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

Kansas asks Supreme Court to overturn ruling in Quapaw Tribe homeland case

The state of Kansas is trying to keep the Quapaw Tribe from expanding its casino with a last-ditch appeal to the U.S. Supreme Court.

The Downstream Casino Resort is unique in that it sits on land in three states: Oklahoma, Kansas and Missouri. But gaming has been restricted to the Oklahoma portion because that was the only portion in trust when the facility opened in 2008.

The picture changed when the Kansas portion was placed in trust in 2012. Subsequently, the top legal officer at the National Indian Gaming Commission issued an opinion saying the property could be used for gaming activities.

The state responded by suing the NIGC, arguing that the opinion was 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."

In a petition filed with the Supreme Court on September 25, the state argues that the 10th Circuit got it wrong. The opinion gives the tribe the "legal assurance it needed to expand its casino to Kansas" so it should be considered a final action, the brief reads.

"Without the NIGC legal opinion, the uncertainty regarding whether the Kansas land is eligible for gaming would have precluded the tribe from expanding its gaming operations to the Kansas land," the state argues.

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

Despite the assurances claimed in the brief, the expansion at Downstream has not taken hold since the project was announced nearly three years ago. The state has refused to negotiate a Class III gaming compact, a necessary step before the tribe can offer slot machines and similar offerings that are already legal in the Oklahoma portion of the casino.

The tribe sued the state in hopes of forcing negotiations but had to drop the case when the state asserted its sovereign immunity. Ironically, the state had named tribal officials as defendants in the NIGC case, arguing that sovereign immunity doesn't apply to their actions.

And even though the NIGC's legal opinion is not considered a "final agency action" in the eyes of the 10th Circuit, it is rather noteworthy. It appears to be the first time in the history of the Indian Gaming Regulatory Act that a tribe could engage in gaming on land that was part of its "last recognized reservation."

Generally, IGRA bars gaming on lands acquired after 1988. But the Kansas parcel falls within the so-called "Quapaw Strip" so it meets an exception in Section 20 of the law, the NIGC's legal office said in the opinion.

Like most other tribes, the Quapaws were forced to give up most of their lands in the late 1800s. Shifts in federal law and policy now encourage the restoration of tribal homelands, along with acquisition and consolidation of lands that were previously in tribal ownership.

The Kansas portion at Downstream totals about 124 acres and is being used as a parking lot and support area for the casino. The tribe has envisioned a 40,000 square-foot, two-story addition to the facility that would accommodate Class III games and other amenities.

The Department of Justice has until October 30 to respond to the state's petition, according to Docket No. 17-463. The state will be able to file one more reply before the Supreme Court debates whether to hear the case. Only a small percentage of petitions are granted by the court.

The case is Kansas v. National Indian Gaming Commission.

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)

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