On September 26 at the 10th Circuit Court of Appeals in Denver, attorneys for the Comanche Nation began oral arguments in a precedent-setting lawsuit (Comanche Nation v. Zinke) against the U.S. Department of Interior and Secretary Ryan Zinke. The Comanche Nation filed the lawsuit last year against the federal government over the Chickasaw Nation’s new RiverStar Chickasaw Casino located two miles north of the Texas border in Terral, Jefferson County.
The Interior Department approved the Chickasaw casino without notifying the Comanche, whose ancestral lands are located nearby. Richard Grellner, an attorney for the Comanche Nation, said larger, wealthier, more influential tribes like the Chickasaws are taking over the Oklahoma gaming market, with the money and the connections to receive preferential treatment from the federal government. “The Comanche feel like they’ve played by the rules and their competition didn’t,” Grellner said.
The Comanche’s lawsuit claims the Interior Department and the Bureau of Indian Affairs allowed the Chickasaw and other tribes to manipulate the rules about placing off-reservation land into trust for new casinos, taking away market share from smaller tribes like the Comanche. The lawsuit said, “BIA officials moved the goal line so close to the Chickasaws and other privileged tribes in Oklahoma that they have needed only to fall into the end zone and open up shop, secure in the knowledge that the score was virtually certain to hold up without any replay.”
The federal government took the land into trust for the Chickasaw casino in January 2017 and the tribe broke ground on the $10 million casino in May 2017. The 36,000-square-foot casino is scheduled to open later this year unless the Comanches are granted the injunction they’re seeking to stop the RiverStar from opening. The Comanches are concerned that revenue from their Comanche Red River Hotel and Casino could drop up to 25 percent if the Chickasaw Nation opens the RiverStar Casino, located about 50 miles away. The Comanche operation, located outside Devol, generates nearly 60 percent of the tribe’s annual budget. The Comanches also own a portion of a tribal allotment, less than 10 miles from Terral, where it plans to build a new casino.
The case reflects disparities between how the federal government has treated the poorer Plains tribes of western Oklahoma compared to the more powerful Five Civilized Tribes in the east, of which the Chickasaw are the richest, with 22 Oklahoma casinos and net gaming revenue near $1.40 billion last year. The tribe’s annual 2017 progress report listed more than $3 billion in assets, including hotels, a championship golf course and two horse racetracks. The tribe’s vast wealth has funded vital social and housing initiatives for its members, and also allowed them to donate to out-of-state campaigns and lobbyist fees in Washington and Austin, where the Chickasaw have a close relationship with Governor Greg Abbott’s administration. The tribe also has ties with the Las Vegas companies that lease gaming machines to poorer tribes. Its subsidiary, Global Gaming Solutions, has become a national player, partnering in gaming projects on both coasts, most recently on Martha’s Vineyard.
Chickasaw Nation Senior Counsel Stephen Greetham said based on the tribe’s review of the Comanche lawsuit, “the complaint does not raise any factual or legal point of merit. Everything we have done is lawful and more importantly was the act of a tribal government acting within its own sovereign boundaries. You know what the Chickasaw owned 118 years ago? All of South Central Oklahoma and it was taken away.
These tribes lost everything. There is very much a desire to tenaciously work to protect this treaty homeland so the next generation of Chickasaws can have a foundation.”
Grellner said, “I think it is the greatest economic fraud visited upon the Plains tribes since the allotment period of the late 19th Century. I don’t like the word fraud but fraud is what it was. I think their economic opportunity was taken away.”
Steven Mullins, former general counsel to Oklahoma Governor Mary Fallin, said, “It’s just gotten to the point of crazy.”
The issue erupted when Interior approved the Chickasaw’s new casino on property it bought four years earlier in Jefferson County. The 30.5-acre site is 127 miles southwest of Chickasaw headquarters in Ada, Oklahoma but it borders ancestral lands and individual allotments of the Comanche—who are not even mentioned in the 18-page record-of-decision filed by Interior. Comanche leader Jmmyu Arterberry said, “That’s the mystery of it all, the fact that there wasn’t any discussion.”
The BIA regional report on the issue did not mention the Oklahoma Archeological Office’s warnings to the Chickasaws to consult with other “Native American tribes/groups to identify any concerns they may have pertaining to” the casino. Mullins, while still the governor’s counsel, also wrote to the BIA and explained Oklahoma’s objections to the casino, specifically noting smaller tribes could be hurt economically. But the BIA quickly dismissed these cautions. A BIA report from April 2016 called Mullins’ letter “speculative and lacking in any supporting evidence.”
Mullins said, “We have 38 tribes in Oklahoma and we wanted to make sure each of the tribes had economic sustainability. Indian gaming is very limited by geographic location. You can strangle the opportunity of the very small tribes at times by not really balancing those kind of economic interests.”
The Comanche tribe was left out of the federal review and heard nothing from Washington for six months after the Chickasaws application for the off-reservation casino was approved in January 2017, on the Obama administration’s last day. Supposedly the delay was to allow the new Trump administration time to review the matter. The Chickasaws broke ground in May and had already filed a facility license notice with the National Indian Gaming Commission in June– more than a month before Interior’s decision finally became public in the Federal Register.
Government attorneys said the Comanche did have some warnings about the Chickasaw casino. They said legal notices were published in spring 2016, but those the ads ran in just two publications not likely to be seen by the Comanches. Also, no efforts were made to gather public comment in the 30-day review period.
The Comanches said for the Interior Department to approve the RiverStar, it had to dramatically reinterpret the Indian Gaming Regulatory Act.
Records show once the Chickasaws got their approval, they changed the size and layout of the casino, increasing the number of slots that had been listed in the environmental assessment. Also the locations of two large waste water lagoons were changed. The Comanches said they feared the changes would make it easier to expand on the Red River site, and the casino would become a resort hotel to attract gamblers from Fort Worth.
The case eventually could reach the U.S. Supreme Court. Justices have been reviewing precedents, as a result leaving Indian policy development to Congress or the Interior Department.
Before the hearings began, Grellner said, “Like Oklahoma history, it’s actually been a brilliant scheme. The ironies would be amusing if the effects weren’t so devastating.”
