The Kialegee Tribal Town and Red Creek Holdings LLC, the tribe’s Florida partner in the Embers Grille in Broken Arrow, Oklahoma, recently sued the Muscogee (Creek) Nation in U.S. District Court for the Northern District of Oklahoma following the Creek Nation’s seizure of the yet-to-open restaurant in an August 16 raid. The Creek Nation conducted the raid because it feared the Kialegee operation would become an illegal casino and divert revenue from the Creek Nation’s River Spirit Casino, which would be illegal under Creek Nation tribal law. However, U.S. District Judge Claire Eagan dismissed the lawsuit, stating the lawsuit belongs in tribal court, not federal court.
Eagan wrote in her opinion, “The court lacks jurisdiction to hear matters solely concerning the interpretation of tribal law, and plaintiffs must litigate their case in tribal court to the extent that plaintiffs’ contest the enforcement of tribal gaming laws.” In a statement, the Muscogee (Creek) Nation Attorney General’s Office wrote, “The Nation has only sought to enforce its laws in this matter and the filing of all actions in federal court by the other parties have solely been an attempt to avoid the Nation’s jurisdiction and the consequences of violating the Nation’s laws.”
The Kialegees’ lawsuit claimed Creek Nation officials’ “violent intimidation of the plaintiffs is a clear attempt to create an illegal monopoly over Indian gaming in the area and to shield the River Spirit Casino, operated by the Muscogee (Creek) Nation, from legal competition.” Creek Nation officials responded, “Any attempt by the other parties to file an action in federal court related to the Red Creek Casino is purely an attempt to avoid the MCN’s jurisdiction and the consequences of violating MCN laws.”
In the lawsuit, the Kialegee asked for an injunction demanding the Creek Nation Lighthorse Police Department leave the Broken Arrow property. The restaurant and dance hall is located on an original Creek Nation allotment less than one mile from where the tribe attempted to build the Red Clay Casino in late 2011.
The tribe also asked that Kialegee and Red Creek representatives have access to the property, and requested Creek Nation officials “cease violent threats and intimidation” and return all property seized by the Creek Nation. In addition, the Kialegees wanted a court order allowing them to operate a restaurant on the property and to seek approval for gaming there.
During the raid, Lighthorse police forced workers off the property and allegedly seized about 100 electronic gaming machines, including 12 that were fully functional. Lighthorse police also arrested the owner of the land where the Embers Grille is located, Bim Stephen Bruner, a former member of the Muscogee (Creek) Nation National Council, who posted a $2,500 bond and is scheduled for a formal arraignment on September 18.
The lawsuit also claimed Lighthorse police held restaurant workers at gunpoint, threatening to shoot those who did not comply with orders. Creek Nation officials responded that Lighthorse police acted “professionally and appropriately” during the raid.
In their lawsuit, Kialegee officials claimed the Creek Nation raid violated the federal Indian Gaming Regulatory Act. But Eagan ruled the Kialegees failed to make that case. “Plaintiffs’ complaint identifies an issue of federal law concerning the enforcement of IGRA by an Indian tribe, but plaintiffs have not adequately alleged facts supporting even an inference that the MCN was seeking to enforce IGRA,” Eagan wrote.
The judge noted that a letter sent by Creek Nation Attorney General Kevin Dellinger to Kialegee officials “strongly supports the conclusion that the MCN was seeking to enforce its own laws when it took possession of the Bruner allotment.” Earlier, MCN Attorney General Kevin Dellinger had stated, “Mr. Bruner and others associated with the casino development have continued to disregard the Nation’s laws and regulations by bringing unlicensed gaming machines and other gaming-related equipment onto the site and moving forward with opening the facility, resulting in the actions taken by law enforcement. The fact that gaming machines and other gaming-related equipment were found on the premises makes it clear that all earlier statements that gaming was only being considered were false and the intent of the parties involved has always been to open an unlicensed casino.”
The Kialegees claim the Creek Nation has no jurisdiction over the property, and that gaming would not be conducted unless it was approved by the National Indian Gaming Commission. However, the NIGC repeatedly has stated the Broken Arrow parcel is not eligible for gaming because the Kialegee Tribal Town does not have legal jurisdiction over the parcel. In a June 21 memo, the NIGC’s general counsel said the tract, owned by Bruner, lies within the former Creek Nation reservation; therefore, the Creeks have exclusive jurisdiction over the property.
In other litigation recently filed in the District of Columbia District Court, the Kialegees are seeking an injunction against Secretary of Interior Ryan Zinke, acting Assistant Secretary of Indian Affairs Michael Black and National Indian Gaming Commission Chairman Jonodev Chaudhuri. The tribe claimed that it, along with two other federally recognized Creek tribal towns, has jurisdiction over the Muscogee (Creek) Nation’s recently reinstated reservation in eastern Oklahoma.
Kialegee Tribal Town attorney Dennis Whittlesey wrote, “As a Creek tribe, Kialegee is entitled to exercise all the rights guaranteed to and understood by Creek Indians by various treaties with the United States. In other words, this treaty-protected understanding of land ownership is that all land is owned by and between all Creeks, in common with one another. This understanding is relevant here, because it includes the principle that all Creek tribal entities share an undivided ownership of all Creek lands and consequently, joint jurisdiction over those lands.”
According to an August 8 decision from the 10th Circuit Court, the Creek Nation reservation includes all of Creek, Hughes, Okfuskee and Okmulgee counties, plus portions of Tulsa, Mayes, McIntosh, Muskogee, Seminole, Rogers and Wagoner counties. Three of the state’s largest cities—Tulsa, Muskogee and Broken Arrow—and the Kialegee Tribal Town’s headquarters in Wetumka are at least partially within that area. The state of Oklahoma has appealed the ruling.
