Case blocking out-of-state casino dismissed

Law
Case blocking out-of-state casino dismissed
Monday, November 6, 2006

The Wyandotte Nation's former casino on trust land in downtown Kansas City. File Photo � The Lawrence Journal-World.

The Wyandotte Nation of Oklahoma is closer to becoming the first tribe in the country to win federal approval for an out-of-state casino.

The tribe opened a small Class II gaming facility across the border in Kansas in late 2003. But it was forcibly shut down in April 2004 after the state raided the casino and seized more than $1.2 million in tribal cash and equipment.

A federal appeals court eventually ruled that the state's action violated the tribe's sovereignty because the casino site in downtown Kansas City is held in trust. States do not have jurisdiction on Indian land without Congressional authorization.

The ruling, however, didn't mean the tribe was in the clear. The National Indian Gaming Commission said the property didn't qualify for gaming under the Indian Gaming Regulatory Act.

A federal judge ruled against the NIGC in July so government attorneys filed a notice of appeal with the 10th Circuit. But days before the first brief was due, the Department of Justice "determined that no appeal should be taken in this case," a joint tribal-federal motion filed last Tuesday stated.

A day later, U.S. District Judge Julie A. Robinson granted the motion and dismissed the case, clearing the way for a new NIGC land determination that would allow gaming on the parcel, also known as the Shriner Tract.

The federal government and the tribe still have to contend with another lawsuit pending at the 10th Circuit. After Robinson ruled in May that the Wyandotte property was taken into trust properly, the state of Kansas and three Kansas tribes appealed.

The opening briefs in that case were filed last Tuesday, a day before the joint motion in the now-dismissed case.

The string of victories bodes well for the Wyandotte Nation but the dispute goes to the heart of current controversies over Indian gaming. Two bills that were introduced in Congress this year would bar tribes from crossing state lines to open casinos.

IGRA normally bars gaming on land taken into trust after 1988, the year of its passage. But Section 20 provides four exceptions that have been the subject of debate for the past two years amid the expansion of the $23 billion tribal gaming industry and a proliferation of off-reservation and out-of-state casino proposals.

The exception at issue in the Wyandotte case applies to land taken into trust pursuant to a land claim settlement. The tribe bought the Kansas City property with funds authorized by an act of Congress.

The NIGC had interpreted this exception very narrowly. The agency said it only applies to tribes who settled a land claim for land rather than cash.

In the history of IGRA, only one tribe -- the Seneca Nation of New York -- has met that test.

Robinson said NIGC's narrow reading conflicted with the "plain meaning" of IGRA and with the Seneca situation. "The NIGC has required the Wyandotte to meet criteria that it has not required in other cases, and the Secretary of the Interior has allowed lands to qualify for the settlement of lands exception in circumstances at least as suitable as the case at bar," she wrote in July.

Her decision isn't likely to open the floodgates to similar cases, though. To settle a land claim, a tribe must receive approval from the state and the federal government before Congress will pass a bill to ratify the deal.

Still, the bills that were introduced this year would have eliminated the land claim exception from Section 20. Sen. John McCain (R-Arizona) and Rep. Richard Pombo (R-California), the sponsors of two gaming bills, said IGRA was being abused by tribes seeking off-reservation and out-of-state casinos.

McCain's bill has been held up by a dozen senators, meaning passage is highly unlikely by the end of the year. Pombo, meanwhile, suffered a huge defeat when his proposal was killed on the House floor by a procedural vote. He could revive the measure when Congress returns to work next week after tomorrow's election, although his future is in doubt.