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Ho-Chunk Nation wins decision on legality of video poker games

Thursday, April 30, 2015

The Ho-Chunk Gaming Madison facility in Wisconsin. Photo from Facebook

The Ho-Chunk Nation can offer video poker games at one of its facilities in Wisconsin, the 7th Circuit Court of Appeals ruled on Wednesday.

Class III gaming is legal in Wisconsin and the tribe has a Class III gaming compact with the state. But a dispute arose because the agreement does not cover the Ho-Chunk Gaming Madison facility, where the tribe installed video poker games.

Last June, Judge Barbara Crabb ordered the tribe to remove the machines because she said they fall into the Class III category. But the 7th Circuit reversed after looking at all the circumstances, which included a February 2009 opinion from the National Indian Gaming Commission that determined that the devices are Class II, outside of the state's reach.

"A state must criminalize a gambling activity in order to prohibit the tribe from engaging in it," Chief Judge Diane Pamela Wood wrote for the majority. "Wisconsin does not criminalize non-banked poker; it decriminalized that type of gaming in 1999."

Indianz.Com SoundCloud: Wisconsin v. Ho-Chunk Nation

Under the Indian Gaming Regulatory Act, tribes can engage in the same types of gaming that are allowed in the state, Wood noted.

"IGRA thus does not permit it to interfere with Class II poker on tribal land," the decision continued. "This means that the Ho-Chunk Nation has the right to continue to offer nonbanked poker at its Madison facility."

The ruling is a complete victory for the tribe, whose leaders have been defending the legality of the machines for years. But the state could ask the 7th Circuit to rehear the case or it could take the matter to the U.S. Supreme Court.

Oral arguments can be found on the Indianz.Com SoundCloud. Turtle Talk has posted briefs from the case, Wisconsin v. Ho-Chunk Nation.

Get the Story:
Ho-Chunk can offer video poker at Madison casino, appeals court rules (The Wisconsin State Journal 4/30)
Federal appeals court says Ho-Chunk can offer video poker (AP 4/29)

7th Circuit Decision:
Wisconsin v. Ho-Chunk Nation (April 29, 2015)

Relevant Documents:
NIGC Game Classification Opinion (February 26, 2009)