Both sides in the Kansas/Quapaw struggle have taken recent legal action. Kansas Attorney General Derek Schmidt and Cherokee County are appealing a federal judge’s decision that allow the Oklahoma-based Quapaw Tribe’s Downstream Casino Resort expand into Kansas. And the Quapaw Tribe filed a lawsuit claiming Kansas Governor Sam Brownback violated federal law by refusing to negotiate a gaming compact in good faith with the tribe.
Schmidt and Cherokee County are appealing in U.S. District Court Judge Daniel Crabtree’s ruling that the court did not have jurisdiction to review a November 2014 advisory opinion by National Indian Gaming Commission attorneys that could allow casino gaming on Quapaw tribal land in Cherokee County. The Quapaws surrendered most of their Kansas land in an 1867 treaty, but bought 124 acres, now in federal trust, in Kansas in 2006 and 2007.
Crabtree wrote Schmidt and Cherokee County had not met the legal threshold to challenge the NIGC’s opinion because it was not a final decision. Furthermore, the Quapaw tribe had not waived its tribal immunity against lawsuits. The lawsuit was filed in U.S. District Court against the NIGC, U.S. Secretary of the Interior Sally Jewell and 22 other federal and Quapaw officials, including Quapaw Chairman John Berrey.
Berrey has said that Brownback had asked the Quapaw tribe to request the NIGC opinion as part of the tribe’s effort to negotiate a compact allowing casino gambling on Quapaw land in Kansas. But after the tribe received the NIGC opinion, Brownback refused to negotiate. Then the state filed its suit in U.S. District Court, which Crabtree rejected and the state is appealing.
Subsequently, in a statement Berrey said the Quapaw Tribe “has had no choice but to file a legal challenge to Governor Brownback’s actions. The governor’s actions violate the mandates of federal law that states must (1) negotiate class III gaming compacts with Indian tribes, and (2) must negotiate in good faith. Governor Brownback has done neither.”
Berrey further stated, “Governor Brownback actively encouraged the Quapaw Tribe to request a class III gaming compact, and then, solely to protect a state-owned casino that was proposed for Cherokee County from competition, stopped communicating with us. Federal law plainly requires a state to negotiate in good faith, and it does not permit a governor to refuse to negotiate simply to protect a state casino from competition.”
Berry continued, “Later, the State of Kansas filed a meritless suit against the tribe and 18 tribal leaders and directors with no apparent purpose other than to serve as harassment and retaliation, and to discourage the Quapaw Tribe from pursuing its governmental rights under federal law. We would prefer not to be in the position of having to file this litigation. But we have to stand up for the rights of Indian tribes and for the rights of tribes under federal law.”
