A federal judge ruled Thursday that the Ho-Chunk Nation must stop offering a video poker game at its casino in Madison because it violates the terms of the tribe’s gambling compact with the state.
U.S. District Judge Barbara Crabb agreed with the state Department of Justice’s argument that the video poker game, called PokerPro, was a Class III card game, which is prohibited at the Southeast Side casino by the terms of the gambling compact.
The state argued that PokerPro was akin to blackjack and slots. The tribe argued it was legal because the players bet against each other, rather than against the house.
An expert on the Wisconsin Constitution and federal tribal law criticized her ruling as “hugely irresponsible.”
Crabb wrote in her opinion that the state made a straightforward argument that the poker game was a Class III card game as defined by the National Indian Gaming Commission while the Ho-Chunk Nation used “a more circuitous route” to conclude that it was a permissible Class II game.
She concluded her opinion by writing, “In law, as in many things, the simplest answer is often the best one.”
Crabb ordered the Ho-Chunk to stop video poker in Madison 30 days after the conclusion of any appeals or 30 days after the expiration of Ho-Chunk’s deadline for filing an appeal, whichever is later.
The case went to federal court after Crabb vacated an arbitrator’s ruling in 2012 that the compact agreement does not allow the tribe to offer poker games at the Madison casino. That led the state Attorney General’s office to seek an injunction, and both sides then asked for a summary judgment.
Representatives from the Ho-Chunk Nation and the National Indian Gaming Commission did not respond to requests for comment.
Richard Monette, a UW-Madison law professor and director of the Great Lakes Indian Law Center, said Crabb should have used the case to correct what he called a flawed state constitutional amendment that says the Legislature may not authorize gambling in any form except for games listed in the amendment.
He said the ruling added to case law that could lead to the National Indian Gaming Commission telling casinos in other states with similar compacts to shut down their video poker
Monette said the Ho-Chunk Nation argued correctly that the wording of the 1993 state constitutional amendment is inconsistent with the rest of the constitution, which limits the power of the Legislature to restrict freedoms.
“The logic of the wording of the amendment is that if there’s no law governing a game in question, it’s against the law to use the game unless the Legislature says otherwise,” Monette said. “In other words, the amendment says we can’t gamble unless the Legislature says we can. That flies in the face of logic of everything else we do in this state. It’s anti-democratic and anti-Wisconsin.”
Crabb ruled that the Ho-Chunk Nation never explained the practical difference between prohibiting the Legislature from authorizing an activity and prohibiting the activity directly.
“That’s a federal judge not interpreting the Wisconsin Constitution responsibly,” Monette said. “She should have said: ‘Since this country is based on freedom, I’m not going to believe that something is prohibited unless there’s a law that says it’s prohibited.’”
Monette also disagreed with Crabb’s opinion that the state’s inability to enforce the law on taverns that offer the same type of video poker games shouldn’t carry any weight on her decision.
He said a landmark U.S. Supreme Court case ruled that compacts can’t be discriminatory and that if something is against the law for the state, it’s also against the law for the tribe.
“This case required the judge to find the logic of the constitution and the logic was generally set on its ear here,” Monette said.
Monette, who was a staff attorney for a congressional Indian Affairs committee when the Indian Gaming Regulatory Act was adopted in 1988, said the act was written so that decisions were made class by class instead of game by game. Crabb’s decision, he said, is one more in which a judge saw it differently and ruled that decisions should be made game by game.