By Lorraine Bailey/Courthouse News
CHICAGO (CN) – A Native American tribe faced an uphill battle Wednesday at the Seventh Circuit in its bid to block the expansion of a neighboring tribe’s casino.
The Stockbridge-Munsee Band of Mohicans, which runs the North Star casino in Bowler, Wis., brought the underlying suit in April 2017, taking aim at the construction efforts undertaken 12 miles in Wittenberg by the Ho-Chunk Nation.
Pointing to gaming compacts, the Stockbridge-Munsee accused the Ho-Chunk of exceeding a mandate that limits it to operating an ancillary facility. An ancillary facility is defined in previous filings as one in which no more than half of its space is used for gambling.
When a federal judge dismissed the action in October, however, the ruling emphasized that the Wittenberg 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 at the time.
With the Stockbridge-Munsee appealing that finding, a three-judge panel of the Seventh Circuit heard arguments Wednesday in Chicago.
Questioning Stockbridge-Munsee’s attorney Scott David Crowell, U.S. Judge Ilana Rovner for one appeared skeptical of the challenge.
“Isn’t the delay unreasonable, and isn’t the money the Ho-Chunk spent on the casino clear prejudice?” U.S. Judge Ilana Rovner asked.
Crowell told the court that the Stockbridge-Munsee community knew about the 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 significantly draw money away from Stockbridge-Munsee’s casino.
Implying that Wisconsin supported Ho-Chunk in this dispute for its own financial gain, Crowell also emphasized that “Stockbridge-Munsee doesn’t pay nearly the amount of money to the state that Ho-Chunk does.”
But Judges Rovner and Amy St. Eve both questioned why the tribe didn’t raise the defense of laches in the lower court if that was what it was arguing should apply on appeal.
“You need to spell things out for district courts,” Judge Rovner said. “You can’t expect them to figure out what you mean.”
Judge Frank Easterbrook showed irritation meanwhile with counsel for both sides.
“I can’t see anything prohibiting one tribe from competing against another tribe [in the Indian Regulatory Gaming Act],” Easterbrook told Crowell.
Interrupting Ho-Chunk attorney Lester Marston at a different point in the hearing, Judge Easterbrook quizzed the lawyer on the application of the 1946 Supreme Court case Bell v. Hood.
“I suggest you move to another argument,” Easterbrook said when the lawyer admitted to not being versed on this case’s particulars.
And later Judge Easterbrook asked Marston, “Do you know what Section 1658 says?” referring to the statute that provides a four-year statute of limitations for federal claims that do not have an explicit limitations period of their own.
“You would not be making this argument [based on the state statute of limitations] if you did,” Judge Easterbrook told Marston.
Wisconsin Assistant Attorney General Thomas Bellavia also presented arguments and urged the panel to affirm dismissal.