Wyandotte casino survives another legal challenge

Law

Friday, September 12, 2008

The Wyandotte Nation's 7th Street Casino in downtown Kansas City, Kansas

The 7th Street Casino in downtown Kansas City, Kansas. File Photo © Wyandotte Nation.

After more than a decade of litigation, it looks like the out-of-state casino operated by the Wyandotte Nation of Oklahoma is finally safe.

The tribe began laying groundwork for the casino in 1995 by buying a half-acre of ancestral property in downtown Kansas City, Kansas. The property was purchased with funds that Congress appropriated to settle the tribe's land claims.

The state of Kansas and the four federally-recognized tribes in the state quickly sued the Interior Department to prevent the land from being taken into trust. And if it ever was, they wanted to make sure the Wyandotte Nation couldn't use it for a casino.

After several rounds of litigation, the Bush administration in March 2002 reaffirmed the trust status of the Shriner Tract, as the property is known. But the Bureau of Indian Affairs refused to say whether the land could be used for gaming.

That issue is a critical one since the Shriner Tract was taken into trust in 1996, long after the passage of the Indian Gaming Regulatory Act of 1988. The law generally bars gaming newly acquired lands unless certain exceptions are met.

According to the National Indian Gaming Commission, the Shriner Tract didn't meet any of the exceptions -- including one related to land claim settlements -- but that didn't stop the tribe from opening a modest Class II facility on the site. The NIGC's stance prompted the state of Kansas to raid the facility in April 2004, a move that clearly violated the tribe's sovereignty, the 10th Circuit Court of Appeals later ruled.

With that victory on its belt, the tribe won additional rulings that effectively overturned the NIGC's opinion of the Shriner Tract. The 10th Circuit finally dismissed the state's lawsuit in October 2007, pointing out that there were no more claims to resolve because the casino site was already in trust.

The tribe reopened the 7th Street Casino in January of this year. But less than a month later, the 10th Circuit revised its opinion and suggested that the state could reopen its lawsuit.

Judge Richard D. Rogers agreed to hear further arguments, but in an opinion filed on Wednesday, he dismissed the case. Since the land is already in trust and the United States enjoys sovereign immunity from lawsuits, he ruled that the state lacked any basis to continue.

"[S]overeign immunity has not been waived in a situation in which plaintiffs are asking for land to be removed from trust status and, therefore, this case is moot," Rogers wrote.

Barring dramatic shifts in the case, the 7th Street Casino appears to be safe from future litigation. That makes the Wyandotte Nation only the second tribe in the history of IGRA to open a gaming facility through the land claim exception.

The Seneca Nation opened two off-reservation casinos in New York through the land claim exception. However, a federal judge ruled that the NIGC's opinion on one of the casinos was flawed and the agency has since ordered the tribe to shut down the facility.

Court Decision:
Kansas v. Kempthorne (September 10, 2008)

10th Circuit Opinions:
Revised February 2008 Opinion | October 2007 Opinion