Opinion
Civil Action No. 99-2341-GTV
June 26, 2002
MEMORANDUM AND ORDER
The parties in this case dispute whether a parcel of land in Kansas, the Maria Christiana Miami Reserve No. 35 ("the Reserve"), qualifies as Indian land under the Indian Gaming Regulation Act, 25 U.S.C. § 2703(4). The Miami Tribe of Oklahoma seeks to establish a gaming facility on the Reserve. On November 10, 1998, the Department of Interior issued an opinion that the Reserve was Indian land. Based on this opinion, the National Indian Gaming Commission ("NIGC") approved a class II gaming management contract between the Miami Tribe and Butler National Service Corporation on January 7, 2000. Plaintiff petitioned this court for a preliminary injunction to prevent the Miami Tribe from engaging in gaming activities on the Reserve, and this court granted Plaintiff's motion. Defendants appealed, and the Tenth Circuit affirmed this court's decision and remanded the case for further proceedings. The case is now before the court on Federal Defendants' Motion to Remand Case to Federal Defendants for Reconsideration (Doc. 123).
"Federal Defendants" filing the motion to remand are Gail A. Norton, the Secretary of the United States Department of Interior; Monte Deer, Chairman of the NIGC; and Neal A. McCaleb, Assistant Secretary of the Interior for Indian Affairs. Other Defendants in this case joining the motion to remand are Floyd E. Leonard, Julie L. Olds, Charles E. Wade, Judy O. Davis, James O. Downing, Bob Woodcock, Clark D. Stewart, and Butler National Corporation.
Federal Defendants acknowledge that their consideration of the Miami Tribe's jurisdiction over the Reserve was incomplete. They ask the court to vacate the NIGC's approval of the Miami Tribe's gaming management contract and remand the case to the federal agencies for further administrative proceedings. Plaintiff also asks the court to remand the case, but with "directions to enter orders consistent with the determination that res judicata applies to the issue of the Miami Tribe's jurisdiction over the Maria Christiana Reserve and that the Miami Tribe does not have jurisdiction over Reserve No. 35."
The court declines to give specific instruction to Federal Defendants regarding the decision they must make. Such specific instruction would usurp the federal agencies' authority to engage in decision-making on Indian gaming matters. See Fla. Power Light Co. v. Lorion, 470 U.S. 729, 744 (1985) ("If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation."); see also Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir. 1994) (citations omitted). The court simply instructs Federal Defendants to conduct further proceedings not inconsistent with the opinions of this court and the Tenth Circuit Court of Appeals. Federal Defendants should conduct such proceedings within sixty (60) days.
IT IS, THEREFORE, BY THE COURT ORDERED that the NIGC's approval of the Miami Tribe's gaming management contract is vacated and the case is remanded to Federal Defendants for further consideration. Federal Defendants have sixty (60) days from the date of this Memorandum and Order to conduct further proceedings not inconsistent with the opinions of this court and the Tenth Circuit.
Copies of this order shall be transmitted to counsel of record.
IT IS SO ORDERED.