79 Op. Att'y Gen. 14 (1990)

79 Op. Att'y Gen. 14, 29 (1990)
  The conclusion which I reach concerning your second question is required by my opinion and conclusion regarding your first question. Neither the United States Supreme Court's decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), nor the provisions of the Indian Gaming Regulatory Act, 25 U.S.C.A. 2701-2721 (West Supp. 1989), effective October 17, 1988, authorize Indian gaming activities within Indian country¯10 which take the form of betting/banking gambling or the operation of gambling machines contrary to the criminal prohibitions contained in chapter 945 of the statutes for the following reasons.

79 Op. Att'y Gen. 14, 29 (1990)
  In the Cabazon decision, the United States Supreme Court fashioned and set forth criteria which must be utilized to ascertain whether state law can effectively prohibit gambling activities within Indian country.

79 Op. Att'y Gen. 14, 29 (1990)
  The Court determined that the gambling laws and policy of the state in regard to the questioned activity must be analyzed to determine whether or not those laws are in fact criminal-prohibitory, that is, whether in general all persons are prohibited from engaging in those activities or whether the activity in question has been, through changes in the state's public policy, converted from criminal-prohibitory to civil-regulatory, allowed but regulated activities. If the law of the state concerning an activity under inquiry totally prohibits any person from engaging in that specific activity, then that activity does violate the state's public policy regarding that activity. The statute is therefore prohibitory and the activity is prohibited from being conducted within the state and within Indian country. If, however, the state law in regard to the activity under inquiry allows the activity with regulations or restrictions then, even though violation of the restrictions may result in criminal sanctions, the law and policy is therefore classified as civil-regulatory in nature. The activity can therefore be conducted within Indian country free from state regulation and restrictions.

79 Op. Att'y Gen. 14, 30 (1990)
  Applying these principles to the public policy concerning gambling in the State of Wisconsin, it appears that the policy toward lotteries has indeed, at least in regard to bingo, raffles, the state lottery and pari-mutuel on-track betting, become civil-regulatory in nature. It is no longer criminal-prohibitory and therefore such activities can be conducted within Indian country free from any regulation by the state.

79 Op. Att'y Gen. 14, 30 (1990)
  However, through similar reasoning, the public policy in the State of Wisconsin concerning all forms of betting, the operation of gambling machines, and other forms of gambling not contained within the meaning of the term lottery, remains criminal-prohibitory in nature, not civil-regulatory. Banking games, such as roulette, blackjack, craps, baccarat, Chemin de fer and similar casino gambling and use of gambling machines and devices such as slot machines, video gambling machines, and similar machines are absolutely prohibited to all persons in the State of Wisconsin. Therefore, under the Cabazon analysis, these other forms of gambling may not be conducted anywhere in the State of Wisconsin including within Indian country.

79 Op. Att'y Gen. 14, 30 (1990)
  The Indian Gaming Regulatory Act, 25 U.S.C.A. 2710(d)(1) (West Supp. 1989), allows Class III gaming activities to be lawfully conducted within Indian country only if such activities are: "(B) located in a State that permits such gaming for any purpose by any person, organization, or entity,...."

79 Op. Att'y Gen. 14, 31 (1990)
  Class I gaming activities as described in the Indian Gaming Regulatory Act are traditional games conducted by the Indian tribes. Class II are games of chance commonly known as bingo and certain card games. Class III are all forms of gaming which are not Class I or Class II.

79 Op. Att'y Gen. 14, 31 (1990)
  Therefore, it is clear that Class III gaming activities encompass at least all those forms of gambling, which I discussed in my opinion on your first question, i.e, the betting/banking games and the operation and playing of gambling machines, which are criminally prohibited by chapter 945 of the statutes. Therefore, ipso facto, those gambling activities are not "located in a State that permits such gaming for any purpose by any person, organization, or entity."

79 Op. Att'y Gen. 14, 31 (1990)
  It is my opinion, therefore, that the Indian Gaming Regulatory Act does not authorize the operation of casino-type gambling activities within Indian country. This same result is required under the United States Supreme Court decision in Cabazon.

79 Op. Att'y Gen. 14, 31 (1990)
  I am not unsympathetic to the importance of gaming activities within Indian country in providing jobs and economic development initiatives to Indians and non-Indians in the communities involved, and the importance of the revenues from such activities for tribal government functions, including their use for the health and general welfare of the Indian community. However, it is not my responsibility to establish the public policy on gambling in Wisconsin. My responsibility is to interpret and enforce the policy enacted by the Legislature. That policy as it relates to gambling is within the role, responsibility and ability of the Legislature to address as it did in enacting chapters 945 and 565.

79 Op. Att'y Gen. 14, 31 (1990)
  The forms of gambling held illegal both within and without Indian country by this opinion are prohibited by statute only. These include video games of chance, slot machines, blackjack, poker, roulette, craps and so-called bingo-derivative games such as bingo-let, bingo-jack, etc. Therefore, should it chose to do so, the Legislature may authorize casino-type gambling in the State of Wisconsin and, therefore, within Indian country, or just within Indian country. Should it wish to do so, the Legislature need only enact appropriate repeals or modifications to chapters 945 and 565.

79 Op. Att'y Gen. 14, 31 (1990)
DJH:JCM

79 Op. Att'y Gen. 14 (1990) - Footnote

Destination-208   1 The Convention of 1846, Collections, Volume XXVII Constitutional Series, Vol. II, Publications of the State Historical Society of Wisconsin (1919), does report the following entry in the Constitutional Convention meeting of October 19, 1846: "Mr. Fuller introduced the following resolution, which was read, to wit: 'Resolved, that the committee on miscellaneous provisions be instructed to inquire into the expediency of providing in the constitution an article forbidding the existence of any lottery, or the vending of any lottery tickets within this state, and also that they be instructed to inquire into the propriety of adopting an article in the constitution prohibiting [any] license from being granted for the sale of spirituous liquor, or for the exhibition of any jugglers, mountebanks, or wire dancers in this state.'" (Emphasis added.)

79 Op. Att'y Gen. 14 (1990) - Footnote

Destination-209   2 The pertinent 1821 New York constitutional provision on lotteries provided: "No lottery shall hereafter be authorized in this state; and the legislature shall pass laws to prevent the sale of all lottery tickets within this state except in lotteries already provided for by law."

79 Op. Att'y Gen. 14 (1990) - Footnote

Destination-210   3 Farnsley, Gambling and the Law: The Wisconsin Experience 1848-1980, 1980 Wis. L. Rev. 811.

79 Op. Att'y Gen. 14 (1990) - Footnote

Destination-211   4 Secs. 1817, 4536, Stats. (1878) and 4598a, Stats. (1889).

79 Op. Att'y Gen. 14 (1990) - Footnote

Destination-212   5 Sec. 1779, Stats. (1878).

79 Op. Att'y Gen. 14 (1990) - Footnote

Destination-213   6 Sec. 1463, Stats. (1889).

79 Op. Att'y Gen. 14 (1990) - Footnote

Destination-214   7 Sec. 172.29(l), Stats. (1913).

79 Op. Att'y Gen. 14 (1990) - Footnote

Destination-215   8 Sec. 176.90, Stats. (1945).

79 Op. Att'y Gen. 14 (1990) - Footnote

Destination-216   9 Farnsley, Gambling and the Law: The Wisconsin Experience 1848-1980, 1980 Wis. L. Rev. 811.

79 Op. Att'y Gen. 14 (1990) - Footnote

Destination-217   10 The term "Indian country" is defined in 18 U.S.C.A. 1151 (West 1984). It means "(a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same." This definition applies whether the question involves criminal or civil jurisdiction. DeCoteau v. District County Court For Tenth Jud. Dist., 420 U.S. 425, 427 n.2 (1975). The terms "reservation" and "Indian country" are used interchangeably herein. Any land held in trust for an Indian tribe may qualify as a "reservation." See 71 Op. Att'y Gen. 82 (1982).

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