Judge overturns arbitrator's decision against Ho-Chunk in electronic poker dispute

2012-12-06T05:35:00Z 2014-12-18T13:17:53Z Judge overturns arbitrator's decision against Ho-Chunk in electronic poker disputeED TRELEVEN | Wisconsin State Journal | etreleven@madison.com | 608-252-6134 madison.com

The Ho-Chunk tribe can continue to offer electronic poker at its Madison casino, a federal judge said, ruling Wednesday that an arbitrator did not have the authority to decide in May that poker was not allowed.

U.S. District Judge Barbara Crabb agreed with the Ho-Chunk, who had asked her in July to throw out a decision by arbitrator William Norris that said the tribe couldn't offer electronic poker at Ho-Chunk Gaming Madison, the Southeast Side casino formerly known as Dejope Gaming.

The tribe has never stopped offering electronic poker — in which as many as 10 players sit at a table and operate computer touchscreens with animated graphics serving as the dealer, playing cards and chips — at the casino.

Crabb wrote that the arbitrator's role under the gaming compact between the state and the Ho-Chunk is to interpret or enforce the compact when disputes arise.

"The bottom line is that the arbitrator explained his award as an interpretation of federal and state law, not as an interpretation or enforcement of the compact," Crabb wrote. "Accordingly, I conclude that the arbitrator exceeded his powers."

State Department of Justice spokeswoman Dana Brueck said the state is reviewing the decision and has not decided whether to appeal it to the 7th Circuit Court of Appeals.

The case involved a dispute about whether electronic poker is Class II gaming, which the Ho-Chunk can offer without a compact, or Class III gaming, which does require a compact.

Class III gaming would have been allowed at the Madison casino only if voters approved it in a referendum, which failed in 2004.

The National Indian Gaming Commission in 2009, however, said that non-banking poker games, in which players play against one another and not against the house, are Class II games.

Norris wrote in his opinion on May 1 that the Ho-Chunk are not permitted to offer electronic poker at the casino because it is not Class II gaming under state law.

The state maintained, and Norris agreed, that electronic poker is a Class III game and that the tribe was violating its compact by offering it at the Madison casino.

On July 17, the state filed a lawsuit asking a federal judge to "confirm" the arbitrator's award and order the tribe to stop offering electronic poker in Madison.

Crabb, however, agreed with the tribe that the arbitrator's only job was to interpret the compact to resolve disputes and that he went beyond that authority by interpreting state and federal law to make his decision.

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