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Seventh Circuit Dismisses Inter-Tribal Fight Over Casino Expansion

The Seventh Circuit on Tuesday affirmed that a Wisconsin-based Native American tribe waited too long to try to block the expansion of a nearby casino run by the larger Ho-Chunk Nation.

CHICAGO (CN) — The Seventh Circuit affirmed Tuesday that a Wisconsin-based Native American tribe waited too long to try to block the expansion of a nearby casino run by the larger Ho-Chunk Nation.

The Stockbridge-Munsee Community, which runs the North Star casino in Bowler, Wis., brought the underlying suit in April 2017, taking aim at the construction 12 miles away in Wittenberg by the Ho-Chunk Nation.

The Stockbridge-Munsee Community, pop. 1,565, is 60 miles northwest of Green Bay; Wittenberg is 12 miles farther to the west, with a tribal population of 7,000.

Citing compacts, the Stockbridge-Munsee, also known as Mohicans, accused the Ho-Chunk of exceeding a mandate that limits it to operating an ancillary facility. An ancillary facility is one in which no more than half its space is used for gambling.

When a federal judge dismissed the complaint in October 2017, the ruling emphasized that the Ho-Chunk casino had been open since 2008.

“The Stockbridge-Munsee had six years to call attention to the Wittenberg casino’s alleged violations of the Ho-Chunk Compact, but failed to do so,” U.S. District Judge James Peterson wrote.

The Stockbridge-Munsee appealed, and the Seventh Circuit heard arguments in September last year, where the community’s attorney told the Chicago-based appeals court that the Stockbridge-Munsee community knew about gambling at Ho-Chunk’s ancillary facility, but it wasn’t worth suing over until the Ho-Chunk decided to expand into a full-fledged casino that would draw significant money away from Stockbridge-Munsee’s casino.

But the Seventh Circuit panel was not sympathetic to the Stockbridge-Munsee’s explanation for its delay in bringing suit.

“The Community advances arguments designed to show that it is not subject to a statute of limitations vis-à-vis the Nation, whether because it is a sovereign (in its relation to the Nation) or because it seeks injunctive relief,” Seventh Circuit Judge Frank Easterbrook wrote for the panel. “But the Community’s claims under its deal with Wisconsin are contractual. The Community does not enjoy sovereign immunity in litigating against Wisconsin (the contract waives that status) — and the Community, as the plaintiff, cannot invoke sovereign immunity to deflect a defense.” Wisconsin was the lead defendant in the lawsuit.

Therefore, Wisconsin’s six-year statute of limitations for contract dispute applies in this case, the court ruled.

“It does not matter whether the time limit applies because Wisconsin’s law is incorporated into federal law, or because Wisconsin’s law applies directly to a contract negotiated between the state and a resident tribe. Either way, the Community waited too long,” Easterbrook concluded.

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