Judge halts casino construction
BY SUSAN HYLTON World Staff Writer
Saturday, May 19, 2012
5/19/12 at 7:07 AM
Read previous stories and key documents about the Kialegees’ planned casino.
Related story: BA mayor responds to testimony.
A judicial ruling has stopped construction of an Indian casino in Broken Arrow - at least for now.
U.S. Chief District Judge Gregory Frizzell on Friday granted a temporary injunction against the Kialegee Tribal Town and its casino developers, saying the casino would violate the state gaming compact and the Indian Gaming Regulatory Act because the Kialegees do not have "Indian lands."
"When the casino project was launched, there was no exercise of Kialegee Tribal Town authority and governmental control," Frizzell said. "After it started, they fenced the property, flew a flag on a residential garage and established a satellite office in that house."
That was not sufficient to show that the Kialegee Tribal Town had established its "exercise of governmental power" over the land, the judge said.
The property, which is at the southwest corner of Florence Street (111th Street) and Olive Avenue (129th East Avenue), is a Muscogee (Creek) Indian allotment owned by Marcella Giles and her sister Wynema Capps.
"The land is not held in trust for the Kialegee Tribal Town, nor is it land held by members of the Kialegee Tribal Town," he said.
Frizzell rejected the argument that the Kialegee Tribal Town and the Muscogee (Creek) Nation have shared jurisdiction because the property falls within the former reservation lands of the Creek Confederacy, granted in an 1833 treaty. The confederacy included all of the Creek tribal towns, including the Kialegee Tribal Town.
Frizzell said he will issue a written order after the state submits its proposed findings within the next 11 days.
"This matter was about enforcing the state's compact," Attorney General Scott Pruitt said following the decision. "The court issued (an order), in no uncertain terms, that construction must stop on the land in question. That's very encouraging to the state. That means that the community and the state's interests have been protected."
Pruitt said Frizzell was methodical in arriving at his ruling.
"I was very pleased with the thoroughness of the order, the finding of the order and the fact that construction has been stopped on the land in question," he said.
"The precedent that's set is that the compact matters. It will enforce the compact. We stopped what we consider illegal gaming and what the court now considers illegal gaming."
Attorneys for the casino developers said they will appeal the ruling to the 10th U.S. Circuit Court of Appeals in Denver.
"I suspect in Indian Country there is going to be a lot of anger," said Defense Attorney Dennis Whittlesey. "It's a very strong order."
Whittlesey said the only way the developers can continue construction at the site would be to go back to the judge seeking permission to operate a nongaming business.
"I suspect you can look for that to come," he said. "That's one of the things that makes the injunction of construction really surprising in that there is no violation of law to construct a building on Indian land. I think we made that argument in the court," he said.
"Enjoining construction was unusual, certainly under the Indian Gaming Regulatory Act and the compact, because they regulate gaming. They don't regulate construction."
Whittlesey said the issues of jurisdiction and governmental control would not apply to nongaming uses.
Whittlesey said he thought the issue could be solved at the 10th Circuit.
"I don't think this is a Supreme Court case," he said. "You'd have to find a constitutional issue."
Vicki Sousa, attorney for the Kialegee Tribal Town, phoned the tribe's town king, Tiger Hobia, outside the courthouse to tell him the ruling, which for the Kialegees was upsetting news.
"What this says is, 'You're inferior. Even though you're Creek, you have no rights. You mean nothing. It's your bigger, more powerful sister,'" Sousa said.
The court ruling could harm the relationship between the Kialegees and the Creek Nation, she said.
"We were negotiating for services that the Muscogee (Creek) Nation could provide the casino," she said.
Luis Figueredo, one of the principals of casino developer Golden Canyon Partners LLC, testified Thursday that "the two chiefs," Hobia and Creek Nation Chief George Tiger, had been in talks for the Creek Nation to provide its Light Horse Police services at the casino.
World Staff Writer Rhett Morgan contributed to this story.
Original Print Headline: Judge halts casino construction
Susan Hylton 918-581-8381
Construction progress on the Kialegee casino in Broken Arrow is seen Friday. STEPHEN PINGRY/Tulsa World
Oklahoma Attorney General Scott Pruitt (left) and Kialegee attorney Dennis Whittlesey talk with the press outside the federal courthouse in Tulsa on Friday after the decision on the Kialegee casino was announced. MICHAEL WYKE/Tulsa World