443 F.3d 1247 (10th Cir. 2006), 04-3431, Wyandotte Nation v. Sebelius

Docket Nº:04-3431, 04-3432.
Citation:443 F.3d 1247
Party Name:WYANDOTTE NATION, a Federally Recognized Indian Tribe, Plaintiff-Appellant, v. Kathleen SEBELIUS, in her official capacity as Governor of Kansas; William R. Seck, in his official capacity as the Superintendent of the Kansas State Highway Patrol; Ronald Miller, in his official capacity as Chief of Police, City of Kansas City, Kansas; Larry Welch, in
Case Date:April 07, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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443 F.3d 1247 (10th Cir. 2006)

WYANDOTTE NATION, a Federally Recognized Indian Tribe, Plaintiff-Appellant,

v.

Kathleen SEBELIUS, in her official capacity as Governor of Kansas; William R. Seck, in his official capacity as the Superintendent of the Kansas State Highway Patrol; Ronald Miller, in his official capacity as Chief of Police, City of Kansas City, Kansas; Larry Welch, in his official capacity as Director of the Kansas Bureau of Investigation; Joe Reardon, [*] in his official capacity as Mayor, City of Kansas City, Kansas; Phill Kline, in his official capacity as Attorney General for the State of Kansas; Phillip L. Sieve, in his official capacity as District Court Judge for the State of Kansas, County of Wyandotte; Nick A. Tomasic, in his official capacity as Wyandotte County, Kansas District Attorney, Defendants-Appellees.

United States of America, Amicus Curiae.

Nos. 04-3431, 04-3432.

United States Court of Appeals, Tenth Circuit.

April 7, 2006

Appeal from the United States District Court for the District of Kansas (D.C. No. 04-2140)

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Conly Schulte, Monteau & Peebles, L.L.P., Omaha, Nebraska (Shilee T. Mullin with counsel on the briefs) for Plaintiff-Appellant.

Steven D. Alexander, Assistant Attorney General, Topeka, Kansas (Phill Kline, Attorney General; David W. Davies, Deputy Attorney General, Topeka, Kansas, with counsel on the briefs) for Defendants-Appellees.

R. Justin Smith, United States Department of Justice, Washington, DC (Kelly A. Johnson, Acting Assistant Attorney General; William B. Lazarus, Todd S. Aagaard, United States Department of Justice, Washington, D.C; Maria Getoff and Andrea Lord, Staff Attorneys, National Indian Gaming Commission with counsel on the briefs) for Amicus Curiae.

Before LUCERO, BRORBY, and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

The Wyandotte Nation, a federally recognized Indian Tribe, appeals the entry of a preliminary injunction barring the tribe from conducting gaming on the Shriner Tract in Kansas City, Kansas. Kathleen Sebelius, the Governor of Kansas, and various other Kansas officials cross-appeal, challenging an injunction preventing them from enforcing Kansas's gaming laws on the Shriner Tract and ordering them to return money and property seized when Kansas raided a casino located on the property. Because the district court acted properly when enjoining the state from enforcing its law on what is most likely Indian land, we AFFIRM the injunction against the State Defendants. However,

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because the district court, in clear violation of Fed.R.Civ.P. 65(a), provided the Wyandotte with no notice that they were going to be enjoined and because it relied on a misreading of a previous order of this court, the injunction against the Wyandotte is VACATED.

I

for ten years, the Wyandotte Nation, the State of Kansas, and the United States have been locked in litigation in multiple for a over the fate of the Shriner Tract, a piece of land in downtown Kansas City, Kansas. This long battle has produced a procedural history as complex as a random maze. Much of this history has been recapped in Sac & Fox Nation v. Norton, 240 F.3d 1250, 1253-58 (10th Cir. 2001). However, because the outcome of this case turns on developments in prior and concurrent litigation, it is necessary to review this epic tale of claims and counter-claims, federal regulators and state agents, legislation and lots and lots of law suits.1

A

This history of legal disputes between Kansas, the United States and the Wyandotte over the Shriner Tract began more than three decades ago. In 1973, the Indian Claims Commission held that the federal government illegally took tribal lands belonging to the Wyandotte. Strong v. United States, 30 Ind. CI. Comm. 8, 21-22 (I.C.C. 1973); Strong v. United States, 30 Ind. CI. Comm. 337, 353-54 (I.C.C. 1973). In 1984, Congress enacted legislation that appropriated money to satisfy that judgment. Pub. L. 98-602, 98 Stat. 3149 (1984). The legislation stated that a portion of the overall award $100,000 was to be used "for the purchase of real property which shall be held in trust by the Secretary [of the Interior] for the benefit of [the Wyandotte Nation]." Pub. L. 98-602, § 105(b)(1). See also Sac & Fox Nation, 240 F.3d at 1255.

In 1996, the Wyandotte informed the Secretary that they wanted to buy the Shriner Tract. Id. at 1257. The Secretary published in the Federal Register a Notice of Intent to take the Shriner Tract into trust for the Wyandotte. Id. at 1256. As long as only funds authorized by Pub. L. 98-602 were used, the Secretary had a non-discretionary duty to take the land into trust. Id. at 1262.

Worried that the Wyandotte would build a casino on the Shriner Tract if it were taken into trust, the Governor of Kansas sprung into action and, along with several Indian tribes, sued the Secretary to stop the federal government from taking the Shriner Tract into trust for the Wyandotte. Id. at 1256. This case was entitled Sac & Fox Nation v. Norton. The district court granted a temporary restraining order ("TRO") preventing the Secretary from taking the land into trust. Id. at 1256-57. Because the tribe, which had moved to intervene, was under contract to purchase the land immediately, they challenged the TRO. On July 15, 1996 ("July 15th Order"), we vacated the TRO, stating in relevant part:

4. We hear this matter on an emergency basis and wish to preserve, as best we can, the rights of all parties. In

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order to do so, [We] take into specific consideration the statement of the United States Attorney and the counsel for the Wyandotte Tribe that acquisition by the Secretary of this land in trust will not affect or bar the ultimate resolution of whether this land can be used for Class III gaming pursuant to the Indian Gaming Regulatory Act. ["IGRA"]2

5. In order to preserve the status quo, we grant the [Wyandotte's] emergency application for stay and hold that the temporary restraining order entered below is dissolved, subject to the conditions which constitute the law of this case, that the respective rights of the parties to obtain judicial review of all issues which have been raised in the complaint below shall be preserved, including standing of all parties, jurisdiction, compliance by the Secretary with all requirements of law, and the ultimate question of whether gaming shall be permitted on the subject land.

On an emergency basis, the plaintiffs - the Governor of Kansas and the other tribes - filed a motion to clarify that Class I and Class II gaming were prohibited on the Shriner Tract pending the resolution of Sac & Fox Nation. The next day, we issued an order (the "July 16th Order") denying this motion:

Plaintiffs-Appellees [i.e., Kansas] have filed an emergency motion for clarification of our order of July 15, 1996. They contend that the order 'inadvertently' allows gaming on the subject property other than class III gaming under the Indian Gaming Regulatory Act and suggests that the order be modified to prohibit any gaming on the land pending resolution of the suit below. After consideration of the motion, we conclude that it should be denied. Paragraph five of our July 15, 1996 order specifically states that all issues raised below are preserved for judicial review, including 'the ultimate question of whether gaming shall be permitted on the subject land itself.' This broad language clearly includes all classes of gaming. The motion is denied.

The Secretary then purchased the Shriner tract and took it into trust for the Wyandotte. Sac & Fox, 240 F.3d at 1257.

Sac & Fox Nation continued in district court until the court dismissed the case on procedural grounds. Id. at 1253. Kansas and the tribes appealed the decision and we reversed the district court's procedural ruling and addressed the merits of the case. On the merits, we affirmed the Secretary's ruling that she had a non-discretionary duty to take the Shriner tract into trust if the tribe used only Pub. L. 98-602 funds to purchase the land. However, we found that the Secretary had not provided substantial evidence that the Wyandotte used only Pub. L. 98-602 funds to purchase the Shriner Tract. Id. at 1261-63.3 We remanded the case to the district court with an order to remand the case to the Secretary to determine the source of the funds. Id. at 1263-68. The district court

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did so and entered final judgment in the...

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