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Board of Commissioners of Cherokee County v. Jewel

United States District Court, District of Columbia

July 25, 2013

BOARD OF COMMISSIONERS OF CHEROKEE COUNTY, KANSAS, Plaintiff,
v.
SALLY JEWEL, in her official capacity as SECRETARY OF THE INTERIOR, et al., Defendants

Page 117

[Copyrighted Material Omitted]

Page 118

For BOARD OF COMMISSIONERS OF CHEROKEE COUNTY, KANSAS, Plaintiff: James Philip Nordstrom, Teresa L. Watson, LEAD ATTORNEYS, David R. Cooper, FISHER, PATTERSON, SAYLER & SMITH, L.L.P., Topeka, KS.

For DIRK KEMPTHORNE, in his official capacity as the Secretary of the Interior, UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants: Gina L. Allery, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environmental and Natural Resources Division, Washington, DC.

OPINION

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MEMORANDUM OPINION

Rudolph Contreras, United States District Judge.

In 2008, the Quapaw Tribe of Oklahoma (" the tribe" ) opened the Downstream Casino Resort, a large complex that straddles the borders of Kansas, Missouri, and Oklahoma. The actual casino is situated on a plot of land acquired by the Secretary of the Interior and the tribe by means of the Indian Land Consolidation Act. The Board of Commissioners of Cherokee County, Kansas, where another portion of the casino complex is located, brought this suit to invalidate the Secretary's land acquisition and to force the National Indian Gaming Commission to determine whether the Indian Gaming Regulatory Act permits the Quapaw to operate a casino on the land in question. The Secretary and the Gaming Commission have moved to dismiss the complaint or, in the alternative, for summary judgment; the Board of Commissioners has filed a cross-motion for partial summary judgment.

I. BACKGROUND

In 1895, a Quapaw woman named Meh-No-Bah was allotted forty acres of land in whet is now the northeastern corner of Oklahoma. AR 45. The Quapaw Allotment Act provided that such allotments would " be inalienable for a period of twenty-five years" from the date on which a patent was issued to the allottee. 28 Stat. 907; see also Quapaw Tribe of Oklahoma v. Blue Tee Corp. , 653 F.Supp.2d 1166, 1170-71 (N.D. Okla. 2009) (discussing history of the Quapaw allotments). In 1905, Meh-No-Bah died intestate with two heirs--Alexander Beaver (also known as Alexander Lewis, Alexander Lewis Beaver, and Ah-Sah-Ta) and Newakis Hampton (also known as Ta-Meh Quapaw and Temeh Quapaw)--each of whom received an undivided half-interest in the allotment. AR 192-93. In 1921, Congress amended the Quapaw Allotment Act so that " the restrictions which now exist against the alienation of the lands allotted to and allotted lands inherited by the Quapaw Indians" specifically named in the amendment were " extended for the further and additional period of twenty-five years from the date of this Act." 41 Stat. 1248-49. Neither Meh-No-Bah nor her heirs were named.

Alexander Beaver died in the spring of 1956, passing his undivided half-interest to his widow, Matilda Stand Beaver. AR 193. She passed her undivided half-interest to three heirs. Id. [1] Newakis Beaver died in 1957, passing her undivided half-interest

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to a single heir, who in turn passed that interest to two heirs. By 2004, four people and one estate held undivided interests in the original Meh-No-Bah allotment; two of these were one-quarter interests, while the other three were one-sixth interests. Id.

The creation of undivided but ever-smaller fractional interests in allotted land was one of many troubling features of the allotment policy. See Babbitt v. Youpee , 519 U.S. 234, 237, 117 S.Ct. 727, 136 L.Ed.2d 696 (1997) (" The allotment policy 'quickly proved disastrous for the Indians.' (quoting Hodel v. Irving , 481 U.S. 704, 707, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987))). " The fractionation problem proliferated with each succeeding generation as multiple heirs took undivided interests in allotments. . . . As most owners had more than one heir, interests in lands already allotted continued to splinter with each generation." Id. at 238. In 1983, Congress passed the Indian Land Consolidation Act, Pub. L. No. 97-459, tit. II, 96 Stat. 2517 (codified as amended at 25 U.S.C. § 2201 et seq. ), " in part to reduce fractionated ownership of allotted lands," Babbitt , 519 U.S. at 238. The Act allowed an Indian tribe that owned at least half of the undivided interest in a tract of land subject to that tribe's jurisdiction to purchase the remaining interests in the tract for their fair market value. 25 U.S.C. § 2204(a). In 2000, Congress gave the Secretary discretionary authority to acquire " any fractional interests in trust or restricted lands," at fair market value and with the consent of the owner, and to hold those interests in trust for the relevant tribe. Indian Land Consolidation Act Amendments of 2000, Pub. L. No. 106-462, tit. I, § 103, 114 Stat. 1999 (codified as amended at 25 U.S.C. § 2212(a)). In doing so, the Secretary was instructed to " promote the policies provided for in section 102 of the Indian Land Consolidation Act Amendments of 2000," 25 U.S.C. § 2212(b)(1), which include " promot[ing] tribal self-sufficiency and self-determination," Pub. L. No. 106-462, tit. I, § 102(4), 114 Stat. 1992.

In 2007, using that mechanism, the Secretary purchased four of the five undivided interests in the Meh-No-Bah allotment. AR 19, 63, 111, 132. She did not perform any environmental review of the acquisition. The tribe purchased the remaining one-sixth interest using the mechanism set out in 25 U.S.C. § 2204. AR 140. In 2008, the Downstream Casino Resort opened on the forty-acre plot allotted to Meh-No-Bah more than a hundred years before. It has been in continuous operation ever since.

The Board of Commissioners of Cherokee County, Kansas, filed suit several months before the casino opened. The Board of Commissioners alleges, first, that the Secretary violated the Indian Gaming Regulatory Act by failing to determine whether the Meh-No-Bah allotment was eligible for gaming before acquiring it, and that the National Indian Gaming Commission was obligated to make that determination before allowing the casino to open. The Board also alleges that the Secretary failed to comply with the National Environmental Policy Act, the land-into-trust regulations and her own internal policies when she acquired the fractional interests in the Meh-No-Bah allotment. The Secretary has moved to dismiss the complaint or, in the alternative, for summary judgment; the Board has filed a cross-motion for partial summary judgment.

II. LEGAL STANDARD

A. Standing

A petitioner seeking judicial review of agency action " must ...


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