92 F.Supp.2d 1124 (D.Kan. 2000), 96-4129, Sac and Fox Nation of Missouri v. Babbitt

Docket Nº:96-4129-RDR, 964130-RDR.
Citation:92 F.Supp.2d 1124
Party Name:SAC AND FOX NATION OF MISSOURI, Iowa Tribe of Kansas and Nebraska, Prairie Band of Potawatomi Indians, and Bill Graves, Governor of the State of Kansas, Plaintiffs, v. Bruce BABBITT, Secretary of the Interior of the United States, Defendant. Kickapoo Tribe of Kansas, Plaintiff, v. Bruce Babbitt, Secretary of the Interior of the United States, et al
Case Date:March 02, 2000
Court:United States District Courts, 10th Circuit, District of Kansas
 
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Page 1124

92 F.Supp.2d 1124 (D.Kan. 2000)

SAC AND FOX NATION OF MISSOURI, Iowa Tribe of Kansas and Nebraska, Prairie Band of Potawatomi Indians, and Bill Graves, Governor of the State of Kansas, Plaintiffs,

v.

Bruce BABBITT, Secretary of the Interior of the United States, Defendant.

Kickapoo Tribe of Kansas, Plaintiff,

v.

Bruce Babbitt, Secretary of the Interior of the United States, et al., Defendants.

Nos. 96-4129-RDR, 964130-RDR.

United States District Court, D. Kansas.

March 2, 2000

Mark S. Gunnison, Stephen D. McGiffert, Payne & Jones, Chtd., Overland Park, KS, Mason D. Morisset, Morisset, Schlosser, Ayer & Jozwiak, Seattle, WA, John R. Shordike, Berkeley, CA, Paul Alexander, Alexander & Karshmer, Washington, DC, Judith A. Shapiro, Hobbs, Straus, Dean & Walker, Washington, DC, M. Frances Ayer, Federal Bar Ass'n, for Sac and Fox Nation of Missouri, Iowa Tribe of Kansas & Nebraska and Prairie Band of Potawatomi Indians, plaintiffs.

Page 1125

M.J. Willoughby, John W. Campbell, Office of Attorney General, Topeka, KS, Mason D. Morisset, Morisset, Schlosser, Ayer & Jozwiak, Seattle, WA, Carla J. Stovall, Kansas Attorney General, Topeka, KS, John R Shordike, Berkeley, CA, Paul Alexander, Alexander & Karshmer, for Bill Graves, Governor of State of Kansas, plaintiff.

Jackie A. Rapstine, Office of United States Attorney, Topeka, KS, Edward Passarelli, U.S. Dept. of Justice, General Litigation Section, Environment and Natural Resources Div., Washington, DC, Steven E Carroll, U.S. Dept. of Justice, Indian Resources Section, Environment & Natural Resources Div., Washington, DC, for Bruce Babbitt, Secretary of Interior, defendant.

David McCullough, Oklahoma City, OK, Richard W. Morefield, Jr., Thomas G. Munsell, Bottaro, McCormick & Morefield, L.C., Kansas City, MO, for Wyandotte Tribe of Oklahoma, defendant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

These long-pending cases concern the decision of the Secretary of the Interior to take .52 acres of land (the "Shriner Tract") into trust on behalf of the Wyandotte Indian Tribe of Oklahoma, purportedly under the mandate of Public Law 98-602, and whether that land is contiguous to "reservation" land for the purposes of the Indian Gaming Regulation Act, 25 U.S.C. § 2701 et seq. The alleged "reservation" land is the Huron Cemetery in Kansas City, Kansas.

The complaints

Case No. 96-4129 was filed by the Sac and Fox Nation of Missouri, the Iowa Tribe of Kansas and Nebraska, the Prairie Band of Potawatomi Indians, and the Governor of the State of Kansas against the Secretary of the Interior of the United States. The Wyandotte Indian Tribe of Oklahoma sought and was granted leave to intervene as a defendant in Case No. 96-4129.

Case No. 96-4130 was filed by the Kickapoo Tribe in Kansas and other plaintiffs, who have since been dismissed, against the Secretary of the Interior, various federal officials, the United States and the Wyandotte Indian Tribe of Oklahoma. The Wyandotte Tribe has since been dismissed from Case No. 96-4130 with the consent of plaintiffs on sovereign immunity grounds.

Plaintiffs in these cases have filed joint briefs asking this court to reverse the decision of the Secretary of the Interior to take the Shriner Tract into trust for the Wyandotte Tribe. Plaintiffs also seek a declaratory judgment that the Huron Cemetery is not a "reservation" of the Wyandotte Tribe. The court shall consider any other claims raised in the complaints as waived.

The underlying concern of the plaintiffs in these cases is that the Wyandotte Tribe will use the Shriner Tract as a location for gambling. Defendants have raised jurisdictional, procedural and substantive defenses to plaintiffs' claims in their responsive briefs.

Indispensable Party/Sovereign Immunity

The United States and the Wyandotte Tribe have asserted without contradiction that the Wyandotte Tribe is a necessary party to this litigation under FED.R.CIV.P. 19(a). The Wyandotte Tribe clearly has interests in the subjects of these actions which could be impaired if it is not made a party. It is also undisputed that the Wyandotte Tribe is a sovereign entity capable of asserting sovereign immunity. Indeed, the Wyandotte Tribe has been dismissed by agreement for this reason in Case No. 96-4130. As discussed below, the Wyandotte Tribe is an indispensable party under FED.R.CIV.P. 19(b). Therefore, the court shall direct that Case No. 96-4130 be dismissed.

In Case No. 96-4129, it is argued that the Wyandotte Tribe has waived its sovereign immunity claim by voluntarily intervening in the case. Upon a review of the

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events in this case and the law regarding waiver, the court disagrees.

The complaint in Case No. 96-4129 sought an injunction and other relief against taking the Shriner Tract into trust for the Wyandotte Tribe. This was the predominant focus of the complaint. Plaintiffs...

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