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Oklahoma tribe wins ruling on out-of-state gaming site
Monday, April 10, 2006

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

The state of Kansas cannot enforce its laws on Indian land in downtown Kansas City and must return more than $1.25 million in cash and equipment to the Wyandotte Nation of Oklahoma, a federal appeals court ruled on Friday.

In a unanimous decision, the 10th Circuit Court of Appeals upheld an injunction that bars Kansas officials from taking action on land held in trust for the tribe. A three-judge panel said the state "bypassed the proper legal channels" by raiding the tribe's Class II facility, arresting casino employees and seizing funds and equipment back in April 2004.

"There was no legal basis for the state's action and very little likelihood that the state will ever have a legal justification," Judge Carlos F. Lucero wrote for in the 21-page opinion.

The ruling is a bittersweet win for the tribe, whose Oklahoma headquarters are about 180 miles away from Kansas City. The state's raid, involving dozens of law enforcement, forced the closure of the small gaming facility, which wasn't a major money maker but provided jobs and a steady steam of revenue.

The battle over the Shriner Tract, as the downtown land is known, is far from over, however. As one of the few tribes who have been able to acquire land in another state, the Wyandotte Nation still needs federal approval to conduct gaming on the site.

Under the Indian Gaming Regulatory Act, tribes cannot open casinos on land taken into trust after 1988. In the case of the Wyandottes, the Bureau of Indian Affairs acquired the Shrine Tract in 1996, after a lengthy battle with the state and four tribes in Kansas, who oppose out-of-state tribal gaming.

But since the land was purchased using Congressional land claim settlement funds, the tribe argues that it qualifies for an exception in IGRA. So far, only one tribe in the country -- the Seneca Nation in New York -- has been able to open a casino under the land claim settlement exception.

According to the National Indian Gaming Commission, the Wyandottes can't become the second tribe. In a March 2004 ruling the preceded the state raid, the agency's top lawyer said the tribe doesn't meet the requirements for the land claim exception.

Acting general counsel Penny Coleman also said the tribe doesn't meet exceptions for restored tribes -- the Wyandottes regained recognition in 1978 after being terminated in 1956 -- or for landless tribes. "Therefore, the tribe may not game on the Shriner Tract pursuant to IGRA," attorney Penny Coleman wrote.

The tribe is now challenging the NIGC's opinion, which is not a final agency action, in federal court. The lawsuit is pending in Washington, D.C., amid efforts by key members of Congress to eliminate, or change, the exceptions the Wyandottes and others are trying to utilize.

S.2078, sponsored by Sen. John McCain (R-Arizona), the chairman of the Senate Indian Affairs Committee, eliminates the land claim exception altogether. So does H.R.4893, a bill introduced by Rep. Richard Pombo (R-California), the chairman of the House Resources Committee.

Both bills modify the criteria for the exceptions to make it harder for tribes to open casinos on land that is currently not held in trust. The measures also eliminate the two-part determination process that has been three times to open off-reservation casinos.

Additionally, McCain's bill imposes a cut-off date of April 15 on new gaming applications. Since the Wyandotte Nation's trust land application for the Shriner Tract has already been processed, and its claim for IGRA exceptions has been pending for several years, it appears the tribe would not be subject to this "grandfather" clause.

The Wyandottes aren't the only Oklahoma tribe with out-of-state land. The Miami Nation owns trust property in Kansas that the Interior Department said can't be used for gaming under the IGRA exceptions.

The Wyandottes, who filed an unsuccessful land claim lawsuit in Kansas, aren't the only Oklahoma tribe that has sought gaming in another state either. The Shawnee Tribe, recognized under a special act of Congress in 2000, sought land in Kansas but a congressional rider blocked the acquisition, the 10th Circuit ruled last May.

The Cheyenne-Arapaho Tribes also filed a claim in Colorado in hopes of opening a casino, and the Miamis dropped their unsuccessful claim in Illinois. McCain, during hearings and on the Senate floor, cited these and other proposals in his bid to block off-reservation gaming.

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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