Kansas attorney general: State can legally negotiate gaming compact with Wyandotte Nation
Attorneys representing Gov. Laura Kelly sought a legal opinion on potential of the Wyandotte Tribe entering into a state compact to offer casino gambling that included sports betting. Attorney General Kris Kobach says a Kansas governor is obligated to negotiate in good faith with on a tribal compact. In this image, Kelly speaks at 2024 dedication of a replica of the Ad Astra statue of a Native American pointing an arrow at the North Star. (Tim Carpenter/Kansas Reflector)
TOPEKA — Attorney General Kris Kobach said Gov. Laura Kelly was obligated under federal law to negotiate in good faith with the Wyandotte Nation on a compact agreement to allow operation of casino gambling, including sports betting, on tribal land.
Negotiations with the Wyandotte Nation wouldn't violate state law applicable to operation of four nontribal casinos in Kansas nor would negotiations be inconsistent with compacts with four tribes in the casino business in Kansas, the attorney general said.
On Friday, Wyandotte Nation Chief Billy Friend said he appreciated the attorney general's opinion affirming the tribe's contention that state and federal statute wouldn't interfere with the tribe seeking a gaming compact in Kansas.
'We were pleased with the opinion,' he said. 'We're looking forward to sitting down and negotiating in good faith and coming up with a fair compact.'
Kobach's nonbinding legal opinion said the federal Indian Gaming Regulatory Act, or IGRA, governed gaming on tribal land held by the Prairie Band Potawatomi, Sac & Fox, Kickapoo and Iowa tribes in Kansas. IGRA would likewise preempt state law related to a Wyandotte Nation request for a compact applicable to its 7th Street Casino in Wyandotte County and Cross Winds Casino near Park City in Sedgwick County, the opinion said.
Under the Kansas Expanded Lottery Act, or KELA, the opinion said the state's jurisdiction over gambling activities was confined to four casinos outside of tribal land in Mulvane, Pittsburg, Dodge City and Kansas City, Kansas. These Kansas Lottery facilities operated through management contracts with private companies. KELA does forbid Kansas from adding state-owned casino zones through 2032.
'Because KELA and the management contracts do not prohibit efforts that further tribal gaming under IGRA, they do not prohibit negotiating with the Wyandotte Nation over a compact,' Kobach said.
Kobach said sports wagering could be featured in a compact with the Wyandotte Nation because Kansas permitted that type of gaming at casinos across the state.
In 2022, the Legislature and Kelly granted the four state-owned casinos an opportunity to operate sports books. Since 2023, the Iowa, Sac & Fox and Prairie Band Potawatomie nations negotiated sports betting agreements with the state.
Friend, chief of the Wyandotte Nation headquartered in northeast Oklahoma, said the intent was to seek a compact with Kansas enabling the tribe to participate in sports gambling.
Justin Whitten, chief counsel to the governor, sought the attorney general's insight into the intersection of IGRA and KELA. The request reflected government and industry concern about potential violation of state management contracts with nontribal casinos.
'A compact with the Wyandotte Nation would not fall under, and would not violate, KELA,' Kobach said. 'And, because federal law trumps state law, to the extent there is any conflict between IGRA and Kansas Statutes Annotated 46-2305, IGRA prevails.'
Under the existing system of developing gaming compacts in Kansas, a tribe would begin by requesting negotiations with the governor. The negotiated compact documents would be submitted to the Legislature for consideration. If approved, the compact agreement would be forwarded for review to the U.S. Department of Interior.
Kobach said the U.S. Supreme Court weakened IGRA's central mechanism for getting states to negotiate with tribes by holding IGRA didn't abrogate state sovereign immunity.
'This means that if the state does not negotiate with the Wyandotte Nation, or if the Wyandotte Nation believes the state is not negotiating in good faith, the state can invoke its sovereign immunity against any resulting suit by the tribe,' Kobach said.
While a tribe might not successfully pursue a lawsuit against the state of Kansas, Kobach's opinion said, the federal government could take legal action on behalf of a tribe to sidestep a sovereign immunity defense.
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