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Quapaw Tribe secures dismissal of lawsuit over casino site in Kansas

Friday, December 18, 2015

The Downstream Casino Resort is located on land in Oklahoma, Kansas and Missouri. Photo from Facebook

The Quapaw Tribe declared victory on Friday after a federal judge dismissed a lawsuit that challenged a casino expansion project.

The state of Kansas filed the suit after the tribe announced plans to expand the Downstream Casino Resort onto its trust land in Kansas. At issue was a letter from the National Indian Gaming Commission that said the 124-acre parcel can be used for gaming.

Judge Daniel D. Crabtree, however, concluded the letter cannot be challenged in federal court because it does not constitute a "final agency action."

Crabtree also ruled that individual tribal leaders cannot be sued without their consent. Kansas Attorney General Derek Schmidt (R) added Chairman John Berrey and other officials to the case after initially naming the NIGC as the defendant.

“Indian tribes are ‘domestic dependent nations’ that exercise ‘inherent sovereign authority,'" Crabtree wrote in the 38-page decision, quoting from Michigan v. Bay Mills Indian Community, the last sovereign immunity case that was decided by the U.S. Supreme Court.

"Thus, '[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity,' Crabtree added, quoting from an earlier sovereign immunity decision.

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

Chairman John Berrey said the decision completely "vindicates" the tribe. He blasted Schmidt and Gov. Sam Brownback (R) for pursuing the case with taxpayer funds.

"The suit appears to have been nothing but an attempt to discourage the tribe from pursuing its rights under federal law," Berrey said.

The tribe plans to spend $15 million on the expansion of the casino. The project would add another 40,000 square-feet to the facility in the form of a two-level structure with a gaming floor, a cigar lounge and a club.

To move forward, the tribe would need a Class III gaming compact with Kansas. Berrey said Brownback has been refusing to negotiate on a "good faith" basis as required by the Indian Gaming Regulatory Act.

The Downstream casino is located in three states -- Oklahoma, Kansas and Missouri. Gaming is currently restricted to the Oklahoma portion because only that part was in trust when the facility opened in November 2008.

The Kansas parcel was placed in trust by the Bureau of Indian Affairs in 2012. Normally, newly acquired lands can't be used for gaming.

The NIGC's letter, however, said the Kansas site falls within the tribe's "last recognized reservation." Therefore, it is eligible for gaming under Section 20 of IGRA.

Chairman Berrey's statement in full follows:

“This decision vindicates the actions of the Quapaw Tribe with respect to the failed gaming compact negotiations. We obtained the opinion from the National Indian Gaming Commission because our tribe desired to be in full compliance with the law, and also because Governor Brownback made it a condition of the gaming compact negotiations. Governor Brownback lead us to believe that he would honor the NIGC’s decision, and would agree to a compact if the NIGC determined we could conduct gaming lawfully on our Kansas land, which it did.
“Not only did Governor Brownback not engage in good-faith negotiations, as he promised, but he and Attorney General Derek Schmidt deliberately targeted and harassed a number of our tribal leaders by suing them. Most of these people had no connection or involvement with tribal gaming. The suit appears to have been nothing but an attempt to discourage the Tribe from pursuing its rights under federal law.
“This case should cause people in Kansas to ask a lot of questions, especially about Governor Brownback’s treatment of Indians and use of taxpayers’ money.”

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