Supreme Court asked to hear Kialegee Tribal Town gaming case

Friday, March 27, 2015

Artist's rendering of the what was to be the Red Clay Casino in Broken Arrow, Oklahoma. The allotment in question will not be used for the project any longer. Image from Kialegee Tribal Town

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The state of Oklahoma is asking the U.S. Supreme Court to hear a gaming dispute involving the Kialegee Tribal Town.

The tribe started building a casino on an Indian allotment near Tulsa. Work stopped when a federal judge put a halt to the project in response to a lawsuit from the state.

The 10th Circuit Court of Appeals, however, lifted the injunction in December. Citing the recent Supreme Court decision in Michigan v. Bay Mills Indian Community, the court held that the tribe -- and its leaders -- are protected by sovereign immunity.

Kialegee leaders who were named as defendants in the suit hailed the decision as a major victory for their rights. But even though the tribe no longer plans to build a casino on the allotment -- a different location is under consideration -- the state is keeping the dispute alive by asking the high court to hear the case.

"The Tenth Circuit’s serious errors, coming right on the heels of Bay Mills, threaten to spread significant confusion in the lower courts," the state said in a petition that was filed on Monday and posted by Turtle Talk.

The Kialegee and Bay Mills cases are similar in one key respect that could hurt the state's chances before the high court. In both instances, the National Indian Gaming Commission determined that the tribes could not operate casinos because the sites they chose are not considered "Indian lands" as that term is defined by the Indian Gaming Regulatory Act.

As a result, the Supreme Court said the Bay Mills Indian Community can't be sued by the state of Michigan under IGRA because the law only authorizes lawsuits for activities that occur on "Indian lands." The tribe also did not agree to waive its immunity.

Although Oklahoma's petition presents otherwise, the 10th Circuit adopted the Supreme Court's precedent when it ruled in the Kialegee case.

"Although the state’s complaint alleges that defendants’ efforts to conduct Class III gaming violated IGRA because they occurred off Indian lands, the fact of the matter is, as Bay Mills clearly held, that IGRA is concerned only with Class III gaming on Indian lands," the November 10 decision stated.

In hopes of getting the high court to overturn that decision, Oklahoma is attempting to draw some distinctions between Kialegee and Bay Mills. The state filed its lawsuit against individual tribal officials whereas the Michigan suit was against the tribal government itself.

The 10th Circuit said that distinction did not matter in the Kialegee case because the Class III gaming compact in Oklahoma requires arbitration in gaming disputes. The state is now telling the Supreme Court that it is not required to pursue arbitration before filing a lawsuit.

The state also argues that the Indian allotment is considered "Indian Country" of another tribe -- the Muscogee Nation. However, the NIGC has never issued a determination stating that the allotment is "Indian lands" of any tribe.

"The Tenth Circuit has specifically rejected the proposition that recent enrollment of landowners into a tribe confers jurisdiction with the tribe over the owner's land," the NIGC said in a June 2012 letter to the Kialegee Tribal Town that again said the allotment does not qualify as "Indian lands."

By bringing up "Indian Country" in its brief the state appears to be arguing that it should be allowed to sue the tribe even though IGRA only concerns gaming on "Indian lands," as the 10th Circuit had pointed out.

In the end, the distinction may not matter since the tribe no longer plans to use the allotment for a casino. A developer said a different site is being considered although the location hasn't been announced.

The tribe's response is due by April 24, according to Docket Sheet No. 14-1177. The state will be able to file another reply, after which the petition will be presented to the justices for their consideration.

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)