Kansas

Distasteful Dealings with Wyandotte Tribe

By Rick Babson, assistant business editor, Kansas City Star
November 13, 2002

Typically, when you get caught holding someone or something hostage, the outcome is unpleasant. Apparently that’s not so if you happen to be the Wyandotte tribe of Oklahoma.

The tribe, a thorn in the side of Gov. Bill Graves and the Unified Government of Wyandotte County and Kansas City, Kan., stands to be rewarded for actions tribal representatives and others have described in terms just short of blackmail.

The Unified Government has approved a deal in which the tribe would be allowed to build a casino and hotel in Edwardsville, in western Wyandotte County, south of the Kansas Speedway.

Forget for a moment that it took the commission two days after a hastily called meeting to announce it had approved a tentative deal — an act more befitting of old Wyandotte County than the new Unified Government. The deal, contingent on U.S. Rep. Dennis Moore’s ability to get enabling legislation through Congress, could close one Pandora’s box while opening another.

In exchange for a bill that would declare 52 acres in Edwardsville as tribal land, the Wyandotte Tribe would agree to drop a lawsuit in which it claims up to 2,000 acres of land in Kansas City, Kan. The acreage includes the General Motors Fairfax plant.

The thought of the tribe winning in court forced the Unified Government to the bargaining table. Unified Government Mayor Carol Marinovich said dealing with the Wyandottes left a bitter taste in her mouth.

The deal, however distasteful, is pretty simple. If Moore’s legislation passes — no sure thing in the current lame-duck session, which will have higher-priority issues with which to deal, such as the budget — then the Wyandotte tribe will drop its lawsuit.

Give the tribe credit for outmaneuvering the establishment in Wyandotte County. If Moore is successful, and that’s a big if given the known opposition to additional tribal casinos in Kansas by Graves and U.S. Sen. Sam Brownback, the tribe wins. If Moore is not successful, and the tribe presses ahead with its lawsuit, it could gain an even bigger victory.

In any event, the tribe likely gets the only thing it really wants — a site for a casino. Tribal officials have said the casino is the only goal of the lawsuit.

The tribe appears to be benefiting from good political timing. In Gov.-elect Kathleen Sebelius, a Democrat, the tribe trades a chief executive opposed to more tribal casinos for one more likely to be supportive.

Moore also gets credit for recognizing a pre-election windfall when he sees one. In the closing days of the campaign for the House, Moore made sure affected property owners knew of his efforts to help them.

Of course, any success by the Wyandottes can be expected to spawn copycat efforts by other tribes. Marinovich has said the Unified Government already is working on a similar casino deal with the Delaware tribe. Don’t think tribes pressing claims in Johnson County aren’t looking at what’s going on to the north with renewed hope.

And if the tribes are successful, that success could bolster efforts to obtain casino gambling at The Woodlands. In any event, the area around the Kansas Speedway will become the gambling hot spot of northeastern Kansas.

All of this gambling business also plays nicely into the efforts of KCK and Edwardsville to exempt themselves from bans on Sunday liquor sales.

Combine Sunday booze, Indian gambling and auto racing and you’ve got the punch line to one of those “you might be a redneck” jokes. But no matter which victory the Wyandotte tribe claims in this seemingly win-win situation, the joke will be on us.

Negotiations Over Old Sunflower Plant Falter

By Finn Bullers, Johnson County government reporter, The Kansas City Star
September, 12, 2002
(816) 234-7705

Questions raised by an Indian tribe’s claim to a defunct army ammunition plant near De Soto may have to be decided in court, because negotiations with the federal government appear to have broken down.

In a Sept. 9 memo to commissioners, the Johnson County Commission’s chief legal counselor indicated that the Shawnee Indian Tribe of Oklahoma now claimed 1.6 million acres of land, an amount equal to more than a third of Kansas.

Shawnee tribal leaders say that is not so. They say the only land they are seeking is the 9,065 acres of the former Sunflower Army Ammunition Plant. They say those opposing the tribe’s claim want to scare people into thinking the claim could put the ownership of private property in doubt.

For the past 60 days, tribal representatives and federal negotiators have been trying to reach a settlement to keep the case out the courts. When that did not happen, the tribe amended its original lawsuit last week in U.S. District Court in Washington to bolster its case against the government.

“The negotiations with the Indians did not go well,” wrote Don Jarrett, the commission’s chief legal counselor, in his memo. “The Indians did not want any limited, restricted transfer. They want full jurisdiction over any land provided.”

Jarrett wrote in the amended filing that the tribe now claimed ownership of 1.6 million acres of land, an amount equal to the homeland given them in the Kansas Territory by the government in 1825.

Greg Pitcher, spokesman for the 1,300-member Shawnee Indian Tribe in Fairland, Okla., said the only acreage the tribe felt it was entitled to was the former ammunition plant owned by the government. The tribe says the land holds spiritual significance and is entirely within boundaries set by an 1854 treaty, the last American Indian treaty signed in Kansas.

The tribe says it lived on the land before its members were moved to Oklahoma in the 1800s.

“My personal opinion is that people who are opposed to us getting the land want to scare the bejeebers out of people and make them think we are going to cloud all the titles to their property,” Pitcher said, “and that’s not true.”

The memo to county commissioners said the tribe did not have plans to build a casino on any land it might receive but that the tribe refused to agree that gaming would be prohibited.

Others have a stake in the land, as well.

In June, Kessinger-Hunter Inc. of Kansas City and Cherokee Investment Partners of Raleigh, N.C., pitched a residential/commercial plan to the state for the site. That plan drew a favorable first response.

Jarrett, the county’s lawyer, said in his memo that the developers still were interested in the venture “but are very concerned about the title issues. They do not want to incur a lot of costs to further plan the development without some assurances, which GSA cannot provide.”

Jarrett wrote that no further negotiations between the tribe and the government were planned and that the state was not interested in a negotiated agreement. He also said the General Services Administration was trying to proceed with land transfers to Kansas State University and De Soto.

Without a settlement, the only option may be litigation, said Michael O’Keefe, a Lee’s Summit lawyer for the Shawnee tribe.

“We need to maintain our position,” O’Keefe said in an interview. “That is our play. We just need to get back in the game.”

Lawyers with the Department of Justice, as well as Blaine Hastings with general services, declined to discuss the case.

If the acreage is given to the tribe, Pitcher said, the land could be used for prairie and bison restoration.

The Shawnee tribe also has been meeting with Johnson County Park and Recreation Department officials to possibly cede up to 2,800 acres of the land for recreation and American Indian interpretation.

De Soto residents also have been approached by the tribe, who say they would consider setting up a planning commission to decide how to use the land.

The tribe has requested a hearing from the district court in Washington in the next several weeks on a request for an injunction against any land transfer of the Sunflower property.

The County Commission is expected to discuss the matter in a closed session today.

Tribal Lawsuit Claiming 2,000 Acres in KCK Served to Landowners

By Rick Alm and Mark Wiebe, The Kansas City Star
July 19, 2002

More than 1,300 landowners in northeast Kansas City, Kan., are being served this week with copies of a year-old lawsuit brought by the Wyandotte Tribe of Oklahoma.

The lawsuit claims historic treaty rights to 2,000 acres of long-developed land.

The tribe’s land claim was filed last summer as part of its nearly decade-long legal struggle to open an American Indian casino somewhere in Kansas City, Kan., where tribal ancestors had settled during the early 1800s.

A proposed settlement fell apart in May when a single landowner objected to its terms.

Now the case is back on track and headed for a trial that it appears no one wants — including the tribe.

“We sincerely regret being forced into this action and recognize that it will have serious consequences for these people,” Chief Leaford Bearskin said Thursday.

The disputed territory includes the Fairfax Industrial District, home to a General Motors auto assembly plant, and encompasses almost all land north of State Avenue and east of Sixth Street to the Missouri River.

At this point the legal battle has clouded owners’ titles to about 4,080 parcels of land, which the tribe estimated is valued for tax purposes at $1.9 billion.

Even while the lawsuit grinds on, spokesmen for both sides acknowledge settlement talks are continuing.

The tribe also is proceeding with its plan to open a gambling parlor in six linked, rented mobile building units parked in downtown Kansas City, Kan., on land the tribe bought in 1996 — across the street from City Hall.

Various rulings by the Department of the Interior that set the stage for that casino on wheels are being challenged in federal court by Kansas Gov. Bill Graves and the state’s four indigenous tribes that operate their own casinos north of Topeka along U.S. 75.

The Unified Board of Commissioners of Wyandotte County and Kansas City, Kan., owns some of the disputed Fairfax land, but officials are conciliatory and remain a tribal ally and legal partner. The two signed a broadly defined agreement years ago to establish a tourism- and tax-generating casino somewhere in Wyandotte County.

“We are not at loggerheads,” said Unified Government Attorney Hal Walker. “Neither side has drawn a line in the sand.

“If the tribe owns $1.9 billion worth of land, or if they get a casino, their position is they will be happy,” Walker said. “We are going to continue our efforts to reach a compromise.”

Bearskin said as much Thursday, noting that the tribe seeks only “a simple and just solution” that would restore its “basic economic rights.”

“Right now this is the only choice we’ve got,” tribal attorney Sam L. Colville said of the lawsuit. “There is every hope that this matter can be resolved short of going through full litigation.”

Reaching a settlement has been elusive.

The Kansas Legislature for years has rejected proposals that would enable the tribe to develop a casino at The Woodlands racetrack or elsewhere in the county.

A parallel effort in Congress, sponsored by Rep. Dennis Moore, a Kansas Democrat, has been stalled for almost four years.

Earlier this year the tribe agreed to set aside its land claim in exchange for the defendant’s political support for a casino.

In May, however, U.S. District Court Judge Carlos Murguia refused to approve the settlement deal after Robert and Emily Modeer, who own a warehouse in the Fairfax area, objected to a provision that would have left the tribe free to press its land claim in the future.

The tribe’s lawsuit, redrawn this week, demands title to the land and unspecified monetary damages for 150 years of “lost use, rents, issues, income and profits.”

The land claim is a complex argument that intertwines various treaties and other tribal land claims dating to 1842. The federal government apparently paid the tribe for its Kansas lands in 1855. The land in turn was granted or sold to mostly non-Indian settlers.

The tribe’s lawsuit raises questions about the boundaries of its 19th century land deal with the government.

A few years ago the tribe proposed a casino on its historic Huron Indian Cemetery grounds, also at the casino site near City Hall. That plan was later barred by Congress. Moore’s bill seeks to compensate the tribe for loss of any commercial use of its cemetery land.

At the site Thursday tribal employee Keith Wallace said work on the casino was nearly complete.

Sky blue plywood siding covers the building’s exterior, and a green awning overhangs steps leading to its glass-door entrance. Prominent artwork features tribal symbols, including a turtle grasping a tomahawk.

Inside, workers were busy laying black carpeting with bright, multicolored stars, squares and other shapes.

A bar is at the back of the long, low-ceilinged room, along with an entryway leading to an attached room containing several portable toilets.

The tribe originally planned to open a casino with slot machines inside a former Masonic lodge building it also owns at the site.

But after losing earlier this year a related lawsuit, also filed by the governor and the other tribes, Bearskin said his tribe would at least temporarily operate from mobile units that could offer electronic bingo and pull-tab games that do not qualify as slot machines.

Wallace declined to speculate when the casino might open or what sort of gambling games would be offered. He did say the structure had capacity for 180 to 200 machines and could open soon.

“If we wanted to rush it, we could be open by next week,” he said. “We’re not going to do anything until it’s appropriate to do so.”

To reach Rick Alm, call (816) 234-4785 or send e-mail to ralm@kcstar.com.

To reach Mark Wiebe, call (816) 234-5995 or send e-mail to mwiebe@kcstar.com.

Kansas Citizens Oppose Osage Tribal Casino Plans

©The Coffeyville Journal 2001
November 18, 2001

A group of Chautauqua and Montgomery County residents traveled fromCaney to Topeka Tuesday for the purpose of delivering over 2700
signatures on petitions to the office of Gov. Graves.

The petitions are the ones that have been circulated by Stand Up For Southeast Kansas opposing the proposed Gambling Casino in Chautauqua
County.

Upon arriving at the State Capitol Building in Topeka, the group met with Assistant Attorney General, Brian Johnson, and Assistant Legal
Council to the Governor, Trista Beadles. The 30-minute meeting was “very positive” according to Virgil Peck Jr., Chairman of Stand Up For Southeast Kansas.

“At first we were disappointed that we would not be meeting with the governor himself,” said Peck. “However, we learned he is the pointman
for the State on this project, so he was the right person for us to meet.”

Stand Up For Southeast Kansas feels the only reason some local city and believe there would be revenue sharing from the casino profits. This,
according to Attorney Bob Frey who has been working with Stand Up For Southeast Kansas, is not allowed under the federal Indian Gaming
Regulatory Act (IGRA).

The Osage Indian Tribe has applied with the Secretary of the Interior to have the land placed in federal trust. The State of Kansas and
Chautauqua County both need to give response to the Secretary regarding the approval or disapproval of placing the land into Trust by the end of
November.

If the land is placed into Trust, it will be taken off the tax roll and become sovereign Osage Nation land.

Johnson told the group at the State Capitol that people need to remember “that Kansas is a sovereign state and can not be taking a lot of land
off the tax roll.”

Peck added that “Stand Up For Southeast Kansas” will continue to monitor this situation.

By Law, Indian Tribes Must be Consulted

By Joel Mathis
August 29, 2001

Environmental impact studies on proposed alignments for the South Lawrence Trafficway could be complete by next spring, Mike Rees said Tuesday, but there is one wild card: A federal requirement that American Indian tribes be consulted in the process.

Rees, chief counsel for the Kansas Department of Transportation, said Section 106 of the National Historic Resources Act requires KDOT to consult with tribes that have a historical interest in the land south of Lawrence.

Fourteen tribes are typically consulted in eastern Kansas, but the location of Haskell Indian Nations University — which represents all federally recognized tribes in the United States — could raise that number.

“Under the most expansive view of the law, we would have to consult with more than 500 tribes,” Rees told the Lawrence-Douglas County Planning Commission. That, he said, would slow the process considerably.

And there may be another, related factor. While most discussions of American Indians and the SLT routes have centered on the Baker Wetlands, Rees said that may be too narrow a view.

“I am considering whether we shouldn’t include the entire (Wakarusa River) corridor in the (Section) 106 documentation,” Rees said.

He said there is “ample documentation” of historic tribal use at sites throughout the entire Wakarusa River valley.

Tribe Fles Lawsuit Claiming it Owns Much of Fairfax District

By Rick Alm, The Kansas City Star
June 18, 2001

An Oklahoma Indian tribe filed a federal lawsuit Monday that claims it owns much of the Fairfax Industrial District and other prime commercial land in northeast Kansas City, Kan., including the sprawling plant sites of the General Motors Corp., the Owens-Corning Fiberglas Corp. and International Paper Co.

The tribe wants it all back, or to be paid accordingly.

Based on treaties dating to 1842, the Wyandotte Nation of Oklahoma acknowledged in its lawsuit, which was filed in U.S. District Court in Kansas City, Kan., that it ceded much of its lands in Kansas to the government in 1855 when it agreed to relocate to a reservation in Oklahoma.

But the tribe contends that treaty and other evidence make it clear that three of the tribe’s 39 surveyed sections of land in Kansas were held back and never surrendered to the government.

The disputed 1,920 acres today roughly encompasses all of the land north of State Avenue and east of the Seventh Street Trafficway to the Missouri River.

The lawsuit, which comes amid an ongoing dispute over efforts to open a casino in downtown Kansas City, Kan., caught city officials off guard.

“We obviously oppose it and will fight it,” said Don Denney, a spokesman for the Unified Board of Commissioners of Wyandotte County and Kansas City, Kan.

“We hope to eventually get a casino in Kansas City, Kan.,” he added. “But we obviously disagree with the tribe’s action today, just as we did when they planned to put a casino in downtown Kansas City, Kan.”

Robert W. Pohl, the tribe’s Overland Park attorney, contends the case is built on a monumental 19th century mistake.

“The government made the mistake,” Pohl said “They gave land to settlers that they didn’t have the right to give. That’s the bottom line.”

Since then the land has changed hands many times, with hundreds of landowners of record today.

“When you go back and read the treaties, it’s very clear that the land was not included” in the ceded territory in 1855, Pohl said.

In addition to the three national corporations, which the lawsuit brands as “trespassers,” it also names as defendants the federal government, the Unified Government and unnamed hundreds of other owners of land in the disputed area.

Ancient tribal land claims have become commonplace across the country since the late 1980s, when a federal law permitted tribes to develop untaxed casinos and other gambling facilities on historic tribal reservation lands.

A case pending in Illinois is perhaps the most potentially significant on record, with the Miami Tribe of Oklahoma laying claim to millions of acres of former tribal territory there.

“There’s probably a dozen or more of these cases pending at all times,” said Larry Winn III, a real estate development lawyer in Kansas.

But Winn said no matter how the case turns out, “it’s very unlikely anyone would be evicted. A more likely scenario is whether (landowners) can be asked to pay compensation.”

Winn said Kansas law does grant ownership rights to supposed landowners or tenants who have tended to a parcel unchallenged for at least 15 years.

But he said it is uncertain how that law might be applied in the face of 19th century treaty language, various acts of Congress regarding the land and federal property law.

“That’s the $64,000 question,” Winn said. “I suppose they’ll have to hammer it out one by one for all of the underlying land.”

The Wyandotte tribe has long been at odds with the city and the state government over its efforts to develop a casino in a former Masonic temple building in downtown Kansas City, Kan., that lies just outside the disputed area and adjacent to the tribe’s historic Huron Cemetery.

Pohl said that none of the defendants had been served with copies of the lawsuit late Monday and that no negotiations with the city or individual landowners occurred prior to the tribe’s legal action.

The lawsuit comes on the heels of the tribe’s defeat in March before the 10th U.S. Circuit Court of Appeals in Denver, which ruled that the Huron Cemetery is not tribal reservation land.

That ruling, which the tribe is appealing, appeared to dash tribal hopes for a Las Vegas-style casino on adjacent land that lies across the street from City Hall.

A Department of the Interior ruling in 1996 had declared the two-acre cemetery site at Seventh Street and Ann Avenue to be reservation territory and thus qualified under federal law for bingo and casino-style gambling.

The state of Kansas won an injunction last year blocking tribal contractors from remodeling the dilapidated former Masonic temple as a casino.

Efforts to allow the tribe to develop a casino in partnership with the Unified Government at The Woodlands horse and dog track have been stymied by opposition in the Kansas Legislature.

All content © 2001 The Kansas City Star

Indian Gaming Good Business for Lawyers

By Martin Paskind, The Journal
March 26, 2001

There’s controversy about whether Indian gambling is good for business. Casinos employ thousands of people and purchase all kinds of goods and services, ranging from foodstuffs for restaurants to furniture to construction work and materials. That’s good business.

At the same time, gambling harms the community because some people can’t handle the temptation to blow paychecks, always hoping for a big score. Such folks can’t do much business elsewhere, such as buying shoes, groceries, cars and other things. Thus gambling isn’t good for local commerce.

Because of these tensions, Indian gambling is often accompanied by disputes. It may be good or bad for this person or that, but there’s no question about whether it’s good for lawyers.

Take for example the recent case in which the Sac and Fox Nation of Missouri, the Iowa Tribe of Kansas, the Prairie Band of Potawatomi Indians and Bill Graves, governor of Kansas, sued the Secretary of the Interior and the Wyandotte Tribe of Oklahoma.

KANSAS CITY, HERE I COME: The Wyandottes wanted the Interior Secretary to buy land in downtown Kansas City, Kan., for use as a casino. The tribes, which feared competitive harm, and the governor, concerned about social problems, sued to block the project. By the time the U.S. Court of Appeals for the Tenth Circuit in Denver handed down its decision, 16 lawyers had filed briefs. That’s a lot of legal business, even if the first chip has yet to fall in the Wyandotte’s Kansas City gambling palace.

Makes you wonder what all these attorneys should be called — a gaggle, a pack, a school, or a swarm?

Factually, the case wasn’t disputed. The Wyandottes and the United states have a long history beginning in 1795, when the tribe began to cede lands in Michigan and Ohio. This process of cession in exchange for grants of land west of the Mississippi continued for many years.

As time went on, the tribe, in 1855, sold some of this land. In the process, title was reserved to Huron Cemetery in Kansas City, but let’s keep this simple.?

CHANGING TIMES: In 1956, Congress decreed that federal supervision of Wyandotte lands, including the cemetery, was to end, and services to tribal members would terminate. Once termination was complete, land would go to individual Indians.

The process, however, wasn’t completed.

Later still, courts awarded the tribe more than $2 million for lands lost to the federal government in Michigan and Ohio more than a century earlier.

This became important in 1988, when Congress enacted the Indian Gaming Regulatory Act, or IGRA, which prohibited gambling on Indian trust lands acquired by the secretary after 1988.

DOWNTOWN GRAVEYARDS: IGRA requires that casinos be on reservations, but the act doesn’t defines a “reservation.”

Whatever a reservation is, it isn’t a graveyard in downtown Kansas City, said the plaintiff tribes and Gov. Graves.
Casinos also can be on land abutting reservations, so one of the key questions in the case was whether the Huron Cemetery, very old and owned by the Wyandottes for far more than a century, was a “reservation” for IGRA purposes. If so, cemetery ownership would support a casino on the next-door Shriners’ property.

Nor, under that circumstance, did the state governor have power to approve the deal. So the tribe went to the secretary and asked the Interior Department to buy the former Shriners’ temple. Downtown Kansas City looked like a great place for a profitable casino.

MOVING WHEELS: The Secretary of the Interior agreed and set wheels in motion. Other tribes, owners of competing casinos, and the governor of Kansas objected.

“A reservation,” said the court, “refers to land set aside by the federal government for the occupation of tribal members.” The term can refer to any land reserved from a tribal cession to the United States.

Applying the definition, Tenth Circuit judges ruled that the Huron Cemetery wasn’t a reservation under IGRA. Even though reserved from cession in 1855, the Wyandottes never lived there. They didn’t occupy it, and everyone used the tract as a public burial ground.

Today, the cemetery is about 200 miles from the Wyandotte reservation in Oklahoma.

Gov. Graves and the plaintiff tribes also protested that the Interior Department ignored the National Environmental Policy Act and the National Historical Preservation Act. The federal government argued successfully that no such compliance is necessary where it has no discretion about whether to perform a duty.
So, after all this, can the Wyandottes build their casino? Not quite yet.

The appellate court sent the case back to the Interior Department for resolution of several issues. There’s no telling when the whole matter will be resolved. The lawyers, however, aren’t doing badly at all.

Look for the opinion in Sac and Fox Nation of Missouri v. Norton, No. 00-3063 on the docket of the U.S. Court of Appeals for the Tenth Circuit, opinion filed on Feb. 27.

Dubious Exercise

March 12, 2001
The Kansas City Star

The Delaware Tribe is hoping to win local government approval for a $60 million casino complex in Kansas. Officials from at least two communities — Basehor and Tonganoxie — have met with tribal representatives, and in Wyandotte County, Edwardsville officials have also looked at the plan.

Local-government approval, however, is only one step in a process that holds little likelihood of success. Given past opposition to new tribal casinos at the state level, these plans face iffy prospects at best.

State law prohibits casinos. But under federal law such statutes can be swept aside due to the separate legal treatment of native American tribes. That’s how Kansas ended up with casinos operated by four tribes in northeastern Kansas.

These tribes, however, were indigenous; they were in possession of tribal lands within Kansas prior to passage of the federal law allowing such casinos. The Delawares are an Oklahoma-based tribe, a fact that changes the equation dramatically.

Federal officials have been reluctant to approve casino projects in the face of opposition expressed at any level of government — local, county or state.

The Delawares apparently hope to first win local endorsement by offering communities a share of the expected revenue, even though they would not be required to do so. Presumably local officials and other boosters would then add to the political pressure favoring casino development and yet another expansion of gambling in Kansas.

To his credit, Gov. Bill Graves has taken a strong position: in effect, no new tribal casinos. Graves argues that the relevant federal law does not apply to nonresident tribes, so Kansas has no authority to negotiate casino development with those groups.

Graves’ spokesman, Don Brown, says the governor made this known to the Delawares in a meeting last November. Tribal representatives are free to travel around giving presentations, but it appears to be a dubious exercise. As long as the governor holds the line — as he should — all of the talk of a $60 million casino complex sounds like just that: talk.