poker the Nation offers in Madison is C lass II gaming because Wisco nsin does not “wholly proh ibit[]” poker. W hen a federal court inter pret s a statute, it should consider the interpretation of the expert agency charged with implementing that statute.No. 14

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IGRA is the organic statute for the Gaming Commission . The Commission has expertise in classifying Indian gaming , and it issues r egulations that further clarify what constitutes C lass II gaming. 25 C.F.R. § 502.3(c) ; s ee also C OHEN ’ S H ANDBOOK OF F EDERAL I NDIAN L AW § 12.0 2 [3][a] ( “The NIGC plays a very important role in the determination of whether propo sed gaming is class II or class III

... [and] is frequently called upon to determine whether a particular form of ga ming falls within class II or class III.” )

. Wisconsin suggests that this lett er has only persuasive value

. It notes that the D.C. Circuit held that the Gaming Commission lacked authority to mandate operating proc edures for C lass III gaming. Colo

. River Indian Tribes v. NIGC
, 466 F.3d 134 (D.C. Cir. 2006) . An agency that lacks the power to promulgate regulations for an area o f economic activity might not enjoy much deference on classifying that activity. But see Diamond Game Enter

. v. Reno , 230 F.3d 365, 369 (D.C. Cir. 2000) (discussing th at court’s frustration with the Ga ming Commission ’s unwillingness to weigh in on a gaming classification issue and complaining “we have no choice but to proceed without the benefit of a Commission positi on , a situation we expect Congress neither anticipated nor would appreciate

. ”). We will assume for the sake of argument that the letter of the Gaming Commission is too informal to tri gger Chevron deference. The possibility of deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), remains, howe ver. In light of the system IGRA establishes and the evidence that Wisconsin does not prohibit poker as a matter of crim inal law, the Gaming Commission’s opinion is one item on the scale in favor of the Nation.20 No. 14

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III
IGRA create s a regulatory scheme that respects tribal sovereignty while carving out a regulatory role for the states on only the most l ucrative forms of casino gambling and hence the forms of gambling most susceptible to organized crime. States may choose to bypass this regulatory scheme if they are willing to ban gaming across the board. But the states lack statutory authority to deny a n Indian trib e the ability to offer gaming that is roughly equivalent to what the
state allows for its residents. A state must criminalize a gambling activity in order to prohibit the tribe from enga ging in it. Wisconsin does not criminalize nonbanked poker ; it decriminalized that type of gaming in 1999

. IGRA thus does not permit it to interfere with Class II poker on tribal land. This means that t he Ho

- Chunk Nation has the right to co ntinue to offer nonbanked poker at its Madison facility.

T he district cour t’s judgment is R EVERSED and the case is R EMANDED for further proceedings con sistent with this opi nion

.