### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18-1449

S TOCKBRIDGE -M UNSEE C OMMUNITY, Plaintiff-Appellant ,

v.

S TATE OF W ISCONSIN ; T ONY E VERS , Governor of Wisconsin; and H O -C HUNK N ATION , Defendants-Appellees

.

____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 17-cv-249-jdp — James D. Peterson, Chief Judge

.

____________________

A RGUED S EPTEMBER 26, 2018

— D ECIDED A PRIL 30, 2019

____________________

Before E ASTERBROOK, R OVNER, and S T

. E VE , Circuit Judges

. E ASTERBROOK, Circuit Judge . The Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701–21, establishes a framework under which tribes may conduct ga mbling on land held in trust for their use. Some kinds of gambling may be conducted by every tribe, in every state, without prior approval. But class III gambling, which includes sl ot machines and table games2 No. 18-1449

such as blackjack, may be o ff ered only in states that allow at least some non-Indian groups to conduct similar gambling, and then only if tribe and stat e enter into a compact or contract covering the operation. 25 U.S.C. §2710. Both a federal commission (the National In dian Gaming Commission) and the federal judiciary oversee this process. See generally Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014).Since 1992 Stockbridge-Munsee Community (the Community), a federally recognized tribe, has conducted gaming at North Star Mohican Casino Resort in Shawano County, Wisconsin. In 2008 Ho-Chunk Nati on (the Nation), another federally recognized tribe, opened Ho-Chunk Gaming Wi tt enberg in Shawano County. Bo th casinos feature class III gaming; both are authorized by contracts between the tribes and Wisconsin. In 2016 the Nation announced plans to add more slot machines and gaming tables, plus a restaurant, a bar, and a hotel. The Community responded with this suit under the Act, seeking an injunction against the expansion if not against the Wi tt enberg casino as a whole. The Community has two legal theories. First, it contends that Ho-Chunk Gaming Wi tt enberg is not located on a parcelof land that was held in trust for the tribe on or before October 17, 1988, a critical date under 25 U.S.C. §2719(a). Theparcel was conveyed to the Nation in 1969, but with a condition that the Nation did not satisfy and that was not lifted until 1989—too late, the Community asserts, even though the Department of the Interior declared in 1986 that the parcel is part of the Nation’s trust lands. Second, the Community observes that the contract between the Nation and the State treats the Wi tt enberg casino as an “ancillary” gaming facility, a word that the contract de fi nes as a place whereNo. 18-1449 3

gambling is not the primary business. The Community insists that gambling is the primary business at Wi tt enberg andfaults the State for failing to enforce this contractual limitation.

The district court did not reach the merits. Instead it fi rst dismissed the suit as untimely with respect to the Nation, 299 F. Supp. 3d 1026 (W.D. Wis. 2017), and later did the same with respect to the State. 2018 U.S. Dist. L EXIS 17278 (W.D. Wis. Feb. 2, 2018). As the court saw things, the Community knew or easily could have learned no later than 2008, when the Wi tt enberg facility opened, that it was on land to which the Nation did not obtain de fi nitive title until after October 1988. The judge also observed th at, if the Nation’s gaming operation was the primary business at Wi tt enberg, theCommunity knew that too as soon as the facility opened. After observing that the Act does not contain a statute of limitations, the judge concluded that the two likely possibilities—the time to sue for breachof contract in Wisconsin, Wis. Stat. §893.43, absorbed into federal law on the approach of Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson , 501 U.S. 350 (1991), or the time to sue under the Administrative Procedure Act, 28 U.S.C. §2401(a)—each set a six-year limit, which this suit, fi led in 2017, exceeded. (A four-year periodof limitations now applies to federal statutes, such as the Indian Gaming Regulatory Act, th at do not have their own. 28U.S.C. §1658. This applies to statutes adopted or substantively amended after 1990. See Jones v. R.R. Donnelley & Sons Co ., 541 U.S. 369 (2004). None of the defendants contends that §1658 governs this suit.)In this appeal the Community contends that it is not subject to any time limit, both because it is a sovereign (and4 No. 18-1449

Wisconsin does not set time lim its for its own suits) and because it seeks equitable relief against an ongoing violation of law. See Holmberg v. Armbrecht , 327 U.S. 392, 396 (1946). Wisconsin replies that, because the dispute involves commercial operations, the state itself would be subject to a time limit, so tribes are equally obliged to sue promptly. And the Nation leads with an argument that th e federal court lacks subjectma tt er jurisdiction. That is where we must start.The Act provides for jurisdiction over “any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact entered into under paragraph (3) that is in e ff ect”. 25 U.S.C. §2710(d)(7)(A)(ii). The Community invoked jurisdiction under this statute— wrongly, the Nation insists, be cause the provision is limitedto gaming “on Indian lands”. By contending that the Nation’s land was not (properly) taken into trust until after October 17, 1988, the Community disquali fi ed itself from using this grant of jurisdiction. Bay Mills Indian Community holds that this grant of jurisdiction is indeed limited to disputes about gambling “on Indian lands”. But the Nation is wrong to contend that the Community has pleaded itself out of court. The Community alleges—and the Nation agrees—that the Wi tt enberg facilityis located on land held in trust for the Nation. There is a dispute about when trust status became e ff ective—1986, as theDepartment of the Interior believes; 1989, when the condition was waived; perhaps as late as 1993, when the grantor gave the Nation a quitclaim deed. But that the parcel is now part of “Indian lands” is beyo nd debate. There is accordingly no problem with subject-ma tt er jurisdiction under §2710,No. 18-1449 5

and we need not consider whether 28 U.S.C. §1331 also supplies jurisdiction to resolve th e parties’ dispute, which after all arises under a federal statute. See Bay Mills , 572 U.S. at787 n.2. (This footnote adds that, because §1331 provides jurisdiction for claims under the Act, §2710(d)(7)(A)(ii) may be best thought of as a statement about when “a party has no statutory right of action.” That way of understanding §2710(d)(7)(A)(ii) does not a ff ect this appeal.) The dispute about the use of §2710 led us to wonder, however, about a question that the parties did not addressdirectly, but that seems essential to the Community’s theories: whether a tribe seeking protection from competition is within the zone of interest s protected by the Act. See Lexmark International, Inc. v. Static Control Components, Inc ., 572 U.S. 118 (2014). The Act’s provisions concern rights that tribes may assert against states and circumstances under which states may block gaming that tribes want to o ff er. But none of the Act’s substantive rules se ems to protect one tribe from competition by another. The Act does not say, for example, that a state must not allow more than one casino in a rural area such as Shawano County, wh ich in the last census had a population slightly under 42,000 and is a good distance from the population centers of Milwaukee (metro area population 1.56 million) and Madison (metro area population 605,000). Sokaogon Chippewa Community v. Babbi tt, 214 F.3d 941, 947 (7th Cir. 2000), observed that “it is hard to fi nd anything in [the Act] that suggests an a ffi rmative right for nearby tribesto be free from economic competition.” We therefore directed the parties to fi le supplemental briefs addressing whether the Community’s claims are within the Act’s zone of interests.6 No. 18-1449

The Nation relies on Sokaogon for the proposition that the Act does not protect the interests of business rivals. The Community, for its part, distinguishes Sokaogon as involving intervention rather than a party’s claims and contends that the Act as a whole protects every tribe’s interest in “fair competition.” This observation aboutSokaogon is trueenough but not helpful; we held that one tribe could not intervene in another’s suit precisely because the Act does notprotect any tribe’s interest in avoiding competition from another. That is true whether the tribe that seeks to avoid competition is a plainti ff or an intervenor. And it is not possibleto characterize the Act as designed to ensure “fair competition.” What part of the Act says so? The Community doesnot tell us. To the contrary, it acknowledges that if the Nation’s land was properly in trust before October 1988, and the State of Wisconsin authoriz ed gaming there, then the Community would just have to grin and bear it.

The zone-of-interests doctrine asks whether the statute arguably protects the sort of interest a would-be plainti ff seeks to advance. See National Credit Union Administration v. First National Bank & Trust Co ., 522 U.S. 479, 492 (1998). The Community asserts two interests: fi rst in enforcing the Act’slimit to lands held in trust before October 17, 1988, and second in enforcing the requiremen t that the Nation operate an “ancillary” gambling facility at Wi tt enberg. Neither of these is designed for the bene fi t of tribes operating rival casinos. Indeed, only the fi rst is in the Act at all, and it does not say what the Community thinks. The Community reads §2719(a) as if it said something like “no Indian tribe may conduct gambling on any land taken into trust after Octobe r 17, 1988.” But the Act actuallyNo. 18-1449 7

says: “Except as provided in subsection (b), gaming regulated by this [Act] shall not be conducted on lands acquired by the Secretary in trust for the bene fi t of an Indian tribe after October 17, 1988, unless ... .” (The unless clause, and the provisions of subsection (b), are irrelevant to the Nation’s situation.) To say that “gaming regulated by this [Act] shall not be conducted ...” is not at all to say that “gaming shall not be conducted” on a particul ar parcel. It is instead to say that the Act does not govern gaming on particular land. A state need not negotiate with a tribe that wants to open a casino on a post-1988 parcel. But the Act does not forbid a state from permi tt ing gaming on that land, if the state chooses to do so. The Act creates three express rights of action. First, itpermits a tribe to require a state to engage in good-faith negotiations to reach a compact about gaming. Second, it permits a suit by either the tribe or a state to enjoin illegal class III gaming. Third, it permits the Secretary of the Interior to enforce the Act’s rules if a stat e does not negotiate in goodfaith. 25 U.S.C. §2710(d)(7)(A)(i) to (iii). The Act does not entitle anyone to prevent gambling that is altogether outside the statutory scope, such as gambling on private land or onland taken into trust for a tribe after October 17, 1988. Instead, as the Supreme Court held in Bay Mills Indian Community, the status of gambling on such land depends on state law rather than the Act. By insi sting that the land under the Nation’s casino in Wi tt enberg was not in federal trust as of October 17, 1988, the Community has not found a reason why the casino must close; it has instead identi fi ed a reason why the Act does not regulate the gambling.8 No. 18-1449

To be sure, three courts of appeals read §2719(a) the way the Community does—that is, as if the words “regulated by this [Act]” did not appear. See Nebraska ex rel. Bruning v. Department of the Interior , 625 F.3d 501, 510 (8th Cir. 2010); Roseville v. Norton , 348 F.3d 1020, 1024 (D.C. Cir. 2003); Keweenaw Bay Indian Community v. United States , 136 F.3d 469, 474 (6th Cir. 1998). None of these decisions explains why those words may be ignored or why the statute should be read to forbid gaming on land acquired after 1988 rather than make it a subject for voluntary negotiat ions between a tribe and a state. And all of those decisions predate Bay Mills , which strongly implies, if it does not hold, that gaming not covered by the Act (because not on Indianland) is left to state law.

We need not decide whether to create a formal con fl ict with those circuits, because in the end this language does not

ma tt er—for recall that the Department of the Interior in fact took the parcel into trust for the Nation in 1986. Any claim by the Community that the Department should not have done so is subject to the six-year statute of limitations for federal administrative law and expired in 1992. Even read as the Community prefers, §2719(a) does not give a tribe the ability to forego a challenge to the Secretary’s action and ask the judiciary to make an independent decision decades later about e ff ective date of the land’s trust status. The Community’s other argumen t is that Wisconsin has failed to enforce the contract’s provision that the casino in Wi tt enberg be “ancillary” to the Nation’s other businesses there, such as a hotel. We pu t the argument this way to make clear what the Community is not arguing. It does not contend thatthe Act requires a class III gaming facility to be “ancillary” to some other business. Indeed, the word “ancillary”No. 18-1449 9

does not appear in the Act. This condition is one that the Nation and the State negotiated of their own volition. The absence of any such requirement from the statute is why theCommunity names Wisconsin and its Governor as defendants. It wants them to enforce the condition of the contract,even though it does not stem from any statutory requirement. The fact that the “ancillarybusiness” clause in the contract is extra-statutory makes it hard to see how the Community can be asserting a right within the statutory zone of interests. Hard but not impossible. The Community insists that the Act gives every tribe the right to compel each st ate to enforce all contracts negotiated with every other tribe. We asked at oral argument if this is in the nature of a claim that the Community is a third-party bene fi ciary of the contract between the Nation and the State; the Community’s lawyer disclaimed any argument of that kind and insisted, instead, that the Act itself requires stat es to enforce all deals struck with all tribes. We have searche d the Act in vain for such a requirement. Certainly Wisconsin is entitled to enforce its contracts. 25 U.S.C. §2710(d)(7)(A)(ii). (The sovereign-immunity ruling in Seminole Tribe v. Florida , 517 U.S. 44 (1996), does not ma tt er here because the Nation waived its immunity vis-à-vis the State as part of the contract.) But an entitlement to enforce a contract is not a command to do so—let alone a command to enforce contracts as rival tribes read them, rather than as the parties to the contract read th em. Both the Nation and the State believe that the casino in Wi tt enberg complies with their compact. Why, then, wo uld the State sue the Nation?10 No. 18-1449

And how could the Community bene fi t, given the fact that the Nation and the State are free (as far as the Act isconcerned) to delete the “ancillary” language from the portions of the compact that bear on the Wi tt enberg casino? The Community accordingly lacks any federal rights under the State’s contract with the Nati on, and it has foresworn any rights under state third-party-bene fi ciary law. It is not within the Act’s protected zone of interests, to the extent it wants the Nation’s casino closed or shrunk. Several pages ago we described the Nation’s and the Community’s answers to our brie fi ng order: the Nation insists that rival tribes never come within the Act’s zone of interests, while the Community insists that they always do. The State of Wisconsin gave a di ff erent answer: it depends on the theory of relief. The Stat e contended, as we have just held, that one tribe’s demand to close or fe tt er a casino operated by another tribe is not with in the Act’s zone of interests. But Wisconsin concedes that tribes are entitled to enforce their own compacts with the states and observes that the Community’s complaint sought relief based on its own agreement. The compact betw een Wisconsin and the Community requires the Community to pay the State a portion ofits gaming revenue. This implies some protection from competition, the Community maintains, lest revenue sharing be a form of taxation that th e Act does not authorize. One problem with this theory of relief is that the Act does not authorize a tribe to sue the state to enforce a contract that had been negotiated under the Act. One court of appeals has created an extra-statutory private right of action to enforce a contract, see Cabazon Band of Mission Indians v. Wilson , 124 F.3d 1050, 1055–56 (9th Cir. 1997), on the theory that if theNo. 18-1449 11

Act requires contracts to be negotiated in good faith, then they must be enforceable in federal court. We are skeptical about that approach, which boil s down to the assertion that every federal right must have a private remedy in federal court. The Supreme Court abandoned that view in the 1970s and today holds that, when a federal statute creates speci fi c private rights of action, the judiciary cannot add others. See, e.g., Alexander v. Sandoval , 532 U.S. 275 (2001) (discussing changes in the Court’s approach to implied private rights of action). And the Ninth Circuit’ s premise is questionable. To say that a contract cannot be enforced in federal court is not to render it unenforceable. State courts remain open.

But we need not decide whether to follow the Ninth Circuit’s approach, for the Communi ty does not rely on it. Indeed, the Community’s appellate brief all but ignores the portions of its complaint dealing with the Community–Wisconsin compact. Instead the Community advances arguments designed to show that itis not subject to a statute of limitations vis-à-vis the Nation, whether because it is a sovereign (in its relation to the Nation) or because it seeks injunctive relief. But the Commun ity’s claims under its deal with Wisconsin are contractual. The Community does not enjoy sovereign immunity in litigating against Wisconsin (the contract waives that status)—and the Community, as the plainti ff , cannot invoke sovereign immunity to de fl ect a defense. By invoking the federal courts, the Community agreed to be bound by the decision, favorable or not. More: a suit resting on the revenue-sh aring features of the Community–Wisconsin contract would lead to money damages, not an injunction against the Nation’s casino. We cannot see a good reason why Wisconsin’s six-year period of limitations in contract law should not apply to suits based on this con-12 No. 18-1449

tract—and it does not ma tt er whether the time limit applies because Wisconsin’s law is incorporated into federal law, after the fashion of Lampf, or because Wisconsin’s law applies directly to a contract negotiated between the state and a resident tribe. Either way, the Community waited too long.

A FFIRMEDNo. 18-1449 13

R OVNER, Circuit Judge, concurring in the judgment. The opinion includes a discussion of the zone of interest and the interpretation of § 2719(a) whic h it acknowledges is unnecessary to the resolution of the issues before us in this case, and I do not think that we should signal a split from other circuits unless the case requires it. It is my view that it is best that we await a case in which it will actually impact the outcome. Accordingly, I respectfu lly concur in the judgment.