State ex rel. Graves v. U.S.

Decision Date17 February 2000
Docket NumberNo. Civ.A. 99-2341-GTV.,Civ.A. 99-2341-GTV.
PartiesSTATE of Kansas, ex rel. Bill GRAVES, Governor of the State of Kansas, Plaintiff, v. The UNITED STATES of America, et al., Defendants.
CourtU.S. District Court — District of Kansas

M.J. Willoughby, John W. Campbell, Office of Attorney General, Topeka, KS, Carla J. Stovall, Kansas Attorney General, Topeka, KS, for State of Kansas, Bill Graves, plaintiffs.

Melanie D. Caro, Office of United States Attorney, Kansas City, KS, for United States of America, defendant.

Kip A. Kubin, Payne & Jones, Chtd., Overland Park, KS, James K. Logan, Logan Law Firm, LLC, Olathe, KS, for Floyd E Leonard, Charles E Wade, Julie L. Olds, Judy O. Davis, James O. Downing, Bob Woodcock, Miami Tribe of Oklahoma, defendants.

Joseph R. Colantuono, Christopher J. Reedy, Wehrman & Colantuono, LLC, Leawood, KS, for Butler National Corporation, Clark D. Stewart, defendants.

MEMORANDUM AND ORDER

VanBEBBER, District Judge.

Plaintiff brings this action seeking review of federal defendants' agency determination that a parcel of land in Kansas qualifies as Indian land under the Indian Gaming Regulation Act, 25 U.S.C. § 2703(4). Plaintiff seeks review pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. The case is before the court on plaintiff's motion for stay of agency action or temporary restraining order (Doc. 45),1 and on defendants' motions to dismiss (Docs. 48, 50, and 56). For the reasons set forth below, the court grants plaintiff's request for a preliminary injunction and denies defendants' motions to dismiss.

PRELIMINARY INJUNCTION
I. Findings of Fact

This case arises from the Miami Tribe of Oklahoma's (The Tribe) proposal, in the form of a management contract, to build a class II bingo gaming facility on a parcel of land located in Kansas known as the Maria Christiana Miami Reserve No. 35 (the Reserve), and from the Tribe's request for plaintiff to enter into a gaming compact for class III casino gaming on the Reserve.

The Reserve is located inside the original boundaries of the Tribe's reservation in Kansas. In 1873, the Tribe agreed to sell its unallotted lands in Kansas; Congress legislated the purchase of the lands in 1882. In 1884, the Tribe sought reimbursement for the land allotted to, among others, Maria Christiana DeRome.2 In essence, the Tribe claimed that the Maria Christiana allotment should be treated as unallotted land and sold to the United States. The Court of Claims agreed and compensated the Tribe for the land in 1891. In 1960, the Tribe sought interest on the payments made in 1891. The Court of Claims concluded that the 1858 legislation had unlawfully taken funds and land designated for the Tribe, and awarded interest on the 1891 payments. The court in Miami Tribe of Oklahoma, concluded from this series of events that the Tribe had unmistakenly relinquished its jurisdiction over the Reserve. Miami Tribe of Oklahoma v. United States, 927 F.Supp. 1419, 1426 (D.Kan.1996) (Miami I). Moreover, in 1873, Congress expressly abrogated the Tribe's jurisdiction, which was effective no later than 1924 when any members of the Tribe remaining in Kansas — and their heirs — became naturalized citizens.

On March 14, 1996, the Tribe admitted the land owners of the Reserve as members of the Tribe pursuant to an amendment to the Tribe's constitution. On April 16, 1996, the owners leased the Reserve to the Tribe for purposes of a gaming operation. The land owners consented to jurisdiction of the Tribe over the Reserve in the lease agreement. On June 18, 1996, after the court's ruling in Miami I, the Tribe resubmitted its management contract to the National Indian Gaming Commission along with evidence of the current owners' consent to jurisdiction and the newly adopted tribal amendment. The National Indian Gaming Commission requested an opinion from the Department of Interior as to whether the Reserve constituted Indian land. On May 12, 1997, the Department of Interior issued its opinion that the Reserve did not qualify as Indian land under the Indian Gaming Regulation Act. The National Indian Gaming Commission relied on the Department of Interior's opinion in disapproving the management contract. In Miami Tribe of Oklahoma, the Tribe sought review of the National Indian Gaming Commission's decision. Miami Tribe of Oklahoma v. United States, 5 F.Supp.2d 1213 (D.Kan.1998) (Miami II).

After the court in Miami II remanded the Indian land determination to the National Indian Gaming Commission, the Department of Interior conducted a site visit of the Reserve. On November 10, 1998, after previously ruling twice that the Reserve was not Indian land, the Department of Interior issued an opinion that the Reserve constituted Indian land as defined by the Indian Gaming Regulation Act. On August 23, 1999, the Tribe requested that plaintiff negotiate a class III casino gaming compact. On January 7, 2000, the National Indian Gaming Commission approved the class II gaming management contract between the Tribe and Butler National Service Corporation.

II. Conclusions of Law
A. Jurisdiction

Federal defendants contend that the court lacks jurisdiction to determine plaintiff's issues due to the doctrine of sovereign immunity. Federal defendants argue that the Quiet Title Act controls because the action involves the United States' interest in real property. See 28 U.S.C. § 2409a. Pursuant to the Quiet Title Act, the United States has not waived its sovereign immunity with respect to trust or restricted Indian lands, and therefore, the court lacks jurisdiction.3 The court concludes that the Quiet Title Act does not apply because this action does not involve an interest in property traditionally involved in quiet title actions. The court further finds that even if the Quiet Title Act were to apply, the National Indian Gaming Commission's determination is reviewable because federal defendants had no rational basis for determining that the Reserve qualifies as Indian land under the Indian Gaming Regulation Act.

The Indian Gaming Regulation Act, 25 U.S.C. § 2714, provides for judicial review of agency decisions pursuant to the Administrative Procedure Act, 5 U.S.C. § 702. The Administrative Procedure Act waives federal sovereign immunity for suits against federal officers, but it expressly confers no "authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." 5 U.S.C. § 702(2). The United States Supreme Court has rejected the contention that § 702 is a supplemental remedy to the Quiet Title Act. See Block v. North Dakota, 461 U.S. 273, 286 n. 22, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). In the statute of limitations context, the Supreme Court has stated that the Quiet Title Act is such an "other statute" under § 702(2) when "the QTA expressly `forbids the relief' which would be sought under § 702." Id. (citing H.Rep. No. 94-1656, p. 13 (1976) (section 702 provides no authority to grant relief "when Congress has dealt in particularity with a claim and [has] intended a specified remedy to be the exclusive remedy.")).

In Block, the Supreme Court held that "Congress intended the QTA to provide the exclusive means by which adverse claimants could challenge the United States' title to real property." Id. at 286, 103 S.Ct. 1811. The Ninth Circuit has "interpreted that exclusivity to mean that a plaintiff cannot avoid the Indian lands exception [of the Quiet Title Act] by obtaining jurisdiction under the Administrative Procedure Act." Alaska v. Babbitt, 182 F.3d 672, 674 (9th Cir.1999) (citing Babbitt, 38 F.3d 1068 (9th Cir.1994)). The Quiet Title Act waives sovereign immunity subject to the exception that it "does not apply to trust or restricted Indian lands." 28 U.S.C. 2409a(a). "Of course the Indian lands exception applies only if the lands at issue are Indian lands, or at least colorably so." Babbitt, 182 F.3d at 675. The Ninth Circuit has "repeatedly, in all of [its] analogous cases speaking to the Indian lands exception, carefully carved out an exception to the exception for cases where the claim of Indian lands is not `colorable.'" Id. The "judicial inquiry extends no further than `a determination that the government had some rationale,' and that its position `was not undertaken in either an arbitrary or frivolous manner.'" Id. (quoting Babbitt, 38 F.3d at 1076).

Finding the Ninth Circuit persuasive authority on the issue, the court concludes that it has jurisdiction over this action, because the federal defendants' claim of Indian land is not "colorable." Based on the record, the court finds that federal defendants' Indian land determination lacks rationale and was undertaken in an arbitrary and frivolous manner. It is abundantly clear from the record that federal defendants misinterpreted the court's opinion in Miami II when they determined that the Reserve qualified as Indian land as defined by the Indian Gaming Regulation Act.

Prior to Miami II, the National Indian Gaming Commission and the Department of Interior had twice previously determined that the Reserve was not Indian land. In Miami II, the court considered the administrative determination that the Reserve was not Indian land. The court remanded the Indian land issue to the National Indian Gaming Commission for further proceedings because "the agency [had] failed to provide a reasoned explanation for its action [and] limitations in the administrative record [made] it impossible to conclude the action was the product of reasoned decisionmaking." Miami II, 5 F.Supp.2d at 1219. In remanding the Indian land issue to the National Indian Gaming Commission, the court was particularly concerned with the threshold question of whether the Tribe had jurisdiction over the Reserve. Id. at 1218. Though the court in Miami I had concluded that the history of the Reserve did not supply jurisdiction, neither the Department of Interior nor the National...

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