Attorneys argue over shutdown

Bill Draper

Thursday, April 8, 2004 | 9:18 a.m.

TOPEKA, Kan. -- For the third time in a week, a federal judge has denied a request from the Wyandotte Nation of Oklahoma for a temporary restraining order that would allow the tribe to keep its Kansas City, Kan., casino open.

U.S. District Judge Julie Robinson said Wednesday the Wyandotte Nation has not shown that it would suffer irreparable harm if the casino were to remain closed, nor did it show convincing evidence it would win a legal fight to keep its casino operation open.

Last week, a federal judge in Washington, D.C., denied a request from the tribe for a temporary restraining order, and the same judge denied a similar request this week.

Local and state officials on Friday closed the downtown casino -- located in narrow trailers encased in paneling and attached to a renovated Masonic Lodge building -- and hauled off more than $1 million in cash and property, including about 150 gambling machines.

The Wyandotte Nation said the state has no jurisdiction on what the tribe says is tribal land. An attorney for the tribe asked Robinson Wednesday to prohibit the state from taking any further enforcement action and to order the return of the seized property.

Conly Schulte, representing the tribe, called the state's closing of the casino an "egregious violation of tribal sovereignty.

"Even if we were to assume that gaming is unlawful on that land, it's solely up to the federal government to prosecute," Schulte said. "It's not in the state's jurisdiction."

Kansas Attorney General Phill Kline sued the National Indian Gaming Commission and the U.S. Department of the Interior last fall after the Wyandotte Tribe of Oklahoma opened the casino.

Late last month, the gaming commission ruled the casino was operating illegally and gave the tribe a week to respond. After that week passed, state and local officials stepped in and closed the casino.

"The state has no jurisdiction to enforce any of its gambling laws on land owned by the Wyandotte Indian Nation," Schulte told Robinson.

Assistant State Attorney General Steve Alexander said the state disagrees that the property can be classified as tribal land, an issue he said was left up in the air by a 1996 federal appeals court ruling that allowed the land to be placed in trust for the tribe.

Jackie Rapstine, an attorney representing the gaming commission and the U.S. Department of Justice, acknowledged that if the property is tribal land, the state did not have the authority to act.

The attorney general's office says there is a difference between land purchased by a tribe and "tribal land." Gambling is allowed on traditional tribal land, so long as it meets certain criteria, but generally isn't permitted on land that's only owned by a tribe.

Alexander argued it could take several years to resolve issues such as jurisdiction and legality of the casino, and in the meantime the state would have no authority over an unregulated gambling operation.

"Is it reasonable to expect Kansas to sit there twiddling its thumbs for the next five years while the Wyandotte tribe opens and runs an unregulated casino?" Alexander said.

Robinson gave both sides two weeks to respond to a motion by the federal government to dismiss the Wyandotte case, and set a May 4 hearing on whether to issue a preliminary injunction against the gaming commission and Kansas officials.