September 26, 2018
from the United States District Court for the Western
District of Wisconsin. No. 17-cv-249-jdp - James D. Peterson,
Easterbrook, Rovner, and St. Eve, Circuit Judges.
Easterbrook, Circuit Judge.
Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-21,
establishes a framework under which tribes may conduct
gambling 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 slot machines and table games such as blackjack, may
be offered only in states that allow at least some non-Indian
groups to conduct similar gambling, and then only if tribe
and state enter into a compact or contract covering the
operation. 25 U.S.C. §2710. Both a federal commission
(the National Indian Gaming Commission) and the federal
judiciary oversee this process. See generally Michigan v.
Bay Mills Indian Community, 572 U.S. 782 (2014).
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 Nation (the Nation), another federally
recognized tribe, opened Ho-Chunk Gaming Wittenberg in
Shawano County. Both 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
Wittenberg casino as a whole.
Community has two legal theories. First, it contends that
Ho-Chunk Gaming Wittenberg is not located on a parcel of 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). The
parcel 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 Wittenberg casino as an
"ancillary" gaming facility, a word that the
contract defines as a place where gambling is not the primary
business. The Community insists that gambling is the
primary business at Wittenberg and faults the State for
failing to enforce this contractual limitation.
district court did not reach the merits. Instead it first
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. Lexis 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 Wittenberg facility opened, that it was on land to which
the Nation did not obtain definitive title until after
October 1988. The judge also observed that, if the
Nation's gaming operation was the primary business at
Wittenberg, the Community 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 breach of
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, filed in 2017, exceeded. (A four-year period of
limitations now applies to federal statutes, such as the
Indian Gaming Regulatory Act, that do not have their own. 28
U.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.)
appeal the Community contends that it is not subject to any
time limit, both because it is a sovereign (and Wisconsin
does not set time limits 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 the federal court
lacks subject-matter jurisdiction. That is where we must
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 effect". 25 U.S.C.
§2710(d)(7)(A)(ii). The Community invoked jurisdiction
under this statute- wrongly, the Nation insists, because the
provision is limited to gaming "on Indian lands".
By contending that the Nation's land was not (properly)
taken into trust until after October 17, 1988, the Community
disqualified itself from using this grant of jurisdiction.
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
Wittenberg facility is located on land held in trust for the
Nation. There is a dispute about when trust status became
effective-1986, as the Department 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 beyond debate. There is accordingly no problem with
subject-matter jurisdiction under §2710, and we need not
consider whether 28 U.S.C. §1331 also supplies
jurisdiction to resolve the parties' dispute, which after
all arises under a federal statute. See Bay Mills,
572 U.S. at 787 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 affect this appeal.)
dispute about the use of §2710 led us to wonder,
however, about a question that the parties did not address
directly, but that seems essential to the Community's
theories: whether a tribe seeking protection from competition
is within the zone of interests 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 offer. But none of the Act's substantive rules
seems 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,
which 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).
Chippewa Community v. Babbitt, 214 F.3d 941, 947 (7th
Cir. 2000), observed that "it is hard to find anything
in [the Act] that suggests an affirmative right for nearby
tribes to be free from economic competition." We
therefore directed the parties to file supplemental briefs
addressing whether the Community's claims are within the
Act's zone of interests.
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 about Sokaogon is true enough but not
helpful; we held that one tribe could not intervene in
another's suit precisely because the Act does not protect
any tribe's interest in avoiding competition from
another. That is true whether the tribe that seeks to avoid
competition is a plaintiff or an intervenor. And it is not
possible to characterize the Act as designed to ensure
"fair competition." What part of the Act says so?
The Community does not tell us. To the contrary, ...