Via U.S. Mail and facsimiIe 

WiIfrid Cleveland, PresicIcnt 

Ho.Chtmk Nzt' lan 

PO. Box 667 

W98 14 Airport Rrl. 

Black River FaIIs, WI 546 15 

Fay: 7 15-284-9805 

Re: CIassification of poker in Wisconsin 

Dear President Cleveland: 

On lanrrary 22,2008, your attorney requested a ~Iassificarion opinion r~ndcr thc Indian 

Gaming Regulatory Act (IGRA), 25 U.S.C. S 270 1 et seq., for pokcr in Wisconsin. I 

understand that the Mo-Chunk Nation wishes to operate a poker room at its Class I1 DoJapc 

facility in Madison, LVisconsin, ancl offer non-hanked poker mmes such as Texas Hold 'Em. I 

apulogize for thc delay, but this was a clifficult qucstion. Aftcr carefuI consideration nf thc 

matter, including Mr. Marstorys submissions, it is my opinion that non-banked poker garncs in 

Wisconsin arc Class I1 if they are played according to ZViisconsin rules on wagers or pot sizes 

(it any). 

Thcrc arc two qrlestions here. The first is a tlreshold question - whcthcr u~tdcr IGRA 

pokcr is a permitted Class I1 Erne in Wisconsin. IGRA states that tribes may erlgagc iin CLass 

11 gaming: on Indian lands wirhin their jurisdiction if "such ... gan~ing ... is locztcd within a 

State that permits such gan~ing for any purposc by any person, organization or entity." 25 

U.S.C. 8 27 10(b) (I ) (A). Given the decision <)f thc Wisconsin Supreme Court in Dai~Iar~d 

Gqhound Park, Inc. v. D*le, 295 Wis. 2d I (2006), pokes is permitted ro those Indian tribes 

that compacted with the srate prior to the 1993 amendment of the statc constitution. 

Accordingly, poker is pcrmitteri for "any purpose" ancl by "any person" in Wiscot~sin and is 

therefore a pcrmissibIe game in thc statc. 

Thc second question is whether non-hanked poker meets the definition of a Class 11 card 

game. IGRA defines as Class I1 any card games that 

are explicitly artthorized by thc laws of the State, crr ... arc not explicitly 

prohbited by the laws of the Statc and are played at any lncation in the State, 

~IIF only if such card games are played in conformity with thosc laws and 

NATIONAL HEnWWARTERS 1441 k 57. NW, Suite 9700. Wasfllnpf0n. DC 20005 n?k 102.632.7D33 Fa 202.637 7066 W.NIGC.GOV 

REGIONAL OFFICES Pontand. OR. Sacramento. LA. Phoenix, AZ, St Paul. MN,Tulra. OK 
regulations (if any) of the State regarding hours or perids of operation of 

such card garncs or limitations on wagcrs or pot sizes in st~ch cart! games. 

25 U.S.C+ 5 2703 (7) (A) (i)-(ii) . IGRA cxclucles from this defmiticm, however, "any banking 

card ganles, inclucling baccarat, chcmin de fcq or blackjack (2 1). . . ." 25 [J.S.C. 

8 2703(7) (B) (i). Given both the Drlixylnnd decision and tribal-state compacts that 

contcmpIate poker, the game is not explicitly prohihitcd by 1Viscrmsin law znd is played 

within thc srace. Provided, then, that pokcr is played in a non-bankecl format and accorciing 

to Wisconsin rulcs on hours. wagers, or pot sizes, if any, it is my opinion that pokcr is a Ciass 

11 pmc. 

An initial review appcars to indicate that Wisconsin state law contains a blanket 

prohibition on pokcr, and that wouId make the game CIass 111 ur~rfer IGRA. The Wisconsin 

cr~nstitution prohibits gamhlin~ generally: "Except as provided in this scction, the legisiature 

may not autllr~rize gamhIing in any form." WISC. CONST. AR~ IV 5 24, T[ 1 (2007). "'This 

section" provides only four exprcss cxccptions to the general prnhibiticm, and poker is not 

among them. Thc cxceptiorls are bingo, raffles, pari-mutuel wagering, and the statc lottery. 

WISC. COXST. ART IV $24, Ill 3 - 6 (2007). Upon a complete revicw of Wisconsin law, 

however, poker is not, in fact, prohibited to at1 persons for all purposes in the state, and thus 

there is no hlankct prohihition an ttlc game. 

Prior to 1993, the Wisconsin constitution did not contain thc samc gcncral prohihition 

against pbling it does now. Instead it said, "Except as provided in this scction, thc 

Iegislatufe shalI never authorize any lotrey. . . ." WISC. CONS-L ART. IV, 

9 24,7 1 (1 987). As now, bingo, raffles, pari-mutuel wagering, and thc statc Iottcry were 

specifically authorized. Wsc. CONST. ART. IV 9 24, 773 - 6 (1987). Ahsenr the general 

prol-libition on gambling, thcrc was an open question aborit the scopc of ranling pennitred by 

the term IIottey. Under a narrow interpretation, one suggested hy thc corwtituticln itself, loctep 

referred only to what is commonly understmcl to be a srate Iottcry. 

TIIC 1cfislatllre may authorizc thc crcation of a lottery to he operated by the 

state as prtwided Ily Eaw. The expenditure of public funds or of revenues 

derived from lotterf operations to engage in pronlotional dverrising of the 

Wisconsin statc lottery is prohibited. Any advertising of the statc lottery shall 

indicate the odds of a spccific lottery ticket to he selectcd as thc winning 

rickct for the prize amount offercd. The net proceeds of the state lottery shalI 

be clepositcd in the treasury of the state, to he used for property E~LY relief as 

provided by law. 

WISC. CONST. ART. IV 9 24,ll6 (1 987). Another intorprctation equatecl Iottti~ with garnhling 

gcncrally - any game charactcrizcd by the three eIemenrs of prize, chancc, and cclnsidcmtion. 

See, e.g., 79 Op. Atty. Gctl. Wis. 14, 17 (1990). 
In 1990, the Wisconsin Attomcy General gave Iocsq the fom~er meaning 3rd rejected 

the latter. Reviewing rthc term d~rougl~ thc histow of Wisconsin constittition and ledslation, 

tht Attclnrcy General fi1~rnr-d that httrry was consistently used to mean one particular fr1rrr.l of 

one of many by law 

[TI hc Legislature has recognized the disrinctions between rhe several fornls of 

gambling ant1 has accorded rhern separate and distinct rrcatmcnt in thc 

criminal statu tos prohibiting gaml>Eing in this state. Neither the legislature nor 

the courts have evtr cqr~atcd lotteries with a11 other forms of gambling in the 

sense of fi~~ding and concluding that all typcs of gambling constitute 

"Iottcries" as used in our constitution and statutes. 

79 Op. Arty. Gen. iVis. 14, 18 (1 990). 

One year kiter, R federal district court in Wisconsin rcachcd thc opposite concltlsion. 

After rcviewir~ much the same consciti~ tional history as did the Attorney General, thc court 

found that the constih~ticmal an thorization of the stare lottery "scmovecl any constitutional 

prohihition against stare-operated games, scherncs or plans involving prize, chance and 

cot~sideration." Luc tIu Flambeau Band of Lake Suptrim Chippcwu Indians u Stare of IVisconsir~, 

770 E Supp. 480, 486 (W. D. Wis. 1991). Accorrlingly, the court concludc~l that thc state had 

to ncptiate tribal-state compacts with the plaiutiff tribes that included "any activity" with 

"the cIcmcnts of prize, chance and consideration ... nor ~rohihited expressly by [he Wisconsin 

Cnnsritution or state lzl~r." Id. ar 438. 

This the state did, and in 1991 and 1992, thc governor and eleven tribes, including thc 

HCJ-Chunk Nation, negotiated cssentiaIIv uniform Class 111 gaming compacts that pcrmittcd 

thc play of clcccronic pries of chance such as slot machines, blackjack, and pull-tabs or 

" hrcak-opr2'rickets not. played in she same location as bingo. Wisconsin Winnebago Tribe 

anit thc State of Wisconsirl Gaming Colnpac t of 11 992 at 3 IV(A) ; see nEn, tr-g , Forcst County 

Porawatomi Cclrmnunity nf lVisconsin and thc Stare of Wisconsin Gaming Compact of f 992 

at S IV(A); Oncida Trihc of Indians of Wisconsin and the State of \Wisconsin Gaming 

Compact of 199 2 at 6 1V (A). 

In 1993, voters a constitutional amcndmcnt and sert2eri thc question of the 

meaning of lntteyv. The 1993 mcndment introduced the gcr~cmt prohilition on gambling: 

"Except as provided in this section, thc tcgistature may not authorize ganll~ling in any form." 

WISC. CON-ST. ART. IV E3 24, ll I (1993). It also explained that the lottery authorized as a form 

of gambling meant only the state lottcv, which could offer instant scratch games or number* 

matching gamcs such as Pick 3, Pick 4, or Pick 6: 

The lottery authorized ... shall he an enterprise that cntitles thc player, by 

purchasir~g a ticket, to participate in a game of chancc if: 

I. The winning tickets are ra~~dornly prcdctcm~incd and the player 

reveals preprinted n~tmhrs or symbols honl which it can hc 
irnnlcdiately detcminccl \s~l~etl~er rl~c rickct is ;I winning ticker 

entitlin~ the player to win a prize .... 2. The winning ticket is eviJencc of the ntimbers os symboIs sclccteci 

by the player or, at the player's option, selected by a computer, and 

[he player becomes entitlcc! to a prize . . . if some or all r~f thc 

player" sym1hols or numbers arc selected in a chance drawing .... 

Wrsc. CONST ART. IV 1$24,76@1) (1993). Finally, thc 1W3 amencimcnt cntlmerated n series 

of games that "may not he conducted by the state as a lon-eq," and among then1 was poker. 

1V1sc. Co~sr. ART. IV 5 24, Il6(c) (3). 

In 2003, hnwcvcr, the governor and the tribes, including the Ho-Chunk Nation, 

amender1 their existing Class 111 gaming compacts and expanded considerably the nurnbr nf 

Cbss 111 games that tribs corild nffcr. Again, thrjugh the compacts may have caHcd for 

different payments to the state from different tribes, the substance of the amcndmc~~ts was 

essentially uniform. 'rr~c expanded offerings included craps, roulette, keno, baccarat, and "ail 

forms of Poker.'5ccond hendmenr to tllc ivisconsin \Vinnebago Tribe, Notv Known as the 

Ho-Chunk Nation, and the Srate of Wisconsin Gaming Compact of 1992, at 7 2 (2003); see 

also, e.g, Amendrncnts to the Forest County Potawatomi Community of Wisconsin and the 

Statc of Wisconsin Gaming Compact of 1992 at fi 2 (2003); Second Anlendmcnr to chc 

Oncida Tiik of lndians of Wisconsin and the Statc d \Vkconsin Gaming Compact of 1 99 1 at 

7 4 (2003). 

In settling the question of the meaning of lilacT, thcn, chc 1993 an~endrnent raised 

another question, nantcty whether the 199 1 and 1992 compacts and their an~endments were 

valid since they permitted games like sIot machines and poker thar were, apparently, 

Thc Wiscor~sin Supreme Court sesoIved thc question in IlnigInnd Gtryhound 

Pdrk, Inc. v. DqG, 295 Wk. Zd 1 (2006), and heW that the compacts, both nsoti@nalIy 

adopted and as arncndcd, were did: 

Wc condude that tl~c 1993 Amendment to Arciclc IIV, Section 24 of the 

\,Wisconsin Constitt~rion docs not invalidate the Ori,ginal Compacts. . . and 

thar art-lendments to the Original Compacts that expand t11c scope of gaming 

are Iikewisc constirutionally protected by the Contracts Clauses of the 

Wisconsin and Unitcd States C:onstit~etions, 

Id. at 17. 

In interpreting the amendment, the Court was guidcct hy the intent of the framers and 

the peopIc who adopted it and fot~nd that no onc, neither the 1eg.lsl;lture nor thc votin~ 

pul>lic, intencIcd to invalidate the 199 1 and 1992 compacts. Id. at 19. The amendment was to 

opetare pr~s~cctively. Id.at 30-4 1. 

'Fhc Jrafring fires for the amendment, for exarnplc, indicated that legislators were 

informed that the arncndn~ent would not: invalidate the con1pact.s. Id. at 35-7. IVisconsin 

Legislative Counsel concluded, in a letter to a statc reprcscntativc, that the "amenrlment 
wnuIJ not prohibit ... gamMing unclcr the .., compacts." Id. at 36 (internal citations on~irtcd). 

In a Ictter to another rcprcscntative, thc Attorney General "star~d that hecause thc 

amcndmcnt ~vas pres~lnled to bc prospective and hccause the coInpacts did not have a 

provision that made thc compacts incffcctive upon a changc in state law, t-hc prclposed 

an~cndment wot~ld not affect con~~cts which already cxist." Id. at: 36-7 {internal citations 

on~ittcct). The Dcputy Director for the Asscmldy Denlocratic calrczls apccd ~vivich this view in 

his mcmori~ndrrm to ~ncmllership. Id. at 37. 

In addition, public statements ro voters ir~clicated that the anzendment would not 

invalidate the compacts. Id. at 38-9. For example, the MiIwaukce Sentinel reported that the 

Attorney Gener~l believed that rhc amendment would not affect "pnhling compacts signcd 

in 199 1 and 1992." Id. at 38. Ttte Milwaukee Jr~urnal abo printed Eccrers from lmwnakers 

stating that thc amendment wo~rlJ not affcct IncIian casu~s. Id. at 39. Uitnrials in the Green 

Bay Press C;;~ctte ecl~md thesc sentiments. Id. 

Furtller, rhc Cotirt noted that the I993 state budget rclicd on compact fees, and thus 

sttbscqucr~t legislative action indicarcd that the compacts rernaincd valid Id. at 40- 1. Thc 

l~udget appropriaccd "moneys reccived by the stare frnm Indian tribes as reimbursement for 

state costs uf r~~~lation of Indian gaming under thc Incfian gaming compacts." Icl. (inter~wf 

citations ornittcd) . Further, the legislature passect. 1993 Wisconsin Act 406 a year after the 

amendment. Id. at 41. This act cxpIicitly validaced all contracts hemeen the triks and thc 

statc "enterccl into prior to May 6, t 994." Id, Th t~s, suhsequcnt legislative action indicated 

"approval of the original compacts." Id. (itltcmal citations r)mittc J). 

Finally, the Co~rrt noted that prior to amending thc constitution, the legislature crafted 

Wis. Stat. 9 565.01 (6m) to dcfine btteg. Id. at 3 1. Tlxe definition is identical to the 1993 

amendment btit odds the caveat: "This subsection shaI1 not affcct the provisions of any Indian 

gaming compact entered into hefnre January 1, 1993, under s. 14.035." WIS. STAT. 5 

565.0 I (6m). The Courr concIuded that this also showed chat the 1993 amenrlment was never 

intcndecl to affect the gaming cr~~~~pacrs. Id. at 34. 

As to rlzc 2003 amendments to the compacts, thc Court found these to be valid as well 

hecatise the on~cnclmcnts were conrinuaticms of ~hc 199 1 and I992 compacts, not new 

ancements that uwuId have been precluded by thc 1993 constitutional arncndrncnt. 

We therefore conclude that " rcncrvaEsYkct~nstitu re continuations of t hc 

Original Compacts and do not constitute new, ht~cpendcnt contracts. 

Recause the 1993 Amen.c1rnent JicF not appIy to the Orianal Compacts, rhe 

Arncndment docs not apply to cr~ntinuations ar extensinns of thc Original 

Con~pac ts. 

Id. at 52. In reaching this conclusion, thc Court noted that the tcnns of thc original compacts 

wnulcl control in the event of a conflict with tribal ordinances or statc bw, "or any 

amenclmcnts thereto .. . ." 16. at 50. Acccrrclindy, the Court concluded: 
Thc parties ctcarly itlte~~dcd to preserve the law as it cxistccl in 199 1-91, arid 

to prcvcnt thc ;~~~licacion of changes to the Sratc's or Tribe's laws to the 

Original Compacts. 

It!. at- 63. Ec is rhis 1asr stoternent rhat is dispositive here. 

The Court insisted rhat for prlrposes of intesprcting thc validity of any compact 

provisinns, 1991-2 statc laws ivould control: "the law at he time the Original Compacts werc 

entered into controls the compacts." Id. at 7 1. As the Wisconsin tribal-state gamir~g cornpacts 

continue in opera tion ttday, rhc taws of 199 1 - 2 stiIf conrml them, and the 1993 amcndn~cnt 

clocs not prohibit any games appmved under them. Therefore, hccausc. pkcr is perrnittccf 

under thc Wisconsin tribal-state compacts, it is ~rmitterl. in Wiscnnsin for "'any purpose by 

any person," 25 U.S.C. 5 27 lo&) (I) (A), and is a pem~issiblo gmc in Wisconsin. 

That said, to Tx a Class II game under IGRA, vkcr must stiIl meet IGWs definition of a 

CIass II card game. Again, IGM requires that such games he "explicitIy autl-torized" by state 

Iaw clr "not explicitly pmhihitcd" and played at any location in the state according to statc 

rules on hours, wagers, and pot sizes. 25 U.S.C. Ii 2703 (7) (A) (ii). And while no statc laws 

conrain plain lanmlage permitting poker, it is also not wholly ~rohibited in the statc, Sven the 

discrission ahovc. 

Further, ~kcr is player1 around the statc at Indian casinos and in accordance with 

gaming compacts, apparentty both in banked ancI non-hankcd forms. The list of authorized 

Gmcs in the conlpact amendmcnt.~ includes: 

5. A11 other bankingy percentage, and pari-mutuel card games; [and] 6. All 

{oms of Poker, to thc cxccnt that these games arc not included in the previous 

suhscction. 

See g~weraIlv Sccond Amcndmcnt to thc Wisconsin Winnebago Tribc, Now Known as the HoChtink Nation, a11t1 the Statc of lvisconsin Gaming Compact of 1992 at 7 2 (2003); 

Amendments to the Forest County Potawatomi Cornmuniv of Wisconsin and tile State of 

CVisconsin Gaming Compact of 1982 at 7 2 (2003) ; Sccond Amet~clment to the OncicIa Trihc 

of Indians of \Visconsin d t hc State of Wisconsin Gaining Compact of 199 I at 

11 4 (2003). NIGC is aware that some ldian tribes in Wisconsin opetaw poker moms whcre 

non-banking vcrsions of thc gamc art offered For play, just as the Ho-Chunk Nati011 is 

proposing here. 

Finally, to be a Class It game, the version of poker conducted must ti a non-banked 

game and must ohscrve statc rules on hours, wagers, and puts sks, if thcrc ate any. The game 

must not permit a "banker" to take on all players, coltcct from all loscrs, and pay all winners. 

25 C.ER. fi 502.1 1. T> invite the house, or any player, to act in that capacity makes poker a 

Class IEI card pmc. 25 C.F.R. 9 502.4(a$ (1). Similarly, the game must not hc plavcd r~utsidc of 

any state laws or regulations lin~iting hours of operation and the sizes of wagers and pots. If, as 

played, poker saltisfics these conditions, it meets IGRA's definition for a Class I1 card game. 
Conclusion 

It is my opinion that non-banked poker games such as thc Nation proposes ta offer arc 

Cl;~ss I1 unclcr IGRA when played accorcling to any Wiscor~sin state rtlks on lwurs of 

operation and thc sizes of wagers and pots. This is an advisory opinion and docs not 

constitute final ayet-tcy action or a Clecisi011 of the Chairman or Conlrnission. I wish you cvcq 

success in this new endeavor. 

Sinccrcly, /-- 

Pcnny CotenIan 

- 

General Counwl (Acting) 

CC: Lstcr Marston 

Caw Officcs of hpport & Marston 

405 \y! Pcrkins Srreet 

PO. h)x 488 

tIki;~h, CA 954S2 

Fax: 707-462-4235