Supreme Court brings good news to Quapaw Tribe in restoration of homelands case

Monday, December 11, 2017

The Quapaw Tribe owns and operates the Downstream Casino Resort in Oklahoma, Kansas and Missouri. Photo: Downstream Casino Resort

The U.S. Supreme Court has brought some good news to the Quapaw Tribe, whose casino expansion plans have been held up the state of Kansas.

Without comment, the justices on Monday morning denied a petition in Kansas v. National Indian Gaming Commission. The action, which came in an order list, means a lower court decision favoring the restoration of the tribe's homelands will stand.

The tribe made history more than three years ago, when the top legal officer at the National Indian Gaming Commission issued an opinion stating that those lands can be used to expand the Downstream Casino Resort. But the project, which at the time was estimated to cost $15 million, has yet to move forward due to opposition from the state.

The denial of the state's petition clears the biggest legal obstacle facing the effort. Still, a major political hurdle remains -- the tribe has not negotiated a Class III gaming compact, which would allow lucrative slot machines, table games and related offerings on the Kansas portion of Downstream.

The tribe already offers such games on the Oklahoma portion of Downstream. That part was already in trust when the facility debuted in 2008.

An aerial view of the Downstream Casino Resort. Gaming activities occur on trust land on the Oklahoma side of the border and a parking lot can be seen on the Kansas side. Another portion of the facility, not seen here, extends into Missouri. Image: Google Earth

The Kansas portion was placed in trust in 2012 and, generally, lands acquired after 1988 can't be used for gaming. But the NIGC's opinion said the tribe qualifies for an exception in the Indian Gaming Regulatory Act.

Like many other tribes, the Quapaws were forced to leave their homelands. The "last recognized reservation" exception in IGRA acknowledges situations in which a tribe is able to restore those lands.

In the case of Downstream, the Kansas portion falls within a reservation that was commonly known as the "Quapaw Strip."

The Quapaws appear to be only tribe to have successfully qualified for the "last recognized reservation" exception in the history of IGRA. Prior to 2005, no one had even asked for it, according to Congressional testimony from the time.

With the lawsuit, the state challenged the NIGC's determination as unlawful. That's where the matter quickly ended -- the 10th Circuit Court of Appeals ruled that the opinion could not be challenged because it's merely "advisory" in nature and is not considered a "final agency action."

The state subsequently asked the Supreme Court to overturn the decision but both the tribe and the NIGC waived their rights to respond to the petition. Waivers are common in cases where a party doesn't think the petition stands a chance of being granted.

A copy of the handwritten letter from Quapaw Tribe Chairman John Berrey to Kansas Gov. Sam Brownback (R) was filed in federal court as part of lawsuit against the tribe and the National Indian Gaming Commission.

“We are very satisfied with all the courts' decisions related to this case and we are hoping in the future that the state of Kansas will elect a Governor who builds bridges with Tribal Nations instead of burning them,” Quapaw Tribe Chairman John Berrey told Indianz.Com on Monday.

Berrey attempted to work with Kansas Gov. Sam Brownback (R) on the expansion but talks never went anywhere. As part of the lawsuit, the state included a handwritten letter the chairman sent to the governor, in an apparent attempt at embarrassing Berrey.

The tribe later filed a lawsuit of its own in hopes of forcing the state to come to the table. But the tribe had to drop the case after the state successfully asserted its sovereign immunity.

Ironically, the state had sued individual leaders of the tribe as part of the NIGC case, arguing that sovereign immunity doesn't protect their actions. A federal judge ruled otherwise and the state did not raise the issue on appeal to the 10th Circuit.

An artist's rendering from December 2014 shows plans for an expansion at the Downstream Casino Resort. Image: Quapaw Tribe

Brownback has served two terms as governor, the limit under state law, and had been expected to leave his post early to serve as an Ambassador for President Donald Trump. A confirmation hearing took place on October 4 and the nomination was narrowly approved on a party-line vote on October 26. The Senate has yet to finalize the nomination.

Brownback served one term in the Senate. During that time, he secured passage of a resolution to apologize to Native peoples for their mistreatment by the United States. Though he hosted a ceremony with tribal leaders to read the apology, it was never formally acknowledged by then-president Barack Obama.

As governor, Brownback attempted to improve relations with tribes, even with those forced to leave the state. The Quapaws were largely left out of those efforts.

The gubernatorial election in Kansas takes place November 6, 2018.

10th Circuit Court of Appeals Decision:
Kansas v. Zinke (June 27, 2017)

Relevant Documents:
NIGC Indian Land Opinion For 'Quapaw Strip' in Kansas (November 2014)