240 F.3d 1250 (10th Cir. 2001), 00-3063, Sac & Fox Nation of Missouri v. Norton

Docket Nº:00-3063
Citation:240 F.3d 1250
Party Name:SAC AND FOX NATION OF MISSOURI; IOWA TRIBE OF KANSAS AND NEBRASKA; PRAIRIE BAND OF POTAWATOMI INDIANS; BILL GRAVES, Governor of State of Kansas, Plaintiffs-Appellants, v. GALE A. NORTON, [1] Secretary of the Interior; WYANDOTTE TRIBE OF OKLAHOMA, Defendants-Appellees.
Case Date:February 27, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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240 F.3d 1250 (10th Cir. 2001)



GALE A. NORTON, 1 Secretary of the Interior; WYANDOTTE TRIBE OF OKLAHOMA, Defendants-Appellees.

No. 00-3063

United States Court of Appeals, Tenth Circuit

February 27, 2001

Appeal from United States District Court for the District of Kansas. (D.C. No. 96-CV-4129)

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John R. Shordike, Alexander & Karshmer, Berkeley, California, for the appellant Sac and Fox Nation of Missouri (Thomas Weathers, Alexander & Karshmer, for the appellant Sac and Fox Nation of Missouri; Stephen D. McGiffert and Mark S. Gunnison, Payne & Jones, Chartered, Overland Park, Kansas, for the appellants Sac and Fox Nation of Missouri and Iowa Tribe of Kansas and Nebraska; M.J. Willoughby, Assistant Attorney General, Topeka, Kansas, for the appellant Bill Graves; Mason D. Morisset and M. Frances Ayer, Morisset, Schlosser, Ayer & Jozwiak, Seattle, Washington, for the appellant Prairie Band of Potawatomi Indians, with him on the brief).

Jeffrey C. Dobbins, Department of Justice, Washington, D.C. (Lois J. Schiffer, Assistant Attorney General; Jackie N. Williams, United States Attorney; Jackie Rapstine, Assistant United States Attorney; David C. Shilton, Department of Justice; John Jasper, of counsel, with him on the brief), for the appellee Bruce Babbitt.

David McCullough (Michael Minis and Michael McMahan, with him on the brief), Michael Minis & Associates, P.C., Oklahoma City, Oklahoma, for the appellee Wyandotte Tribe of Oklahoma.

Before HENRY, BRISCOE, Circuit Judges, and JENKINS, District Judge.2

BRISCOE, Circuit Judge

Plaintiffs Sac and Fox Nation of Missouri, Iowa Tribe of Kansas and Nebraska, Prairie Band of Potawatomi Indians, and Bill Graves, the Governor of the State of Kansas, appeal the district court's dismissal of their action. Plaintiffs sought to prevent the Secretary of the Interior from taking a tract of land in downtown Kansas City, Kansas, into trust on behalf of the Wyandotte Tribe of Oklahoma, and approving gaming activities on that tract of land under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701-19. The district court dismissed the action for failure to join the Wyandotte Tribe as a necessary and indispensable party. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and reverse the district court's dismissal. With respect to the merits of plaintiffs' actions, which we reach because the district court issued alternative holdings, we conclude (1) Pub. L. 98-602 imposed a nondiscretionary duty on the Secretary to acquire land in trust for the Wyandotte Tribe; (2) the Secretary was not required to comply with the National Environmental Policy Act or the National Historical Preservation Act before acquiring land pursuant to Pub. L. 98-602 because the exercise of the Secretary's duty to acquire the land was nondiscretionary; (3) the Secretary acted arbitrarily in determining that only Pub. L. 98-602 funds were used to acquire the tract of land in downtown Kansas City; and (4) the Secretary erred in approving gaming activities on the acquired tract of land. We remand the case to the district court with directions to enter partial judgment consistent with our holdings and to remand in part to the Secretary for further consideration of whether Pub. L. 98-602 funds were used for the acquisition.


The underlying facts of this case are largely uncontroverted. Between 1795 and 1842, the Wyandotte Tribe3 (the Wyandottes) ceded much of their territory in southeastern Michigan and northern Ohio to the United States. This culminated with the signing of a March 17, 1842, treaty in which the Wyandottes ceded all of their remaining land in Michigan and

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Ohio in return for certain payments and a promised 148,000-acre reservation west of the Mississippi River. In December 1843, the Wyandottes acquired from the Delaware Nation of Indians thirty-six sections of land (23,040 acres) in Kansas situated at the point of the junction of the Missouri and Kansas Rivers (an area now known as Wyandotte County, Kansas). In 1850, the United States reimbursed the Wyandottes for the purchase of the Kansas land to fulfill its obligation under the 1842 treaty.

In 1855, the Wyandottes entered into another treaty with the United States and agreed to dissolve the tribe, become United States citizens, and cede all of their lands to the United States, which in turn would divide the land among the former members of the tribe. The 1855 treaty contained one relevant exception to the Wyandottes' cession agreement: "The portion now enclosed and used as a public burying-ground, shall be permanently reserved and appropriated for that purpose."4 Admin. Record at 8. That tract, known as the Huron Cemetery, is the focal point of this litigation.

The 1855 treaty resulted in the splintering of the Wyandottes into two groups those who accepted citizenship and those who did not. Those who accepted citizenship and received portions of the ceded land are known as the "Absentee" or "Citizen" Wyandots.5 The small group (approximately 200) who did not accept citizenship and did not receive any of the ceded land were officially reconstituted by Congress in 1867 as the Wyandotte Tribe.6 The reconstituted tribe settled in Oklahoma on land that had formerly belonged to the Seneca Indians.

In 1906, Congress approved an act granting authority to the Secretary of the Interior to sell the Huron Cemetery. Act of June 21, 1906, 34 Stat. 348. The sale never occurred, however, and in 1913, Congress repealed the authority to sell. Act of Feb. 13, 1913, 37 Stat. 668. In 1916, Congress appropriated $10,000 for the "preservation and improvement" of the Huron Cemetery "owned by the government of the United States, the use of which was conveyed by treaty to the Wyandotte Tribe of Indians." Act of Sept. 8, 1916, 39 Stat. 844. In 1918, the United States and the City of Kansas City, Kansas, entered into a personal care contract for maintenance of the Huron Cemetery. The contract provided that the City of Kansas City would "forever" maintain and care for the cemetery, furnish police protection in and around the cemetery, and furnish electrical energy free of charge for maintenance of the electric lights inside the Huron Cemetery. See Pls. Br. at 16.

In 1956, consistent with the then-favored policy of promoting assimilation of tribal members, Congress enacted a law providing "for the termination of Federal supervision over the trust and restricted property of the Wyandotte Tribe of Oklahoma and the individual members thereof, and for a termination of Federal services furnished to such Indians because of their status as Indians." Admin. Record at 26 (Pub. L. No. 84-887, 70 Stat. 893 (1956)). In pertinent part, the law directed that the Huron Cemetery be sold by the United States.

Title to the tract of land in Kansas City, Kansas, that was reserved for a public burying ground under article 2 of the treaty dated January 31, 1855 . . . with the Wyandotte Tribe . . . shall be

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transferred or sold . . . and the proceeds from any sale of the land may be used to remove and reinter the remains of persons who are buried there, to move any monuments now located on the graves, and to erect at reasonable cost one appropriate monument dedicated to the memory of the departed members of the Wyandotte Tribe.

Id. at 27.

The sale of the Huron Cemetery never occurred. This was due, apparently in part, to litigation filed against the United States by a group of Absentee Wyandots and the City of Kansas City, Kansas. The result, under the language of the 1956 Act, was that the Wyandotte Tribe was never actually terminated. Id. at 29 ("Upon removal of Federal restrictions on the property of the tribe . . . , the Secretary shall publish in the Federal Register a proclamation declaring that the Federal trust relationship to the affairs of the tribe and its members has terminated."). In 1978, Congress enacted a law reinstating to the Wyandotte Tribe all rights and privileges that it might have lost under the 1956 Act. Pub. L. No. 95-281, 92 Stat 246 (1978) (codified at 25 U.S.C. § 861).

In 1984, Congress enacted legislation providing for the appropriation and distribution of money in satisfaction of judgments awarded to the Wyandottes by the Indian Claims Commission and the Court of Claims. See Pub. L. 98-602, 98 Stat. 3149 (1984). The judgments were compensation for lands in Ohio that the Wyandottes had ceded to the United States in the 1800s.7 Under the 1984 law, Congress directed that 20% of the allocated funds "be used and distributed in accordance with" a series of directives. Key among the directives, for purposes of this case, was one providing that "[a] sum of $100,000 of such funds shall be used for the purchase of real property which shall be held in trust by the Secretary for the benefit of such Tribe." Admin. Record at 77 (98 Stat. 3151).

In 1988, Congress enacted the IGRA. Generally speaking, the IGRA prohibits gaming "on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988." 25 U.S.C. § 2719(a). One exception allows gaming on trust lands acquired by the Secretary after October 17, 1988, if the "lands are located within or contiguous to the boundaries of the reservation of the Indian tribe on October 17, 1988." Id. § 2719(a)(1). The general prohibition of gaming on lands acquired by the Secretary in trust can also be avoided if

the Secretary, after consultation with the Indian tribe and appropriate State, and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest...

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