In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-2529

STATE OF WISCONSIN

Plaintiff-Appellee,

v.

HO-CHUNK NATION,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 13-cv-334 — Barbara B. Crabb, Judge.

____________________

ARGUED DECEMBER 2, 2014 — DECIDED APRIL 29, 2015

____________________

Before WOOD, Chief Judge, and WILLIAMS and TINDER, Circuit Judges.

WOOD, Chief Judge. The State of Wisconsin sued the HoChunk 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 Class III gaming at that 

location. The tribe responded that its poker is a Class II game 
2 No. 14-2529

that is permitted by law. The state prevailed in the district 

court, and the Ho-Chunk Nation now appeals. We reverse.

I

The Ho-Chunk Nation (the Nation) is a federally recognized Indian tribe with land located in fourteen counties in 

Wisconsin. That land is held in trust for the tribe by the 

United States. Like a number of tribes, the Nation has pursued gaming as a catalyst for economic development. The 

Nation established its first bingo hall in 1983 following a judicial 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 reservations. By 1992, pursuant to Wis. Stat. § 14.035, the Governor 

of Wisconsin had entered into gaming compacts with all of 

the state’s tribes, including the Nation. The Nation adopted 

a gaming ordinance, which it later amended four times, authorizing the tribe to “conduct all forms of Class I and Class 

II gaming on the Nation’s lands.”

The gaming classes to which these compacts and ordinances refer are defined in the Indian Gaming Regulatory 

Act (IGRA), at 25 U.S.C. § 2703(6), (7), and (8). Class I gaming 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 nonbanked card games that are “explicitly authorized by the laws of the State, or ... are not explicitly prohibited by the laws of the State and are played at any location in 

the State.” 25 U.S.C. §§ 2703(7)(A)(ii), 2710(b)(1). (Wisconsin’s Legislative Reference Bureau defines nonbanked games 

as those “in which players compete against one another as 

opposed to playing against the house.” See Wis. Legislative 
No. 14-2529 3

Reference Bureau, The Evolution of Legalized Gambling in Wisconsin, 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 gaming 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 gaming facilities, including 

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 the Nation to conduct Class III 

gaming at the Madison facility, provided Dane County authorized it to do so. But Dane County withheld its authorization after the voters rejected by a margin of nearly two to 

one a referendum 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 Class 

II gaming on its tribal lands, including the Madison facility

(nor could it as a matter of federal law). Since November 

2010, the Nation has offered nonbanked 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 information about the type of poker involved here and the parties’ agreement that it is nonbanked: 

 
4 No. 14-2529

this nonbanked 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 based on the stipulated 

facts. The district court ruled that the electronic poker was, 

as the state had contended, a Class III game, and so it granted the state’s motion for summary judgment and denied the 

tribe’s motion. The court enjoined the Nation from offering 

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 medium, 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 screen 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 pool or pot 

from which all player winnings and the rake are paid. All player funds 

are tracked and accounted for by the e-Poker table system’s automated 

accounting function.”

 
No. 14-2529 5

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 legal questions, including those involving statutory interpretation. 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 Class II game under the statute, the Nation has the authority to offer the game without securing 

Wisconsin’s permission. If it is a Class III game, the Nation 

may not offer it at the Madison facility under the current 

compact with Wisconsin. 

To decide which is the proper classification, 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 promoting tribal economic development, self-sufficiency, and 

strong tribal governments,’ to ‘shield [tribes] from organized 

crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly 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 recognized tribes) into 

three classes, each subject to different levels of tribal, federal,

and state regulation. As we have noted, we are concerned 

with Classes II and III. Class II gaming includes bingo, bingo-like games (such as pull tabs), and nonbanked card 

games allowed under state law. In a nonbanked game, play-
6 No. 14-2529

ers bet against one another, and the house has no monetary 

stake in the bets. In a banked game, such as blackjack, players bet against the house. Among Class II games, IGRA includes

card games that—

(I) are 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 location in the State, 

but only if such card games are played in conformity 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 Gaming Commission, which 

has the power to bring enforcement actions against tribes. 

The Commission must oversee a tribe’s Class II gaming unless 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 blackjack. 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 Class II gaming. To meet the third requirement, a tribe must enter a compact with the state, and 
No. 14-2529 7

the compact must 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 Cases, 331 F.3d 1094 (9th Cir. 2003). A state must “negotiate in 

good faith” with a tribe when it requests a compact, but a 

state cannot be forced through litigation to negotiate. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996). If the parties 

succeed in concluding a compact and the Secretary of the Interior approves it, she must publish notice of the approval in 

the Federal Register. 25 U.S.C. § 2710(d)(8)(D). The Secretary 

may 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 Secretary 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 authorize the Nation to 

offer nonbanked 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 explicitly prohibited by the laws of the state and are played at any 

location in the state. One other provision of IGRA is relevant: section 2710(b)(1), which says 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 approved 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. 14-2529

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 required by section 2710(b)(1). In Cabazon, the Supreme Court 

held that California could not impose its gaming regulations 

on tribal gaming operations because the state’s gaming laws 

were regulatory, not criminal. Id. at 220–22. This was important 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 crimes 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 that 

since Congress had not explicitly granted the state regulatory authority over gaming, the state’s laws were preempted 

in light of the profound federal interests in tribal selfgovernment. 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 Cabazon, or if section 2710(b)(1) leaves no room whatsoever for 

questioning whether the Wisconsin regime is regulatory or 

prohibitory. The court decided that “Cabazon had nothing to 

do [with] § 2703 or the meaning of ‘class II gaming.’” It concluded that the Nation’s nonbanked poker game was “ex-
No. 14-2529 9

plicitly prohibited by the laws of the state” and therefore

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

no point in consulting the legislative history of IGRA or Supreme Court precedent on Indian gaming, the court thought,

because it understood Wisconsin to have an explicit prohibition of nonbanked 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 explicitly 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, and the broader context of the 

statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 

(1997). Just 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 

unique trust relationship between the United States and the 

Indians.” Oneida Cnty. v. Oneida Indian Nation of N.Y., 470 

U.S. 226, 247 (1985); see also Michigan v. Bay Mills Indian 

Cmty., 134 S. Ct. 2024, 2032 (2014) (“Although Congress has 

plenary authority over tribes, courts will not lightly assume 

that Congress in fact intends to undermine Indian selfgovernance.” (citations omitted)). The leading treatise in the 

field summarizes the canons that the Supreme Court follows 

in cases construing laws affecting Indians as follows:

[T]reaties, agreements, statutes, and Executive 

Orders [must] be liberally construed in favor of 
10 No. 14-2529

Indians, and ... all ambiguities resolved in 

their favor. In addition, treaties and agreements are to be construed as Indians would 

have understood them, and tribal property 

rights and sovereignty are preserved unless 

Congress’s intent to the contrary is clear and 

unambiguous.

COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 2.02[1] (2012 

ed.). See Oneida Cnty., 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 construction 

that Indian law demands. See, e.g., Lac Courte Oreilles Band of 

Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 351 (7th 

Cir. 1983) (reviewing canons and stating that “these canons 

mandate that we adopt a liberal interpretation in favor of the 

Indians”). 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 section 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 reaffirming that the Indian 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. 14-2529 11

Wisconsin offers a second argument for finding Cabazon 

inapplicable here: because that case predates IGRA, it asserts, the Court’s reasoning does not illuminate the statute. 

We find 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 inference 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 legislative history leaves no doubt that Congress intended the 

“permit” language for both Class II and Class III gaming in 

25 U.S.C. § 2710 to incorporate the Cabazon regulatory/prohibitory distinction. See, e.g., Mashantucket Pequot 

Tribe, 913 F.2d at 1029 (“[T]he Senate Report specifically 

adopted the Cabazon rationale as interpretive of the requirement 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 entity.’”); 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 Cabazon distinction between regulatory gaming schemes and 

prohibitory laws.”). A leading scholar in the field has also 

urged that this is the best reading of the statute. See WILLIAM 

C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 338 

(2009) (“This restriction [of § 2710(b)(1)] is reflective of the 

rationale in Cabazon Band; if a state permits bingo or unbanked card games for any purpose, its public policy cannot 

be offended by this type of gambling.”). We decline Wiscon-
12 No. 14-2529

sin’s invitation to break new ground here. Cabazon’s regulatory/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 Wisconsin “permit[] such gaming for any purpose by any person, 

organization or entity.” 25 U.S.C. § 2710(b)(1)(a); see also

Cabazon, 480 U.S. at 211 n. 10 (“The applicable state laws 

governing an activity must be examined in detail before they 

can be characterized as regulatory or prohibitory.”); CONF.

OF W. ATT’YS GEN., AMERICAN INDIAN LAW DESKBOOK § 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 only on Indian lands.”). Just 

as they took different positions on the applicability of Cabazon, the 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). We think 

it best to begin with Wisconsin’s Constitution, and then consult its statutes and compacts 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 videopoker 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 Wisconsin’s approval of pari-mutuel horse and dog betting, 

strengthens the Nation’s argument that Wisconsin has departed from its nineteenth-century constitutional prohibition 

on gambling and permits gambling conducted in compliance 
No. 14-2529 13

with regulations. The Eighth and Ninth Circuits have held 

that for Class II gaming under IGRA, “the state cannot regulate and prohibit, alternately, game by game and device by 

device, turning its public policy off and on by minute degrees.” Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 

539 (9th Cir. 1994); see also United States v. Sisseton-Wahpeton 

Sioux Tribe, 897 F.2d 358, 368 (8th Cir. 1990). The Second Circuit has taken the same approach in an analysis of Class III 

gaming. See, e.g., Mashantucket Pequot Tribe 913 F.2d at 1031–

32 (“So here, the district court concluded, after a careful review 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 repugnant 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 decisions involving Class III gaming to our analysis here. Given 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. 

Class III gaming incorporates the same state-law analysis 

used for Class II. Compare 25 U.S.C. § 2710(b)(1)(a) with 

§ 2710(d)(1)(B). Moreover, Class II gaming is less regulated 

than Class III gaming. If Wisconsin is a regulatory state for 

purposes of Class III gaming, it would be anomalous to conclude that it somehow becomes prohibitory for purposes of 

Class II games. What we held a decade ago still applies: 

“Wisconsin has not been willing to sacrifice its lucrative lottery and to criminalize all gambling in order to obtain authority under Cabazon and § 2710(d)(1)(b) to prohibit gambling on Indian lands.” Lac Courte Oreilles Band of Lake Supe-
14 No. 14-2529

rior Chippewa 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 generality, our result would be the same. That would involve an 

analysis of Wisconsin law specifically for poker, not for 

gambling in general. 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 earlier, the 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 

lottery.” 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 gaming (including promotional contests in 1965, charitable bingo 

in 1973, raffles in 1977, on-track pari-mutuel betting on 

horseracing in 1987, and a state lottery in 1987) through constitutional amendments. See Wis. Legislative Reference Bureau, Decriminalization of Video Gambling, Budget Br. 99-6 

(Nov. 1999); see also Oneida Tribe of Indians of Wisconsin v. 

Wisconsin, 518 F. Supp. 712, 719 (W.D. Wis. 1981) (citing the 

1973 constitutional amendment as evidence that “Wisconsin’s bingo laws are civil-regulatory and ... not enforceable 

by the state in Indian country”). When the Wisconsin Legislature’s non-partisan 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 and entities, including Indian 
No. 14-2529 15

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 in an earlier 

IGRA dispute between a different tribe and Wisconsin: “The 

establishment of a state lottery signals Wisconsin’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 purpose by any person, organization or entity,’ the lottery’s continued existence demonstrates Wisconsin’s amenability to 

Indian gaming.” Lac Courte Oreilles Band, 367 F.3d at 664 (citing Cabazon and quoting 25 U.S.C. § 2710(d)(1)(b)).

That does not mean that Wisconsin has become a freefor-all with respect to gambling. It amended its constitution 

in 1993 to restrict the types of gambling that could be authorized by the legislature. The state correctly points out that the 

1993 constitutional amendment explicitly prohibited “poker.” It hopes, by relying on that amendment, to avoid the 

otherwise clear implication of the constitutional and statutory changes from the previous three decades. The 1993 

amendment reads, in relevant part, “Except as provided in 

this section, the legislature may not authorize gambling in 

any form.” Wis. Const. art. IV, § 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 specified raffle games (§ 24(4)); it forbids the legislature from 

prohibiting pari-mutuel on-track betting (§ 24(5)); and it 

permits a lottery (§ 24(6)), although it then excludes from the 
16 No. 14-2529

definition of the state-operated lottery several casino-style 

games, including poker. Id. art. IV, § 24(6)(c).

But Wisconsin cannot overcome two snags in the argument based on the 1993 constitutional amendment. First, the 

state itself does not treat the prohibition against poker as an 

insurmountable obstacle to Indian gaming. If poker were

flatly prohibited as a matter of state constitutional and criminal law, a municipal referendum could not undo that constitutional prohibition. Yet that is what the state proposed to 

do in 2004, when the state and the Nation amended their 

compact to allow Class III gaming at the Madison 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 precisely that kind of patchwork prohibition, in which 

the state banishes gaming in one county or situation and allows it in another. Wisconsin might argue that poker is not 

prohibited as a matter of state law in a Class III game, but 

there is no language in the state constitution that supports 

that position. As we discussed earlier, Class II and Class III 

games are subject to identical “permit” language in IGRA. 

Nor can Wisconsin explain, in light of its reading of IGRA, 

why the Governor himself was not flouting the state’s criminal law when he contracted with the Nation to have them

provide poker on other tribal lands.

The second problem with Wisconsin’s position 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 machines, including video poker, provided that the establish-
No. 14-2529 17

ment was licensed to serve alcohol. See Wis. Stat. 

§§ 945.03(2m) and 945.04(2m); see also Wis. Legislative Reference Bureau, Decriminalization of Video Gambling, Budget 

Br. 99-6 (Nov. 1999). Describing Act 9, the Legislative Reference Bureau noted that “[t]he new law decriminalized possession of five or fewer video gambling machines ... reducing 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 because of the machines.” Wis. Legislative Reference Bureau,

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 tavern proprietor, not the tavern patron.

Wisconsin cannot have it both ways. The state must entirely 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 of the Torches 658 F.3d at

687. When the state decriminalized hosting poker for taverns, 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. Doyle, 719 N.W.2d 

408, 428 (Wis. 2006), reinforces its position that the state prohibits poker, but that case simply stands for the proposition 

that “based on the 1993 Amendment’s history and the earliest legislative interpretations of that Amendment, we conclude that the 1993 Amendment was not intended to preclude the Tribes from conducting Class III games pursuant 

to the Original Compacts.” Id. at 428. In other words, Dairy-
18 No. 14-2529

land confirms that the 1993 amendment to the state constitution did not affect the legality of Wisconsin’s gaming compacts with the tribes. Justice Prosser’s separate opinion, 

which both parties cite extensively, is of no help, because a 

majority of his colleagues 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 remaining arguments the parties have advanced. We reject the Nation’s suggestion that we should 

place some weight on the extent to which Wisconsin enforces 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 intention of getting into the business of scrutinizing the vigor 

of enforcement for every gambling infraction in every case. 

Nothing in IGRA suggests the Class II or Class III gaming 

analysis demands anything beyond positive law. Nor do we

rely on the fact that Wisconsin advertises poker on its tourism websites. To be sure, it would be odd for a state’s tourism 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 enforcement policy to the state. This is best left out of the calculus. 

Only one thing remains. In a letter dated February 26, 

2009, the Gaming Commission concluded that the poker the 

Nation offers in Madison is Class II gaming because Wisconsin does not “wholly prohibit[]” poker. When a federal court 

interprets a statute, it should consider the interpretation of 

the expert agency charged with implementing that statute. 
No. 14-2529 19

IGRA is the organic statute for the Gaming Commission. The 

Commission has expertise in classifying Indian gaming, and 

it issues regulations that further clarify what constitutes 

Class II gaming. 25 C.F.R. § 502.3(c); see also COHEN’S 

HANDBOOK OF FEDERAL INDIAN LAW § 12.02[3][a] (“The NIGC 

plays a very important role in the determination of whether 

proposed gaming is class II or class III ... [and] is frequently 

called upon to determine whether a particular form of gaming falls within class II or class III.”).

Wisconsin suggests that this letter has only persuasive 

value. It notes that the D.C. Circuit held that the Gaming 

Commission lacked authority to mandate operating procedures for Class 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 of 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 that court’s frustration with the Gaming 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 position, 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 trigger Chevron deference. The possibility of deference under

Skidmore v. Swift & Co., 323 U.S. 134 (1944), remains, however. In light of the system IGRA establishes and the evidence 

that Wisconsin does not prohibit poker as a matter of criminal law, the Gaming Commission’s opinion is one item on 

the scale in favor of the Nation. 
20 No. 14-2529

III

IGRA creates a regulatory scheme that respects tribal 

sovereignty while carving out a regulatory role for the states 

on only the most lucrative 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 an Indian tribe 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 engaging 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 the Ho-Chunk Nation has the right to continue to offer nonbanked poker at its Madison facility.

The district court’s judgment is REVERSED and the case is 

REMANDED for further proceedings consistent with this opinion.