State of Wisconsin v. Ho-Chunk Nation
ORDER Regarding Jurisdiction. Proof of Diversity Citizenship due 11/13/2012; response due 11/20/2012. Signed by District Judge Barbara B. Crabb on 11/5/12. (krj)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - STATE OF WISCONSIN ,
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner State of Wisconsin has filed a petition under 9 U.S.C. § 9 to confirm an
arbitration award prohibiting respondent Ho-Chunk Nation from offering “non-banking
poker” at DeJope Gaming Facility in Madison, Wisconsin. Respondent seeks to vacate the
“The first question in every case is whether the court has jurisdiction.” Avila v.
Pappas, 591 F.3d 552, 553 (7th Cir 2010). The Federal Arbitration Act does not provide
a basis for jurisdiction, Vaden v. Discover Bank, 556 U.S. 49, 58-59 (2009), and the state
does not cite any other basis in its petition. This is somewhat surprising in light of the
state’s previous difficulties in establishing jurisdiction in federal court over arbitration
disputes. E.g., Wisconsin v. Ho-Chunk Nation, 512 F.3d 921 (7th Cir. 2008); Wisconsin
v. Ho-Chunk Nation, 463 F.3d 655 (7th Cir. 2006).
In a footnote in its opening brief, the state cites 25 U.S.C. § 2710(d)(7)(A)(ii), which
creates a cause of action “to enjoin a class III gaming activity located on Indian lands and
conducted in violation of any Tribal-State compact." Although the state does not explain
its reliance on § 2710(d)(7)(A)(ii), presumably it means to argue that jurisdiction is present
because the parties’ underlying dispute falls within that provision. Vaden, 556 U.S. at 62
(federal court may exercise jurisdiction over arbitration dispute if it would have jurisdiction
over underlying cause of action). Unfortunately, it is impossible to make that determination
from the petition or the state’s short brief in support of the petition.
A review of the arbitration decision shows that the question was whether the poker
game being offered at DeJope was a “Class II” or “Class III” game within the meaning of the
Indian Gaming Regulatory Act of 1988. Dkt. #1-4. This distinction matters because the
parties have a compact that governs “Class II” games at DeJope, but they do not have a
compact that governs “Class III” games there. Ultimately, the arbitrator concluded that nonbanking poker was a “Class III” game and “the Nation is not permitted to offer” the game
“unless the parties enter into a tribal-state compact `that specifically allows that game” at
the DeJope facility. Id. at 10.
The arbitrator’s decision seems to support the view that the state is seeking “to enjoin
a class III gaming activity located on Indian lands,” but it is less clear whether the second
part of § 2710(d)(7)(A)(ii) is satisfied, which is that the game was “conducted in violation
of any Tribal-State compact.” The arbitrator’s conclusion was that the parties did not have
a compact that governed the poker game. Is that the same thing as finding that the game
“violated” a compact? Neither party addresses that issue.
This court has an independent obligation to insure that jurisdiction exists. Booker-El
v. Superintendent, Indiana State Prison, 668 F.3d 896, 899 (7th Cir. 2012). Because
questions about jurisdiction remain, I will give the parties an opportunity to address those
IT IS ORDERED that petitioner State of Wisconsin may have until November 13,
2012, to file a supplement to its petition showing that subject matter jurisdiction is present
in this case. Respondent Ho-Chunk Nation may have until November 20, 2012, to file a
response. If the state does not respond by November 13, I will dismiss the case for lack of
Entered this 5th day of November, 2012.
BY THE COURT:
BARBARA B. CRABB
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