State of Kansas v. US et al., 35
| Citation | 249 F.3d 1213 |
| Decision Date | 04 May 2001 |
| Docket Number | Nos. 00-3057,No. 35,00-3119,00-3072,00-3058,35,s. 00-3057 |
| Parties | (10th Cir. 2001) STATE OF KANSAS; BILL GRAVES, Governor of the State of Kansas, Plaintiffs-Appellees, v. UNITED STATES OF AMERICA; GALE A. NORTON, Secretary of the United States Department of the Interior, her agents, employees, and successors; MONTE R. DEER, Chairman of the National Indian Gaming Commission, United States Department of the Interior, his agents, employees, and successors; NATIONAL INDIAN GAMING COMMISSION, Department of the Interior; DEPARTMENT OF THE INTERIOR; BUREAU OF INDIAN AFFAIRS; INDIAN GAMING MANAGEMENT STAFF OFFICE, Department of the Interior; KEVIN GLOVER, Assistant Secretary of the Interior for Indian Affairs, his agents, employees, and successors; JIMMIE FIELDS, acting area director of the Bureau of Indian Affairs for the Muskogee area office, his agents, employees, and successors; DAN DEERINWATER, Area Director of the Bureau of Indian Affairs for the Andarko Area Office, his agents, employees, and successors; GEORGE SKIBINE, Director of the Indian Gaming Management Staff Office, his agents, employees, and successors; DERRIL B. JORDAN, Associate Solicitor for Indian Affairs, his agents, employees, and successors; JOHN JASPER, Associate Solicitor for Indian Affairs, his agents, employees, and successors; RICHARD SCHIPF, National Indian Gaming Commission; GLORIA WILSON, Superintendent of the Bureau of Indian Affairs, Miami Agency, her agents, employees, and successors; 35 ACRES OF LAND, also known as the Maria Christiana Reserve, more or less, located in Miami County, Kansas; FLOYD E. LEONARD; CHARLES E. WADE; JULIE L. OLDS; JUDY O. DAVIS; JAMES O. DOWNING; BOB WOODCOCK; MIAMI TRIBE OF OKLAHOMA; BUTLER NATIONAL SERVICE CORPORATION; CLARK D. STEWART, Defendants-Appellants. SAC AND FOX NATION OF MISSOURI, KICKAPOO TRIBE OF KANSAS, and PRAIRIE BAND OF POTAWATOMI INDIANS, Amici Curiae |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] M. J. Willoughby, Assistant Attorney General, State of Kansas, Topeka, Kansas, for Plaintiffs-Appellees.
Sean H. Donahue, Appellate Section, United States Department of Justice, Environment and Natural Resources Division, Washington D.C. (Lois J. Schiffer, Assistant United States Attorney General; Rhonda D. Harjo, Office of the Solicitor, United States Department of the Interior; Kevin K. Washburn, General Counsel, National Indian Gaming Commission; William B. Lazarus and John A. Bryson, Appellate Section, United States Department of Justice, Environment and Natural Resources Division, Washington D.C.; Jackie N. Williams, United States Attorney; Melanie D. Caro, Assistant United States Attorney, Kansas City, Kansas, with him on the brief), for Federal Defendants-Appellants United States of America, Gale A. Norton, Monte R. Deer, National Indian Gaming Commission, Department of the Interior, Bureau of Indian Affairs, Indian Gaming Management Staff Office, Kevin Glover, Jimmie Fields, Dan Deerinwater, George Skibine, Derril B. Jordan, John Jasper, Richard Schipf, and Gloria Wilson.
James K. Logan of Logan Law Firm L.L.C., Olathe, Kansas (Kip A. Kubin of Payne & Jones, Chtd., Overland Park, Kansas; Christopher J. Reedy of Colantuono & Associates, L.L.C., Leawood, Kansas, with him on the brief), for Defendants-Appellants Floyd E. Leonard, Charles E. Wade, Julie L. Olds, Judy O. Davis, James O. Downing, Bob Woodcock, Clark D. Stewart, Butler National Service Corporation, and Miami Tribe of Oklahoma.
John R. Shordike and Thomas Weathers of Alexander & Karshmer, Berkeley, California; Charley Laman, Assistant General Counsel, Kickapoo Tribe of Kansas; Mason D. Morisset of Morisset, Schlosser, Ayer & Jozwiak, Seattle Washington, filed an amicus curiae brief on behalf of Sac and Fox Nation of Missouri, Kickapoo Tribe of Kansas, and Prairie Band of Potawatomi Indians, in support of Plaintiffs-Appellees.
Before EBEL, BALDOCK, and KELLY, Circuit Judges.
These consolidated interlocutory appeals arise from a district court order granting a preliminary injunction in favor of Plaintiff State of Kansas. The order stays action on the National Indian Gaming Commission's (NIGC) decision that a tract of non-reservation land in Kansas, under lease to Defendant-Intervenor Miami Tribe of Oklahoma, constitutes "Indian lands" subject to the terms of the Indian Gaming Regulation Act (IGRA), 25 U.S.C. 2701-2721. State ex rel. Graves v. United States, 86 F. Supp. 2d 1094 (D. Kan. 2000) (Miami Tribe III). Assuming other requisites of the Act are met, IGRA permits a federally recognized Indian tribe to establish gaming facilities on "Indian lands" within the tribe's jurisdiction. See 25 U.S.C. 2710(b)(1), (d)(1)(A)(i). We have jurisdiction to review the district court's grant of a preliminary injunction under 28 U.S.C. 1292(a)(1). We affirm and remand for further proceedings.
In 1995, the Miami Tribe of Oklahoma, pursuant to IGRA, unsuccessfully requested the NIGC approve a proposed gaming management contract between the Tribe and Defendant Butler National Service Corporation. See 25 U.S.C. 2711.1 If approved, the contract would have authorized the Tribe to establish Class II gaming facilities on the Maria Christiana Reserve No. 35, an undeveloped thirty-five acre tract of non-reservation land within the State of Kansas located 180 miles from the Tribe's reservation in Oklahoma. As defined in IGRA, Class II gaming includes bingo, bingo-related games, and certain card games allowed under State law. Id. 2703(7).
One condition for Class II Indian gaming is that such gaming occur only on "Indian lands within such tribe's jurisdiction." Id. 2710(b). In addition to reservation lands and lands held in trust by the United States, IGRA defines "Indian lands" as "any lands title to which is . . . held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power." Id. 2703(4). The NIGC refused to approve the gaming management contract because, in the NIGC's opinion, the Tribe did not exercise governmental power over the undeveloped tract. Therefore, the NIGC concluded the tract encompassed under the proposed contract did not constitute "Indian lands" within the meaning of 2703(4).
On review, the district court upheld the NIGC's decision that the tract did not constitute "Indian lands" within the meaning of IGRA. Miami Tribe of Okla. v. United States, 927 F. Supp. 1419 (D. Kan. 1996) (Miami Tribe I). Carefully analyzing the detailed and complicated history of the tract, including applicable legislation and treaties, id. at 1424-27, the district court had "no difficulty concluding from [a] series of events that [the Tribe] unmistakably relinquished its jurisdiction over Reserve No. 35." Id. at 1426.2
To summarize, the court reasoned that under an 1867 treaty with the Tribe and an 1873 federal enactment affecting the Tribe, Congress "unambiguously intended to abrogate the Tribe's authority over its lands in Kansas and move the Tribe to new lands in Oklahoma." Id. The court further noted that in 1891, the United States, at the direction of the Court of Claims, compensated the Miami Tribe in the amount of $61,971 for the Kansas lands. This compensation included payment to the Tribe for the subject tract, which the Government acknowledged had been erroneously allotted by restricted fee patent around 1858 to the infant Marie Christiana DeRome, a non-member of the Miami Tribe. Id. at 1426-27. In 1960, the Miami Tribe sought interest on the 1891 compensation and secured a judgment for an additional $100,072. Id. at 1426. Based on this historical analysis, the district court concluded the Tribe had no jurisdiction over the tract, and thus necessarily exercised no governmental power over the tract. Id. at 1422 ().
The Tribe did not appeal the district court's conclusion in Miami Tribe I that, based on historical events, the tract did not constitute "Indian lands" under IGRA. Rather, in 1996, the Miami Tribe amended its constitution to remove the blood quantum requirement for membership in the Tribe. Subsequently, the Tribe passed an ordinance adopting the twenty-plus non-Indian owners of the tract, numerous heirs of Marie Christiana DeRome, into the Tribe. The owners in turn leased the tract to the Tribe and consented to the Tribe's exercise of jurisdiction over the tract. To provide access to the tract from the nearest public road, the tribe obtained a right-of-way road easement from an adjoining land owner. At the entrance to the tract, the Tribe placed a sign reading "Welcome to the Miami Indian Reserve in Kansas Territory established 1840."3 The Tribe raised its flag over the tract, extended "periodic" law enforcement protection to the tract, and established a smoke shop and outreach center on the tract. With this change in circumstances, the Tribe requested the NIGC reconsider its refusal to approve the proposed gaming management contract.
The NIGC again determined that the tract did not constitute "Indian lands" under IGRA, and again refused to approve the contract. Like the district court in Miami Tribe I, the NIGC focused largely on the history of the tract, noting that the Tribe had agreed years ago to move to Oklahoma and cede its interest in the entirety of its Kansas lands. See Miami Tribe of Okla. v. United States, 5 F. Supp. 2d 1213, 1215-16 (D. Kan. 1998) (Miami Tribe II). The NIGC did not address in detail the effect, if any, of the Tribe's leasehold over the tract or recent tribal activities on the tract. The NIGC, however, concluded that "the admission of the...
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