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KICKAPOO TRIBE OF INDIANS v. BABBITT

July 13, 1993

KICKAPOO TRIBE OF INDIANS, et al., Plaintiffs,
v.
BRUCE BABBITT, et al., Defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 Plaintiffs in this action are the Kickapoo Tribe of Indians, whose reservation lies within the borders of the State of Kansas; Steve Cadue, the Chairman of the Kickapoo Tribe; and Joan Finney, the Governor of the State of Kansas. Plaintiffs seek two forms of relief: a declaratory judgment that since the Assistant Secretary of the Interior for Indian Affairs failed to act on a Tribal-State compact originally signed by Chairman Cadue and Gov. Finney on January 16, 1992, and modified by them on March 2, 1992, within 45 days of its submission, the compact should be considered to have been approved under the Indian Gaming Regulatory Act, 25 U.S.C. § 2710(d)(8)(C); and a writ of mandamus directing the Secretary to publish notice of the Tribal-State compact in the Federal Register pursuant to 25 U.S.C. § 2710(d)(8)(D). *fn1"

 Defendants are Bruce Babbitt, *fn2" the Secretary of the Interior; and Eddie Brown, the Assistant Secretary of the Interior for Indian Affairs. Each is sued in his official capacity.

 I. BACKGROUND.

 Plaintiffs have moved for summary judgment; defendants have moved to dismiss the complaint or, in the alternative, for summary judgment. However, before addressing the merits of these motions, the court first examines the Indian Gaming Regulatory Act ("IGRA"), passed by Congress in 1988; and the unique chronology of events which led to this suit.

 A. IGRA.

 After the Supreme Court held that states could not unduly impede gaming on Indian lands, Cabazon Band of Mission Indians v. California, 480 U.S. 202, 94 L. Ed. 2d 244, 107 S. Ct. 1083 (1987), the quantity and extent of gaming on Indian lands quickly grew. Congress became concerned that the proceeds of this gaming were not benefiting the tribal governments and their constituents; in addition, Congress wanted to ensure that organized crime was not allowed to acquire a stake in Indian gaming. Congress' response to these concerns was IGRA, the Indian Gaming Regulatory Act, codified at 25 U.S.C. §§ 2701-21.

 IGRA divides gaming into three classes: class I gaming, which is limited largely to social gaming for minor prizes, is left entirely to the discretion of the tribes; class II gaming, which includes bingo and bingo-type games as well as non-banking card games, also is under the jurisdiction of the tribes, but is subject to some oversight by the National Indian Gaming Commission (also established by IGRA); and class III gaming, which includes any gaming which does not fall into class I or class II. Class III gaming is prohibited until the tribe and the appropriate state complete a Tribal-State compact allowing for such games. This compact must be submitted to the Secretary of the Interior, who must approve or reject the compact within forty-five days and then publish notice of the compact in the Federal Register; the compact is considered to have been approved if the Secretary fails to act within the allotted forty-five days. *fn3"

 B. Chronology.

 On August 28, 1991, the Kickapoo Tribe made a formal request that the State of Kansas negotiate a Tribal-State compact covering class III gaming. *fn4" Gov. Finney entered into negotiations with the Kickapoo Tribe, and on January 16, 1992, Steve Cadue, the Chairman of the Kickapoo Tribe, and Gov. Finney signed a Tribal-State compact. The Tribe immediately forwarded the document to Eddie Brown, the Assistant Secretary of the Interior for Indian Affairs, for approval.

 However, on January 17, 1992, Robert T. Stephan, the Attorney General of Kansas, sent a letter to Secretary of the Interior Manuel Lujan that insisted that Gov. Finney did not have the authority under the laws of Kansas to enter into the Tribal-State compact. Gov. Finney countered this suggestion in her own letter to Secy. Lujan dated January 31.

 Attorney General Stephan filed a suit in the Supreme Court of Kansas on February 5, 1992, requesting a determination as to whether the Governor possessed the power to enter into a compact with the Kickapoo Tribe. Kansas v. Finney, No. 67-622.

 While that suit was pending, Asst. Secy. Brown returned the Tribal-State compact on February 28, 1992, stating that the compact was in violation of IGRA as to one point. Immediately, the Kickapoo Tribe and Gov. Finney amended the compact and returned the modified compact to Asst. Secy. Brown on March 2, 1992. Asst. Secy. Brown received the amended compact, now in compliance with IGRA, on March 5, 1992.

 When he received the amended compact, Asst. Secy. Brown sent a letter dated March 8 to the Kickapoo Tribe with a copy to Gov. Finney. In that letter, Asst. Secy. Brown acknowledged that the Department of the Interior was "prepared to approve" the compact. However, he stated that the Department was "not in a position to decide the state issue" as to who has authority to bind the State of Kansas; since that question was then pending before the Supreme Court of Kansas, Asst. Secy. Brown asserted that the Department did "not deem the compact to have been submitted as the term is used in 25 U.S.C. § 2710(d)(8)." Thus, he concluded, the forty-five day period within which the Secretary has authority to act would not begin until the Supreme Court of Kansas had rendered its decision in Kansas v. Finney.

 On May 19, 1992, plaintiffs brought this suit seeking a declaration that the compact was now approved as a matter of law as forty-five days had passed since Gov. Finney and the Kickapoo Tribe had submitted their compact to the Department of the Interior; and requesting a writ of mandamus directing defendants to comply with IGRA and publish the compact in the Federal Register.

 On July 10, 1992, before the parties in this suit began to brief their cross-motions for summary judgment, the Supreme Court of Kansas ruled that while the Governor possessed the power to negotiate a compact with the Kickapoo Tribe, she did not have the power to sign the resulting compact. Kansas v. Finney, 251 Kan. 559, 836 P.2d 1169 (Kan. 1992).

 Relying on the decision of the Supreme Court of Kansas, Acting Asst. Secy. William D. Bettenberg that same day returned the compact to Chairman Cadue unapproved.

 Plaintiffs filed a motion for summary judgment; defendants have moved to dismiss or, in the alternative, for summary judgment. Oral argument on all motions was held in open court on July 2, 1993.

 II. DISCUSSION. *fn5"

 Plaintiffs' contentions are simply stated: First, that Asst. Secy. Brown had no authority to defer his approval of the Tribal-State compact until after the Supreme Court of Kansas ruled; under IGRA, 25 U.S.C. § 2710(d)(8)(C), plaintiffs assert, Asst. Secy. Brown had to approve or disapprove of the compact within forty-five days. Second, as Asst. Secy. Brown failed to take action on the compact within forty-five days, the default provision included in § 2710(d)(8)(C) applies, and the compact should be considered to have been approved as of April 20, 1992. And third, Since the compact is considered approved, defendants must publish notice to that effect in the Federal Register pursuant to 25 U.S.C. § 2710(d)(8)(D).

 Defendants' arguments are also easily summarized: First, that plaintiffs have failed to join an indispensable party, the State of Kansas, as a defendant in this suit; this failure, defendants warrant, mandates a dismissal of plaintiffs' cause of action pursuant to Fed. R. Civ. P. 19. Second, even if the suit is not dismissed, defendants claim that the Governor's powerlessness to enter into the Tribal-State compact renders that compact void. Since the compact was a legal non-entity, defendants posit, no executed Tribal-State compact was ever properly submitted to the Department of the Interior; without a valid submission, the forty-five day statutory approval period never began; without that statutory deadline, no default provision could be reached. Thus, defendants conclude, there is no valid Tribal-State compact between the State of Kansas and the Kickapoo Tribe, and summary judgment should be entered for defendants.

 In Part A., the court rejects defendants' first argument and finds that the State of Kansas is not an indispensable party; thus, this action must proceed. In Part B., the court agrees with plaintiffs' first two arguments, finding not only that defendants had a mandatory, unambiguous duty to approve or disapprove the compact within forty-five days, but also that defendants' failure to act triggers the statutory approval mechanism of § (8)(C). However, although the compact is deemed approved under that provision, it is nonetheless void as it was never lawfully entered into by the State of Kansas. See Part C. Thus, plaintiffs' motion for summary judgment must be denied as none of plaintiffs' requested relief may be granted; defendants' motion for summary judgment must be granted.

 A. The State of Kansas is not an Indispensable Party under Fed. R. Civ. P. 19.

 The first half of defendants' motion is to dismiss plaintiffs' complaint for failure to join an indispensable party, the State of Kansas, under Fed. R. Civ. P. 19. The court finds that the State is not an ...


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