F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 7, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
WYANDOTTE NATION, a Federally
Recognized Indian Tribe,
Plaintiff-Appellant,
v.
KATHLEEN SEBELIUS, in her official
capacity as Governor of Kansas; WILLIAM
R. SECK, in his official capacity as the
Superintendent of the Kansas State Highway
Patrol; RONALD MILLER, in his official
capacity as Chief of Police, City of Kansas
City, Kansas; LARRY WELCH, in his
official capacity as Director of the Kansas
Bureau of Investigation; JOE REARDON, * in No. 04-3431, 04-3432
his official capacity as Mayor, City of Kansas
City, Kansas; PHILL KLINE, in his official
capacity as Attorney General for the State of
Kansas; PHILLIP L. SIEVE, in his official
capacity as District Court Judge for the State
of Kansas, County of Wyandotte; NICK A.
TOMASIC, in his official capacity as
Wyandotte County, Kansas District Attorney,
Defendants-Appellees.
-------------------------------------------
UNITED STATES OF AMERICA,
Amicus Curiae.
Pursuant to Fed. R. App. P. 43(c)(2), Joe Reardon is substituted for Carol
*
Marinovich as Mayor of Kansas City, Kansas.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 04-2140)
Conly Schulte, Monteau & Peebles, L.L.P., Omaha, Nebraska (Shilee T. Mullin
with counsel on the briefs) for Plaintiff-Appellant.
Steven D. Alexander, Assistant Attorney General, Topeka, Kansas (Phill Kline,
Attorney General; David W. Davies, Deputy Attorney General, Topeka, Kansas,
with counsel on the briefs) for Defendants-Appellees.
R. Justin Smith, United States Department of Justice, Washington, DC (Kelly A.
Johnson, Acting Assistant Attorney General; William B. Lazarus, Todd S.
Aagaard, United States Department of Justice, Washington, D.C.; Maria Getoff
and Andrea Lord, Staff Attorneys, National Indian Gaming Commission with
counsel on the briefs) for Amicus Curiae.
Before LUCERO, BRORBY, and HARTZ, Circuit Judges.
LUCERO, Circuit Judge.
The Wyandotte Nation, a federally recognized Indian Tribe, appeals the
entry of a preliminary injunction barring the tribe from conducting gaming on the
Shriner Tract in Kansas City, Kansas. Kathleen Sebelius, the Governor of
Kansas, and various other Kansas officials cross-appeal, challenging an injunction
preventing them from enforcing Kansas’s gaming laws on the Shriner Tract and
ordering them to return money and property seized when Kansas raided a casino
located on the property. Because the district court acted properly when enjoining
-2-
the state from enforcing its law on what is most likely Indian land, we AFFIRM
the injunction against the State Defendants. However, because the district court,
in clear violation of Fed. R. Civ. P. 65(a), provided the Wyandotte with no notice
that they were going to be enjoined and because it relied on a misreading of a
previous order of this court, the injunction against the Wyandotte is VACATED.
I
For ten years, the Wyandotte Nation, the State of Kansas, and the United
States have been locked in litigation in multiple fora over the fate of the Shriner
Tract, a piece of land in downtown Kansas City, Kansas. This long battle has
produced a procedural history as complex as a random maze. Much of this history
has been recapped in Sac & Fox Nation v. Norton, 240 F.3d 1250, 1253-58 (10th
Cir. 2001). However, because the outcome of this case turns on developments in
prior and concurrent litigation, it is necessary to review this epic tale of claims
and counter-claims, federal regulators and state agents, legislation and lots and
lots of law suits. 1
1
In addition to the instant case, the conflict involves at least three other
cases, two of which are still pending. See Sac & Fox Nation, 240 F.3d at 1250
(challenge to Secretary of the Interior’s initial decision to take Shriner Tract into
trust); Governor of Kan. v. Norton, 2005 WL 1785275 (D. Kan. 2005)
(challenging Secretary’s determination that only statutory funds were used to take
Tract into trust); Wyandotte Nation v. Nat’l Indian Gaming Comm’n, D. D.C.
Case No. 04-1727-RMU (challenge to National Indian Gaming Commission’s
decision that Wyandotte may not conduct gaming on the Shriner Tract).
-3-
A
This history of legal disputes between Kansas, the United States and the
Wyandotte over the Shriner Tract began more than three decades ago. In 1973,
the Indian Claims Commission held that the federal government illegally took
tribal lands belonging to the Wyandotte. Strong v. United States, 30 Ind. Cl.
Comm. 8, 21-22 (I.C.C. 1973); Strong v. United States, 30 Ind. Cl. Comm. 337,
353-54 (I.C.C. 1973). In 1984, Congress enacted legislation that appropriated
money to satisfy that judgment. Pub. L. 98-602, 98 Stat. 3149 (1984). The
legislation stated that a portion of the overall award – $100,000 – was to be used
“for the purchase of real property which shall be held in trust by the Secretary [of
the Interior] for the benefit of [the Wyandotte Nation].” Pub. L. 98-602,
§ 105(b)(1). See also Sac & Fox Nation, 240 F.3d at 1255.
In 1996, the Wyandotte informed the Secretary that they wanted to buy the
Shriner Tract. Id. at 1257. The Secretary published in the Federal Register a
Notice of Intent to take the Shriner Tract into trust for the Wyandotte. Id. at
1256. As long as only funds authorized by Pub. L. 98-602 were used, the
Secretary had a non-discretionary duty to take the land into trust. Id. at 1262.
Worried that the Wyandotte would build a casino on the Shriner Tract if it
were taken into trust, the Governor of Kansas sprung into action and, along with
-4-
several Indian tribes, sued the Secretary to stop the federal government from
taking the Shriner Tract into trust for the Wyandotte. Id. at 1256. This case was
entitled Sac & Fox Nation v. Norton. The district court granted a temporary
restraining order (“TRO”) preventing the Secretary from taking the land into trust.
Id. at 1256-57. Because the tribe, which had moved to intervene, was under
contract to purchase the land immediately, they challenged the TRO. On July 15,
1996 (“July 15th Order”), we vacated the TRO, stating in relevant part:
4. We hear this matter on an emergency basis and wish to preserve,
as best we can, the rights of all parties. In order to do so, [We] take
into specific consideration the statement of the United States
Attorney and the counsel for the Wyandotte Tribe that acquisition by
the Secretary of this land in trust will not affect or bar the ultimate
resolution of whether this land can be used for Class III gaming
pursuant to the Indian Gaming Regulatory Act. [“IGRA”] 2
5. In order to preserve the status quo, we grant the [Wyandotte’s]
emergency application for stay and hold that the temporary
restraining order entered below is dissolved, subject to the conditions
which constitute the law of this case, that the respective rights of the
parties to obtain judicial review of all issues which have been raised
in the complaint below shall be preserved, including standing of all
parties, jurisdiction, compliance by the Secretary with all
requirements of law, and the ultimate question of whether gaming
shall be permitted on the subject land.
2
Under IGRA, there are three classes of Indian gaming. Class I consists of
traditional forms of gaming associated with ceremonies and celebrations and
social games for prizes of minimal value, Class II consists primarily of bingo,
lotto, and related games, and Class III encompasses all other forms of gaming,
including roulette, blackjack, and slot machines. First Am. Kickapoo Operations,
L.L.C. v. Multimedia Games, Inc., 412 F.3d 1166, 1168 n.2 (10th Cir. 2005); 25
U.S.C. § 2703.
-5-
On an emergency basis, the plaintiffs – the Governor of Kansas and the other
tribes – filed a motion to clarify that Class I and Class II gaming were prohibited
on the Shriner Tract pending the resolution of Sac & Fox Nation. The next day,
we issued an order (the “July 16th Order”) denying this motion:
Plaintiffs-Appellees [i.e., Kansas] have filed an emergency motion
for clarification of our order of July 15, 1996. They contend that the
order ‘inadvertently’ allows gaming on the subject property other
than class III gaming under the Indian Gaming Regulatory Act and
suggests that the order be modified to prohibit any gaming on the
land pending resolution of the suit below. After consideration of the
motion, we conclude that it should be denied. Paragraph five of our
July 15, 1996 order specifically states that all issues raised below are
preserved for judicial review, including ‘the ultimate question of
whether gaming shall be permitted on the subject land itself.’ This
broad language clearly includes all classes of gaming. The motion is
denied.
The Secretary then purchased the Shriner tract and took it into trust for the
Wyandotte. Sac & Fox, 240 F.3d at 1257.
Sac & Fox Nation continued in district court until the court dismissed the
case on procedural grounds. Id. at 1253. Kansas and the tribes appealed the
decision and we reversed the district court’s procedural ruling and addressed the
merits of the case. On the merits, we affirmed the Secretary’s ruling that she had
a non-discretionary duty to take the Shriner tract into trust if the tribe used only
Pub. L. 98-602 funds to purchase the land. However, we found that the Secretary
had not provided substantial evidence that the Wyandotte used only Pub. L. 98-
-6-
602 funds to purchase the Shriner Tract. Id. at 1261-63. 3 We remanded the case
to the district court with an order to remand the case to the Secretary to determine
the source of the funds. Id. at 1263-68. The district court did so and entered
final judgment in the matter, seemingly ending the Sac & Fox case.
On remand, the Secretary determined that the Shriner Tract was purchased
exclusively with Pub. L. 98-602 funds. 67 Fed. Reg. 10,926 (March 11, 2002).
Kansas presented an administrative challenge to this determination, but it was
rejected. Kansas officials filed suit, challenging the Secretary’s decision on
remand. That suit is now pending in district court in Kansas. Governor of Kan.
v. Norton, 2005 WL 1785275 (D. Kan. July 27, 2005).
B
On the basis of the Secretary’s determination that the Shriner Tract was
appropriately acquired in trust, the Wyandotte opened a Class II gaming facility
on the Tract. Tribes may conduct Class II gaming on Indian land in states where
such gaming is permitted, subject to provisions of IGRA. 25 U.S.C. § 2710(a)(2),
(b).
3
The source of the funds is relevant to Kansas’s ability to challenge the
Secretary’s actions. If only funds authorized by Pub. L. 98-602 were used to
purchase the land, the Secretary has a non-discretionary duty to purchase the land
in trust. If not, the decision was discretionary under the Indian Reorganization
Act and therefore is subject to legal challenge. Id. at 1262.
-7-
The Wyandotte’s decision to open the casino set off a furious round of
legal maneuvering. The Attorney General of Kansas responded to the opening of
the casino by sending a letter asking the National Indian Gaming Commission
(“NIGC”) to exercise its power to regulate gaming on the Shriner Tract. The
NIGC responded to the Attorney General’s letter, stating that it had jurisdiction to
regulate gaming on the land and that it was in the process of investigating
whether gaming was legal on the property under IGRA. 4 The NIGC then sent the
Wyandotte a letter, informing them that it and not the state had jurisdiction over
the new casino because it was on Indian Land but that the land could not be used
for gaming because it did not qualify under IGRA’s requirements. 5
The Wyandotte immediately brought suit in federal court in the District of
Columbia seeking review of the NIGC decision under the Administrative
Procedure Act and requesting a declaratory judgment that they could lawfully
4
Dissatisfied with this response, the Attorney General brought suit against
the Secretary to force the NIGC to close the casino, but later abandoned the suit
before any decision was rendered. Kansas v. Norton, Case No. 03-4179-JAR.
5
Title 25 U.S.C. § 2719(a) provides that land approved in trust for the
benefit of a tribe may not be used for gaming unless it fits within certain
exceptions. See 25 U.S.C. § 2719(b). The NIGC letter explained that the Shriner
Tract did not fall within any of these exceptions.
-8-
conduct gaming on the Shriner Tract. Wyandotte Nation v. Nat’l Indian Gaming
Comm’n, Case No. 04-0513 (D. D.C.). 6
Determined to shut down the tribe’s gaming facility and unwilling to wait
for the case to travel through proper legal channels, Kansas officials decided to
simply bypass the federal court system. They sought and obtained a search
warrant in Kansas state court based on suspected violations of state gaming law.
On April 2, 2004, armed officials from the Kansas City Police Department, the
Kansas Bureau of Investigation, and the Office of the State Attorney General
stormed the casino, seized gambling proceeds and files, and confiscated gaming
machines. The law enforcement officers arrested Ellis Enyart, the casino’s
general manager, for violating state gambling laws. That same day, the officers
seized a bank account owned by the Wyandotte. In total, the officers seized more
than $1.25 million in cash and equipment. Criminal charges were filed against
Enyart but a state court rightly dismissed them because Kansas has no authority to
6
On September 10, 2004, after the events described infra, the NIGC issued
a final decision that the Wyandotte could not conduct gaming on the Shriner
Tract. The Wyandotte challenged that final decision in a separate proceeding in
federal court in the District of Columbia. Wyandotte Nation v. Nat’l Indian
Gaming Comm’n, Case No. 04-1727-RMU (D. D.C.). On the NIGC’s motion,
that court transferred the case to the District of Kansas, where it is now pending.
Case No-05-cv-2210-JAR-JPO (D. Kan.).
-9-
enforce its gaming laws on the Shriner Tract. Kansas v. Enyart, Case No. 04-CR-
540 (Kan. Dist. Ct.) (July 7, 2004 Order). 7
In response to the state’s raid, the Wyandotte amended the complaint then
pending in federal court in the District of Columbia to include the State
Defendants and requested a TRO preventing the state from taking any further
enforcement actions. The district court stated that the raid “appears to have been
unlawful because the Shriner Tract is indisputably Indian land” over which the
federal government has exclusive jurisdiction over gambling. Wyandotte Nation
v. Nat’l Indian Gaming Comm’n, Case No. 04-0513 (Order of April 2, 2004).
However, the court held that it had no jurisdiction over the state officers and
transferred the case to Kansas.
After the case was transferred, the Wyandotte sought and the district court
granted a preliminary injunction against the State Defendants. 8 The court ordered
the State Defendants to return the monies and machines seized in the April 2nd
raid and barred the state from exercising any jurisdiction over gaming or related
activities on the Shriner Tract. The district court, however, went further.
7
Kansas appealed this determination but then voluntarily dismissed its
appeal on October 14, 2004. Kansas v. Enyart, Case No. 04-92855 (Kan. Ct.
App.).
8
The Wyandotte first filed a motion for a TRO. This motion was denied
and we upheld this decision on appeal. Wyandotte Nation v. Nat’l Indian Gaming
Comm'n, 99 Fed. Appx. 836 (10th Cir. 2004) (unpublished).
- 10 -
Without providing notice to the Wyandotte, the district court sua sponte enjoined
the tribe from conducting gaming or related activities on the Shriner Tract.
Wyandotte Nation v. Sebelius, 337 F.Supp.2d 1253, 1274 (D. Kan. 2004).
The Wyandotte now appeal this decision. Kansas cross-appeals,
challenging the injunction issued against its enforcement of its laws on the
Shriner Tract.
II
The Wyandotte challenge the district court’s order enjoining them from
conducting gaming operations on the Shriner Tract until the legal status of the
Tract and the Wyandotte’s ability to conduct gaming operations on it has been
finally adjudicated. Because the injunction was granted without notice, and
because there was no legal basis for the district court’s action, we vacate the
preliminary injunction against the Wyandotte.
A district court’s grant or denial of a preliminary injunction is reviewed
under an abuse of discretion standard. Dominion Video Satellite, Inc. v. EchoStar
Satellite Corp., 269 F.3d 1149, 1153 (10th Cir. 2001). A district court abuses its
discretion when it commits an error of law or makes clearly erroneous factual
findings. Id.
On its own and without providing any form of notice, the district court
issued its injunction against the Wyandotte. Kansas did not request this
- 11 -
injunction nor did the court inform anyone in any public proceeding that it was
considering issuing an injunction against the Wyandotte.
Fed. R. Civ. P. 65(a)(1) states clearly: “No preliminary injunction shall be
issued without notice to the adverse party.” Although we have never addressed
the matter, the text of this rule is clear: courts simply cannot issue injunctions
without providing notice to the adverse party. 9 “Preliminary injunctions entered
without notice to the opposing party are generally dissolved.” United States v.
Microsoft, 147 F.3d 935, 944 (D.C. Cir. 1998). See also Rosen v. Siegel, 106
F.3d 28, 32 (2d Cir. 1997); Parker v. Ryan, 960 F.2d 543, 544 (5th Cir. 1992);
Reed v. Cleveland Bd. of Educ., 581 F.2d 570, 573 (6th Cir. 1978). The
Wyandotte were not given notice that an injunction was being considered. This is
an obvious violation of Rule 65 and is a clear abuse of discretion.
The State Defendants argue that the district court did not actually issue an
injunction in violation of Rule 65, but instead enforced two orders of this court –
specifically the July 15th and July 16th orders in the Sac & Fox case. Those
orders, the State Defendants claim, barred the Wyandotte from conducting any
type of gaming on the Shriner Tract.
9
We have considered and rejected a rule adopted by the Fifth Circuit that a
court must provide notice five business days before issuing an injunction under
Rule 65(a)(1). Dominion Video Satellite, Inc., 269 F.3d at 1154. Nothing in that
opinion, however, suggests that a district court can issue a preliminary injunction
without giving the parties any notice at all.
- 12 -
The State Defendants misread these orders. Neither order addresses
whether gaming is permitted on the Shriner Tract before final resolution of the
various strands of litigation between Kansas, the Wyandotte, and the United
States. 10
As noted above, the July 15th Order vacated a TRO against the Secretary of
the Interior, thereby permitting the Secretary to purchase the Shriner Tract and
place it in trust for the Wyandotte, pending final determination of the propriety of
the Secretary’s determination that doing so was required by law. Those portions
10
Further, it is unclear that the July 15th and July 16th orders continue to
have any legal validity. “The purpose of a preliminary injunction is to preserve
the relative positions of the parties until a trial on the merits can be held.”
University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). The Sac & Fox
case, in which the orders were issued, is over; the district court issued a final
judgment terminating the case on August 23, 2001. “[A]lthough a preliminary
injunction is usually not subject to a fixed time limitation, it “is ipso facto
dissolved by a dismissal of the complaint or the entry of a final decree in the
cause.” Fundicao Tupy S.A. v. United States, 841 F.2d 1101, 1103 (Fed. Cir.
1988). However, in Sac & Fox, we remanded the case to the Secretary of the
Interior to determine whether Pub. L. 98-602 funds had been used to purchase the
Shriner Tract. The Secretary’s decision that only such funds had been used is
currently being challenged in district court in Kansas. See Governor of Kansas v.
Norton, 2005 WL 1785275 (July 27, 2005, D. Kan). The district court seized on
this fact and held that the July 15th and 16th Orders survived because the entirety
of the dispute between the Wyandotte and the State of Kansas is one “seamless
thread” of litigation. Sebelius, 337 F. Supp. 2d at 1268. Because neither the July
15th nor the July 16th Order bar the Wyandotte from conducting gaming
operations on the Shriner Tract, we need not examine the district court’s
“seamless thread” theory.
- 13 -
of the July 15th Order cited by the State Defendants do not discuss whether the
Wyandotte may operate a gaming facility on the Shriner Tract during the
litigation. Instead, they discuss the legal incidence of permitting the Secretary to
take the land into trust. The Order states that both the federal government and the
Wyandotte agree that “acquisition by the Secretary of this land in trust will not
affect or bar the ultimate resolution of whether this land can be used for Class III
gaming pursuant to the Indian Gaming Regulatory Act.” We endorsed the view of
the Secretary and the Wyandotte, stating:
“[W]e . . . hold . . . that the respective rights of the parties to obtain
judicial review of all issues which have been raised in the complaint
below shall be preserved, including . . . the ultimate question of
whether gaming shall be permitted on the subject land.”
(emphasis added). Our July 15th Order thus allowed the purchase of the Shriner
Tract, but ensured that the purchase would not affect the resolution of the
ultimate question of whether gaming should be permitted. It simply did not speak
to what activities were permitted on the Shriner Tract before the ultimate
resolution of the case.
Our July 16th Order was issued in response to the Governor of Kansas’s
motion for clarification, which argued that the July 15th Order “inadvertently”
authorized gaming on the subject property other than class III gaming under
IGRA. The motion requested that the order be modified to prohibit any gaming
on the land pending resolution of the suit below.
- 14 -
We denied this motion because “our July 15, 1996 order specifically states
that all issues raised below are preserved for judicial review, ‘including the
ultimate question of whether gaming shall be permitted on the subject land.’”
(quoting the July 15 Order). The July 16th Order thereby confirmed that
permitting the Secretary to take the land into trust would not affect whether, as a
final matter, any type of gaming – Class I, II, or III – could take place on the
Shriner Tract. This second order makes very clear that nothing in the first order
addresses whether gambling is permitted during the litigation. Like the July 15th
Order, nothing in the July 16th Order says whether the Wyandotte can or cannot
conduct gaming on the Shriner Tract before the final resolution of the litigation
between the parties.
Because the injunction against the Wyandotte was issued without notice,
and because neither the July 15th nor the July 16th Order justify an injunction, the
preliminary injunction against the Wyandotte is vacated. 11
11
Even had there been notice and a substantial legal basis for issuing an
injunction, the grant of such an injunction may have been improper because of the
doctrine of primary jurisdiction. “The doctrine of primary jurisdiction allows a
federal court to refer a matter extending beyond the conventional experiences of
judges or falling within the realm of administrative discretion to an administrative
agency with more specialized experience, expertise, and insight.” Williams Pipe
Line Co. v. Empire Gas Corp., 76 F.3d 1491, 1496 (10th Cir. 1996) (quoting
National Communications Ass’n, Inc. v. American Tel. and Tel. Co., 46 F.3d 220,
223 (2d Cir. 1995)). Clearly, the determination of whether gaming is allowed on
Indian lands under IGRA is within the NIGC’s area of experience. However, we
(continued...)
- 15 -
III
On cross-appeal, the State Defendants argue that the district court’s
decision enjoining them from enforcing state gaming laws on the Shriner Tract
and mandating that they return the money and equipment seized in the April 2,
2004 raid of the Wyandotte’s casino was an abuse of discretion. Although the
district court applied an incorrect legal standard, an independent review of the
record makes clear that an injunction is appropriate. As such, we affirm this
portion of the district court’s order.
A preliminary injunction is appropriate when “(1) the movant will suffer
irreparable harm unless the injunction issues; (2) there is a substantial likelihood
the movant ultimately will prevail on the merits; (3) the threatened injury to the
movant outweighs any harm the proposed injunction may cause the opposing
party; and (4) the injunction would not be contrary to the public interest.” Kiowa
Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163, 1171 (10th Cir. 1998). In
general, we review the decision to grant a preliminary injunction for abuse of
discretion. Winnebago Tribe v. Stovall, 341 F.3d 1202, 1205 (10th Cir. 2003).
“The state must show that the district court committed an error of law (for
11
(...continued)
need not determine whether it would have been appropriate to defer to the NIGC
under the doctrine of primary jurisdiction because it is clear that the district court
should not have issued the injunction against the Wyandotte.
- 16 -
example, by applying the wrong legal standard) or committed clear error in its
factual findings.” Id.
The district court did apply the wrong legal standard, at least in part. The
Wyandotte concede that the relief they seek is not only prohibitory but is also
mandatory – they asked the court to order Kansas to both refrain from enforcing
state gaming laws on the Shriner Tract in the future and to return the proceeds,
files and equipment seized when the state raided their casino on April 2, 2004.
The district court improperly relied on our decision in SCFC ILC, Inc., v. Visa
USA, Inc., 936 F.2d 1096, 1099 (10th Cir. 1991), and applied a standard that
required movants seeking a mandatory injunction to “carry the heavier burden of
showing that the traditional four factors weigh heavily and compellingly in favor
of granting the injunction.” Sebelius, 337 F.Supp.2d at 1267 (quotations marks
omitted). That standard was explicitly overruled in O Centro Espirita Beneficient
Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975-76 (10th Cir. 2004) aff’d 2006
WL 386374 (U.S. Feb 21, 2006) (NO. 04-1084). In O Centro, we held that a
movant seeking a mandatory injunction must prove “that the exigencies of the
case support the granting of a remedy that is extraordinary even in the normal
course . . . [and] must make a strong showing both with regard to the likelihood
of success on the merits and with regard to the balance of harms . . . .” Id.
- 17 -
This legal error, however, does not require a remand to the district court.
In Schrier v. Univ. of Colo., 427 F.3d 1253, 1261 (10th Cir. 2005), we faced an
identical situation: a lower court had used the “heavily and compelling standard”
instead of the O Centro standard for determining whether a mandatory injunction
was appropriate. Instead of remanding, we simply reviewed the arguments for an
injunction on the merits and affirmed the lower court’s determination because the
“erroneous application of the ‘heavily and compelling’ standard was at most
harmless.” Id. at 1267. See also O Centro, 389 F.3d at 982 n.5 (noting that,
where “the record on appeal is sufficiently well developed, it is appropriate for
the court to determine in the first instance whether [the plaintiff] has met the
requisite burden”). In this case, the record is clear that an injunction against the
state was appropriate.
The district court held that there was irreparable injury because the State
Defendants impermissibly intruded on the Wyandotte’s sovereignty by enforcing
state law on Indian land. We have repeatedly stated that such an invasion of
tribal sovereignty can constitute irreparable injury. See, e.g., Hoover, 150 F.3d at
1171-72; Seneca-Cayuga v. Oklahoma, 874 F.2d 709, 716 (10th Cir. 1989). The
State Defendants argue that there was no irreparable injury because the
Wyandotte do not have sovereignty over the Shriner Tract. However, the
Secretary of the Interior has taken the land into trust for the Wyandotte and the
- 18 -
district court rightly noted that it is likely that the Secretary’s decision will be
affirmed. As such, the district court’s determination that there was irreparable
injury was proper.
In determining that the harm caused to the State Defendants by granting the
injunction was substantially outweighed by the harm that the Wyandotte would
suffer if the court had not granted the injunction, the district court held that “an
order enjoining the State Defendants from exerting jurisdiction could very well
adversely affect the State of Kansas’s sovereignty, but in the context of entering a
preliminary injunction, the Tribe is faced with more devastating losses than the
State Defendants’ temporary inability to enforce its state gaming laws.” Sebelius,
337 F.Supp.2d at 1270. Even at the heightened standard by which mandatory
injunctions are judged, the State Defendants present no compelling reason to
conclude this determination is flawed. Because, as will be discussed below, the
likelihood that courts will determine that Kansas can exercise jurisdiction over
the Shriner Tract is remote, the harm caused by granting the injunction to Kansas
is minimal at best whereas the harm to the Wyandotte’s sovereignty and well-
being caused by permitting the state to continue exercising jurisdiction is quite
substantial.
Similarly, the district court found that issuing a preliminary injunction
would not be contrary to the public interest. Id. The reason for this is that
- 19 -
issuing the preliminary injunction does not permanently prevent the state from
prosecuting violations of state gaming law on the Shriner Tract. “[T]he State
Defendants are only required to refrain from enforcement until these critical
sovereignty issues can be adjudicated.” Id. If Kansas is eventually successful in
gaining jurisdiction over the land, the injunction will certainly not stop them from
prosecuting their laws. Further, state gaming laws can be enforced by the NIGC.
Granting the injunction is in no way contrary to the public interest.
Finally, the court addressed the likelihood of success on the merits. The
Secretary of the Interior has determined that only funds authorized by Pub. L. 98-
602 were used to purchase the Shriner Tract and has affirmed the trust status of
the land. Although Kansas officials have appealed this decision, the Secretary’s
determination is entitled to deference under the Administrative Procedure Act.
Even if the Secretary’s determination is reversed, the State Defendants would face
another hurdle to gain jurisdiction over the land: they would have to successfully
challenge the Secretary’s decision to take the land into trust for the Wyandotte
under the Indian Reorganization Act. 25 U.S.C.S. § 465; Sac & Fox, 240 F.3d at
1261. Given this string of barriers, the district court determined that it was
extremely likely that the land would eventually be determined to be held in trust
for the Wyandotte. Sebelius, 337 F. Supp. 2d at 1272. Because IGRA gives the
federal government exclusive jurisdiction over gaming on Indian Land, 18 U.S.C.
- 20 -
§ 1166(d), and because the most likely result is that the trust status of the Shriner
Tract would be confirmed, the district court found that the Wyandotte had a high
likelihood of success on the merits. This determination was clearly correct.
A review of the record shows that the exigencies of the case support
granting the injunction. Kansas bypassed the proper legal channels by not waiting
for a court determination about the status of the Shriner Tract or for the NIGC to
exercise jurisdiction over the land. There was no legal basis for the state’s action
and very little likelihood that the state will ever have a legal justification for
enforcing its gaming laws on the Shriner Tract. A failure to grant the injunction
would cause the Wyandotte serious harm. Further, the Wyandotte made a strong
showing with regard to the likelihood of success on the merits and the balance of
harms. Under O Centro, an injunction against the State Defendants in this case is
appropriate. The district court’s decision to issue an injunction against the State
Defendants, ordering them to refrain from enforcing state gaming laws on the
Shriner Tract and to return all the property and cash seized in the April 2, 2004
raid of the casino, should not be upset.
IV
Because the district court did not provide notice, and because it had no
legal basis for enjoining the Wyandotte from conducting gaming activities on the
Shriner Tract, we VACATE the injunction against the Wyandotte. The district
- 21 -
court’s decision enjoining the State Defendants was not an abuse of discretion.
As such, we AFFIRM that part of the order and REMAND for further
proceedings consistent with this opinion.
- 22 -