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Oklahoma tribe wins another ruling on out-of-state land
Friday, May 12, 2006

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

The Bush administration's decision to acquire land in Kansas for an Oklahoma tribe was affirmed by a federal judge this week.

In 2002, the Bureau of Indian Affairs agreed to take a small parcel in downtown Kansas City in trust for the Wyandotte Nation. The move represented one of few times a tribe based in one state acquired land in another state.

The decision came only after years of litigation. The state of Kansas and the four federally recognized tribes there have repeatedly tried to block the Clinton and Bush administrations from approving the acquisition.

Four years after the BIA's decision in March 2002, the controversy is far from over. The tribe opened a Class II casino on the land known as the Shriner Tract, prompting the state to raid the facility and seize more than $1.25 million in tribal cash and equipment.

Just last month, the 10th Circuit Court of Appeals ruled that the state's action violated the tribe's sovereignty because the Shriner Tract, as Indian land, does not fall under state jurisdiction. A unanimous panel of three judges ordered the return of the tribal property.

On Tuesday, Judge Julie A. Robinson in Kansas handed another victory he tribe. In a 35-page decision, she ruled that the Shriner Tract was taken into trust using land claim settlement funds authorized by a special act of Congress known as Public Law 98-602.

"Having considered congressional intent and its deferential role as a reviewing court, the court finds that the [Interior] Secretary's interpretation of [Public Law 98-602] is based on a reasonable construction of the statute, and is not arbitrary, an abuse of discretion or in excess of its jurisdiction," Robinson wrote.

The ruling, however, does not speak to the legality of the now shuttered casino. Under the Indian Gaming Regulatory Act, tribes cannot conduct gaming on newly-acquired lands unless certain exceptions are met. Alternatively, a tribe may seek the approval of the state governor under a process known as the two-part determination.

The Wyandotte Nation is seeking to exploit the land claim exception of IGRA. According to federal officials, only one other tribe -- the Seneca Nation of New York -- has won an exception for land purchase with Congressional settlement funds.

Robinson's ruling affirms that the Wyandotte Nation bought the downtown Kansas City land with Congressional settlement funds. "Given this record, it was not arbitrary, capricious or contrary to law for the Secretary to find that the tribe used only Pub. L. 98-602 funds to purchase the Shriner Tract and substantial evidence supports the conclusion," she wrote.

But the National Indian Gaming Commission, in a March 2004 opinion that preceded the state's raid, said the Wyandottes don't meet the land claim exception because the tribe went through the Indian Claims Commission. The ICC process, according to NIGC, was devised "exclusively for money damages, not over title to land itself."

On the other hand, a tribe like the Seneca Nation sued for title to land and therefore qualifies for the land claim exception, in the eyes of the NIGC.

The opinion also concluded that the Wyandottes don't qualify for the restored lands exception even through the tribe was terminated in 1956 and restored to federal recognition in 1978. The agency said the tribe lacked a "historical nexus" to the Shriner Tract and that the acquisition of the land was not "temporal" to the tribe's restoration.

"Therefore, the tribe may not game on the Shriner Tract pursuant to IGRA," attorney Penny Coleman wrote.

The tribe is challenging the opinion in another lawsuit before Judge Robinson. Arguments are set for next week in Kansas.

Bills pending in Congress would eliminate the land claim exception for all future cases and eliminate the two-part determination process. They would make it harder for landless, restored and newly recognized tribes to acquire land for gaming, and block tribes from crossing state lines to open a casino.

Judge Robinson Decision:
Kansas v. Norton (May 9, 2006)

10th Circuit Court Decision:
Wyandotte Nation v. Kansas (April 7, 2006)

Relevant Documents:
NIGC: Legality of Gaming under the IGRA on the Shriner Tract owned by the Wyandotte Tribe (March 24, 2003) | BIA: Reconsideration on Wyandotte lands (June 12, 2003)

Pombo IGRA Bill:
To amend section 20 of the Indian Gaming Regulatory Act to restrict off-reservation gaming (H.R.4893)

McCain IGRA Bill:
Indian Gaming Regulatory Act Amendments of 2005 (S.2078)

Relevant Links:
Wyandotte Nation - http://www.wyandotte-nation.org

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