Panel opposes Kialegee tribe's adoption try, nixes proposal for gaming jurisdiction
BY SUSAN HYLTON World Staff Writer
Thursday, June 21, 2012
6/21/12 at 7:33 AM
Read previous stories and key documents about the Kialegees’ planned casino.
The Kialegee Tribal Town's adoption of two Creek women does not give the tribe jurisdiction on the women's Creek Nation-allotted land in Broken Arrow, according to a letter from the National Indian Gaming Commission.
After Marcella Giles and her sister, Wynema Capps, became citizens of the Kialegee Tribal Town, which wants to build a casino on the property, the tribal town asked the commission to reconsider its May 25 ruling that the land is not eligible for gaming.
The tribal town had also asked Chief U.S. District Judge Gregory Frizzell to reconsider his May 18 ruling that the Kialegees did not have jurisdiction at the site and his granting of an injunction prohibiting further construction at the site and the use of the structure as a casino.
Frizzell agreed to consider modifying the injunction if the defendants came back with another use for the property and "obtained all necessary regulatory and zoning approvals."
The commission's letter was included in a filing Wednesday by Oklahoma Attorney General Scott Pruitt in response to the Kialegees' motion for reconsideration.
The National Indian Gaming Commission cites case law involving a similar situation with the Miami Tribe, in which the 10th U.S. Circuit Court of Appeals found that adoption of non-Indian landowners in Kansas did not form a basis for jurisdiction of a gaming facility.
The state argues in its response that there are no "extraordinary circumstances" to warrant the court's reversal of its decision, and it rejects the argument that the tribe has presented any new evidence.
The state is also asking the court to hold the tribe, landowners and casino developers in contempt of court because of a fireworks operation, Crazy Debbie's Fireworks, that is now planned on the property, where gravel has been poured for a parking lot.
The defendants' request that the court allow them to continue construction on the site if it is for a nongaming purpose is still pending. A sports bar/restaurant, smoke shop and fireworks sales were the proposed uses they mentioned.
The state argues that the tribe has not received any necessary licenses or approvals, such as a liquor license or a smoke shop compact with the state.
Also lacking is U.S. Department of the Interior approval for any use of the property by entities other than Giles and Capps.
If a third-party operated the sports bar, it would need a lease approved by the U.S. Bureau of Indian Affairs or Tulsa County District Court, the state says.
The state also objects to fireworks being sold at the site without an approved lease.
Fireworks: The state provided recent pictures to the court showing bulldozers spreading gravel at the site and a "Crazy Debbie Fireworks" banner on a building there.
In an email to state's attorney Lynn Slade, the defendants' attorney, Dennis Whittlesey, said fireworks have been sold at the site for a number of years and that none of the defendants is involved with fireworks sales.
"The gravel is associated with the sale of fireworks and is the exclusive activity of the vendor. It has nothing to do with our construction," Whittlesey said.
"You are asking us to tell a vendor with whom our client ... has no relationship or contact to stop operating a fireworks stand - frankly, this is so far beyond the pale as to defy polite description," he said.
Slade responded that the alternative use of the property would require a court order and that the state would consider any use of the property to have been authorized by members of casino developers Florence Development Partners LLC, which consists of Giles, Capps and Golden Canyon Partners of Henderson, Nev.
Original Print Headline: Panel opposes tribe's try for jurisdiction
Susan Hylton 918-581-8381
Aerial of the Kialegee casino in Broken Arrow. TOM GILBERT / Tulsa World
Marcella Giles: She and her sister, Wynema Capps, became citizens of the Kialegee Tribal Town, which wants to build a casino in Broken Arrow