¶ 96. (concurring). While I join the majority, I write separately to reaffirm the conclusions reached in our dissent in Panzer v. Doyle, 2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666 (Abrahamson, C.J., Bradley, J. and Crooks, J. dissenting), as well as my position in Dairyland Greyhound Park, Inc. v. Doyle, 2004 WI 34, 270 Wis. 2d 267, 677 N.W.2d 275.
¶ 97. Our conclusions in Panzer are equally valid with regard to the case before us today. First, "[w]hile the amendment to Article R7 § 24 did change Wisconsin's law with respect to gaming, it did not affect the compact before us." Panzer, 271 Wis. 2d 295, ¶ 206 (Abrahamson, C.J., Bradley, J. and Crooks, J. dissenting). In fact, the legislative history makes clear that Article IV Section 24 of the Wisconsin Constitution was neither intended to apply, nor had the effect of applying, to then existing Indian gaming compacts. See majority op., ¶¶ 36, 44, 49, 66.
*75¶ 98. Second, as we determined in our dissent in Panzer, "the Governor properly exercised his power pursuant to Wis. Stat. § 14.035" both in entering into the Original Compacts, as well as negotiating the 1998 and 2003 amendments. Panzer, 271 Wis. 2d 295, ¶ 124. As we explained in that case "as long as a compact does not contravene a statute or constitutional provision, the governor may enter into it under Wis. Stat. § 14.035, embracing those conditions and provisions the governor deems will best promote the interests of the government." Id., ¶ 153.
¶ 99. Third, in Panzer we concluded that an application of the 1993 constitutional amendment to the compacts would "substantially impair the contractual relationship between the State and the Tribe and violate the impairment of contracts clause." Id., ¶ 256. The clear language of the compacts demonstrated that the parties intended to be bound by the laws of Wisconsin as they existed in 1992. Id., ¶ 194. "Regardless of future laws or amendments to preexisting laws, the parties agreed to let the terms of the compact control their relationship." Id.
¶ 100. "At the time the parties entered into the compact, all Class III games could be negotiated for and were permitted under the compact." Id., ¶ 195. As our Panzer dissent explained, because the state was permitted to negotiate with respect to Class III games, "any attempt to read Article iy § 24 as altering the types of games that may be negotiated for under the compact would impair the compact to which the parties agreed, and would, therefore, run afoul of the United States and Wisconsin constitutional clauses against impairment of contract." Id., ¶ 209.
¶ 101. Our reasoning and conclusions in Panzer are consistent with the majority's holding in the case at *76bar. Ultimately we conclude, as we did in our Panzer dissent, that Article iy Section 24 of the Wisconsin Constitution does not apply to then existing Indian gaming compacts, that the Governor properly exercised his authority to enter into the Original Compacts, and negotiate the amendments in both 1998 and 2003, and that any application of the 1993 constitutional amendment to the compacts violates both the state and federal impairment of contracts clause. Id., ¶¶ 124, 256.
¶ 102. For the aforementioned reasons, I join the majority opinion, reaffirm our conclusions in our Panzer dissent, and respectfully concur.
¶ 103. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this concurrence.
DAVID T. PROSSER, J.¶ 104. (concurring in part, dissenting in part). In Panzer v. Doyle, 2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666, this court was asked to review four amendments to the 1992 gaming compact between the State of Wisconsin and the Forest County Potawatomi Community. The court concluded that three of the amendments were invalid. At the same time, the court upheld the original gaming compact and, by implication, 10 similar gaming compacts; and it implied that a 1993 constitutional amendment restricting gambling in Wisconsin did not impair these compacts or bar their extension.1 In this case, petitioner seeks a definitive interpretation of the 1993 constitutional amendment, asking explicitly whether the Gov*77ernor has authority to amend or extend Indian gaming compacts to allow forms of gambling that are prohibited under Wisconsin law.
¶ 105. My conclusions are as follows.
¶ 106. First, the Wisconsin state government, including Wisconsin governors, have not violated and will not violate Article IY Section 24 of the Wisconsin Constitution by extending the Original Compacts, so that Wisconsin Indian tribes may engage in the same forms of gaming activity that they negotiated in their original compacts. Consequently, Wisconsin governors are not obligated to nonrenew these gaming compacts. In this regard, the majority opinion is correct.
¶ 107. Second, the Wisconsin state government, including Wisconsin governors, may agree to amendments of gaming compacts to add gaming activities that are permitted by state law "for any purpose by any person, organization, or entity," 25 U.S.C. § 2710(d)(1)(B), but may not add gaming activities that are prohibited by state law for all purposes to all persons, organizations, and entities. Wisconsin governors have no authority to approve new gaming activities that are prohibited by Article IY Section 24 of the Wisconsin Constitution or state criminal law.
¶ 108. Third, the majority's determination that the 1993 amendment to Article IY Section 24 had no effect whatever on the 11 original Indian gaming compacts is mistaken; and its holding that Wisconsin governors have power, by virtue of the compacts, to amend the compacts to add any gaming activities not prohibited by federal law, contradicts both the Wisconsin Constitution and federal law.
¶ 109. The majority opinion is far-reaching. It involves much more than overruling portions of the Panzer decision and giving Wisconsin tribes the right to *78play poker, roulette, craps, and keno at their casinos in Indian country. The opinion could lead to an explosion of new gaming activities.
¶ 110. The majority concludes that a governor's source of authority to negotiate new gaming amendments is not Wis. Stat. § 14.035 but rather the provisions in existing gaming compacts buttressed by the impairment of contracts clauses of the United States and Wisconsin Constitutions. Under this analysis, a governor's authority is not limited by the Wisconsin Constitution or state criminal law. This determination will permit Wisconsin governors to negotiate and approve such major gambling expansions as off-track pari-mutuel betting, betting on sporting events, jai alai, and all banking card games, which are barred by the Wisconsin Constitution but not prohibited by federal law.
¶ 111. If the majority's determination that the Wisconsin Constitution does not check a governor's power to negotiate gaming compacts is correct, then the majority has overruled, sub silentio, Panzer insofar as it declared invalid the 2003 duration amendment and the 2003 amendment waiving sovereign immunity. Three of the four members of the majority supported these amendments in their Panzer dissent.
¶ 112. This partial dissent requires a full explanation. In offering this explanation, I believe it is essential to understand the history of Article iy Section 24 and events leading up to this litigation. As sociologist Robert Nisbet once observed, "We cannot know where we are, much less where we are going, until we know where we have been."
¶ 113. To assist the reader, my dissent is organized under the following headings:
*79I.Methodology for Interpreting the Wisconsin Constitution
II. Interpreting Article IX Section 24 as Created in the 1848 Constitution
III. Interpreting Article IX Section 24 as Amended in 1987
IV The United States District Court's Decision in the Lac du Flambeau Case
V The Legislative Response to the Lac du Flambeau Decision
VI. Interpreting Article IV Section 24 as Amended in 1993
VII. The Effect of Article IX Section 24 on Indian Gaming
I. METHODOLOGY FOR INTERPRETING THE WISCONSIN CONSTITUTION
¶ 114. This court interprets provisions of the Wisconsin Constitution de novo. Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996) (citing Polk County v. State Pub. Defender, 188 Wis. 2d 665, 674, 524 N.W.2d 389 (1994)). Our methodology in interpreting a constitutional provision is not identical to our methodology in interpreting a statute. In interpreting a statute, the court focuses on "statutory meaning" as opposed to "legislative intent." See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶ 36-52, 271 Wis. 2d 633, 681 N.W.2d 110. In doing so, the court relies heavily on "intrinsic" sources such as the words of the statute, including dictionary definitions, plus stat-uory context, scope, and purpose. As a rule, Wisconsin courts do not consult "extrinsic" sources of statutory interpretation unless the statute is ambiguous, id., ¶ 50, although extrinsic sources may be used to *80confirm or verify plain statutory meaning. Id., ¶ 51. The plain meaning rule of statutory interpretation prevents courts from tapping legislative history to show that an unambiguous statute is ambiguous. Id.
¶ 115. Our methodology in interpreting a constitutional provision envisions more intense review of extrinsic sources than our methodology in statutory interpretation. The court has explained that:
The purpose of construction of a constitutional [provision] is to give effect to the intent of the framers and the people who adopted it; and it is a rule of construction applicable to all constitutions that they are to be construed so as to promote the objects for which they were framed and adopted.
State v. Cole, 2003 WI 112, ¶ 10, 264 Wis. 2d 520, 665 N.W.2d 328 (quoting Kayden Indus., Inc. v. Murphy, 34 Wis. 2d 718, 729-30, 150 N.W.2d 447 (1967)).
¶ 116. The reasons we employ a different methodology for constitutional interpretation are evident. Constitutional provisions do not become law until they are approved by the people. Voters do not have the same access to the "words" of a provision as the legislators who framed those words; and most voters are not familiar with the debates in the legislature. As a result, voters necessarily consider second-hand explanations and discussion at the time of ratification. In addition, the meaning of words may evolve over time, obscuring the original meaning or purpose of a provision. The original meaning of a provision might be lost if courts could not resort to extrinsic sources. Finally, interpreting a constitutional provision is likely to have a more lasting effect than the interpretation of a statute, inasmuch as statutory language can be more easily changed than constitutional language. Thus, it is vital for court decisions to capture accurately the essence of a constitutional provision.
*81¶ 117. Against this background, our traditional methodology2 on constitutional interpretation may be restated as follows:
1. Courts should give priority to the plain meaning of the words of a constitutional provision in the context used. Buse v. Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141 (1976). The plain meaning of the words is best discerned by understanding their obvious and ordinary meaning at the time the provision was adopted, taking into account other (especially contemporary) provisions of the constitution. See State ex rel. Bare v. Schinz, 194 Wis. 397, 403-04, 216 N.W. 509 (1927).
2. Courts may view the "historical analysis of the constitutional debates and of what practices were in existence in 1848 which the court may reasonably presume were also known to the framers of the 1848 constitution." Id. This principle permits courts to consider the debates surrounding amendments to the constitution and the circumstances at the time these *82amendments were adopted. We have said that courts may examine "the history of the times," meaning not only the legislative history of a provision (including word changes in the drafts of amendments) but also "the state of society at the time," with special emphasis on the "practices and usages" then in existence, so as to identify the concerns the provision sought to address. See Bd. of Educ. v. Sinclair, 65 Wis. 2d 179, 184, 222 N.W.2d 143 (1974) (quoting State ex rel. Zimmerman v. Dammann, 201 Wis. 84, 89, 228 N.W. 593 (1930)). These concerns are often illuminated by contemporary debates and explanations of the provision both inside and outside legislative chambers.
3. Courts may scrutinize the earliest interpretations of the provision by the legislature as manifested in the first laws passed following adoption of the provision. Buse, 74 Wis. 2d at 568 (citing Payne v. Racine, 217 Wis. 550, 259 N.W. 437 (1935)). Legislation that implements a constitutional provision is thought to be a fair gauge of contemporary interpretation and is entitled to great deference.
¶ 118. The methodology stated here is the methodology I will employ in interpreting Article IY Section 24 as it was created in 1848, as it was amended in 1987, and as it was amended again in 1993.
II. INTERPRETING ARTICLE IY SECTION 24 AS CREATED IN THE 1848 CONSTITUTION
¶ 119. Article IY Section 24 originated in the Wisconsin Constitution of 1848.3 The original provision was not intended to cover all forms of gambling. This conclusion is based on the language of the provision, the *83purpose of the provision, and the historical context of the provision, including legislative activity before and after the provision was adopted.
¶ 120. First, we focus on the words. Noah Webster's An American Dictionary of the English Language (1828) defined "lottery" as follows:
1. A scheme for the distribution of prizes by chance, or the distribution itself. Lotteries are often authorized by law, but many good men deem them immoral in principle, and almost all men concur in the opinion that their effect are pernicious.
2. Allotment.
Noah Webster, An American Dictionary of the English Language (1828) (unpaginated).4
¶ 121. "A scheme for the distribution of prizes by chance" does not implicate all schemes or all games that involve prize, chance, and consideration. For instance, in Webster's 1853 dictionary, Noah Webster, An American Dictionary of the English Language (1853), Webster defined "gambling" and other terms:
Gamble: "To play or game for money or other stake." Webster, supra 492.5
Gambling: "Gaming for money." Webster, supra 492.6
Gaming: "The act or art of playing any game, in a contest for a victory, or for a prize or stake."
*842. "The practice of using cards, dice, billiards, and the like, according to certain rules, for winning money, &c." Webster, supra 493.7
Roulette: "A game of chance, in which a small ball is made to move round rapidly on a circle divided off into red or black spaces, and as it stops on the one or the other, the player wins or loses." Webster, supra 965.
Webster did not use the word "lottery" in these definitions. He did not use "lottery" and "gaming" interchangeably. In 1848, as now, people did not associate dice and billiards with a lottery. Moreover, in the mid-1800s, other forms of gaming were not "often authorized by law," although some gambling was not prohibited. Thus, Douglas Farnsley was correct when he wrote, "In common usage a lottery is synonymous with a raffle, and in Wisconsin law the term is usually given this meaning." Douglas Charles Ellerbe Farnsley, Gambling and the Law: The Wisconsin Experience, 1848-1980, 1980 Wis. L. Rev. 811, 812.
¶ 122. Second, we examine the historical context. Most states adopted anti-lottery amendments or legislation because of notorious scandals involving lotteries, including the Grand National Lottery authorized by Congress. Panzer, 271 Wis. 2d 295, ¶ 7.8 Farnsley explains that:
Following the Revolutionary War, most states had relied heavily on lotteries as a means of financing public works and supporting institutions such as orphanages and hospitals. These states had also authorized various philanthropic organizations such as churches and uni*85versities to conduct lotteries. States and organizations had usually relied upon management companies to conduct the lotteries. The companies would then turn over a percentage of the profits to the sponsor. Thus, while the lotteries may have been fundraising schemes for the sponsor, they were commercial gambling in relation to the management company. In 1833, Pennsylvania, Massachusetts, and New York had abolished lotteries due in large measure to fraudulent practices by lottery management companies. Many other states followed their lead. Prior to the War Between the States all but three states had barred lotteries. The drafters of Wisconsin's Constitution acted within this historical context in banning lotteries.
Farnsley, supra, at 854 (emphasis added).
¶ 123. Farnsley's observation about "historical context" explains why the "lottery" provision is contained within Article IV Article IV is the constitutional article on "Legislative" power. It is a fundamental precept of state constitutional law that state legislative power is plenary in nature. Cutts v. Dep't of Pub. Welfare, 1 Wis. 2d 408, 416, 84 N.W.2d 102 (1957). The Wisconsin Constitution does not grant legislative power;9 it limits legislative power or directs how legislative power should be exercised. In 1848 Article iy Section 24 ("The legislature shall not authorize any lottery, or grant any divorce") contained two specific *86limitations on legislative power, not moral pronouncements on gaming and divorce.10
¶ 124. The New York Constitution of 1846 often served as a model for the Wisconsin drafters.11 Article I, Section 10 of that constitution provided that, "No law shall be passed abridging the right of the people peaceably to assemble and petition the government... nor shall any divorce be granted, otherwise than by due judicial proceedings; nor shall any lottery hereafter be authorized or any sale of lottery tickets allowed within this state." The 1846 New York Constitution linked the legislative proscription on authorizing "any lottery" to the legislative proscription on granting "any divorce,"12 as did the 1848 Wisconsin Constitution.
*87¶ 125. What is especially significant about this probable source of Article iy Section 24 is that the New York lottery provision was construed in Reilly v. Gray, 28 N.Y.S. 811 (1894), not to apply to betting on horse races. The court explained the purpose of the New York provision:
For many years prior to 1821 there had existed laws for the prohibition of all lotteries other than such as should be authorized by the Legislature. The Legislature, however, had by special acts authorized them to such an extent as to call for a constitutional prohibition. Evidently it was not deemed wise to trust the Legislature on the subject.
... It seems... very clear that it was not the intention of the framers of the Constitution ... in the use of the word "lottery," to include in it the subject of betting as then prohibited by statute. They were distinct subjects upon the statute book and in the public mind, and, if the design had been to cover both, they would have been named.
Id. at 815 (citation omitted).
¶ 126. There is no record of discussion at Wisconsin's Constitutional Convention about the "lottery" language. The absence of controversy suggests that the framers were borrowing old concepts from New York and other states rather than originating new ones.13
*88¶ 127. Farnsley's use of the word "authorize" in his historical explanation matches the constitutional language in Article IY Section 24. Farnsley, supra, at 854. This word implies that the Wisconsin framers had a specific concern about official legislative authorization of lotteries, as opposed to a broad concern about all gambling. The legislature had ample police power to regulate or prohibit all gambling. Thus, the purpose of the constitutional provision was to deny our legislature the authority to give its imprimatur to lotteries as a source of government or private revenue because so many lotteries had proven to be unreliable or corrupt. Id.
¶ 128. Third, building on the second point, the language in contemporaneous state constitutions almost always included language on lottery "tickets," indicating mass participation as opposed to participation by a small number of people. For instance, Article 12, Section 6 of the 1835 Michigan Constitution provided: "The legislature shall not authorize any lottery nor permit the sale of lottery tickets." Article IY Section 29 of the 1846 Iowa Constitution stated: "No lottery shall be authorized by this State, nor shall the sale of lottery tickets be allowed." The 1849 California Constitution provided in Article IY Section 19 that "No lottery shall be allowed by this State, nor shall the sale of lottery tickets be allowed." The 1859 Kansas Constitu*89tion (Article 15, Section 3) declared that "Lotteries and the sale of lottery tickets are forever prohibited."14
¶ 129. In 1870 a revised Illinois Constitution provided in Article iy Section 27: "The General Assembly shall have no power to authorize lotteries or gift enterprises, for any purpose, and shall pass laws to prohibit the sale of lottery or gift enterprise tickets in this State[.]" (Emphasis added.) The Illinois Constitution shows that more than 20 years after the Wisconsin Constitution was adopted, our neighbors to the south saw lotteries as a specific form of gambling that utilized tickets.
¶ 130. The Louisiana Constitution of 1921 is also instructive. Article XIX, Section 8 provided:
Gambling is a vice and the Legislature shall pass laws to suppress it.
Gambling in futures on agricultural products or articles of necessity, where the intention of the parties is not to make an honest and bona fide delivery, is declared to be against public policy; and the Legislature shall pass laws to suppress it.
Lotteries and the sale of lottery tickets are prohibited in this State.
*90¶ 131. The 1921 Louisiana Constitution drew an explicit distinction between lotteries and other forms of gambling. This distinction is underscored by the self-executing provision on lotteries (but not other gambling) and the reference to "lottery tickets." The reference to tickets was a nearly uniform pattern in the states, especially at the time the Wisconsin Constitution was adopted. The fact that the Wisconsin Constitution did not refer to "lottery tickets" in 1848 should not be interpreted as a departure from that pattern, at least without some evidence to support such an interpretation.
¶ 132. Finally, the experience outside Wisconsin is consistent with the experience in Wisconsin. Pre-statehood territorial legislation governing gaming tables and gambling devices did not address lotteries; post-statehood legislation distinguished between lotteries and other forms of gaming.15 Panzer, 271 Wis. 2d 295, ¶ 7.16
*91¶ 133. In his law review article, Farnsley notes that Wis. Stat. ch. 138 § 1 (1849) "uses the term 'lottery' in its limited sense." Farnsley, supra at 855 n.225. He quotes Section 1 as follows:
Every person who shall set up or promote any lottery for money.. . and every person who shall aid either by printing or writing, or shall in any way be concerned in setting up, managing or drawing any such lottery, or who shall in any house, shop or building owned or occupied by him... knowingly permit the setting up, managing or drawing any such lottery, or the sale of any lottery ticket, or share of a ticket....
In other words, the first law passed by the legislature following the adoption of the constitution spoke of lotteries and "lottery tickets," and of a "drawing," all signifying a limited scope to the term. Moreover, the Index to the 1849 statutes clearly distinguishes lotteries from betting and gaming. The two subjects appeared under different headings in the index and on different pages in the statutes.
¶ 134. There is no reference to betting on horse races in the 1849 statutes. According to Farnsley, the legislature first acted in 1878 to halt gambling at racetracks (Wis. Stat. § 1779 (1878)), and in 1885 to halt gambling at local fairs (Wis. Stat. § 1463 (1889)).17 Farnsley, supra, at 857. Thus, Richard Current was able to write: "By 1857 horse racing and betting on the horses were well established, at least in some parts of the state." Richard N. Current, II The History of Wisconsin 128 (1976). Betting on horses at racetracks and *92local fairs would not have been possible if the public had understood Article iy Section 24 as a ban on all gambling.
¶ 135. The distinction between lotteries and the broader terms "gaming" and "gambling" is also found in early court decisions. For instance, in State v. Lewis, 12 Wis. 483 [*434] (1860), the defendant was indicted "for permitting gaming with cards for gain upon his premises." Id. at 483 [*434] (emphasis added). The decision discusses cards as gaming devices and it mentions euchre, poker, faro bank, and roulette but never uses the word "lottery."
¶ 136. The first case to use the word "lottery" was Lemon v. Grosskopf 22 Wis. 427, 99 Am. Dec. 58 (1868).18 It involved a dispute between the owner of a "lottery scheme in the city of Chicago" and his agent in Milwaukee. The "defendant was employed by the plaintiff to sell [ ] lottery tickets, receive and retain the money for them until he became satisfied that the drawing of the prizes in the scheme was fairly conducted, and then account to the plaintiff." Id. at 431 (emphasis added). The court's decision makes no reference to "gaming" or "gambling."
¶ 137. Finally, in a third case, we see this court use the words "lottery" and "gaming" in the same opinion. Sperry & Hutchinson Co. v. Weigle, State Dairy & Food Comm'r, 166 Wis. 613, 166 N.W. 54 (1918) ("Trading Stamp cases"). The issue presented was the constitutionality of state legislation prohibiting the use of trading stamps except for stamps having cash value. The court upheld the legislation as a proper exercise of *93the police power. It did not cite Article IY Section 24. Rather, it cited Rast v. Van Deman & Lewis Co., 240 U.S. 342 (1916), and said:
[T]he court held that the scheme and practice of issuing such trading stamps in connection with the conduct of a lawful business. .. and the redemption thereof in articles of merchandise or premiums in addition to the articles sold is attended with evil and pernicious consequences, which have a tendency to affect the general welfare similar in effect to the evils attending a "lottery" and "gaming."
Sperry & Hutchinson, 166 Wis. at 622-23 (emphasis added). The court also approvingly quoted Rast: "This may not be called in an exact sense a 'lottery,' may not be called 'gaming'-, it may, however, be considered as having the seduction and evil of such. ..." Sperry & Hutchinson, 166 Wis. at 623-24 (quoting Rast, 240 U.S. at 365) (emphasis added). The use of trading stamps involved the elements of prize, chance, and consideration, but trading stamps did not fall within the lottery statute. The prohibition of these stamps required specific legislation. Thus, in 1916 this court acknowledged that "lottery" was not an all-inclusive term for "gaming."
¶ 138. To sum up, after reviewing relevant 19th Century and early 20th Century material, I find no evidence that the framers of the 1848 Wisconsin Constitution and the people who adopted it intended to ban all forms of gambling by approving Article IY Section 24. They intended to prevent the legislature from authorizing a particular mass participation form of gambling that had frequently been used as a source of public and private revenue. The historical context shows that the provision requires a limiting interpretation.
*94III. INTERPRETING ARTICLE IV, SECTION 24 AS AMENDED IN 1987
¶ 139. Article iy Section 24 was amended three times between 1848 and 1986. The first amendment (1965) permitted certain kinds of promotional contests by excluding such actions as watching a television program, filling out a coupon, or visiting a mercantile establishment from consideration "as an element of a lottery." The second amendment (1973) authorized charitable bingo. The third amendment (1977) authorized charitable raffles.
¶ 140. In 1987 the constitution was amended twice more to authorize pari-mutuel on-track betting and a state operated lottery. In interpreting the latter provision, we begin with the words. The 1987 lottery amendment provided:
(6) The legislature may authorize the creation of a lottery to be operated by the state as provided by law. The expenditure of public funds or of revenues derived from lottery operations to engage in promotional advertising of the Wisconsin state lottery is prohibited. Any advertising of the state lottery shall indicate the odds of a specific lottery ticket to be selected as the winning ticket for each prize amount offered. The net proceeds of the state lottery shall be deposited in the treasury of the state, to be used for property tax relief as provided by law.
¶ 141. The wording of subsection (6) was consistent with my interpretation of subsection (1). Notwithstanding the general bar in subsection (1) on legislative authorization of "any lottery," subsection (6) gave the legislature authority to permit a single sponsor — the state — to create, operate, and advertise a lottery with multiple prizes. People could make themselves eligible *95for these prizes by purchasing "tickets." To be fair, however, the state lottery was required to advise people of "the odds of a specific lottery ticket to be selected as the winning ticket for each prize amount offered." For the state, the overriding purpose of the lottery was the generation of revenue "for property tax relief as provided by law." The professionalism and public scrutiny given to state operation of the lottery would protect people from mismanagement or fraud.
¶ 142. In 1987 the word "lottery" in subsection (6) gave no hint of applying to every gambling enterprise involving prize, chance, and consideration.
¶ 143. In interpreting the amendment, we are expected to consider the history of the times. By 1987 three of Wisconsin's neighboring states — Michigan, Illinois, and Iowa — had approved and started up lotteries like Wisconsin's. Minnesota was soon to follow. At least 26 states had established state lotteries before Wisconsin acted.
¶ 144. A report on "Gambling in California" produced by the California Research Bureau in 1997, explains the background:
Growing opposition to tax increases was a leading factor in establishing state-run lotteries in the 20th century. In 1964 New Hampshire was the first state to sponsor a lottery, followed by New York in 1967. New Jersey launched the first financially successful modern lottery in 1971.
Lotteries are legal now in 37 states and the District of Columbia.
Roger Dunstan, Gambling in California, II-9, III-l, California Research Bureau, California State Library *96(1997) available at http://www.library.ca.gov/CRB/97/ 03/crb97003.html (last visited Mar. 2, 2006). This information provides historical context.
¶ 145. In October 1989 the Wisconsin Lottery asked Attorney General Donald J. Hanaway to answer two questions: (1) What is the scope of gaming in which the Wisconsin Lottery is authorized or permitted to engage by Article Section 24 of the Wisconsin Constitution and Chapter 565 of the Wisconsin Statutes; and (2) If the Wisconsin Lottery cannot legally offer a particular type of gaming or gambling operation as part of the lottery, may such type of game or gambling operation be lawfully included in state-tribal gaming compacts within the Indian Gaming Regulatory Act, 25 U.S.C. § 2701-2721?
¶ 146. Attorney General Hanaway answered these questions in a 1990 opinion. 79 Op. Att'y Gen. 14 (1990). He concluded that the term Tottery" in the constitution and statutes did not include all forms of gaming:
Betting, playing gambling machines and operating gambling places are not to be considered as included within the meaning of the term lottery as used in the constitution, and chapters 945 and 565, Stats. (1987-88). Therefore, it is clear, that the meaning of the term lottery as contained in the constitution and both legislative enactments up to the present day does not include and is not meant to embrace all the forms of gambling.
Id. at 26.
¶ 147. Attorney General Hanaway observed that constitutional provisions on the same subject are normally construed together and considered to be in pari *97materia. Id. He also asserted that constitutional provisions, like statutes, should be construed to make sense.
It is apparent to me that during the entire legislative debate, over several years, on the advisability of adopting a resolution providing for a constitutional amendment authorizing a state operated lottery, during the public debate prior to the ratification of such constitutional amendment by statewide referendum in April of 1987, and during the legislative deliberations and debate on the enactment of legislation enabling the lottery constitutional amendment, chapter 565, there was neither legislative or public discussion or debate nor legislative or public intent to authorize the playing of roulette, blackjack, craps, slot machines, video gambling machines and other types and forms of casino gambling.
Id. at 26-27.
¶ 148. Attorney General Hanaway's reference to Chapter 565 of the statutes alluded to the fact that the first legislation following the enactment of the amendment dealt with the state operated lottery as a specific form of gambling.
¶ 149. The implications of Hanaway's opinion were controversial. In light of the opinion, Wisconsin's 11 Indian tribes and bands were not entitled to demand casino gambling based on the lottery amendment. However, the legislature was not barred by the constitution from authorizing casino gambling, slot machines, and video games. In fact, the legislature could authorize casino gambling "just in Indian country." Id. at 14, 32. A more subtle implication of Hanaway's opinion was that previous attorneys general, the Wisconsin Supreme Court, and the Legislative Reference Bureau had been reading too much into the original 1848 provision. For *98diverse reasons, Hanaway's opinion was sharply criticized, and he was defeated in the November 1990 election.19
¶ 150. The new attorney general, James E. Doyle, issued a second opinion in May 1991. 80 Op. Att'y Gen. 53 (1991). The Assembly Organization Committee asked him: "[D]oes Wisconsin Constitution, article iy section 24, prohibit all forms of gambling in Wisconsin, except for those matters specified in the Constitution, or does the constitutional term 'lottery' have a narrow scope that would allow legislation to be enacted legalizing the forms of gambling to which reference is made in OAG 3-90?" Id. at 53.
¶ 151. Attorney General Doyle concluded that the legislature could not authorize any scheme involving prize, chance, and consideration without amending the constitution unless the scheme fell within the bingo, raffle, pari-mutuel on-track, or state lottery exceptions to the constitution. Id.20 He added, however, that "the Legislature may authorize any type of state-operated lottery subject only to the advertising, use-of-revenue and off-track wagering restrictions. The Legislature may not. . . authorize such lotteries if they are not operated by the state, or fall within the bingo, raffle or on-track, pari-mutuel exceptions." Id. at 58 (emphasis added). In short, the legislature could permit the state (but only the state) to operate casinos with every form of casino gambling.
*99¶ 152. Attorney General Doyle said he based his opinion on "prior decisions of the Wisconsin Supreme Court, the legislative history of the 1955 criminal code revision and the manner in which the Legislature has treated the term 'lottery' in proposing amendments to our constitution and enacting legislation." Id. at 54.
¶ 153. Attorney General Doyle quoted from the familiar three-part methodology for interpreting a constitutional provision, id., but his opinion substantially disregarded this methodology to reach its conclusion.
¶ 154. The Doyle opinion operated from the reasonable premise that the term "lottery" in subsection (1) of Article iy Section 24 and the term "lottery" in subsection (6) should be construed the same. Id. at 57 (citing United States v. Nunez, 573 F.2d 769, 771 (2nd Cir. 1978); 2A Singer, Sutherland Statutory Construction § 46.06 n.6 (Sands 4th ed. 1984)). It argued that because the term "lottery" in subsection (1) covered all gambling, the term "lottery" in subsection (6) also must cover all gambling.
¶ 155. There were significant problems with this conclusion. In focusing on subsection (1), the opinion did not take into account the meaning, purpose, history, and interpretation of the provision in 1848. It concentrated instead on broad interpretations of the term "lottery" many years after the provision was adopted. According to the opinion:
(1) "The term 'lottery' has been continuously and uniformly construed by the courts to include the three elements of prize, chance and consideration." 80 Op. Att'y Gen. at 55 (citing cases).
(2) "Numerous prior opinions of the attorney general have ... found a violation of the lottery statute whenever the three elements of prize, chance and consideration were present in any scheme." Id.
*100(3) "As stated by the Wisconsin Supreme Court: 'The legislature, the courts, and the attorney general have traditionally taken a restrictive view of games, schemes, and plans involving a prize, chance, and consideration, condemning them as lotteries prohibited by the constitution.'" Id. at 55-56 (quoting Kay den Indus. 34 Wis. 2d at 724) (emphasis added).
¶ 156. In reviewing this analysis, there is no dispute "that a lottery involves three elements. There must be a prize, chance, and a consideration." State ex rel. Cowie v. La Crosse Theaters Co., 232 Wis. 153, 158, 286 N.W. 707 (1939). It does not follow, however, that every undertaking that involves prize, chance, and a consideration is a lottery.
¶ 157. Gambling is a broad term covering many forms. A lottery is one form of gambling. Pari-mutuel on-track betting is another form of gambling. Roulette is a form of gambling. Each of these forms includes the elements of prize, chance, and consideration. But each of these forms has unique characteristics. It is no more logical to say that the term "lottery" includes "roulette" than to say that the term "roulette" includes "parimutuel on-track betting."
¶ 158. When we carefully examine the authorities cited in Attorney General Doyle's opinion, we can begin to understand how constitutional interpretation wandered off course.
¶ 159. In 1916 Attorney General Walter Owen was asked by officials of the Wisconsin State Fair whether they could sell lapel buttons together with a "ticket for admission, upon the back of which will be a number. The holder of the lucky number will win an Overland automobile." 5 Op. Att'y Gen. 380, 380 (1916). The Attorney General concluded that this scheme constituted a lottery in violation of Wis. Stat. §§ 4523 and *1014524. Id. at 382. His opinion made no reference to Article iy Section 24 of the Wisconsin Constitution. He quoted from Monte M. Lemann, Lotteries 25, Cyclopedia of Law and Procedure 1633 (William Mack & Howard E Nash eds., 1912), that "a lottery is a species of gaming which may be defined as a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize." Id. at 381 (emphasis added). Thus, the state fair plan constituted a lottery under the lottery statute. "State agencies charged with the duty of carrying forward state enterprises should not adopt methods in the prosecution of their work which amount to violation of criminal statutes." Id. at 382 (emphasis added).
¶ 160. In a 1920 opinion, Attorney General John Blaine commented on gift coupons containing four numbers. These numbers could be drawn separately and awarded prizes. See 9 Op. Att'y Gen. 9 (1920). Both the distribution of the coupons and the drawing of the numbers were orchestrated by a local newspaper. After quoting the same definition of lottery quoted in the 1916 opinion, the Attorney General said:
If the coupon is obtained without money, without consideration or without the rendering of services, as some form of valuable consideration, the return merely constitutes a method for the distribution of a gratuitous gift.
If there was a consideration here for the sale of the chance or for the receipt of the coupon, which constitutes evidence of chance, a lottery perhaps might be shown.
If, in order to receive the coupon, it is necessary for one to purchase a newspaper, in such case it might be held a lottery scheme.
*102Id. at 11. Attorney General Blaine did not cite Article iy Section 24.
¶ 161. In a 1922 opinion, Attorney General William Morgan stated: "It is unlawful to sell numbered tickets for general admission ... and make a free gift of an automobile to the purchaser and owner of a ticket." 11 Op. Att'y Gen. 396 (1922). Then he added: "Whenever prizes are given, the prize winner being determined by chance, and there being a consideration paid for such chance, it is a violation of our antilottery laws." Id. (emphasis added). The Attorney General's use of the word "whenever" in this sentence without reference to the limitations of either the constitution or statutes, represented a substantial broadening of the term "lottery."
¶ 162. In subsequent opinions, 23 Op. Att'y Gen 396 (1934) ("a scheme to sell about 100,000 tickets out of which twenty-three will be drawn to receive $500 each and the twenty-fourth to receive $10,000"); 26 Op. Att'y Gen. 143 (1937) (bank night, involving cards bearing numbers entitling holders to prize money if they also purchase theater tickets); 28 Op. Att'y Gen. 457 (1939) (a modified form of bank night); and 28 Op. Att'y Gen. 556 (1939) (ticket dispenser at movie theater periodically gives ticket refunds depending on how many tickets are sold), attorneys general concluded that each of the respective schemes was a "lottery."
¶ 163. In most of the above-referenced opinions, the respective attorney general pointed to a specific lottery statute, such as Wis. Stat. § 348.01 (1939). This lottery statute was different from the statutes that covered gaming devices (Wis. Stat. § 348.07 (1939)), betting upon games (Wis. Stat. § 348.08 (1939)), gambling contests of skill, speed, or power of man or beast (Wis. Stat. § 348.085 (1939)), "policy" games (Wis. Stat. *103§ 348.171 (1939)), and pool selling (bookmaking) (Wis. Stat. § 348.172 (1939)). One deficiency in Attorney General Doyle's opinion was that it failed to mention the multitude of attorney general opinions that discuss other forms of gambling besides lotteries but do not make reference to the term "lottery."
¶ 164. Attorney General Doyle also cited four cases to support the proposition that the term "lottery" has been "continuously and uniformly construed by the courts to include the three elements of prize, chance and consideration." 80 Op. Att'y Gen. at 55 (citing Kayden Indus., 34 Wis. 2d 718; State v. Laven, 270 Wis. 524, 71 N.W.2d 287 (1955); State ex rel. Regez v. Blumer, 236 Wis. 129, 294 N.W. 491 (1940); and La Crosse Theaters, 232 Wis. 153). Curiously, the opinion omitted State ex rel. Trampe v. Multerer, 234 Wis. 50, 289 N.W. 600 (1940).
¶ 165. The La Crosse Theaters case involved bank nights at a theater. The State sought to enjoin the practice as a nuisance on the ground that a bank night was a lottery. The defendant argued that a bank night did not constitute a lottery. This court disagreed, stating "that a lottery involves three elements. There must be a prize, chance and a consideration." La Crosse Theaters, 232 Wis. at 158. It concluded that going to a theater either to purchase a ticket or to register to become eligible for a prize was "consideration" and part of a "scheme" to increase ticket sales at the theater. When the court addressed an additional argument that the state should not seek to enjoin the violation of a criminal statute, it noted that the state had "abated" a place where liquor was sold during Prohibition. Then it added: "The maintenance of a lottery is as much the violation of the public policy of the state as declared by its constitution and its criminal statutes as is the sale of *104intoxicating liquor in violation of its criminal laws, or ... the Eighteenth Amendment." Id. at 160-61 (emphasis added). This oblique reference to the constitution added a new dimension to the analysis.
¶ 166. The Regez and Laven cases did not discuss the constitution. They did nothing more than reiterate the three elements of a lottery. But the uncited case, Multerer; added a twist.
¶ 167. In Multerer (1940), a private citizen sought to enjoin the defendants from maintaining or permitting a gambling house and from conducting bingo on the premises. Multerer, 234 Wis. at 51. The citizen accused the defendants of openly using their premises to carry on the game of bingo "or similar and other games of chance," and contended that the premises constituted "a common gambling resort; [and] that great numbers of persons resorted to said premises for the purpose of gaming or gambling." Id. The defendants acknowledged that their public halls "had been rented to various charitable, religious, and fraternal organizations who had played bingo and used the proceeds for charitable, religious, and fraternal purposes." Id. (citing Wis. Stat. § 348.07 (1939)). The circuit court concluded that bingo was "a gambling game" and that the citizen was entitled to an injunction.
¶ 168. On appeal, the defendants contended that "bingo was not gambling as it was played upon the defendants' premises." Id. at 55. But they conceded "that the term 'gamble' is sufficiently broad to embrace the game of bingo if played for money or prizes and for purposes other than those of raising money for charitable or patriotic purposes." Id. at 55-56. The court responded:
We have no doubt that bingo, as played for about a year upon the defendants' premises, was a gambling *105game and was a lottery. ... [A] lottery involves three elements. There must be a prize, chance, and a consideration. ... In the playing of bingo there obviously was a consideration. .. Clearly, bingo as played upon the premises was a lottery, and was played in violation of the statutes of this state. Sec. 348.01, Stats.
Id. at 56 (emphasis added).
¶ 169. None of the above-quoted language is suspect. But the court plowed on: "Sec. 24, art. IX of our constitution provides: 'The legislature shall never authorize any lottery.' That is a strong declaration of the public policy of this state." Id. "If a state or its municipalities may not be authorized by its legislature to conduct gambling and lotteries for their benefit, it seems clear that religious or charitable organizations could not be so authorized, in the face of a constitutional provision like ours." Id. at 58.
¶ 170. What the court did in Multerer — for the first time — was to assert that the constitution prohibited "gambling," which is a much broader term than "lottery." The decision is notable for its total failure to apply any of the methodology we now consider proper in interpreting a constitutional provision to discern the intent of the framers and the people who adopted the provision.
¶ 171. After the Multerer decision, attorneys general broadened their interpretation of lotteries to include other gambling. See, e.g., 32 Op. Att'y Gen. 181 (1943) (coin-in-the-slot gambling games and devices of pinball, slot machine or similar design type, as well as bingo, are lotteries prohibited by Article IX Section 24, citing Multerer). Thus, it was not surprising when this court stated in Kayden Industries (1967) that: "The legislature, the courts, and the attorney general of Wisconsin have traditionally taken a restrictive view of *106games, schemes, and plans involving prize, chance, and consideration, condemning them as lotteries prohibited by the constitution." Kayden Indus., 34 Wis. 2d at 724 (emphasis added).
¶ 172. Attorney General Doyle's opinion used this quotation as the central tenet in its analysis of the original Article IY Section 24, even though none of the court decisions or attorney general opinions leading to this statement had ever provided a serious analysis of the meaning or intent of the constitutional text. This same mistaken mindset of Tottery equals all gambling" —based upon cases like Kayden Industries — prompted the Legislative Reference Bureau repeatedly to draft constitutional amendments on gambling as exceptions to the prohibition on lotteries in Article IY Section 24.
¶ 173. Once again, while it is true that a lottery requires the elements of prize, chance, and consideration, it is not true that every game involving prize, chance, and consideration is a lottery. A lottery is gambling, but not all gambling is a lottery, because lotteries are but one species in the larger class of gambling.
¶ 174. Having concluded that the term "lottery" in subsection (1) of Article IY Section 24 covered all gambling, Attorney General Doyle's opinion set out to render a consistent interpretation of the term "lottery" in subsection (6). In subsection (6), however, the term "lottery" was surrounded by other language such as "specific lottery ticket," "winning ticket," "promotional advertising," and "the odds of a specific lottery ticket [being] selected as the winning ticket."
¶ 175. The opinion tackled the "ticket" dilemma as follows:
[I do not] view the use of the word "ticket" in the third sentence ... as limiting the lottery to games *107employing a ticket as a method of determining the winner. The plain, ordinary definition of ticket is "a written, typed, printed, stamped, or engraved notice, record, memorandum, or token." Webster's Third New International Dictionary 2389 (1986). Under this definition, a ticket is evidence of participation in a lottery game. The word ticket does not require that the ticket be in some way used in the play of the game or selection of the winner .... Under the plain meaning of the word "ticket" as set forth above, a note, document or token in writing which serves as a permit to participate in any specific game would serve as a ticket within the meaning of the constitutional provision.
The Lottery Board currently operates three such games involving tickets. The instant game television show does not use the ticket to determine the amount of the prizes awarded on the television show. A ticket is used to determine the participants in the show. Megabucks and SuperCash tickets are memoranda of the numbers selected by the player. The winners are ultimately determined by mechanical selection of numbered balls.
80 Op. Att'y Gen. at 58-59 (emphasis added).
¶ 176. This rationale covered particular games conducted by the Wisconsin Lottery. It even covered the evidence of a pari-mutuel bet on a particular horse or dog in a specific race. But it did not explain a person's play with a slot machine or at a roulette table. It did not try to equate tickets and cards.
¶ 177. The constitutional requirement that the State provide "the odds" that a person will win a specific lottery game, when applied to non-lottery games such as roulette or poker, was simply explained away with the comment that "implementation of some lottery *108games [will be] more difficult [for the State Lottery] than others." Id. at 58.21
¶ 178. The 1991 Attorney General's opinion did not examine the 1987 amendment in its historical context, and it did not discuss its legislative intent. Attorney General Hanaway had asserted that there was no evidence that the framers of the amendment or the people who adopted it ever intended to authorize casino gambling. 79 Op. Att'y Gen. at 26-27. Attorney General Doyle never rebutted this assertion.22 There was also *109no discussion in the opinion of the relationship between the lottery amendment and the pari-mutuel on-track betting amendment adopted the same day. The lottery amendment purportedly gave the legislature authority to permit the State Lottery to conduct "casino-type games" as well as other gaming activities besides traditional lotteries. 80 Op. Att'y Gen. at 58. But the pari-mutuel on-track betting amendment specifically *110provided that, "The state may not own or operate any facility or enterprise for pari-mutuel betting, or lease any state-owned land to any other owner or operator for such purposes." Article IV, Section 24(5) (1987). It is hard to reconcile these provisions. Why would the voters ratify state operation of casinos and slot machines but prohibit state operation of pari-mutuel on-track betting?
¶ 179. In my view, Attorney General Doyle's opinion was grounded on a mistaken premise about the effect of subsection (1), followed by a mistaken and tortured interpretation of subsection (6) so that it coincided with subsection (1). His interpretation of subsection (6) disregarded historical setting and the intent of the framers and the people who adopted it.
IV THE UNITED STATES DISTRICT COURT'S DECISION IN THE LAC DU FLAMBEAU CASE
¶ 180. Attorney General Doyle's 1991 opinion contained a footnote that "The State of Wisconsin is currently a defendant in a lawsuit involving the issue of gambling activities which must be the subject of negotiations between the state and Indian tribes under the Indian Gaming Regulatory Act." 80 Op. Att'y Gen. at 54 n.l. The lawsuit referred to was Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 770 F. Supp. 480 (W.D. Wis. 1991). This landmark case resulted in an order requiring the state to negotiate Indian casino gaming in Wisconsin.23
¶ 181. The United States District Court ordered Wisconsin to negotiate over all forms of Class III *111gaming under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701. The court stated:
The parties dispute whether the state is required to include casino games, video games and slot machines in its negotiations with the tribes. I conclude that it is required to negotiate those activities because they are permitted under Wisconsin law within the meaning of 25 U.S.C. § 2710(d)(1)(B).
Lac du Flambeau, 770 F. Supp. at 482.
¶ 182. In my view, this conclusion represented a fundamental misreading of IGRA. The critical provision of IGRA reads as follows:
(d) Class III gaming activities; authorization; revocation; Tribal-State compact
(1) Class III gaming activities shall be lawful on Indian lands only if such activities are—
(A) authorized by [a Tribal] ordinance or resolution . . .
(B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and
(C) conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3) that is in effect.
25 U.S.C. § 2710(d)(l)(A)-(C) (emphasis added).
¶ 183. In Lac du Flambeau, the State argued that, irrespective of the Wisconsin Constitution, casino games, video games, and slot machines were not permitted for any purpose by any person, organization, or entity, and thus Wisconsin was not required to bargain over these games. According to the court:
Defendants' position is that Congress meant "permits" to be given its usual dictionary meaning of formally or *112expressly granting leave; therefore, unless a state grants leave expressly for the playing of a particular type of gaming activity within the state, that activity cannot be lawful on Indian lands.
Lac du Flambeau, 770 F. Supp. at 484-85. The court disagreed, pointing to alternative definitions of "permits," namely to "allow" or to "let" or to "acquiesce."
¶ 184. More significant, however, the court adopted the United States Supreme Court's analysis in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), "on which [it said] Congress relied in drafting the Indian Regulatory Gaming Act [sic]." Lac du Flam-beau, 770 F. Supp. at 485. It noted that Cabazon said, "a court must analyze the state's policy toward gambling" to determine whether a state's criminal laws would apply to gambling on Indian lands. Id. By embracing this approach, the court substituted judicial balancing for the criteria set out in IGRA. The court said:
The initial question in determining whether Wisconsin "permits" the gaming activities at issue is not whether the state has given express approval to the playing of a particular game, but whether Wisconsin's public policy toward Class III gaming is prohibitory or regulatory.
Id. at 486. The court concluded: "The amendments to the Wisconsin Constitution evidence a state policy toward gaming that is now regulatory rather than prohibitory in nature. Id. "I conclude that [Wisconsin] is required to negotiate [casino games] because they are permitted under Wisconsin law within the meaning of 25 U.S.C. § 2710(d)(1)(B)." Id. at 482 (emphasis added).
¶ 185. In reaching this conclusion, the court leaned heavily on Attorney General Doyle's opinion. Utilizing the opinion's truncated historical analysis, the court stated:
*113The original Wisconsin Constitution provided that "[e]xcept as provided in this section, the legislature shall never authorize any lottery, or grant any divorce." For more than a century, this prohibition against "any lottery" was interpreted as prohibiting the operation or playing of any game, scheme or plan involving the elements of prize, chance and consideration.
Id. at 486 (emphasis added).24
¶ 186. The court added:
When the voters authorized a state-operated "lottery," they removed any remaining constitutional prohibition against state-operated games, schemes or plans involving prize, chance and consideration, with minor exceptions. See Op. Att'y Gen. Wis. 10-91, slip op. at 5 ("Under the [state] constitution, the Legislature may authorize any type of state operated lottery subject only to the advertising, use-of-revenue and off-track wagering restrictions.").
The amendments to the Wisconsin Constitution evidence a state policy toward gaming that is now regulatory rather than prohibitory in nature. See [California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987)] .... The fact that Wisconsin continues to prohibit commercial gambling and unlicensed gaming activities does not make its policy prohibitory.
Id. at 486-87.
¶ 187. The court used Attorney General Doyle's opinion again to rebut the State's argument about distinctions among different gaming activities:
Defendants offer no authority for distinguishing between the State's current lottery games and the *114[casino game] activities proposed for negotiation by the tribes. Instead the state makes the bald statement that casino games "are of a wholly different character than a state lottery or on-track pari-mutuel wagering." Defendants' reply brief at 17. The state's current attorney general has rejected the imposition of artificial distinctions within the term lottery, so long as the activity involves the elements of prize, chance and consideration and is not addressed explicitly by the constitutional amendments. Op. Att'y Gen. Wis. 10-91, slip op. at 5-7. I find no reason to impose similarly artificial categories in applying the Cabazon test and in interpreting the Indian Gaming Regulatory Act.
Id. at 487.
¶ 188. In sum, the court used Attorney General Doyle's opinion to conclude that Wisconsin had given a green light to nearly comprehensive gambling activity operated by the state, thereby moving from a prohibitory to a regulatory policy. As a result, the court said, Wisconsin was required to negotiate all Class III gaming with its tribes.25
¶ 189. The State appealed the district court's decision, but the Seventh Circuit Court of Appeals refused to review the merits of the action because the State failed to file a timely notice of appeal. Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 957 F.2d 515 (7th Cir. 1992). The State filed its appeal before the district court disposed of a motion *115to vacate the judgment, and thus the State's appeal was dismissed. The Seventh Circuit said:
Much as we regret visiting the effects of counsel's error on the State of Wisconsin in a case bearing on its governmental powers, the current version of Rule 4(a)(4) leaves no alternative. A timely notice of appeal is essential to this court's jurisdiction. The notice defendants filed is ineffective. The appeal is dismissed for want of jurisdiction.
Id. at 517.
¶ 190. Four months after the Seventh Circuit dismissed the State's appeal, eight members of the Wisconsin legislature filed a petition to commence an original action in this court. Leann v. Wisconsin, 1993 Wise. LEXIS 16, No. 92-1861-OA (Jan. 20, 1993). This court denied the petition on grounds that it presented no justiciable controversy. Id. at *2. Three members of the court, Justices Bablitch, Day, and Wilcox, would have heard the matter to clear up the confusion surrounding the meaning of the word "lottery." Id. at *8-9 (Bablitch, J., dissenting). The others refused.
¶ 191. As a result of these decisions, the district court's holding and order were never reviewed. Not until Panzer v. Doyle did a Wisconsin court openly question the correctness of the Lac du Flambeau ruling. Panzer, 271 Wis. 2d 295, ¶ 92. Now that a majority of this court adopts Lac du Flambeau, it is necessary to revisit the decision and show why the court's ruling was wrong.26
*116¶ 192. Under IGRA, the statutory test for determining whether a state is required to negotiate a particular Class III gaming activity with Indian tribes is whether the state "permits such gaming for any purpose by any person, organization, or entity." 25 U.S.C. § 2710(d)(1)(B). The district court rejected a narrow interpretation of "permits," that is, it rejected any requirement for formal authorization of an activity by the state. But the court went well beyond that interpretation by construing the phrase "such gaming" in § 2710(d)(1)(B) to refer to all "Class III gaming activities" in § 2710(d)(1). Thus, in the court's view, if a state permitted or allowed any Class III gaming activity (like a state lottery), it was required to negotiate all gaming activities within Class III. There are several reasons why this conclusion was erroneous.
¶ 193. First, the phrase "such gaming" refers back to "Class III gaming activities," 25 U.S.C. § 2710(d)(1), not "Class III gaming." The term "Class III gaming" is defined in 25 U.S.C. § 2703(8). "Class III gaming" is a very broad term that encompasses an entire class of gaming under the statute, made up of everything that is not in the two other classes. By contrast, the phrase "Class III gaming activities" is elastic enough to cover *117all or part of the specific gaming activities within Class III. Clearly, "a" Class III gaming activity describes one of the gaming activities within that class.
¶ 194. Class III gaming activities are lawful only when they meet certain conditions. For instance, "Class III gaming activities shall be lawful on Indian lands only if such activities" are (A) authorized by a Tribal ordinance or resolution and (C) "conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3)." Significantly, paragraph (3) refers to "a Class III gaming activity," a subset of the larger class. In addition, the statute contemplates tribal ordinances and tribal-state compacts enumerating one or more specific Class III gaming activities that have been authorized by a tribe and/or negotiated with a state. It would make no sense for either a tribe or a state to negotiate Class III gaming as a whole because neither party would be able to predict everything that might someday fall within that exceptionally broad class. Likewise, subparagraph (B) makes sense only when the term "such gaming" refers to one or more specific gaming activities permitted by the state.
¶ 195. Second, logic and history dictate this construction. A number of states permitted certain Class III gaming activities (like a state-operated lottery, parimutuel betting, slot machines, or jai alai) long before IGRA was enacted in 1988. These states acted before the statutory classification — "Class III gaming" — even existed. Thus, if the district court's interpretation of the statute were correct, each of these states would have been required — involuntarily—to negotiate all casino games with any tribe within its borders, irrespective of whether the state permitted any of these games. (To illustrate the district court's theory, if a state permitted *118or allowed jai alai (and only jai alai) before IGRA, it would have been required to negotiate pari-mutuel betting, slot machines, and casino gaming after IGRA became law.) It passes belief to suppose that members of Congress from a state that had previously approved a single gaming activity now classified as a Class III gaming activity, would have voted for federal legislation that blew the doors off Indian gaming and transferred so much of their state's police power to other sovereign-ties. It is one thing to argue that a state that opens the door a crack to a particular gaming activity must negotiate that activity with all its tribes. See Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024, 1026, 1029 (2nd Cir. 1990). It is quite another thing to argue that opening up the door to one gaming activity opens the doors to all gaming activities.
¶ 196. Third, legislative intent is also revealed in IGRA's legislative history. On June 25, 1987, Senator John McCain of Arizona appeared before the House Committee on Interior and Insular Affairs for a hearing on IGRA. Senator McCain said:
[W]hen we talk about gaming spreading all over this country, let's not forget that no tribe will be allowed to have gaming operations which exceed that which is already allowed in the State.
So, let's not paint the picture, let's not say casinos are going to. spring up all over this Nation; they are not. No gaming will be allowed which exceeds the gaming which is allowed for non-Indians in that State.
Indian Gaming Regydatory Act: Hearing on H.R. 964 and H.R. 2507 Before the Comm, on Interior and Insular Affairs, 100th Cong. 177 (1987).
¶ 197. Committee Chairman Morris K. Udall agreed:
*119Mr. McCain pointed out that one of the basic things in our bill, as long as we have been involved in this, is that Indians are not going to get any better treatment than anybody else, but they are going to get as good a treatment as anybody else, and if you have j'ai alai and poker parlors and whatnot in California, you can have j'ai alai and poker parlors in [an Indian] reservation or wherever else.
Id. at 178.
¶ 198. These basic assumptions about IGRA were echoed by other witnesses, including representatives of the Reagan Administration. See id. at 178 (statement of Rep. James H. Bilbray (D-Nev.)); id. at 208 (statement of Victoria Toensing, Deputy Assistant Att'y Gen., Criminal Div., United States Dep't of Justice); id. at 222 (statement of Ross O. Swimmer, Assistant Secretary Indian Affairs, Bureau of Indian Affairs, United States Dep't of Interior). See also Senate Hearings on S. 555 and S. 1303 Before the Select Comm, on Indian Affairs, 100th Cong. 86 (1987) (statement of Sen. Peter V Dominici).
¶ 199. The Senate Committee Report on Senate Bill 555, which ultimately became the Indian Gaming Regulatory Act, explained that Congress recognized:
the need to fashion a means by which different public policies of these respective governmental entities [tribes and states] can be accommodated and reconciled. This legislation is intended to provide a means by which tribal and State governments can realize their unique and individual governmental objectives, while at the same time, work together to develop a regulatory and jurisdictional pattern that will foster a consistency and uniformity in the manner in which laws regulating the conduct of gaming activities are applied.
S. Rep. No. 100-446, at 6 (emphasis added).
*120¶ 200. This language is not as direct in its guidance as it might be, but it recognizes the desirability of "consistency and uniformity" in gaming regulation as well as the right of a state to protect its governmental objectives. Thus, although IGRA permits a state to negotiate a compact that grants tribes exclusive authority to engage in certain Class III gaming activities, the state is not required to give its tribes the right to engage in these Class III gaming activities when it prohibits these activities to everyone else. Congress established a clear rule that a Class III gaming activity is lawful on Indian lands only if the activity is located in a state that permits the activity "for any purpose by any person, organization, or entity" and only if the activity is conducted in conformance with a Tribal-State compact.
¶ 201. Significantly, IGRA strips federal courts of their authority to make subjective evaluations that characterize a state's gaming policy as regulatory or prohibitory. The Committee report states:
S. 555 is intended to expressly preempt the field in the governance of gaming activities on Indian lands. Consequently, Federal courts should not balance competing Federal, State, and tribal interests to determine the extent to which various gaming activities are allowed.
S. Rep. No. 100-446, at 6 (emphasis added).
¶ 202. The report went on:
[T]he Committee anticipates that Federal courts will rely on the distinction between State criminal laws which prohibit certain activities and the civil laws of a State which impose a regulatory scheme upon those activities to determine whether class II games are allowed in certain States. . . . The Committee wishes to make clear that, under S. 555, application of the prohibitorylregulatory distinction is markedly different from the application of the distinction in the context of *121Public Law 83-280 [as applied in Cabazon]. Here, the courts will consider the distinction between a State's civil and criminal laws to determine whether a body of law is applicable, as a matter of Federal law, to either allow or prohibit certain activities.
Id. (emphasis added).27
¶ 203. This statement modifies the ruling in Caba-zon. Admittedly, the statement references "class II games," but this does not undermine the analysis. On the contrary, Class II gaming does not depend upon a compact. A tribe's right to a Class II gaming activity is determined by whether the state permits that gaming activity "for any purpose by any person, organization, or entity." 25 U.S.C. § 2710(b)(1)(A). Consequently, when a dispute arises over whether a certain Class II gaming activity is lawful on Indian land, the answer does not depend on whether the state has agreed to that activity in a formal way. The answer depends on whether the state has enacted criminal laws that prohibit that activity to everyone. This new rule is even more applicable to Class III gaming activities.
¶ 204. The original understanding of IGRA from 1987-88 is affirmed today by the National Indian Gaming Commission. In its "Indian Gaming Regulatory Act Overview," the Commission states:
*122The Indian Gaming Regulatory Act, enacted in 1988 as Public Law 100-497 and now codified at 25 U.S.C. § 2701, establishes the jurisdictional framework that presently governs Indian gaming.
The definition of class III gaming is extremely broad. It includes all forms of gaming that are neither class I nor II. Games commonly played at casinos, such as slot machines, black jack, craps, and roulette, would clearly fall in the class III category, as well as wagering games and electronic facsimiles of any game of chance. Generally, class III is often referred to a[s] casino-style gaming. As a compromise, the Act restricts Tribal authority to conduct class III gaming.
Before a Tribe may lawfully conduct class III gaming, the following conditions must be met: (1) The particular form of class III gaming that the Tribe wants to conduct must be permitted in the state in which the tribe is located; (2) The Tribe and the state must have negotiated a compact that has been approved by the Secretary of the Interior, or the Secretary must have approved regulatory procedures; and (3) The Tribe must have adopted a Tribal gaming ordinance that has been approved by the Chairman of the Commission.
See National Indian Gaming Commission, Indian Gaming Regulatory Act Overview, http://www.nigc.gov/laws/ igra/overview.jsp (last visited March 1, 2006) (emphasis added). The phrase "particular form of class III gaming" decimates the Lac du Flambeau ruling.
¶ 205. Looking back, the district court was incorrect in almost every respect. It misread Wisconsin constitutional history and it misinterpreted IGRA, first, by engaging in a balancing interpretation that wrongly characterized Wisconsin's climate toward Class III gaming as regulatory rather than prohibitory, even though *123Wisconsin prohibited all casino games by criminal statute; and, second, by concluding that if Wisconsin permitted any Class III gaming, it was required to negotiate all Class III gaming.
¶ 206. The district court's interpretation has been rejected by other federal courts.28 In Yavapai-Prescott Indian Tribe v. Arizona, 796 F. Supp 1292, 1296 (D. Ariz. 1992), the court said the Lac du Flambeau "ruling missed the mark and went too far." It quoted a district court in Washington as saying, "frankly, the Lac du Flambeau analysis seems overbroad." Id. at 1296 n.13 (quoting Spokane Tribe of Indians v. United States, 782 F. Supp. 520, 522 n.2 (E.D. Wash. 1991)).
¶ 207. In addition, it should be noted that the United States Supreme Court handed down an important sovereign immunity decision in Seminole Tribe v. Florida, 517 U.S. 44, 47 (1996). In that case, the Court *124held that the Indian Commerce Clause — the authority under which Congress enacted IGRA — does not empower Congress to abrogate a state's Eleventh Amendment immunity. As a result, unless a state consents to suit, an Indian tribe may not enforce IGRA against a state in federal court. Panzer, 271 Wis. 2d at 355 n.37. In other words, without Wisconsin's consent, the district court could not issue a decision like Lac du Flambeau today.
V THE LEGISLATIVE RESPONSE TO THE LAC DU FLAMBEAU DECISION
¶ 208. The Lac du Flambeau decision was issued on June 18, 1991. The Court's order "REQUIRED" the State "to conclude a tribal-state Class III gaming compact" with the two plaintiff tribes "within sixty (60) days from the date of this order." Lac du Flambeau, 770 E Supp. at 488. By June of 1992 Governor Tommy G. Thompson had negotiated compacts with all 11 of the State's federally recognized tribes.29 These compacts authorized (1) 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 where bingo is played. See Panzer, 271 Wis. 2d 295, ¶ 25. These 11 compacts were scheduled to expire seven years after each took effect, but they could be extended and amended.
¶ 209. One of the concluding paragraphs of the district court's opinion stated:
I conclude that the state is required to negotiate with plaintiffs over the inclusion in a tribal-state compact of any activity that includes an element of prize, *125chance and consideration and that is not prohibited expressly by the Wisconsin Constitution or state law.
Lac du Flambeau, 770 F. Supp. at 488 (emphasis added). The court's language was noted in the legislature and may have influenced the legislative response to the decision. See Memorandum from Jane R. Henkel, Deputy Dir. of the Legislative Council, to Sen. Lynn Adelman (Feb. 26, 1992) (hereinafter Henkel/Adelman Memorandum); and Memorandum from Jane R. Henkel to Rep. David Travis 3 (June 19, 1992) (hereinafter Henkel/Travis Memorandum) (both on file with the Wisconsin Legislative Council, Madison, Wisconsin).
¶ 210. On April 2, 1992, Governor Thompson announced that he would call the legislature into special session on April 14 to vote on "a bill that would limit all forms of casino gambling." Press Release, Governor Thompson Calls Gambling Special Session (Apr. 2, 1992) (on file with Legislative Reference Bureau, Madison, Wisconsin). The news release stated that, as of that date, only three tribes did not have compacts. On April 13 Governor Thompson issued another news release that stated:
Governor Tommy G. Thompson and Attorney General James Doyle have reached agreement on a bill limiting gambling. The legislature will consider the bill in special session tomorrow.
"The bill before the legislature tomorrow is one that both the Attorney General and I support," Governor Thompson said. "This bill will limit gambling to exactly what Wisconsin voters intended when they approved a state lottery...."
The bill, as agreed upon, will narrowly define lottery to a form of gambling including only the types of games currently offered by the State Lottery and prohibit casino gambling.
*126It will prohibit the legislature from authorizing expanded gambling that has not been approved by voters in a statewide referendum and will not affect Indian gambling compacts agreed to within 30 days after the bill takes effect.
News Release, Governor, Attorney General Agree on Gambling Bill (Apr. 13, 1992) (on file with the Legislative Reference Bureau, Madison, Wisconsin).
¶ 211. Governor Thompson's companion bills, April 1992 Special Session Senate Bill 1 and April 1992 Special Session Assembly Bill 1, did not pass, but April 1992 Special Session Assembly Bill 6, introduced in May, was approved.30 Analysis written by the Legislative Reference Bureau explained that:
*127The bill [ ] provides that the provisions of the bill which prohibit the state from conducting casino-type games shall not impair the provisions of any Indian gaming compact entered into by an Indian tribe and the governor before the date that is 30 days after the date on which the bill becomes law. Under the federal Indian gaming regulatory act, a casino-type game may be lawfully conducted by an Indian tribe on tribal lands in Wisconsin only if that activity is permitted to be conducted in Wisconsin by any other person, organization or entity and if the casino-type game is conducted by the tribe in conformance with a tribal-state compact that is entered into by the tribe and the state (governor) and approved by the secretary of the federal department of the interior.
¶ 212. The exception ultimately written into Wis. Stat. § 565.01(6m)(c) reads: "This subsection shall not affect the provisions of any Indian gaming compact entered into before January 1, 1993, under s. 14.035." The brevity of this exception is notable because, several weeks earlier, April 1992 Special Session Assembly Bill 3, introduced by the Committee on Assembly Organization, had contained an exception that read: "This subsection shall not affect the provisions of any Indian gaming compact entered into before the effective date of this paragraph . . . under s. 14.035, including any provisions in the compact relating to the extension, renewal or renegotiation of the compact." (Emphasis added.) On May 5, 1992, the Assembly adopted Assembly Amendment 4 to the bill striking out "renegotiation." The amendment was approved on a voice vote after efforts to table and reject the amendment had failed. The Assembly then adopted Assembly Amendment 2, 56 to 43, striking everything after "s. 14.035." Hence, the language in Wis. Stat. § 565.01(6m)(c) has a *128meaningful history.31 See drafting file for Wis. A.B. 3, April 1992 Special Session, on file with the Legislative Reference Bureau, Madison, Wisconsin.
¶ 213. On June 17, 1992, Governor Thompson issued an executive order calling a second special session to consider a constitutional amendment relating to distinguishing the State lottery from prohibited gambling, limiting "lottery," prohibiting lottery expansion to other games, and removing from the gambling section of the constitution the language prohibiting the legislature from granting individual divorces.32
¶ 214. The Governor's proposed amendment, June 1992 Special Session Assembly Joint Resolution 1 (1991 Enrolled Joint Resolution 27)33 made no reference to Indian gaming in its text or in its Legislative Reference Bureau analysis.
¶ 215. After his amendment was approved, Governor Thompson issued a news release complimenting the legislature. Governor Thompson stated:
This amendment begins the process of making a permanent, constitutional change to limit gambling in *129Wisconsin to the level Wisconsin citizens thought they approved in 1987. At that time, people voted for a lottery and parimutuel betting and not casino gambling. It is our responsibility to ensure that their wishes are upheld[.]
News Release, Governor Tommy G. Thompson, Governor Compliments Legislature On Limiting Gambling (June 30, 1992) (on file with the Legislative Reference Bureau, Madison, Wisconsin).
¶ 216. Early in 1993 the legislature took up a second consideration of the proposed constitutional amendment restricting gambling. See 1993 S.J.R. 2 (1993 Enrolled Joint Resolution 3). Again, the text of the amendment and the analysis of the amendment made no reference to Indian gaming.
¶ 217. In its original draft, 1993 Senate Joint Resolution 2 proposed a ballot question entitled: "No expansion of state lottery." This was amended in the Senate to a question innocuously entitled: "Clarify prohibition against gambling."
¶ 218. In the Assembly, a bipartisan group of legislators (Representatives Freese, Stower, Schneider, Ward, Welch, and Brancel) offered a pointed alternative question that was adopted and presented to the people. The new question read:
Question 1: Gambling expansion prohibited. Shall article IV of the constitution be revised to clarify that all forms of gambling are prohibited except bingo, raffles, pari-mutuel on-track betting and the current state-run lottery and to assure that the state will not conduct prohibited forms of gambling as part of the state-run lottery?
¶ 219. Before this amendment was adopted, Representatives Schneider, Freese, and Krug offered an *130amendment to insert the words "Indian gaming" into the list of exceptions in the question. This amendment was tabled without a vote. Then Representative Schneider offered a second amendment to modify the question by inserting the phrase "forms of gambling allowed under current state-tribal gaming compacts" into the list of exceptions. This amendment was rejected by the Assembly by a vote of 63 to 35.
¶ 220. On April 6, 1993, the proposed constitutional amendment restricting gaming in Wisconsin was approved by the people, 623,987 to 435,180. On the same day, the people voted on five advisory referenda related to gambling. One of these referenda asked: "Do you favor a constitutional amendment that would restrict gambling casinos in this state?" This advisory referendum was approved 646,827 to 416,722.
VI. INTERPRETING ARTICLE IV SECTION 24 AS AMENDED IN 1993
¶ 221. The principal issue in this case is whether the 1993 constitutional amendment on gambling affected the compacts negotiated with Wisconsin's Indian tribes in 1991-92.34 The issue presented requires that we interpret the amendment.
¶ 222. Article IV Section 24, after the 1993 amendment, reads in part as follows:
(1) Except as provided in this section, the legislature may not authorize gambling in any form.
(6) (a) The legislature may authorize the creation of a lottery to be operated by the state as provided by law. *131The expenditure of public funds or of revenues derived from lottery operations to engage in promotional advertising of the Wisconsin state lottery is prohibited. Any advertising of the state lottery shall indicate the odds of a specific lottery ticket to be selected as the winning ticket for each prize amount offered. The net proceeds of the state lottery shall be deposited in the treasury of the state, to be used for property tax relief for residents of this state as provided by law. The distribution of the net proceeds of the state lottery may not vary based on the income or age of the person provided the property tax relief. The distribution of the net proceeds of the state lottery shall not be subject to the uniformity requirement of section 1 of article VIII. In this paragraph, the distribution of the net proceeds of the state lottery shall include any earnings on the net proceeds of the state lottery.
(b) The lottery authorized under par. (a) shall be an enterprise that entitles the player, by purchasing a ticket, to participate in a game of chance if: 1) the winning tickets are randomly predetermined and the player reveals preprinted numbers or symbols from which it can be immediately determined whether the ticket is a winning ticket entitling the player to win a prize as prescribed in the features and procedures for the game, including an opportunity to win a prize in a secondary or subsequent chance drawing or game; or 2) the ticket is evidence of the numbers or symbols selected by the player or, at the player's option, selected by a computer, and the player becomes entitled to a prize as prescribed in the features and procedures for the game, including an opportunity to win a prize in a secondary or subsequent chance drawing or game if some or all of the player's symbols or numbers are selected in a chance drawing or game, if the player's ticket is randomly selected by the computer at the time of purchase or if the ticket is selected in a chance drawing.
*132(c) Notwithstanding the authorization of a state lottery under par. (a), the following games, or games simulating any of the following games, may not be conducted by the state as a lottery: 1) any game in which winners are selected based on the results of a race or sporting event; 2) any banking card game, including blackjack, baccarat or chemin de fer; 3) poker; 4) roulette; 5) craps or any other game that involves rolling dice; 6) keno; 7) bingo 21, bingo jack, bingolet or bingo craps; 8) any game of chance that is placed on a slot machine or any mechanical, electromechanical or electronic device that is generally available to be played at a gambling casino; 9) any game or device that is commonly known as a video game of chance or a video gaming machine or that is commonly considered to be a video gambling machine, unless such machine is a video device operated by the state in a game authorized under par. (a) to permit the sale of tickets through retail outlets under contract with the state and the device does not determine some or all of the player's symbols or numbers on the player's ticket have been selected in a chance drawing, or by verifying that the player's ticket has been randomly selected by a central system computer at the time of purchase; 10) any game that is similar to a game listed in this paragraph; or 11) any other game that is commonly considered to be a form of gambling and is not, or is not substantially similar to, a game conducted by the state under par. (a). No game conducted by the state under par. (a) may permit a player of the game to purchase a ticket, or to otherwise participate in the game, from a residence by using a computer, telephone or other form of electronic telecommunication, video or technological aid.
Wis. Const, art. iy § 24.
¶ 223. Focusing on the language of the amended section, there can be no doubt that the amendment established a sweeping limitation on the legislature's power to authorize "gambling in any form." The text *133lists several exceptions to this barrier, but it specifically denies the state-operated lottery any authority to conduct poker, roulette, craps, keno, and many other forms of gambling. Because these enumerated gaming activities are specifically excluded, they constitute forms of gambling that the legislature may not authorize.
¶ 224. The 1993 amendment does not explicitly include Indian gaming but it does not exclude Indian gaming either. Clearly, the section's present language is broad enough on its face to include Indian gaming. In these circumstances, the court must examine extrinsic materials to interpret the provision and give it proper effect.
¶ 225. It should be noted at once that the majority's wide-ranging examination of extrinsic materials — to discern the intent of the framers of the amendment and the people who adopted it — stands in stark contrast to the tunnel-vision that federal and state courts have applied to earlier versions of Article IV, Section 24. If courts had followed the proper methodology in interpreting the 1848 constitution and the 1987 amendment, the Wisconsin experience with Indian gaming would be very different.
¶ 226. The plain truth is that the amended constitution is different from the contemporaneously enacted statute, Wis. Stat. § 565.01(6m)(c), in that it contains no exception for Indian gaming. Moreover, if we look beyond the words of the amendment to its legislative history, we note that the legislature rejected an opportunity to clarify the amendment's impact on Indian gaming by amending the ballot question.
¶ 227. Nonetheless, a powerful case can be made that the amendment was not intended to close down Indian casinos.
*134¶ 228. First, in Wisconsin a constitutional amendment is to be given prospective effect unless the amendment specifically provides otherwise. Kayden Indus., 34 Wis. 2d at 731.35 The prospective effect of the 1993 amendment suggested to most lawmakers that if the amendment had any impact on Indian gaming, it would not come until 1998 and 1999, when the time came for the state to renew the compacts.
¶ 229. Second, there is persuasive evidence that legislators intended to preserve gaming as it existed in 1992, including Indian gaming. In response to an inquiry, Attorney General Doyle advised Representative John Medinger that "a constitutional amendment as proposed by the Governor would not affect compacts which already exist under the current state of the substantive law." Letter from Att'y Gen. James E. Doyle to Rep. John Medinger (June 24, 1992).
¶ 230. The Attorney General also advised Representative Marlin Schneider on February 3, 1993, that, in his opinion, "the proposed constitutional amendment would not affect Indian gaming currently being conducted in this state under the terms of the compacts between the various tribes and the Governor.... [A] constitutional amendment as currently proposed would not affect compacts which already exist under the current state of the substantive law." Letter from Att'y Gen. James E. Doyle to Rep. Marlin Schneider (Feb. 3, 1993) (emphasis added). These assurances were widely repeated during the ratification campaign by propo*135nents of the amendment, and they are reflected in newspaper editorials cited in the majority opinion.
¶ 231. Third, the legislature enacted Wis. Stat. § 565.01(6m)(c), excepting Indian gaming from statutory prohibitions before it first considered the constitutional amendment; and it signaled its approval of the 1991-92 compacts in subsequent legislation such as 1993 Act 406, creating Wis. Stat. § 992.20(1) (validating "[a]ll contracts for the .. . joint exercise of any power or duty required or authorized by law entered into by a municipality, as defined in s. 66.0301(1)(a), and a federally recognized Indian tribe or band in this state before May 6, 1994").
¶ 232. Finally, there was discussion in the legislature that the contracts clauses of the United States Constitution, Article I, Section 10, and the Wisconsin Constitution, Article I, Section 12, would prevent the proposed amendment from closing down Indian casinos. This discussion was fueled by memoranda from Jane R. Henkel, Deputy Director of the Legislative Council, to Senator Lynn Adelman, dated February 26, 1992, and to Representative David Travis, dated June 19, 1992. See Henkel/Adelman Memorandum and Henkel/Travis Memorandum.
¶ 233. Based on the evidence at hand, it would be hard to argue that either the proponents or opponents of the amendment expected or intended the immediate closure of Indian casinos.
¶ 234. The intended impact of the amendment on the extension of the Indian gaming compacts is not so clear. The consensus of news reports during the amendment's ratification process was that the amendment might affect renewal of the compacts. For instance, a Milwaukee Journal reporter concluded that though any "threat to closing Wisconsin Indian casinos *136if the amendment passes won't hit for six more years," there was the potential "when the compacts come up for renewal in 1998 and 1999 that the amendment could be used to shut down the tribal casinos." Steve Schultze, Answers help shed light on amendment questions, Milw. J., Apr. 4, 1993, at B-3. The Wisconsin State Journal noted that passage of the amendment would not affect the compacts for at least six years but that tribal members feared the state would not renew the compacts. Ron Seely, You can bet on it; Gaming referendum is sure to confuse, Wis. St.J., Apr. 4, 1993, at 1-A. This explains why some tribes opposed the amendment.
¶ 235. Each of the 11 compacts contained a provision for automatic renewal, worded as follows:
Duration.
A. This Compact shall be in effect for a term of seven years after it becomes binding on the parties.
B. The duration of this Compact shall thereafter be automatically extended for terms of five years, unless either party serves written notice of nonrenewal on the other party not less than one hundred eighty days prior to the expiration of the original term of this Compact or any extension thereof.
See St. Croix compact, section XXV (emphasis added).
¶ 236. In 1998 and 1999 the governor who signed the original compacts, Tommy Thompson, was still in office, and he extended the compacts by deciding not to serve a notice of nonrenewal on the tribes. Governor Thompson's decision to extend was not challenged at that time in court.
¶ 237. Extensions of the compacts were designed to occur automatically, without the necessity of negotiation. These extensions would not expand gambling in *137any substantive sense. They would preserve the status quo. This was consistent with the title of the ballot question: "Gambling expansion prohibited" — and it was consistent with explanations of the amendment by Senator Lynn Adelman and Representative Peter Bock, that approval of the amendment would "freeze the current level of gambling in Wisconsin and put a constitutional brake on new, expanded forms of gambling." Lynn Adelman & Peter Bock, Editorial, "Vote 'yes' on Question 7 to limit expansion," Milw. J., Mar. 29, 1993, at A-8. It was also consistent with Attorney General Doyle's assurance that "the proposed constitutional amendment would not affect Indian gaming currently being conducted." See Letter from Att'y Gen. James E. Doyle to Rep. Marlin Schneider (Feb. 3,1993).
¶ 238. Either party had the right to nonrenew existing compacts at five-year intervals. This is undisputed. However, there is little evidence that proponents intended the amendment to require a Wisconsin governor to nonrenew the compacts. In fact, some of the opposition to the amendment was based on the view that because of the automatic extension provisions in the compacts, the tribes were being given a permanent monopoly. In addition, legislators understood that if the amendment forced nonrenewal of the compacts, it would trigger lawsuits about the impairment of contracts because forced nonrenewal would eliminate the great bulk of the revenue-raising activity at Indian casinos. Finally, nonrenewal of compacts, one by one, would create problems of consistent treatment among the tribes. To illustrate, the compact of the Lac Courte Oreilles Band of Lake Superior Chippewa would have ended in mid-August 1998, if nonrenewed, but the Ho-Chunk Nation's compact would not have ended until June 1999. All tribes whose compacts would have *138been nonrenewed before the Ho-Chunk compact ended could have argued that Wisconsin was violating IGRA, or compact provisions, by permitting allegedly prohibited casino games in some Indian casinos, but not allowing the same games in the casinos of the tribes whose compacts had ended.
¶ 239. The 1998-99 compacts did have some amendments. However, the 1998-99 amendments did not render any of the compacts substantially different from the original compacts. For instance, the Forest County Potawatomi compact was amended to increase the number of slot machines from 200 to 1000 and to permit the playing of blackjack at the tribe's Menom-onee Valley Casino in Milwaukee. Panzer, 271 Wis. 2d 295, ¶ 32. The 1998-99 amendments did not give the Forest County Potawatomi (or any tribe) a new gaming activity.36 See generally Amendments to the Forest County Potawatomi Community of Wisconsin and the State of Wisconsin Gaming Compact of 1992, 1-4 (1998). The Forest County Potawatomi's original compact authorized slot machines at the Menomonee Valley site, so that only the number of slot machines changed; and it authorized blackjack at other Potawatomi tribal facilities. Forest County Potawatomi Compact §§ IV XV(H). Thus, the 1998-99 amendments did not violate *139the Wisconsin Constitution unless the extension by itself violated the constitution. They were also supported by 25 U.S.C. § 2710(d)(1)(B).
¶ 240. This brings us to the issue that was decided in Panzer, namely, whether the Governor had authority to approve amendments to the original Indian gaming compacts to add new games of poker, roulette, craps, and keno, which are explicitly prohibited by the Wisconsin Constitution.
¶ 241. In Panzer, the Governor contended that Wis. Stat. § 14.035 gives Wisconsin governors expansive authority to enter into and negotiate amendments to gaming compacts. Section 14.035 states: "The governor may, on behalf of this state, enter into any compact that has been negotiated under 25 U.S.C. § 2710(d)." This court recognized § 14.035 as an important delegation of power to the Governor, but it concluded that this power is "subject to certain implicit limits." Panzer, 271 Wis. 2d 295, ¶ 60.
¶ 242. The court held that the constitution acts as a limitation on both the legislature and the governor, and that the criminal code acts as a hmitation on the governor.
¶ 243. The power delegated to a governor also is limited by IGRA, 25 U.S.C. § 2710(d)(1)(B), which provides that "[cjlass III gaming activities shall he lawful on Indian lands only ¿/such activities are ... (B) located in a State that permits such gaming for any purpose by any person, organization, or entity." (Emphasis added.) Accordingly, if state law prohibits a Class III gaming activity, the governor's power to negotiate that activity is circumscribed. Panzer, 271 Wis. 2d 295, ¶ 89.37
*140¶ 244. IGRA does not invest a state governor with authority to negotiate games that are prohibited to everyone by state law. Instead, IGRA acknowledges the primacy of state law over a Class III gaming activity so long as the state does not permit that gaming activity to anyone for any purpose. Thus, a governor would contravene federal law if the governor contravened state law.
¶ 245. In Panzer, the court concluded the 1993 amendment to Article iy Section 24 of the Wisconsin Constitution and Wis. Stat. ch. 945, which criminalizes gambling, foreclosed the Governor from amending the compacts to include additional types of games prohibited by law. Panzer, 271 Wis. 2d 295, ¶ 96. The Panzer court held:
[T]he Governor's agreement to the additional games of keno, roulette, craps, and poker in 2003 was contrary to criminal/prohibitory sections of state law in addition to the constitution. It is beyond the power of any state actor or any single branch of government to unilaterally authorize gaming activity in violation of the policy in Wisconsin's criminal code. The governor may not carve out exceptions to the state's criminal statutes unilaterally. We are unable to conclude that the legislature delegated such power or could delegate such power in light of the 1993 constitutional amendment.
Panzer, 271 Wis. 2d 295, ¶ 96.
¶ 246. The legislature has not changed the criminal statutes governing poker, roulette, craps, and keno. More important, the legislature cannot change the *141statutes on poker, roulette, craps, and keno in any way that would permit these games to be conducted in Wisconsin! The legislature may not authorize these four games until the people, by constitutional amendment, remove the constitutional impediment to legislative action. Neither the present governor nor any other governor may rely on Wis. Stat. § 14.035 as authority to negotiate what the constitution prohibits. Panzer held that the Governor acted ultra vires by negotiating beyond the scope of the power that the Wisconsin Legislature gave or could give any governor under the present constitution.
¶ 247. This is not only the holding in Panzer, it is also the argument made to the Seventh Circuit Court of Appeals in the State's failed appeal of the Lac du Flambeau decision. In a brief submitted by Attorney General James Doyle, the State said:
[T]he Governor cannot exceed the statutory authority which has been delegated to him. Section 14.035, Wis. Stat., provides merely that "[t]he governor may, on behalf of this state, enter into any compact that has been negotiated under 25 USC 2710(d)." This statute assumes that such a compact will be negotiated based on the requirements of that section. Section 14.035 does not purport to in any way amend or change the public policy of Wisconsin for gaming. It is merely authorization for the Governor to sign legally negotiated compacts. The Legislature has delegated to the Governor only such authority as the state statutes and the federal law provide. The Governor cannot exceed that delegation by signing a compact which does not comport with either 25 U.S.C. s 2710(d) or Wisconsin's gaming policy.
The State's argument was made before the 1993 constitutional amendment. Passage of the 1993 amendment strengthened an already unanswerable argument.
*142¶ 248. The majority appears to understand the peril in relying on Wis. Stat. § 14.035 as the Governor's source of authority for agreeing to new games that are prohibited by the constitution. It attempts to fashion an alternative analysis that muddles the distinction between extensions and amendments, and wraps them both in the protective mantle of "impairment of contracts." Majority op., ¶ 67. The gist of the majority's analysis is as follows:
(1) The original compacts are lawful.38 Majority op., ¶¶ 6, 77.
(2) The compacts may be extended automatically and will extend automatically unless formal notice of nonrenewal is filed. Majority op., ¶ 65.
(3) The compacts may be amended to add new games. Majority op., ¶¶ 2, 82-86.
(4) The provision for amendment is a fundamental feature of each original compact. See Majority op., ¶¶ 91, 95.
(5) The parties have a reliance interest in the continuation of the original compacts. Majority op., ¶ 58.
(6) Nonrenewal of the compacts because of the constitutional amendment would unconstitutionally impair the compacts. Majority op., ¶ 70.
(7) Because the original compacts contemplated amendments that add new games, amendments to the original compacts that add new games are constitutionally protected by the contracts clauses *143of the Wisconsin and United States Constitutions. Majority op., ¶ 95.
The majority's analysis is both unavailing and dangerous, and it does not withstand careful scrutiny.
¶ 249. All the compacts contain provisions authorizing amendments. For example, the original Forest County Potawatomi compact, in Section XXX, states: "This Compact shall not be modified, amended or otherwise altered without the prior written agreement of both the State and the Tribe." (Emphasis added.)
¶ 250. Plainly, this bare-bones provision is a procedural rule that permits the parties to agree to changes in the compact. The provision does not authorize the parties to disregard their own laws. It does not give the negotiator for a party extra authority beyond the authority the negotiator already has.
¶ 251. For a compact amendment to be valid, it must be agreed to in writing. After the 1993 amendment to Article iy Section 24, however, state officials are denied the authority to bind the state to gaming activities that violate the Wisconsin Constitution. The governor has no more authority to violate the Wisconsin Constitution than the legislature. The governor of Wisconsin has no more authority to sign a compact approving prohibited games than the Badger mascot.
¶ 252. A second provision in the compacts mentions amendments. The original Forest County Pota-watomi Community Compact (1992) provided, in part, in Section IV:
Authorized Class III Gaming
A. The Tribe shall have the right to operate the following Class III games during the term of this Compact but only as provided in this Compact:
*1441. 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 where bingo is being played.
B. The Tribe may not operate any Class III gaming not expressly enumerated in this section of this Compact unless this Compact is amended pursuant to section XXX.
Forest County Potawatomi Community of Wisconsin and State of Wisconsin Gaming Compact of 1992, Section IVA. and B. (emphasis added).39 Subsection B. refers back to the amendment section discussed in ¶ 249.
¶ 253. Other subsections of the compact provide that if the State commences to operate or license or permit additional games, the compact may be reopened for amendment. See id. at Section JVC., D., and E.
¶ 254. These reasonable provisions permit the addition of new gaming activities, such as lotteries and pari-mutuel on-track betting, so long as they are lawful; but they do not constitute an independent grant of *145authority to approve Class III gaming activities not otherwise permitted in Wisconsin. The governor of Wisconsin does not have some "contract" right to disregard the state constitution.
¶ 255. The majority appears to believe otherwise. The majority opinion states that when the parties agreed upon provisions allowing for future amendments to the types of games that may be conducted in Indian country, "the parties negotiated for the amendment provision under the auspices of the law as interpreted by the court in Lac du Flambeau, under which all Class III games are negotiable." Majority op., ¶ 85 (emphasis added). Thus, the governor has the authority to negotiate for any games that would have been lawful under Lac du Flam-beau in 1991 and 1992. The Original Compacts are insulated from the 1993 Amendment and further changes in Wisconsin's gaming laws unless and until the compacts are terminated. Majority op., ¶¶ 65-66.
¶ 256. To summarize, the majority concludes that the governor of Wisconsin has the authority and duty to negotiate all Class III games, i.e., all Class III gaming activities, and to act as though the 1993 constitutional amendment did not exist. But there is a problem with this position. "Class III gaming" is a very broad term that encompasses all forms of gaming that are not Class I gaming or Class II gaming. The classification "all Class III games" includes pari-mutuel betting, both on-track and off-track. Off-track pari-mutuel betting was explicitly prohibited by the Wisconsin Constitution in 1987, and is prohibited by the Wisconsin Constitution today. Wis. Const, art. iy § 24(1) and (5). It was not affected by the 1993 amendment. Thus, a governor cannot negotiate all Class III games without disregarding the constitution as of 1987.
*146¶ 257. A governor has clear authority under the Wisconsin Constitution to agree in a compact to permit a Wisconsin tribe to operate a dog track or other racing track and to offer pari-mutuel betting at that track. Pari-mutuel on-track betting is permitted by both the Wisconsin Constitution and state statutes. On the other hand, a governor of Wisconsin has no authority to permit a second tribe to take off-track bets on the dog races conducted by the first tribe. Why? Because off-track pari-mutuel betting is prohibited by the Wisconsin Constitution. If a compact amendment were negotiated to permit tribes to take bets on dog races without operating a track, it would legitimize off-track betting in Indian country throughout Wisconsin. If the constitution does not bar gubernatorial approval of such an amendment, it would also not bar an amendment approving betting on all races and all sporting events, so long as that betting activity was not barred by federal law.
¶ 258. When this court authorizes a governor to disregard the state constitution, there is no stopping point... except federal law. Jai alai is negotiable. Any casino game is negotiable. Any gambling activity is negotiable so long as it does not violate federal law. If the governor is authorized to disregard the' constitution in one compact amendment, it is hard to see why the governor may not disregard the constitution in other compact amendments. This could permit the Governor to negotiate a perpetual compact and waive the state's sovereign immunity. Three of the four members of the majority supported these amendments in their Panzer dissent.
¶ 259. The impairment of contracts clauses do not save the 2003 amendments, which add poker, roulette, craps, and keno to the Indian gaming compacts, because the tribes understood the importance to the state of limiting casino games.
*147¶ 260. Seven of the original compacts articulated the parties' intent and material considerations. For instance, the St. Croix Chippewa Indians of Wisconsin Gaming Compact of December 1991 stated in Section XXXI:
A. In consideration of:
1. The Tribe's desires to be able to offer Class III games that are economically viable and provide substantial revenues to support tribal self-sufficiency and economic development, and to have the confidence that such games may be offered for such period of time that the Tribe can develop its gaming enterprise, recover its capital investments, and receive a reasonable return; and
2. The State's desire to limit the types of "casino-type" games that may be offered within this state to a select number in order not to have pervasive broad-scale "casino-type" gambling within this state;
The parties acknowledge the mutual compromises with respect to the types of games the Tribe is authorized to operate during the term of this Compact and with respect to the duration of this Compact were significant material considerations in reaching agreement and are the essence of this Compact.
St. Croix Chippewa Indians of Wisconsin Gaming Compact, Section XXXI (1991) (emphasis added).40
*148¶ 261. A threshold question in any contracts clause analysis is whether a contract to which a state is a party surrenders an essential attribute of state sovereignty. See United States Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 23-24 (1977). Contracts that limit the exercise of a state's police power or eminent domain power are "invalid ab initio under the reserved-powers doctrine[.]" Id. at 23; see also Wis. Prof'l Police Ass'n v. Lightbourn, 2001 WI 59, ¶ 149, 243 Wis. 2d 512, 627 N.W.2d 807. If a contract does not implicate a state's police power or eminent domain power, to establish an unconstitutional impairment of contract, it is necessary to show: (1) there was a valid, pre-existing contract; (2) the legislation substantially impairs the contractual relationship; and (3) either (a) there is no significant and legitimate public purpose behind the legislation or (b) if there is a significant and legitimate public purpose, the legislation is unreasonable and unnecessary to serve the public purpose. See Lightbourn, 243 Wis. 2d 512, ¶¶ 147-49.
¶ 262. Without addressing the threshold question or the validity of the majority's conclusions as to the first and third parts of the three-part test — which are ably addressed in Justice Roggensack's concurring/dissenting opinion — I disagree with the majority's conclusion that the 1993 amendment to Article I\( Section 24 substantially impairs the relationships created by the original compacts when it applies prospectively to the scope of gaming. See majority op., ¶ 79.
¶ 263. Legislation impairs a contractual relationship when it "alters the contractual expectations of the parties." State ex rel. Canon v. Moran, 111 Wis. 2d 544, 555, 331 N.W.2d 369 (1983). In determining whether the impairment is substantial, "a court should look to *149the reasonableness of the parties' reliance upon the contract affected." Chappy v. LIRC, DILHR, 136 Wis. 2d 172, 187, 401 N.W.2d 568 (1987). Based on the text of the original compacts and the historical events that occurred before the compacts were renewed in 1998-99, I conclude the parties could not reasonably have expected the compacts would be amended to include additional types of games that were explicitly prohibited by the Wisconsin Constitution.
¶ 264. From the State's perspective, the desire to limit the types of casino games offered within the state was deemed "the essence" of the compact. The extension of such compacts would preserve the status quo. The nonrenewal of such compacts would alter the status quo, and deprive tribes of substantial revenues to support tribal self-sufficiency and economic development. Nonetheless, the State had an undisputed right to nonrenew the compacts.
¶ 265. If the contractual right to nonrenew gaming compacts would not have impaired the compacts, how could a refusal by the State to agree to four new games that the tribes never had — in violation of the Wisconsin Constitution, state criminal statutes, and what the State viewed as the "essence" of the compact —impair the compacts?
¶ 266. The provision allowing amendments to the compacts to add new games represented a contingency that might or might not occur. The tribes could not rely on that contingency. See Ochiltree v. R.R. Co., 88 U.S. 249, 252 (1874) ("the obligation of contract within the meaning of the Constitution is a valid subsisting obligation, not a contingent or speculative one"). They could not rely on the possibility that the State would offer new games that are prohibited for all purposes to all persons, organizations, and entities, because to do so *150would violate both state and federal law. Against this background, it is hard to imagine how any court could hold that denying tribes the new right to play poker, roulette, craps, and keno at their casinos — when no one else has that right — would substantially and unconstitutionally impair their compacts.
¶ 267. In terms of reliance, the tribes were fully aware of Attorney General James Doyle's stated position on new games. After the Lac du Flambeau decision was issued, the State appealed,41 and that appeal was not dismissed until March 23, 1992. Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 957 F.2d 515 (7th Cir. 1992). By that date, 7 of the 11 compacts had already been signed.
¶ 268. The following month, after Governor Thompson had called the April 1992 special session, two state representatives asked Attorney General Doyle his opinion on the effect the change in statutory law would have on Indian gaming in general and on the compacting process in particular. See Letter from James E. Doyle, Att'y Gen., to Walter Kunicki, Speaker of the Wis. Assembly, and John Medinger, Chairperson of the Assembly Comm, on State Affairs (Apr. 29, 1992) (on file with the Wisconsin Historical Society Archives, John D. Medinger Papers, Box 6, Folder 1).
¶ 269. Representatives Kunicki and Medinger posed a number of questions. For instance, they asked whether "the legislation prevent[s] the Governor from entering into compacts that authorize blackjack and *151electronic games with the three tribes that currently do not have compacts, if such compacts are not entered into [before the change in definition becomes effective]." Attorney General Doyle responded in part:
The legislation will change, on its effective date, those games which are permitted in Wisconsin. After the effective date of the legislation the enumerated games, roulette, craps, banking card games, etc., will no longer be permitted in Wisconsin except as provided in the grandfather provision [pursuant to proposed § 565.01(6m)(c) regarding state-tribal gaming compacts]. At that point it will be unlawful for tribes to whom the statute applies to conduct those games and since their conduct is unlawful, the Governor is not required to negotiate over them.
Id. at 2 (emphasis added).
¶ 270. The legislators also asked about existing compacts that "grant to the tribes the right to request that compacts be revised to permit additional games." They asked the prescient question: "Does the legislation prevent the Governor, through the negotiation process, from authorizing Indian tribes to conduct additional games?" Attorney General Doyle responded:
The current legislation would not prevent the Governor from negotiating with the tribes over the adding of additional games to the compact so long as those games are permitted after the effective date of the legislation, or the additional games were added prior to the effective date of the legislation. If the games are not permitted after the effective date, the Governor would not be able to add them.
Id. at 4 (emphasis added).42
*152¶ 271. On July 25, 1994, Attorney General Doyle appeared before the Senate Committee on Indian Affairs. The Committee was considering Senate Bill 2230, involving proposed (but never approved) amendments to IGRA. Speaking for the National Association of Attorneys General, Attorney General Doyle said:
We are also concerned [with the scope of gaming provision in the bill] with the provision which makes games not prohibited as a matter of state and criminal law subject to negotiation. This provision neglects to recognize that some states have prohibited specific games through the use of self-executing constitutional provisions. These types of prohibitions are stronger than statements of state public policy and stronger than the state's criminal law.
Hearing on S. 2230 Before the S. Comm, on Indian Affairs, 103rd Cong. 117 (July 25,1994). Later, Senator McCain asked the following:
Senator McCain. You've suggested that the bill needs to make explicit provisions with regard to changes in State law. Do you think that such provisions may give rise to claims under the 5th amendment of takings of property without compensation?
Mr. Doyle. Well, they certainly may give rise to the claims. And I would certainly hesitate to give my legal opinion on whether that would be successful. I think it would be very difficult given that we're talking about broad social policy of the State to declare that that's a taking, as I understand takings laws.
I mean, the same argument could be made, if you put aside the Indian question, that if you permitted gaming in a State, you could simply change the law to say there's no longer gaming in the State. I don't think the operators of gaming concerns would have a takings *153claim under the 5th amendment. But again, I'm giving you a quick, legal, 5th amendment takings analysis without any research.
Hearing on S. 2230 Before the S. Comm, on Indian Affairs, 103rd Cong. 120 (July 25, 1994).
¶ 272. On August 1, 1994, Attorney General Doyle sent a letter to Senator Daniel K. Inouye and Senator McCain amplifying his answer. He wrote:
Change of State Law
We were also asked our views on whether a change-of-law provision in the Act, which became operative to make tribal gaming under an existing compact impermissible, could constitute a Taking under the Fifth Amendment. We do not believe there is any merit in the suggestion that terminating once-legal gaming could constitute a taking in the constitutional sense. This is not the kind of property-based expectation the constitution protects; state criminal prohibitions have never been held to be hostage to plans for profits from activities which the state can make legal.
The history and cases decided under the Takings Clause of the U.S. Constitution simply provide no support for the proposition that a ban on Indian gaming activities could trigger a compensable taking of private property....
As the [Supreme] Court noted in . .. recent takings decisions, the nature of both the governmental action and the regulated industry are crucial factors in assessing any Takings Clause claim. The gaming industry is one of the most heavily regulated in the United States. That regulatory system is based on important and well-founded concerns of public safety and welfare. Similarly, property owners who. willingly participate in *154heavily regulated fields are not immunized by the Takings Clause from regulatory changes, even those which subsequently change the regulatory system in a manner which is financially detrimental to the property owner. In the words of the Court, such property owners simply lack any reasonable, investment-backed expectations that the regulatory environment will be free from change.
¶ 273. Although Attorney General Doyle's letter addressed "takings" rather than impairment of contracts, the principles he espoused are not dissimilar. In Stone v. Mississippi, 101 U.S. 814 (1879), the Supreme Court examined the effect of a state constitutional amendment banning lotteries on an existing lottery previously chartered by the state. The Court acknowledged the presence of a valid contract, hut it declared, "All agree that the legislature cannot bargain away the police power of a state." Id. at 817.
¶ 274. The Court declared that a legislature, by chartering a lottery company, cannot defeat the will of the people, in relation to the further continuance of that business. Id. at 819. "No legislature can bargain away the public health or the public morals." Id. Lotteries, it said, "are a species of gambling." Id. at 821. "Certainly the right to suppress them is governmental, to be exercised at all times by those in power, at their discretion." Id.
Any one, therefore, who accepts a lottery charter does so with the implied understanding that the people in their sovereign capacity, and through their properly constituted agencies may resume it at any time when the public good shall require, whether it be paid for or not. All that one can get by such a charter is a suspension of certain governmental rights in his favor, subject to withdrawal at will.
Id.
*155¶ 275. The principles of Stone remain good law. In 1914 the Supreme Court stated in Atlantic Coast Line Railroad Co. v. City of Goldsboro, 232 U.S. 548, that:
[I]t is settled that neither the "contract" clause nor the "due process" clause has the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither he abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property are held subject to its fair exercise.
Id. at 558. See also United States v. Winstar Corp., 518 U.S. 839 (1996) (providing an important contemporary discussion of governmental power to affect a contract).
¶ 276. In the present case, none of the members of this court is seeking to close down Indian casinos. The primary purpose of this dissent is to disavow any power in state officials to amend Indian gaming compacts to add games that are explicitly prohibited by the constitution and state criminal law and thereby expand gambling in Wisconsin. Giving the Governor this unprecedented power is an abdication of state sovereignty and rewards those who refused to recognize this court's decision in Panzer.
VII. THE EFFECT OF ARTICLE W, SECTION 24 ON INDIAN GAMING
¶ 277. The majority concludes that the 1993 Amendment to Article IV Section 24 had no impact on Indian gaming, the Original Compacts, or any continuation of those pre-existing contractual relationships. I disagree.
¶ 278. In my view, the amendment has the following effects.
*156¶ 279. First, the 1993 amendment prevents the legislature and governor from agreeing to any compact amendment that adds new forms of gaming activity that are prohibited by state law for all purposes to all persons, organizations, and entities. As a result of the amendment, Wisconsin governors have no authority to approve new forms of gaming activity that are prohibited by Article iy Section 24.
¶ 280. Second, neither the State nor the Tribes can ever nonrenew a compact without seriously jeopardizing the future of Indian gaming in Wisconsin. The majority acknowledges as much. This absurd result is the inevitable consequence of a United States District Court ordering the State to agree to gaming that the State had never permitted to anyone in Wisconsin, and that is now explicitly prohibited by the constitution.
¶ 281. Third, new Indian gaming compacts to approve casino games will be virtually impossible until the people approve a change in the constitution.
¶ 282. No matter which view of the law prevails, this state is facing a constitutional crisis. The cleanest, most honest way to correct the situation is to amend the constitution. If the results announced in the majority's decision are what the people of Wisconsin want, the people will give their approval. They will respect and respond to being asked, instead of having a massive expansion of gambling shoved down their throats.
¶ 283. At present, the United States District Court and this court have succeeded in turning IGRA on its head. In Wisconsin, only Indian tribes have the right to conduct most forms of Class III gaming. Apart from the state operated lottery, most gaming competition has been driven out of business. This is not the way IGRA was supposed to work. This is not the way our federal system is supposed to work. The time is long overdue for impartial review of this constitutional debacle.
*157¶ 284. I am authorized to state that Justices JON E WILCOX and PATIENCE DRAKE ROGGENSACK join this opinion.
This methodology was summarized by Justice Connor T. Hansen in Buse v. Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141 (1976):
In its interpretation of constitutional provisions this court is committed to the method of analysis utilized in Board of Education v. Sinclair, [65 Wis. 2d 179, 222 N.W.2d 143 (1974)]. The court will view:
(1) The plain meaning of the words in the context used;
(2) The historical analysis of the constitutional debates and of what practices were in existence in 1848, which the court may reasonably presume were also known to the framers of the 1848 constitution ... and
(3) The earliest interpretation of [the] section by the legislature as manifested in the first law passed following the adoption of the constitution.
Id. (citations omitted).
In its original form, Article IY Section 24 provided: "The legislature shall not authorize any lottery, or grant any divorce."
See also Noah Webster, An American Dictionary of the English Language 677 (1853).
See also Noah Webster, An American Dictionary of the English Language (1828) (unpaginated).
Id.
Id.
John Scarne, Scarne's New Complete Guide to Gambling 150, 152 (1974); see also Clark v. Washington, 12 Wheat. 40, 25 U.S. 40 (1827).
'We suppose it to be a well-settled political principle that the constitution of the state is to be regarded not as a grant of power, but rather as a limitation upon the powers of the legislature, and that it is competent for the legislature to exercise all legislative power not forbidden by the constitution or delegated to the general government, or prohibited by the constitution of the United States."
Cutts v. Dep't of Pub. Welfare, 1 Wis. 2d 408, 416, 84 N.W.2d 102 (1957) (quoting Bushnell v. Beloit, 10 Wis. 195, 225 (1860)).
The Tri-Weekly Express (Madison, Wisconsin) of January 8, 1848, carried part of the convention debate about the "divorce" language in Article IY Section 24. The paper reported that Edward Whiton, later chief justice of this court, supported the prohibition on legislative divorces, indicating that legislatures frequently granted divorces on ex parte evidence or on no evidence at all. Whiton related an instance of a man and wife who had lived together many years having been divorced, without their knowledge or wish, upon the petition of various individuals. "He said the courts by our law have discretionary power." The Attainment of Statehood 439 (Milo M. Quaife, ed., 1928). The constitutional provision on divorce was grounded in concern about legislative abuse in granting divorces, not outright opposition to divorce.
See, e.g., Attorney Gen. ex rel. Schantz v. Brunst, 3 Wis. 689 [*787], 692 [*790] (1854).
The same linkage is found in the 1845 Louisiana Constitution. Under Title VI (General Provisions) of the 1845 Constitution, Article 116 provided: "No lottery shall be authorized by this State, and the buying or selling of lottery tickets within this State, is prohibited." Article 117 then added: "No divorce shall be granted by the Legislature."
A recent treatise on the Maryland State Constitution describes the Maryland parallel:
Maryland's history mirrors the national trend. The original 1776 Maryland Constitution did not mention lotteries although lotteries to raise funds for local government projects were common. Under these lottery grants, the General Assembly would name specific individuals who were required to post bond and conduct the lottery *88te) raise a stated amount. As early as 1817, the legislature began to try to regulate the proliferation of lottery grants. Constitutional amendments in 1835 and 1840 provided for the phasing-out of state lottery grants. The 1851 constitution prohibited lottery grants and provided for a phase-out of existing lottery grants suggesting that the previous amendment was ineffective in banning lotteries.
Dan Friedman, The Maryland State Constitution, A Reference Guide 120 (2005).
This lottery provision did not bar other types of gambling in such frontier towns as Dodge City. According to a September 1, 1877, article in the Dodge City Times, "Gambling ranges from a game of five-cent chuck-a-luck to a thousand dollar poker pot. Nothing is secret, but with open doors upon the main street the ball rolls on uninterruptedly." See www.spartacus.schoolnet. co.uk/WWdodge.htm.
This is not a trivial point. Casino-type gambling was widespread on riverboats and in much of the West during parts of the 19th Century, notwithstanding lottery prohibitions in individual states. The familiar image of gambling in old west saloons is not a figment of modern imagination.
At the First Session of the Legislative Assembly of the Territory of Wisconsin, the territorial legislature approved an act to prevent and punish gambling. Ch. 65, Laws of the Wisconsin Territory, First Session (approved Jan. 18, 1838). The act provided criminal penalties for setting up, keeping, and permitting any gaming table or gambling device or betting money at any gaming table, but it made no reference to lotteries. The 1839 Statutes of Wisconsin contain "An Act to provide for the punishment of offences against public policy." Statutes of the Territory of Wisconsin 363-65 (1839). The first seven sections of this act deal with lotteries, while sections 8, 9, and 10 deal with other forms of gaming. This legislation was carried over after statehood. Chapter 138, "Of Offences Against Public Policy," Revised Statutes of the State of Wisconsin 705-07 (1849). In these early statutes, table games such as faro, "E O," and roulette were treated differently from lotteries. Id.
For a discussion of the history of Wisconsin's lottery, see Dan Ritsche, Wisconsin Legislative Reference Bureau, The *91Evolution of Legalized Gambling in Wisconsin, Research Bulletin 00-1 (May 2000) (hereinafter Ritsche).
See Ritsche, supra, at 5-6 (discussing the history of on-track betting in Wisconsin).
See also Everingham v. Meighan, 55 Wis. 354, 13 N.W. 269 (1882).
See Editorial, Legislature Should Not Back Gambling, Milwaukee Sentinel, Feb. 7, 1990, at 10 ("Hanaway is getting it from all sides."); Matt Pommer, Doyle Says Hanaway Flip-flopped on Gambling, The Capital Times, June 29,1990, at 3-A.
See Ritsche, supra, at. 10-11 (discussing the divergent interpretations offered by Hanaway and Doyle).
This analysis is inconsistent with the commentary in State ex rel. Martin v. Heil, 242 Wis. 41, 55, 7 N.W.2d 375 (1941), where the court stated:
It is extremely important in the interpretation of constitutional provisions that we avoid determinations based purely on technical or verbal argument and that we seek to discover the true spirit and intent of the provisions examined. We must not fail to give effect to plain and completely unambiguous language in the constitution, but where there is reasonable ground to differ concerning the sense in which language is used, the provision should be examined in its setting in order to find out, if possible, the real meaning and substantial purpose of those who adopted it.
In 1992 the Legislative Reference Bureau prepared an extensive legal memorandum discussing Article IX Section 24 and the Hanaway and Doyle opinions. See Memorandum from Barry J. Stern, Legis. Att'y, to Sen. Michael Ellis (Feb. 13, 1992) (on file with the Legislative Reference Bureau) (regarding "Constitutionality of 1991 Assembly Bill 469"). The memorandum argued that the meaning of the term "lottery" in Section 24(6) is different from the meaning of the term in Section 24(1). It defended Attorney General Doyle's interpretation of "lottery" in subsection (1), citing the same cases cited in the Doyle opinion, but disagreed with the interpretation of subsection (6). The memorandum stated:
The Doyle opinion appears to have given substantial weight... to the presumption that "lottery" means the same thing in s. 24(6) as it does in s. 24(1). It analyzed ways that the "ticket" *109language could make sense if "lottery" in s. 24(6) refers to any form of gambling, including casino-type gambling, but did not consider any arguments to the contrary. It did not examine the legislative history of or contemporary news accounts relating to the approval of s. 24(6), the referendum question submitted to the voters in April 1987 or the legislative history relating to the enactment of ch. 565. Instead, it identified certain language in ch. 565 that, in isolation from the rest of ch. 565, arguably supports a construction of "lottery" in s. 24(6) to mean any form of gambling.
I am fairly certain that a Wisconsin state court would not accept the reasoning of the Doyle opinion in construing "lottery" in s. 24(6). The literal meaning approach taken in the Doyle opinion is an approach that, to my knowledge, has never been taken by a Wisconsin state court in construing a ... constitutional provision. As previously discussed in this memorandum, the literal meaning approach ... is rarely followed by a court in construing a constitutional provision.
In examining the legislative history relating to the approval of s. 24(6) and the enactment of ch. 565, the court would be expected to examine the LRB drafting files and other documents prepared by legislative service agencies relating to those provisions. I have examined those drafting files and there is no mention in either file of anything related to casino-type gambling or of any intent for the legislature to authorize the state to operate any form of gambling other than the specific form of gambling that was being conducted by various other states and that involves the sale of lottery tickets and the selection of winning tickets through drawings or another method of chance.
Id. at 10-11, 12-13 (emphasis added).
See Ritsche, supra, at 20-21.
These passages do not accurately quote the 1848 constitution and they do not accurately report the history of judicial interpretation.
In Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 957 F.2d 515, 516 (7th Cir. 1992), the Court of Appeals summarized the district court's holding as follows: "The district court held that amendments to the state's constitution and recent legislation establishing a state lottery also authorized other forms of gambling, in which the tribes may engage."
A United States District Court is not the final arbiter of the meaning of a state constitution. In a February 25, 1997, letter to State Representative Daniel E Vrakas, Attorney General Doyle wrote that:
*116Judge Crabb's decision only binds the parties to the particular action in which it was issued. The only effect of the decision was to direct the parties to that case to enter into negotiations for a compact at that time. However, it did make clear, under the law as it existed in 1991, how Judge Crabb would have ruled in similar cases.
As a district court opinion, it has no mandatory precedential effect over future cases in that or any other court. Any new cases regarding negotiation of compacts, even between the same parties, would arise under a new fact situation and in a changed legal environment, and thus not be directed specifically by that prior decision.
The district court cited this very language. Lac du Flam-beau, 770 F. Supp. at 485. Nevertheless, the district court inexplicably applied the prohibitory/regulatory distinction from California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), rather than simply determining whether the gaming activity was prohibited by state criminal law, as contemplated by the Senate Report. See Lac du Flambeau, 770 F. Supp. at 485 (criticizing the State for ignoring the analysis in Cabazon for purposes of determining whether a state permits Class III gaming).
See Rumsey Indian Rancheria of Wintun Indians v. Wilson, 41 F.3d 421, 427 (9th Cir. 1994), amended, 64 E3d 1250 (9th Cir. 1995) and 99 F.3d 321 (9th Cir. 1996) ("IGRA does not require a state to negotiate over one form of Class III gaming activity simply because it has legalized another, albeit similar form of gaming."); Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273, 279 (8th Cir. 1993) ("The 'such gaming' language of 25 U.S.C. § 2710(d)(1)(B) does not require the state to negotiate with respect to forms of gaming it does not presently permit. Because video keno and traditional keno are not the same and video keno is the only form of keno allowed under state law, it would be illegal, in addition to being unfair to the other tribes, for the tribe to offer traditional keno to its patrons."); Am. Greyhound, Inc. v. Hull, 146 F. Supp. 2d 1012, 1067 (D. Ariz. 2001), vacated on other grounds, 305 F.3d 1015, 1018 (9th Cir. 2002) (holding that a compact cannot authorize forms of gaming not otherwise legal in state); Coeur d'Alene Tribe v. Idaho, 842 F. Supp. 1268, aff'd, 51 F.3d 876, 876 (9th Cir. 1995) (holding that state was required to negotiate only with respect to specific Class III games that were permitted in the state).
For a history and description of the compacts, see Ritsche, supra, at 22-28.
During consideration of April 1992 Special Session Assembly Bill 6, the legislature approved an amendment offered by Senator Tim Weeden entitled "Advisory Referendum on Additional Forms of Gambling." The amendment provided:
After the effective date of this section ... neither house of the legislature may pass any bill that authorizes the conduct of any game specified in s. 565.01(6m)(b), 1991 stats., unless, prior to the passage of that bill and during the same legislative session, all of the following occur:
(1) A bill requiring a statewide advisory referendum on the question of whether the legislature should authorize the conduct of such a game has been enacted.
(2) The advisory referendum required under sub. (1) has been held.
See drafting file for Wis. A.B. 6, April 1992 Special Session, on file with the Legislative Reference Bureau, Madison, Wisconsin. This amendment is now codified as Wis. Stat. § 565.015. This statute was adopted before the 1993 constitutional amendment when the legislature theoretically had the authority to grant either the State Lottery or the tribes the right to conduct "additional forms of gambling."
Assembly Amendment 2 was introduced by Republican Representatives Welch and Loucks. An identical amendment, Assembly Amendment 5, was introduced by Democratic Representatives Rohan, Holperin, Young, Reynolds, and Black. See drafting file for Wis. A.B. 3, April 1992 Special Session, on file with the Legislative Reference Bureau, Madison, Wisconsin.
A coalition of the majority of the state's Indian tribes opposed the amendment, offering to give Wisconsin "a significant share of future casino revenues" if the amendment proposal was dropped. Ritsche, supra, at 11-12.
Senator Lynn Adelman authored two similar joint resolutions earlier in the session. 1991 S.J.R. 73 and 1991 S.J.R. 93. The Adelman joint resolutions made no reference to Indian gaming.
See Ritsche, supra, at 11-12 (discussing the history of the 1993 amendment).
This principle is nearly universal. See State v. Bates, 305 N.W.2d 426 (Iowa 1981); People v. Gornbein, 285 N.W.2d 41 (Mich. 1979); Kadan v. Bd. of Supervisors of Elections of Baltimore County, 329 A.2d 702 (Md. 1974); Kneip v. Herseth, 214 N.W.2d 93 (S.D. 1974); Goff v. Hunt, 80 A.2d 104 (N.J. 1951); Luikart v. Higgins, 264 N.W. 903 (Neb. 1936).
In the negotiations on initial compact renewal with the State, Wisconsin tribes sought an expansion of games, including roulette and craps, and promised the State larger shares of their gambling revenues in return. Amy Rinard, Casinos to seek roulette, craps, Milw. J.S., Dec. 24,1996, at A-l. These initiatives were not accepted by Governor Thompson. The Journal Sentinel editorialized against the expansion, suggesting that the offer of more money for expanded gaming "smacks a little bit of bribery." Editorial, A risky bet for tribes, Wisconsin, Milw. J.Sentinel, Dec. 30, 1996, at 10-A; Editorial, Just say 'no' to more gaming, Milw. J.Sentinel, Nov. 23, 1997, at 4-J.
Counsel for Governor Doyle addressed this issue in Panzer v. Doyle, 2004 WI 52, ¶ 87, 271 Wis. 2d 295, 680 N.W.2d *140666. The court responded, beginning at ¶ 88, quoting with approval the analysis in American Greyhound, 146 F. Supp. 2d at 1067: "According to the structure of § 2710(d)(1) and its plain terms, a compact cannot make legal class III gaming not otherwise permitted by state law. The State must first legalize a game, even if only for tribes, before it can become a compact term."
The original compacts are lawful because (1) the legislature authorized the governor of Wisconsin to negotiate Indian gaming compacts, consistent with IGRA, by its passage of Wis. Stat. § 14.035; (2) the United States District Court ordered the State to "conclude" compact negotiations; (3) the governor of Wisconsin, pursuant to delegated authority and court order, agreed to compacts; and (4) the compacts thus negotiated were not timely challenged.
The 10 other original compacts contained the same provisions. See Bad River Band Compact § IV(B); Winnebago [Ho-Chunk] Compact § IV(C); Lac Courte Oreilles Compact § IV(B); Lac du Flambeau Compact § IV(B); Menominee Compact § IV(B); Oneida Compact § IV(B); Red Cliff Compact § IV(B); Sokaogon Chippewa Compact § IV(B); St. Croix Chippewa Compact § IV(B); Stockbridge-Munsee Compact § IV(B).
See also Bad River Band Compact § XXXI; Lac Courte Oreilles Compact § XXXI; Menominee Compact § XXXII; Red Cliff Compact § XXXI; Sokaogon Chippewa Compact § XXXI; St. Croix Chippewa Compact § XXXI; Stockbridge-Munsee Compact § XXXI.
The Associated Press reported the following statement from Attorney General Doyle: "The governor, as the client, has asked for an appeal. And I concur in his decision. There is considerable interest throughout the country regarding this ruling." Michael C. Buelow, State gears up for fight to stop casino gambling, The Post-Crescent (Appleton), July 18, 1991, at B-6.
See ¶ 211, n.30 infra.