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Wyandotte casino survives another challenge

DENVER – An appeal by three Midwestern tribal nations over another tribe’s casino in downtown Kansas City was dismissed in the 10th Circuit Court of Appeals after some 14 years of back-and-forth litigation.

The three casino tribes’ initial objections were filed in 1996, “and thus began a case that would spawn recurring trips from the district court to the 10th Circuit and back,” justices said.

The Iowa Tribe of Kansas and Nebraska, Sac & Fox Nation of Missouri, and Prairie Band of Potawatomi Indians, along with the governor of Kansas, had signed a tribal-state compact allowing them to operate gaming in Kansas, and the opening of a Wyandotte Nation of Oklahoma casino in Kansas City threatened to affect their plans.

The Wyandotte casino in a refurbished former Masonic lodge opened to great fanfare in 2008, even though litigation was still underway.

The appeals court did not consider whether the Wyandotte Nation could operate its casino in Kansas City, but was solely concerned with whether it retained jurisdiction over a challenge to the secretary of the Interior’s acquisition of the casino property in trust on behalf of the Wyandotte.

“This appeal is part of a long-running dispute over whether the secretary of the Interior properly took a small tract of land into trust on behalf of the Wyandotte Tribe of Oklahoma,” the petition states. “Because the secretary has already taken the land at issue into trust, sovereign immunity precludes the relief sought by plaintiffs.”

The three tribal nations seek “to remove the (casino) tract from being held in trust or to somehow encumber how the land will be used while it remains in trust,” it states, but they did not establish that the U.S. had waived sovereign immunity.

Acknowledging there is a split among U.S. Circuit Courts of Appeal over the timing of sovereign immunity waiver, the court noted that “Congress’ intent in excluding Indian trust lands from the Quiet Title Act’s waiver of sovereign immunity was to prevent adverse claimants from interfering with the United States’ obligations to the Indians.”

A waiver of federal immunity after land has been taken into trust would abridge federal commitments to Indians concerning Indian lands, and sovereign immunity is not a determination to be made “based on the existence of a waiver at the time of filing.”

Actions of the secretary of the Interior, named as defendant, do not overcome Congress’ retention of sovereign immunity, the petition states.

The appeal was dismissed for lack of jurisdiction.