The 10th U.S. Circuit Court of Appeals in Denver recently ruled 3-0 against the state of Oklahoma, overturning U.S. District Judge Gregory Frizzell’s 2012 order halting construction of the Kialegee Tribal Town’s Red Clay Casino in Broken Arrow, Oklahoma. In a 22-page decision, the court wrote, “The State is clearly precluded from suing the defendant tribal officials in federal court for purported violations of the Tribal-State Gaming Compact.” Frizzell was instructed to set aside his preliminary injunction and to dismiss the state’s lawsuit against tribal officials.
Oklahoma Attorney General Scott Pruitt’s lawsuit contended the construction and operation of the casino violated the Indian Gaming Regulatory Act and the state gaming compact. The appeals court’s decision stated Pruitt could not sue the tribe because the planned casino will be on an allotment that is not considered Indian lands. The appellate judges wrote, “We once again address the subject of Indian gaming and, following the lead of the Supreme Court’s recent decision in Michigan v. Bay Mills Indian Community, emphasize that any federal cause of action brought” in regard to IGRA overseeing Class III gaming “must allege and ultimately establish that the gaming ‘is located on Indian lands.”
In addition, the 10th Circuit judges said the state compact requires that any disputes be settled in arbitration, not by lawsuits against individual tribal officials for allegedly violating the compact—the same conclusion the Supreme Court judges reached in Bay Mills.
Pruitt’s spokesman Aaron Cooper said the attorney general’s office disagrees with the appellate court’s decision and is “evaluating the state’s options on how to proceed.”
Broken Arrow Mayor Craig Thurmond offered short statement on the ruling. “The City is not a plaintiff and we have no standing in this case. We’re disappointed and didn’t expect for the court to rule this way. We were all against it in 2012. It’s not the proper location. We’re a nation of laws and we’ll abide by the ruling.”
Kialegee King or Mekko Jeremiah Hobia said, “It’s a big win for law and tribal sovereignty. I’m looking forward to getting back to business and helping our people, and working with state and local officials in a constructive, more respectful way.”
Leaders of the Wetumpka-based, federally recognized Kialegee tribe said they will meet soon to discuss their next move, which does not necessarily involve re-starting construction. In fact, the facility could become a sports bar and entertainment venue, not a casino. More than two years ago the National Indian Gaming Commission determined that the casino site currently is not eligible for gaming because although it is “Indian land” as defined by IGRA, it is held in restricted status rather than in trust by the federal government, since it is owned by two sisters, members of the Muscogee (Creek) Nation, who inherited the land from their father and who lease the property to the Kialegees. If the land was t be taken into federal trust it would be eligible for gaming, but for now it’s under the jurisdiction of the Muscogee (Creek) Nation.
Jason Aamodt, assistant dean of online education at the University of Tulsa College of Law and head of the Worcester Sovereignty Project, said, “I don’t think that the 10th Circuit ruling allows gaming on the land. It just prevents state from suing the tribe where it doesn’t have the authority to do so. And the tribe does not have to necessarily open a casino there. There are other non-gaming economic development opportunities they could pursue on the property that would be within their purview and the state could not interfere with.”
