TOPEKA, Kan. – The Quapaw Tribe sued the state of Kansas in federal court on Tuesday, asking a judge to order the state to negotiate an agreement with the tribe within 60 days that would allow it to offer casino gaming in Kansas at its Downstream Casino Resort.

The lawsuit, filed in U.S. District Court in Topeka, asks a judge to order the state to finish negotiating an agreement to offer gambling. If negotiations fail, the lawsuit asks that a mediator select the agreement and that if Kansas rejects the agreement, then seeks that the U.S. Secretary of the Interior set the guidelines for gambling.

The lawsuit claims that Kansas has not followed federal law, which requires states to “negotiate with the Indian tribe in good faith.”

“We would prefer not to be in the position of having to file this litigation,” Quapaw Chairman John Berrey said in a written statement. “But we have to stand up for the rights of Indian tribes and for the rights of tribes under federal law.”

Eileen Hawley, a spokeswoman for Kansas Gov. Sam Brownback, said the governor's office would not comment on pending litigation.

The lawsuit is connected to the Quapaw Strip in Kansas, a section of land 1/2 mile wide from north to south that was the original Quapaw Reservation in Kansas. The tribe sold most of this land to the United States under an 1867 treaty, but the reservation boundaries remained the same, according to the lawsuit.

The tribe now owns about 124 acres in the Quapaw Strip, according to the lawsuit. Parking lots for the Downstream Casino Resort are on some of this land, which is held in trust for the tribe. About 7,000 acres of land is held in trust for the tribe in Oklahoma, according to the tribe.

The federal lawsuit was filed roughly a week after Kansas Attorney General Derek Schmidt and Cherokee County appealed the decision in another federal lawsuit that would pave the way to allow the tribe to expand Downstream across the Oklahoma border to offer casino gaming in Kansas. Before the tribe can offer casino gaming, which includes games such as roulette and craps, it has to negotiate an agreement, or compact, with the state.

Berrey has said that Brownback encouraged the tribe to seek a legal opinion from the federal agency that oversees Indian gaming about whether the tribe could offer casino gambling on its Kansas property. Brownback suggested this as part of the discussions about negotiating an agreement, or compact, about the proposed Kansas gambling, according to the lawsuit.

“Throughout the discussions, Governor Brownback made clear to the tribe that he would proceed with compact negotiations only if the tribe confirmed its right to conduct gaming on its trust land in Cherokee County,” wrote the attorneys for the Quapaw tribe. “Thus, the tribe, before submitting a proposed compact to Governor Brownback, requested an advisory letter opinion from the Office of the General Counsel of the National Indian Gaming Commission.”

Kansas has agreements with four other Indian tribes to allow them to operate casinos: the Iowa tribe of Kansas and Nebraska, the Prairie Band Potawatomi Nation, the Kickapoo Tribe of Kansas and Nebraska, and the Sac and Fox Nation of Missouri in Kansas and Nebraska.

The Quapaw submitted a proposal for a compact to Brownback on June 6, 2013, according to the lawsuit. Under the proposal, the tribe would pay fees to the Board of County Commissioners of Cherokee County, the city of Baxter Springs, the city of Galena, and the Riverton Unified School District No. 404. 

In late 2013 and early 2014, discussions with Brownback stalled, according to the lawsuit. During this time, the Kansas Legislature dropped the fees required to apply for a license for a state-owned casino from $25 million to $5.5 million for the gambling zone that includes Cherokee and Crawford counties.

In November 2014, an attorney for the National Indian Gaming Commission, the federal agency that oversees gambling on Indian land, issued an advisory opinion saying that the tribe’s Kansas land was eligible to be used for gambling. Schmidt, the Kansas attorney general, and Cherokee County sued the commission in federal court in April to try to block Downstream from expanding and later updated the lawsuit to include Berrey and 17 other tribal officials.

The lawsuit was dismissed in December, but Schmidt and Cherokee County are appealing.

According to the lawsuit, negotiating an agreement to offer casino gambling is required under a 1988 federal law, the Indian Gaming Regulatory Act. The state’s obligation to start good faith negotiations is triggered by the tribe asking that the negotiations start, according to the lawsuit.

States can’t use the federal law governing compact negotiations to protect state-licensed casinos, according to the lawsuit.

In July, Kansas gambling regulators awarded a license to build and open a $70.2 million casino, Kansas Crossing Casino and Hotel, in Crawford County. Construction of that casino has been stalled by a lawsuit brought by Cherokee County and a business that wasn't awarded the state license.

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