Jay Daniels: Kialegee casino dispute shows they just don't get it

Artist's rendering of the proposed Red Clay Casino in Broken Arrrow, Oklahoma. Image from Kialegee Tribal Town

Recently, the U.S. Court of Appeals for the Tenth Circuit on rehearing unanimously overturned the district court decision in State of Oklahoma v. Hobia. ruling that Oklahoma had failed to state a claim against the Tribe, the Tenth Circuit ordered the lower court to vacate its injunction against the Tribe and to dismiss the State's complaint with prejudice.

On November 11, 2014, a unanimous panel of the Tenth Circuit overturned the district court's decision, remanding the case with instructions to vacate the injunction and dismiss the State's suit with prejudice. In a significant victory for all Oklahoma gaming tribes, the court also ruled that an arbitration provision in the State's model gaming compact barred claims against tribal officials for alleged compact violations.

The complaint concerned Kialegee Tribal Town’s efforts to construct a casino on a Creek Nation allotment owned by tribal members Marcella Giles and Wynema Capp, (“Landowners”) sisters, who inherited the interest in the 1901 Creek trust allotment of Tyler Burgess. The landowners have been opposed and harassed by the City of Broken Arrow, OK since making their intentions known to construct a casino on the allotment a few years back.

The National Indian Gaming Commission issued a decision denying approval of the gaming proposal under the Indian Gaming Regulatory Act of 1988 because the allotment was determined to be under the jurisdiction of the Muscogee Creek Nation of Oklahoma, and not the Kialegee Tribal Town. Subsequently, the landowners applied for and obtained Kialegee Tribal Town membership. The land is still considered a Creek allotment suggesting that it is under Muscogee Creek Nation’s jurisdiction. But that is a matter between Kialegee Tribal Town and the Muscogee Creek Nation, not the state of Oklahoma or their Attorney General.

The State of Oklahoma’s Attorney Scott Pruitt filed an injunction in which U.S. Chief District Judge Gregory Frizzell granted a temporary injunction against the Kialegee Tribal Town and its casino developers, saying the casino would violate the state gaming compact and the IGRA because the Kialegees do not have “Indian lands.”

An appeal was filed in the10th Circuit Court of Appeals in September 2013. Subsequently the Court issued an abeyance, or stay, in the matter pending the outcome of the pending U.S. States Supreme Court decision in Michigan v. Bay Mills Indian Community, et al., which had similar merits as State of Oklahoma v. Tiger Hobia, et al.

On May 27, 2014, the U.S. Supreme Court held that Michigan’s suit against Bay Mills is barred by tribal sovereign immunity. The Court affirmed that as “‘domestic dependent nations,’” Indian tribes exercise “inherent sovereign authority” that is subject to plenary control by Congress, and not states.

IGRA’s plain terms did not authorize the Michigan v. Bay Mills Indian Community suit because Section 2710(d)(7)(A)(ii) partially abrogates tribal immunity with respect to class III gaming located “on Indian lands.” But the very premise of Michigan’s suit is that Bay Mills’ casino is unlawful because it is outside Indian lands.

It is ironic that the land surrounding the Tyler Burgess allotment once was allotted to Creek tribal members who subsequently lost much of the land through forced fee patents, tax forfeiture, or scrupulous actions by non-Indians acting as care givers to advise and act on behalf of, what they termed, incompetent Indians. This was an all too common practice on the part of non-Indians to wrestle land away from Indians.

Oklahoma was established as “Indian Territory.” This area was set aside by the United States Government for the relocation of the indigenous peoples of the Americas who held aboriginal title to their land. In general, the tribes ceded land they occupied in exchange for land grants in an area purchased by the United States federal government from Napoleon, called the Louisiana Purchase. The concept of an Indian Territory was an outcome of the 18th and 19th century policy of Indian removal. After the United States Civil War, the policy of the government was one of assimilation.

The 1907 Oklahoma Enabling Act created the single state of Oklahoma by combining Oklahoma Territory and Indian Territory, ending the existence of an Indian Territory. But, as usually occurred, the non-Indian wanted more land, so Congress constantly pushed tribes into a more refined and restricted area.

I get incensed when I see non-Indians forcing their dictas, or personal opinions without full support of standard case law decisions on Indians “just” because they think they can dictate or control our actions on trust allotted properties that they have no authority over. As I stated, Broken Arrow’s Church across the street from the proposed casino didn’t ask the landowners if it they were okay with building a church across the street, or proposing to construct a school down the road from their Indian trust allotment. Who says everyone is treated equally

Some Attorney Generals need to realize that their purpose is to ensure state law is followed. They must learn that they are wasting taxpayer’s time and money when they chase their own personal agendas and convictions against Indians rather than the law. This has been a very significant year for Indian Country. Inherent tribal rights beginning to be eroded in the courts have started to shift. There have been significant taxation cases regarding the right of tribes to assess taxes, taxation cases affirming tribal rights to be exempt from being taxed by state and local governments, and now learning that the definition of who has the power isn’t theirs, but belongs to Indian Country.

It’s time for states to settle down and figure out why they just don’t understand it. And we’re considered incompetent?

Jay Daniels has 30 years of experience working in Indian Country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at roundhousetalk.com.

10th Circuit Decision:
Oklahoma v. Hobia (December 22, 2014)

NIGC Indian Land Opinions
May 25, 2012 | June 8, 2012

Supreme Court Decision:
Michigan v. Bay Mills Indian Community (May 27, 2014)

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10th Circuit refuses to rehear Kialegee Tribal Town gaming case (12/23)

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