Judge hits BIA on Chickasaw Nation gaming site

Thursday, July 19, 2007  

The Bureau of Indian Affairs failed to determine whether an Oklahoma tribe's land qualified for gaming before approving a Class III compact, a federal judge said on Monday.

Citing an administrative record "lacking in substance," Judge David L. Russell ordered the BIA back to the drawing board. He said the agency did not consider the legality of Chickasaw Nation's site before signing off on the compact in March 2004.

"The court concludes that because it is not apparent from the administrative record that the proper determinations were made with regard to the Chickasaw off-track wagering compact, that this matter should be remanded to the [Interior] Secretary for further proceedings consistent with this opinion," Russell wrote.

The decision marked the second time in recent months that the Bush administration has been taken to task for its gaming decisions. In January, a federal judge said the National Indian Gaming Commission failed to consider the legality of an off-reservation casino site in New York before approving a Class III gaming ordinance.

The BIA now faces a similar task to determine whether the Chickasaw Nation can conduct Class III gaming in the town of Marlow. The site is near a heavily trafficked state highway and a major interstate, and is well over 80 miles from the tribe's headquarters in Ada.

The land at issue was taken into trust after 1988. Under the Indian Gaming Regulatory Act, that means it can't be used for gaming unless it meets one of the exceptions in Section 20 of the law.

The Chickasaw Nation claimed a former reservation exception that applies to Oklahoma tribes. But Russell said there was "insufficient" evidence in the record to support the claim.

"The court concurs, and again, concludes that such a finding was necessary before the compact could be approved, and that in the absence of such a determination, the approval of the compact was arbitrary and capricious," he wrote.

The ruling is a victory for the Apache Tribe, whose leaders brought the case over three years ago. The tribe doesn't necessarily oppose Chickasaw gaming at the site, but says that it was never adequately consulted before the BIA approved the compact.

"Apache Tribe wants nothing more than to be heard," one court filing stated. The tribe operates a casino within 50 miles of the Chickasaw site and says IGRA mandates consultation by the BIA.

The Chickasaw Nation did not return a request for comment. But Gov. Bill Anoatubby e-mailed The Journal Record a statement in defense of the BIA's actions.

"This compact was submitted in good faith, and we believe the initial decision to approve the compact will be confirmed after further review," Anoatubby told the paper.

The tribe operates more gaming facilities than any other tribe in Oklahoma and in the U.S. One of its facilities, near the Texas border, is currently the largest casino in the state.

In building its billion-dollar empire, the tribe has bypassed the BIA's land-into-trust process for gaming sites. The tribe typically acquires land but does not say it will be used for gaming in order to avoid scrutiny associated with casino development.

Only later -- sometimes months and in other times years -- does the tribe add gaming to the location. Since 1988, the tribe has used this method at least 11 times, including the site at issue in the court case.

The tribe has defended its action in two ways. First, Gov. Anoatubby had said there is nothing to prevent the tribe from using land that is already in trust for gaming.

Second, the tribe has said all of the gaming sites fall within its former reservation. However, repeated attempts to locate evidence for any Indian lands determinations from either the BIA or the NIGC have turned up empty-handed.

Judge Russell was not successful in that endeavor either. The Department of Justice submitted just four documents to defend the compact approval.

One was a deed for the Marlow property that was signed in 1993 by Gov. Anoatubby and a BIA superintendent. There is no indication on the deed that the land would be used for gaming and since that date, the tribe has acquired contiguous parcels and placed them into trust.

The second document was a 1993 memo from Sharon Blackwell, who at the time was a field solicitor for the Interior Department in Tulsa. In that memo, Blackwell unilaterally declared that all treaty lands of the Five Civilized Tribes, which includes the Chickasaw Nation, qualify as "former reservation lands" under IGRA.

Blackwell is a member of the Omaha Tribe of Nebraska but is Muscogee on her mother's side. The Muscogee Nation is one of the Five Civilized Tribes.

The third document was a March 2004 letter from an acting BIA official who said the Chickasaw's gaming sites qualified as a former reservation. The short document cited Blackwell's 1993 letter but no other evidence.

The fourth document was a letter from former assistant secretary Dave Anderson to the Chickasaw Nation to approve the Class III compact. Anderson's March 2004 letter was a mere five sentences. Anderson's father is Choctaw from Oklahoma, one of the Five Civilized Tribes.

Court Decision:
Apache Tribe v. US (July 18, 2007)

Relevant Links:
Chickasaw Nation - http://www.chickasaw.net