Attorneys for the Quapaw Tribe in Oklahoma recently told a federal judge since the state of Kansas cited sovereign immunity, the tribe agreed it should drop a lawsuit seeking to force the state to negotiate a gaming compact. Attorneys for Kansas had stated in court documents the Quapaw lawsuit “flies directly in the face of well-established U.S. Supreme Court precedent.”
The tribe filed the complaint on January 19, claiming Kansas failed to negotiate a gaming compact in “good faith” as required by the Indian Gaming Regulatory Act. But the state asserted a sovereign immunity defense in a motion to dismiss last week, forcing the tribe to agree the case should be dismissed. Tribal attorneys wrote, “In view of Kansas’ election to assert the bar of sovereign immunity as a defense to this action under controlling law, this action should be dismissed based upon the State’s Eleventh Amendment immunity.”
However, the Quapaws still could request the Bureau of Indian Affairs to issue Class III procedures because the state will not negotiate. Class III gaming is legal in Kansas and the state already has compacts with four other tribes. However, Clint Blaes, a spokesman for the Kansas Attorney General Derek Schmidt’s office, said they “will continue to oppose efforts to commence gaming on this land taken into trust for non-gaming purposes.”
The tribe, which operates the Downstream Casino Resort in Oklahoma, just south of the Kansas border, sought a gaming compact so it could open a casino on 146 acres of land in Kansas—currently used as Downstream parking lots and a tribal government center–which was taken into federal trust in 2012.
In 2012 and 2013, Kansas Governor Sam Brownback encouraged the Quapaws to explore the possibility of casino-style gambling in the region. In an opinion letter, the National Indian Gaming Commission had affirmed the tribe can conduct gaming on the Kansas land. But the tribe alleged Brownback stopped participating in compact discussions after the Kansas legislature significantly lowered fees for applicants desiring to develop and operate a state-owned casino in the same area in Kansas where the Quapaws wanted to expand.
In a separate lawsuit, in March 2015, Kansas and Cherokee County sued the state gaming commission after the agency’s attorneys confirmed the tribe’s right to conduct gambling on Kansas trust land. The lawsuit claimed the gaming commission wrongly allowed the Quapaw tribe to use trust land for a casino after the tribe had allegedly promised the land would not be used for gambling purposes. Kansas U.S. District Judge Daniel D. Crabtree dismissed the state’s suit in December, ruling that the NIGC’s opinion letter was not a final agency action that could be challenged in court, that the state waited too long to file its lawsuit and that the tribe retained sovereign immunity from the lawsuit.
The state and Cherokee County are appealing that decision in the Tenth Circuit. A telephone mediation conference was held February 18 “to explore any possibilities for settlement,” according to court records. Jennifer Rapp, a spokeswoman for the Kansas Attorney General’s office, said the mediation “remains pending.” David Cooper, an attorney for Cherokee County, said he had no official comment on the mediation talks. “I wouldn’t hold my breath, though,” Cooper stated.
