Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stockbridge-Munsee Community v. State

United States District Court, W.D. Wisconsin

October 25, 2017

THE STOCKBRIDGE-MUNSEE COMMUNITY, Plaintiff,
v.
STATE OF WISCONSIN, SCOTT WALKER, and THE HO-CHUNK NATION, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON, DISTRICT JUDGE.

         The Stockbridge-Munsee Community is an Indian tribe with a reservation in Shawano County in northern Wisconsin. Since 1992, the Stockbridge-Munsee have operated a casino on their reservation. In 2008, defendant the Ho-Chunk Nation, another Indian tribe, opened a casino in Shawano County, Ho-Chunk Gaming Wittenberg. The Stockbridge-Munsee tolerated the Ho-Chunk's competition to a point, but in August 2016, the Ho-Chunk announced plans to expand their Wittenberg casino. In response, the Stockbridge-Munsee filed this lawsuit, claiming that the Ho-Chunk's Wittenberg casino violates the Indian Gaming Regulatory Act and the gaming compact that the Ho-Chunk negotiated with the state. They also allege that defendants the State of Wisconsin and its governor, Scott Walker, are violating the state's compact with the Stockbridge-Munsee by refusing to enforce the Ho-Chunk compact. The central claim by the Stockbridge-Munsee is that the Ho-Chunk's casino is located on land on which casinos cannot be authorized.

         Now the Stockbridge-Munsee seek a preliminary injunction under Federal Rule of Civil Procedure 65. Dkt. 7. Specifically, they want the court to enjoin the Ho-Chunk from operating any of the slot machines and gaming tables included in the Ho-Chunk's planned expansion. The Ho-Chunk, meanwhile, have moved to dismiss the Stockbridge-Munsee's claims against them for failure to state a claim under Federal Rule of Civil Procedure 12(c). Dkt. 56.

         The Stockbridge-Munsee could have brought their claims against the Ho-Chunk back in 2008, when the Ho-Chunk began the gaming activities that the Stockbridge-Munsee allege are unlawful. Their claims are now time-barred, so the court will grant the Ho-Chunk's motion for judgment on the pleadings and deny the Stockbridge-Munsee's motion for a preliminary injunction as moot.

         ALLEGATIONS OF FACT

         The court draws the following facts from the Stockbridge-Munsee's complaint, Dkt. 5, and accepts them as true for purposes of the motion for judgment on the pleadings. Finch v. Peterson, 622 F.3d 725, 728 (7th Cir. 2010).

         The Ho-Chunk Nation is a federally recognized Indian tribe in Wisconsin. In 1969, the Native American Church conveyed a parcel of land near the Village of Wittenberg, Shawano County, Wisconsin, to the United States to hold in trust for the Ho-Chunk. The deed conveyed the land “subject to Housing construction which must commence within 5 years from date of approval of this deed or the land will revert to the grantor.” Dkt. 5-3, at 3. But the Ho-Chunk did not start building housing on the Wittenberg Parcel within five years. Decades passed. In 1989, the Native American Church approved a resolution “remov[ing] the condition and reversionary clause relating to construction of housing on the [Wittenberg Parcel].” Dkt. 5-4, at 2. In 1993, the Native American Church executed a quitclaim deed transferring “all right, title and interest, it may have under the reversionary clause in” the Wittenberg Parcel deed to the United States to hold in trust for the Ho-Chunk. Dkt. 5-5, at 3.

         Meanwhile, the Ho-Chunk were setting up gaming activities around the state in compliance with the 1988 Indian Gaming Regulatory Act (IGRA). The IGRA “creates a framework for regulating gaming activity on Indian lands.” Michigan v. Bay Mills Indian Cmty., 134 S.Ct. 2024, 2028 (2014). It “divides gaming into three classes. Class III gaming, the most closely regulated . . . includes casino games, slot machines, and horse racing. A tribe may conduct such gaming on Indian lands only pursuant to, and in compliance with, a compact it has negotiated with the surrounding State.” Id. (citation omitted). It defines “Indian lands” to include “any lands title to which is . . . held in trust by the United States for the benefit of any Indian tribe.” 25 U.S.C. § 2703(4)(B). But it prohibits gaming on “lands acquired by the Secretary [of the Interior] in trust for the benefit of an Indian tribe after October 17, 1988.” § 2719(a)(1).

         In 1992, the Ho-Chunk entered into a class III gaming compact with the State of Wisconsin, which allowed the Ho-Chunk to operate class III gaming activities in several Wisconsin counties. In 2003, the Ho-Chunk and the state amended the compact to allow the Ho-Chunk to operate class III gaming activities in Shawano County at what the compact defines as an “Ancillary Facility, ” that is, a facility “where fifty percent or more of the lot coverage of the trust property upon which the facility is located, is used for a Primary Business Purpose other than gaming.” Dkt. 5, ¶ 40.

         In 2008, the Ho-Chunk opened the Ho-Chunk Gaming Wittenberg casino on the Wittenberg Parcel. This casino competed with the Stockbridge-Munsee's sole casino, the North Star Casino Resort, which the Stockbridge-Munsee had been operating in Shawano County since 1992 under a class III gaming compact with the State that the Stockbridge-Munsee negotiated the same year. In August 2016, the Ho-Chunk announced plans to expand their Wittenberg casino by adding more than 200 slot machines, 10 gaming tables, a hotel, restaurant, and bar. The Stockbridge-Munsee immediately wrote to the Ho-Chunk “expressing concerns” about the expansion. Id. ¶ 43.

         On April 19, 2017, the Stockbridge-Munsee filed this lawsuit, asserting claims that the Ho-Chunk's gaming activities at Ho-Chunk Gaming Wittenberg violate the Ho-Chunk compact and the IGRA and that the state's refusal to enforce the Ho-Chunk compact violates the Stockbridge-Munsee compact, rendering the gaming revenue payments required by the Stockbridge-Munsee compact an unlawful tax. The Stockbridge-Munsee purport to bring these claims under § 2710(d)(7)(A)(ii) of the IGRA, which “partially abrogates tribal sovereign immunity, ” Bay Mills, 134 S.Ct. at 2032, and provides

The United States district court shall have 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 effect . . . .

         The Stockbridge-Munsee allege that Ho-Chunk Gaming Wittenberg violates the Ho-Chunk compact in two ways. First, the Wittenberg Parcel was acquired in trust after October 17, 1988, and therefore is ineligible for gaming under § 2719(a)(1) of the IGRA and the corresponding provision of the Ho-Chunk compact. Second, the pre-expansion gaming activities at Ho-Chunk Gaming Wittenberg constitute more than 50 percent of the net revenue from the Wittenberg Parcel and more than 50 percent of the facilities on the Wittenberg Parcel, therefore Ho-Chunk Gaming Wittenberg is not an ancillary facility and is being operated in violation of the Ho-Chunk compact. These violations pre-date the planned expansion and would continue as Ho-Chunk Gaming Wittenberg operates the casino.

         This court has subject matter jurisdiction over the Stockbridge-Munsee's claims against the Ho-Chunk under 28 U.S.C. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.