437 F.Supp.2d 1193 (D.Kan. 2006), 05-2210, Wyandotte Nation v. National Indian Gaming Com'n

Docket Nº:05-2210-JAR.
Citation:437 F.Supp.2d 1193
Party Name:WYANDOTTE NATION, Plaintiff, v. NATIONAL INDIAN GAMING COMMISSION, et al., Defendants.
Case Date:July 06, 2006
Court:United States District Courts, 10th Circuit, District of Kansas
 
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437 F.Supp.2d 1193 (D.Kan. 2006)

WYANDOTTE NATION, Plaintiff,

v.

NATIONAL INDIAN GAMING COMMISSION, et al., Defendants.

No. 05-2210-JAR.

United States District Court, D. Kansas.

July 6, 2006

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Conly John Schulte, Shilee Therkelsen Mullin, Monteau & Peebles, LLP, Omaha, NE, Sam L. Colville, Holman Hansen & Colville PC, Overland Park, KS, for Plaintiff.

Jackie A. Rapstine, Office of United States Attorney, Topeka, KS, for Defendants.

MEMORANDUM ORDER AND OPINION

ROBINSON, District Judge.

This matter is before the Court upon plaintiff Wyandotte Nation's ("the Tribe" or "Wyandotte") challenge to the final agency decision of the National Indian Gaming Commission ("NIGC") concluding that plaintiffs may not lawfully conduct gaming on the Shriner Tract, a parcel of land that the United States holds in trust for the benefit of plaintiffs. The Tribe moves for summary judgment pursuant to Fed.R.Civ.P. 56; defendants have responded. 1 Oral argument was heard on May 16, 2006. After reviewing the parties' submissions, and for reasons set forth in detail below, the Court reverses the NIGC's finding that the Shriner Tract does not meet the "settlement of a land claim" exception to the Indian Gaming Regulatory Act ("IGRA") prohibition on gaming on lands acquired after October 17, 1988.

I. Facts

History of the Wyandotte

The Tribe's ancestors, known as the Huron, originally resided in Canada, eventually moving south to the area around Detroit and into what is presently Ohio and western Pennsylvania, becoming known as the Wyandotte. In a series of treaties between 1795 and 1832, the Tribe ceded to the United States all of its interest in approximately six million acres of land in the present states of Ohio and Michigan. In 1842, the Tribe entered into a treaty with the United States ceding its remaining Ohio and Michigan lands to the United States in exchange for an unidentified 148,000-acre tract of land located west of the Mississippi River. The Tribe then negotiated to purchase land from the Shawnee

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Tribe located near Westport, Missouri. 2

The Tribe moved westward to the Town of Kansas in 1843, and originally took up residence on a strip of federal land between the Missouri border and the Kansas River. Shortly thereafter, the Tribe learned that the Shawnee Tribe would not complete the sale of the Westport lands and that the United States would not honor its 1842 Treaty commitment to provide the Tribe with a 148,000-acre reserve. On December 14, 1843, the Tribe entered into an agreement with the Delaware Nation to acquire land in the Kansas Territory. 3 Under that agreement, the Delaware Nation gifted to the Tribe three sections of land, each comprising 640 acres, situated in the Kansas Territory at the confluence of the Kansas and Missouri Rivers. The Delaware Nation also sold the Tribe an additional thirty-six sections of land, located west of the gifted land. The United States Senate ratified the 1843 Agreement between the Tribe and the Delaware Nation on July 25, 1848. 4

Between 1843 and 1855, the Tribe was instrumental in founding and platting Wyandotte City, later renamed Kansas City, Kansas. 5 In 1855, the Tribe entered into a Treaty with the United States ceding the thirty-six sections of land that it had purchased from the Delaware Nation to the United States. 6 Specifically reserved from the Treaty cession were three parcels, one of which was the Huron Parcel, which was and remains adjacent to the "Shriner Tract"--the parcel at issue in this case. 7 The Treaty of 1855 also offered the Tribe's members the option of becoming United States citizens or maintaining their tribal affiliation and relocating to the present State of Oklahoma. 8 In 1857, 200 tribal members who had elected to maintain their tribal affiliation were removed to the Indian Territory in Oklahoma. 9 The Wyandotte eventually received their own reservation in the Indian Territory pursuant to the Omnibus Treaty of 1867. 10 In 1893, the Tribe's reservation was allotted to individual tribal members. 11

Pursuant to the Oklahoma Indian Welfare Act of 1936, the Wyandotte adopted a Constitution and By-Laws, which were ratified on July 24, 1937. In 1956, the United States terminated federal supervision over the Tribe; the termination attempt was never completed because it was conditioned upon the United States purchasing the Huron Cemetery from the Wyandotte--an event that never occurred. 12 Congress restored the Wyandotte as a federally-recognized Indian Tribe in 1978. 13 The Tribe's Revised Constitution was approved in 1985. 14 The United States has held the Huron Parcel, a parcel of land adjacent to the Shriner Tract, in trust for the benefit of the Tribe from 1855 to the present day. 15 The Tribe contends that the Huron Parcel and land surrounding that parcel, including the

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Shriner Tract, are of "tremendous historical significance" to the Tribe.

During the 1950's, the Wyandotte filed several actions against the United States with the Indian Claims Commission (the "ICC") involving title determination of the Tribe's claims to land. The ICC entered judgment for the Tribe. The judgments were compensation for lands in Ohio that the Wyandottes had ceded to the United States in the 1800's. 16 To effectuate the judgment, Congress enacted Public Law 98-602 that, inter alia, mandated that a portion of the judgment funds be used for the purchase of real property, which the Secretary of the Interior was required to take into trust for the benefit of the Tribe. 17

Procedural Background

In 1994 and 1995, as part of its efforts to develop a gaming facility in Wyandotte County, Kansas, the Tribe negotiated the purchase of several properties adjacent to the Huron Cemetery. In January 1996, the Tribe submitted an application to the Bureau of Indian Affairs ("BIA") requesting that the United States accept title to these parcels, including the "Shriner Tract," in trust for the Tribe's benefit, citing the mandatory acquisition provision contained in Pub.L. 98-602. In memoranda dated February 13, 1996 and May 16, 1996, the Associate Solicitor for Division of Indian Affairs at the Department of Interior concluded that: (1) Pub.L. 98-602 mandated that the Secretary of the Interior acquire the Shriner Tract in trust for the Wyandotte and (2) the Huron Parcel was Wyandotte reservation land on October 17, 1988, and that because the proposed trust parcels were contiguous to the Tribe's reservation, the parcels qualified for gaming under the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2719(a)(1). 18 On or about June 12, 1996, the Assistant Secretary for Indian Affairs ("Assistant Secretary") published a Notice in the Federal Register stating that the BIA intended to accept title to the Shriner Tract into trust for the benefit of the Wyandotte for gaming purposes. 19

On July 12, 1996, the Governor of the State of Kansas and four other Indian tribes located in the State of Kansas filed suit against the Assistant Secretary, seeking to enjoin the trust acquisition of the Shriner Tract. 20 After an injunction was entered against the United States, the Wyandotte took an emergency appeal to the Tenth Circuit Court of Appeals; on July 15, 1996, the Tenth Circuit vacated the injunction, and that same day, the Secretary accepted title to the Shriner Tract in trust for

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the Wyandotte's benefit.21 In so ruling, the court specifically held that the respective rights of the parties to obtain judicial review of all issues shall be preserved. 22

The case found its way back to the Tenth Circuit, which concluded that Pub.L. 98-602 is a mandatory trust acquisition statute, that the Secretary had no discretion in accepting title to the Shriner Tract in trust for the Tribe, and that neither National Environmental Policy Act of 1969 (NEPA) nor National Historic Preservation Act (NHPA) analyses were required for the non-discretionary decision to take the property into trust. 23 The court remanded the case to the district court with instructions to remand to the Secretary to determine whether the Shriner Tract was purchased with only Pub.L. 98-602 funds. 24

The Circuit refused to give deference to the Secretary's determination that the Shriner Tract was contiguous to the Wyandotte reservation as of October 17, 1988. 25 The court held that the Secretary lacked authority to interpret the term "reservation" under an exception to the general prohibition against gaming contained in Section 2791 of the IGRA. 26 As such, the court concluded that because the Huron Cemetery was not a reservation, the Shriner Tract was not contiguous to the Wyandotte's reservation. 27 Congress reacted to this part of the court's determination, however, by passing legislation declaring the authority to determine whether a specific area of land is a "reservation" for purposes of 25 U.S.C. §§ 2701-2721 was delegated to the Secretary of the Interior on October 17, 1988. 28

On remand, the Secretary confirmed that the Shriner Tract was, in fact, purchased with only Pub.L. 98-602 funds and on March 11, 2002, published a Notice in the Federal Register, concluding the same. 29 Plaintiffs challenged the agency decision pursuant to the Administrative Procedure Act; this Court recently entered an Order affirming the Secretary's decision on remand. 30

The IGRA and the NIGC's Decision

In 1988, Congress enacted the IGRA to provide a statutory basis for the operation and regulation of Indian gaming. 31 IGRA provides that "Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State...

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