You asked if Wisconsin's 1993 constitutional amendment explicitly limiting gambling and prohibiting casino-style gambling has precluded tribal-state gaming compact negotiations. You also want information on any legal challenges to the state's authority to negotiate compacts since the amendment passed and a discussion of the issues involved.

SUMMARY

In 1993, Wisconsin amended its constitution (1) explicitly limiting authorized gambling to bingo, raffles, pari-mutuel on-track betting, and a state-run lottery and (2) expressly prohibiting the state-run lottery from conducting casino-style games. At the time the constitution was amended, all 11 of that state's federally recognized tribes and bands had already negotiated class III gaming compacts with casino-style gambling pursuant to the federal Indian Gaming Regulatory Act (IGRA). So far, the amendment has not affected these compacts, but a legal challenge is pending in state court.

The compacts were initially valid for seven years and are renewable at five-year intervals. Between 1998 and 1999, the governor, on the state's behalf, renewed all of them. Dairyland Greyhound Park, Inc. , which operates a dog racetrack in the state, has challenged the governor's action. Citing legislative history and the constitutional amendment, the track sued the governor in 2001 claiming he lacks authority to modify, extend, or renew compacts involving casino gambling.

Resolution of the legal questions in the lawsuit has been delayed by a dispute between the parties over whether the case can be tried without naming the tribes as co-defendants. (By law, tribes are immune from suits in state court. ) On September 19, 2002, Wisconsin's Appellate Court ruled that the suit could proceed without the tribes as parties. The governor could still ask the state's Supreme Court to review this decision. If he does not, the case will proceed to trial (Diaryland Greyhound Park, Inc. , v. MaCallum, 2002 WL 31087000, (Wis. App. )). A Dairyland press release (10/17/02) states that because the compacts are up for renewal next year, the racetrack will ask to bypass the lower courts and take the case directly to the Wisconsin Supreme Court.

WISCONSIN COMPACT ISSUES

1987 Amendment

In 1987, Wisconsin amended its constitution. The amended constitution authorized a state lottery and pari-mutuel betting and did not prohibit other forms of gaming involving the elements of prize, chance, and consideration. State-tribal compact negotiations stalled over whether casino-style games were permitted under the law and should thus be included in negotiations. IGRA generally allows a tribe to conduct under a negotiated compact any form of gambling that a state permits (see OLR Report 2002-R-0425 for a detailed discussion of IGRA). The state contended that unless a state expressly authorizes a particular type of game, that gaming activity is illegal on tribal lands.

1991 Wisconsin Court Decision

In a pivotal Wisconsin case, the U. S. District Court, taking what some courts have described as an expansive view of a U. S. Supreme Court precedent, ruled that since the state constitution did not prohibit the legislature from authorizing state-operated casino games and since Wisconsin permitted a substantial level of class III gambling, the state was required to negotiate with the tribes over "the inclusion of any activity that includes the elements of prize, chance and consideration and that is not prohibited expressly by the Wisconsin constitution or state law" (Lac du Flambeau Band v. Wisconsin, 770 F. Supp. 480 (W. D. Wis. (1991), at 488)).

Wisconsin Gaming Compacts

Pursuant to the Lac du Flambeau decision, Wisconsin completed gaming compacts with all 11 of that state's federally recognized tribes and bands between August 16, 1991 and June 11, 1992. The compacts allow the tribes to conduct specified forms of class III gambling. The authorized games include electronic games of chance with video facsimile displays; (2) electronic games of chance with mechanical displays; (3) blackjack; and (4) pull-tabs or break-open tickets, when not played at the same location as bingo. Tribes may not conduct other class III games not included in the compact.

The compacts are automatically renewable for five-year terms unless either party gives to the other at least 180 days nonrenewal notice before they expire. If either party gives such notice, the tribe may, pursuant to IGRA's procedures, ask the state to negotiate a successor compact. In that case, the state has agreed to do so in good faith. If the compact is not renewed and a successor compact is not concluded by the compact's expiration date, the tribe must either (a) stop all class III gaming or (b) begin action in federal court under IGRA's procedures. In the latter case, the current compact remains in effect until IGRA's procedures are exhausted (Legal Gambling in Wisconsin, Legislative Fiscal Bureau, 2001, p. 31).

1993 Constitutional Amendment

Wisconsin, in 1993, amended its constitution, explicitly limiting the forms of gambling that the legislature could authorize to (1) bingo and raffles conducted by qualified organizations (2) pari-mutuel on-track betting, and (3) the state-run lottery. The amendment expressly prohibited as part of the lottery casino-style gambling, including blackjack, video games of chance, keno, roulette, baccarat, and any game of chance played on a slot machine or mechanical electromechanical or electronic device generally available to be played at a gambling casino (Wis. Const. Art. 4, § 24).

SUIT CHALLENGING GOVERNOR'S AUTHORITY TO RENEW COMPACTS

Under Wisconsin law, the governor has the authority to negotiate and enter into class III gaming compacts on the state's behalf. Between February 1998 and March 1999, he renewed all of the compacts, extending their terms for five years. The current compacts will begin to expire in 2003.

In 2001, Dairyland sued the governor to bar him "from entering into any new, modified, extended or renewed gaming compacts with any Indian tribe purporting to allow casino gambling and requiring [him] to issue timely notice of nonrenewal of each compact. " Dairyland asserted that the 1993 constitutional gambling amendment deprived the governor of whatever authority he may have once had to permit tribes to conduct casino-type gambling in Wisconsin under compacts.

The suit alleges that the governor no longer has legal authority to modify, extend, or renew tribal-state gaming compacts since the state federal law authorizing the compacts first requires state law to permit the types of gaming included in the compacts. Since the 1993 constitutional amendment expressly prohibits casino gambling (such as blackjack, slot machines, keno or roulette), Dairyland maintains that any attempt to include such games in new or modified compacts would be unconstitutional.

The lawsuit also indicated that recent federal court decisions have held that federal gaming laws do not require or authorize compacts for forms of gaming that state law prohibits.

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