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NIGC rules against Okla. tribe's casino in Kansas
Friday, March 26, 2004

An Oklahoma tribe's out-of-state casino has been deemed illegal by the National Indian Gaming Commission.

A 24-page opinion issued through the agency's top lawyer rejected the Wyandotte Nation's right to game in downtown Kansas City, Kansas. The tribe has been operating a Class II facility on on a sliver of trust land since August of last year, citing historical ties to the area.

But NIGC's acting general counsel, Penny Coleman, said the land was taken into trust too late and for the wrong reasons. While acknowledging that the tribe exercises jurisdiction over the Shriner Tract -- a key factor in the analysis -- she invoked the Indian Gaming Regulatory Act's ban on gaming on lands acquired after 1988.

The land, Coleman wrote, does not fall within the tribe's "last reservation," it was not acquired as the result of a land claim and it was not restored when the tribe regained federal recognition in 1978. "Therefore, the tribe may not game on the Shriner Tract pursuant to IGRA," she said in the March 24 opinion. [PDF: 1.3 MB]

Reached at his office in Wyandotte, Oklahoma, Chief Leaford Bearskin said NIGC hadn't informed him of its decision, which was accompanied by a letter addressed to him. "I have no comment until I get notified," he said.

Kansas attorney general Phill Kline, though, took it as a victory in his quest to shut the facility down. "We now call upon the Wyandotte Nation to immediately halt gaming activity on the Shriner Tract and to remove all gaming devices to comply with the decision of the NIGC," he said.

Kline's urgency is natural because the state and its four federally-recognized tribes have fought the Wyandotte Nation's gaming plans for several years. The tribes all operate casinos pursuant to compacts with the state.

But Coleman's long-awaited decision has ripples elsewhere because state officials and politicians nationwide are seeking guidance on whether tribes can operate casinos on lands hundreds of miles away from their current reservations or, in some cases, in other states.

Just as the ruling was finalized, a Bureau of Indian Affairs official raised the issue at a Senate hearing on Wednesday. George Skibine, the acting deputy assistant secretary for policy and economic development, said his agency has found nothing in IGRA to limit gaming to existing tribal lands.

Skibine told the Senate Indian Affairs Committee that "it would definitely be an economic benefit to tribes" to acquire off-reservation or out-of-state lands pursuant to a section of IGRA, known as section 2719, that sets out the requirements for these types of acquisitions. In an interview after the hearing, he stressed that there was "no legislative history" on this issue.

But in the decision, Coleman countered that, "This section of IGRA limits, not expands, the right to game. It is clear that Congress intended to allow some gaming to occur on lands acquired after enactment of IGRA under this provision, but specifically disallowed gaming on newly acquired lands far from the current prior reservation."

Affie Ellis, an NIGC spokesperson, wasn't ready to consider the two statements a conflict. "We want to be consistent with what's in section 2719," she said. The Shriner Tract, she noted, "was acquired into trust in 1996 and did not meet any of the exceptions" laid out in the section.

In the Wyandotte Nation's case, that meant first evaluating whether the tribe has jurisdiction over the parcel. Citing a number of governmental actions, including an agreement with the local government, NIGC concluded the tribe indeed exercises authority.

Second, Coleman considered whether the land was in the tribe's "last recognized reservation within the state within which the tribe is presently located." Since the tribe is "presently located" in Oklahoma, where its headquarters are based, she determined that this exception was not met.

Next, NIGC looked at whether the tribe could satisfy the land claim exception. The tribe did purchase the tract with settlement funds but Coleman said the funds were awarded by the Indian Claims Commission, whose purpose was "to ascertain money damages" -- not award land.

Finally, Coleman examined whether the land qualifies as "restored" since the tribe, after being terminated in 1956, regained federal recognition in 1978. Section 2719 provides an exception for restored tribes.

But the tribe does not meet the test due to the 18-year gap between restoration and the Shriner Tract purchase, Coleman said. While the long wait is not a complete bar, she acknowledged, the fact that the tribe received trust land in Oklahoma in in interim detracted from the tribe's case.

Also, Coleman said the tribe has no "historical nexus" to the land even though tribal ancestors are buried in the cemetery. She argued that the tribe lived in the Kansas City area for less than a decade before being removed to Oklahoma.

Coleman's accompanying letter to Chief Bearskin gave the tribe a week to respond to the opinion. Ellis said the agency would evaluate its next step once the response is received.

Get the Decision:
Legality of Gaming under the IGRA on the Shriner Tract owned by the Wyandotte Tribe (March 24, 2003)

Other Documents:
BIA: Reconsideration on Wyandotte lands (June 12, 2003)

Relevant Links:
Wyandotte Nation of Oklahama - http://www.wyandotte-nation.org/home.html

Related Stories:
BIA issues decision on Wyandotte land in Kan. (07/25)
Column: 'Bad business deal' with tribe (11/12)
Column: 'Bad business deal' with tribe (11/12)
Wyandotte casino agreement approved (11/08)
Bush asked to oppose tribal land bill (10/25)
Casino money donated in Kan. race (10/24)
Kan. tribe blasts casino settlement bill (10/11)
Bill to settle land claim for casino (10/10)
Class action sought on land claim (08/27)
Column: Hostility at land claim forum (08/14)
Forum on Wyandotte lawsuit planned (08/06)
Kan. landowners served with tribe's suit (7/19)
Wyandotte land claim still alive (5/10)
Wyandotte trust land notice clarified (5/9)
In The Hoop: Oops!(5/8)
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McCaleb affirms trust land decision (3/12)
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Congress kills Wyandotte casino project (10/15)
Wyandotte company awarded $100M contract (8/17)
Sides prepare for land claim battle (6/21)
Battle over Kansas casino continues (2/28)
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