Litigation | NIGC

Quapaw Tribe requests dismissal of lawsuit over casino expansion

Tuesday, June 16, 2015

The Downstream Casino Resort in Oklahoma, Kansas and Missouri. Photo from Facebook

The Quapaw Tribe of Oklahoma and its leaders are seeking the dismissal of a gaming lawsuit filed by the state of Kansas.

The state initially sued the National Indian Gaming Commission after the agency confirmed that the tribe's land in Kansas can be used to expand the Downstream Casino Resort. Attorney General Derek Schmidt amended the complaint to include the tribe and its leaders and officials.

But the tribe argues that it can't be sued due to sovereign immunity. The other defendants, including Chairman John Berrey, are also protected by immunity, attorneys said in a court filing.

"Congress has set forth a comprehensive structure for the regulation of gaming on Indian lands, which does not include granting states the authority to enjoin tribal gaming activities on Indian lands where no tribal-state compact is present and where no class III gaming is underway," the motion to dismiss states.

Artist's rendering shows the planned expansion at the Downstream Casino Resort. Image from Quapaw Tribe

As the filing notes, the tribe lacks a Class III gaming compact with Kansas. Such an agreement might include a limited waiver of immunity for activities that occur on Indian lands, as that term is defined by the Indian Gaming Regulatory Act, but Gov. Sam Brownback (R) refuses to negotiate.

Tribes can be sued under IGRA for Class III gaming activities that occur on Indian lands, the U.S. Supreme Court observed in Michigan v. Bay Mills Indian Community, a sovereign immunity case from 2014. However, as the motion points out, the Quapaws are not conducting Class III gaming on the Kansas property -- it's currently being used for a parking lot.

"On the Kansas Trust Land are located the main parking lots for the Downstream Casino Resort, as well as other ancillary facilities and infrastructure for the resort," the tribe's attorneys told the court. "The same facilities were located on this tract when it was taken into trust by the Secretary of the Interior in 2012, and there has been no change in the use of that tract since that date."

A copy of the handwritten letter from Quapaw Tribe Chairman John Berrey to Kansas Gov. Sam Brownback (R) was filed in federal court by the state as part of the lawsuit.

In the event the tribe moves forward with the casino expansion without the state's support or without a compact, Class II gaming could occur there. States do not have a role in Class II gaming.

The NIGC is also seeking to dismiss the lawsuit. Government attorneys argue that the Indian lands opinion for the tribe does not constitute a "final agency action" that can be challenged in court.

Generally, IGRA bars casinos on land acquired after 1988. The Bureau of Indian Affairs placed the Kansas property in trust in 2012.

But Section 20 of the law contains several exceptions. The NIGC determined that the property falls within the tribe's former reservation outside of Oklahoma.

Get the Story:
Quapaw Tribe Seeks Dismissal Of Lawsuit Over Casino Plans (AP 6/16)
Quapaw Tribe asks federal judge to dismiss Kansas lawsuit blocking casino development (The Miami News-Record 6/16)

Relevant Documents:
NIGC Indian Land Opinion For Site in Kansas (November 2014)