Injunction stopping Broken Arrow casino construction stands
BY SUSAN HYLTON World Staff Writer
Monday, July 30, 2012
Chief U.S. District Judge Gregory Frizzell will not reconsider his previous granting of an injunction against the operation of an Indian casino in Broken Arrow.
The Kialegee Tribal Town had asked Frizzell to reconsider his May 18 ruling after owners of the Muscogee (Creek) allotment, Marcella Giles and Wynema Capps, became members of the tribal town.
The Muscogee (Creek) Nation was once a confederacy of tribal towns, whose members are Creeks.
The defendants argued that they have shared jurisdiction with the Creeks at the southwest corner of Florence Street (111th Street) and Olive Avenue (129th East Avenue), where the casino construction was interrupted by the injunction.
In a ruling Monday, Frizzell said he would not revisit the issue of shared jurisdiction because it was already thoroughly considered by the court, which had issued written findings and conclusions.
“This court concludes that, in light of congressional intent and purpose reflected in the relevant legislation and treaties, the recent enrollment of Giles and Capps as members of the Kialegee Tribal Town does not create jurisdiction over the Broken Arrow property or otherwise alter the court’s previous conclusion that the Tribal Town does not have jurisdiction over the property,” Frizzell said.
The judge cited other cases which found that a motion to reconsider “is designed to permit relief in extraordinary circumstances and not to offer a second bite at the proverbial apple.”
He also cited cases where the court found it was not appropriate to present arguments that could have been raised previously.
Frizzell compared the defendants’ arguments of shared jurisdiction as similar to a series of court decisions in a case of the Miami, Okla.-based Miami Tribe and its attempts to open a gaming facility in Kansas.
The defendants’ attorney, Dennis Whittlesey, could not immediately be reached for comment.
Frizzell has not made a decision on the defendants’ request to continue construction for nongaming purposes such as a sports bar, restaurant or smoke shop.
Frizzell previously said he would consider modifying the injunction for an alternate purpose if the tribe obtained approval from the U.S. Bureau of Indian Affairs or the Muscogee (Creek) Nation.
The Kialegee Tribal Town's casino building sits unfinished after Chief U.S. District Judge Gregory Frizzell stopped construction in May. Frizzell issued a filing Monday stating that he will not reconsider his ruling based on the landowners' new membership in the tribal town. STEPHEN PINGRY/Tulsa World file