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Hobia Reply in Reconsideration Motion

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Hobia Reply in Reconsideration Motion Case 4:12-cv-00054-GKF-TLW Document 145 Filed in USDC ND/OK on 07/05/12 Page 1 of 14 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA STATE OF OKLAHOMA, ) ) Plaintiff, ) ) vs. ) Case No. 12 CV 054-GKF- ) TIGER HOBIA, et al. , ) ) Defendants. ) DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR RECONSIDERATION Defendant's Reply is respectfully submitted, by and through the undersigned counsel, in response to the Plaintiff's Response [In Opposition to] Defendants' Motion to Reconsider the Preliminary Injunction (Dkt. #138). A. The Enrollment of Marcella Giles and Wynema Capps as Members of the Kialegee Tribal Town Tribe Constitutes New Evidence That Was Not Available at the Hearing. During the preliminary injunction hearing conducted herein on May 16-18, neither of the owners of the Tyler Burgess Allotment were tribal members of the Kialegee Tribal Town. The State, during the hearings contended that the allotees were members of the Muscogee (Creek) Nation and not the Kialegee Tribal Town and, therefore, only the Muscogee (Creek) Nation could exclusively assert jurisdiction over the site. [Hr'g Tr. 437:14]. In response, the Defendants advised the Court that the standard relied upon by the State was illusory as the Allotees satisfied the stringent blood quantum requirements in the Kialegee Constitution for membership. 1 [Hr'g 1 The blood quantum requirements are contained under Article III of the Kialegee Tribal Town Tribal Constitution and By-Laws, approved by the Department of the Interior on June 12, 1941. The membership criteria in the Tribal Constitution have been in effect and have remained Case 4:12-cv-00054-GKF-TLW Document 145 Filed in USDC ND/OK on 07/05/12 Page 2 of 14 Tr. 138:19]. As such, the Defendants advised the Court that both Marcella Giles and Wynema Capps as a matter of legal and historical entitlement could enroll as members of the Kialegee Tribal Town and the Tribe could assert jurisdiction over the site. Thereafter, the Court inquired whether either allotee was in fact an enrolled member of the Kialegee Tribal Town. [Hr'g Tr. 26:14]. The Defendants advised the Court that neither Marcella Giles nor Wynema Capps had enrolled with the Kialegee Tribe. This fact has now changed. By virtue of the two allottees enrollment as a matter of right and not adoption , the Kialegee Tribe may now exert jurisdiction over the site. California v. Cabazon Band of Mission Indians , 480 U.S. 202, 207 (1987) (Indian Tribes are presumed to exercise jurisdiction over both their members as well as their territory.); see also United States v. Wheeler , 435 U.S. 313, 323 (1978) (tribes "possess attributes of sovereignty over their members and their territory"). Thereafter, in rendering its Oral ruling this Court stated: The parcel is a restricted allotment owned by two members of the Creek Nation, who are not members of the Kialegee Tribal Town ; and therefore the Kialegee Tribal Town does not hold Indian lands as defined by [the Indian Gaming Regulatory Act, 25 U.S.C. § 2701, et seq.) as held by individuals subject to restriction by the United States against alienation. [Hr'g Tr. 437:1]. This land is not held in trust for the Kialegee Tribal Town, nor is it lands held by members of the Kialegee Tribe subject to restriction against alienation. [Hr'g Tr. 437:21]. The result might well be different as to the land held in trust [for a Kialegee tribal member], allegedly, in Wagoner, Oklahoma, referenced by Mr. Figueroa in his testimony. [Hr'g Tr. 438:18]. [Emphasis supplied.] unchanged for 71 years. Ms. Giles and Ms. Capps have an unqualified right to enroll pursuant to Section 1 of the Constitution, a qualification memorialized the two formal Tribal Resolutions of enrollment of right under Section. See Exhibits A and B to this Reply. - 2 - Case 4:12-cv-00054-GKF-TLW Document 145 Filed in USDC ND/OK on 07/05/12 Page 3 of 14 In their motion for reconsideration, the Defendants noticed the Court of the change in circumstance of Marcella Giles and Wynema Capps who in fact enrolled as members of the Kialegee Tribal Town on May 26, 2012 -- some two weeks after the preliminary injunction hearing and ruling of this Court. See Exs. A and B. Their enrollment is new evidence that was not available at the time of the hearing. The State's injunctive relief request relies in principal part on the contention that the Kialegee Tribal Town could not assert jurisdiction over the Tyler Burgess Allotment because the owners of the Property are enrolled members of the Muscogee (Creek) Nation and not enrolled members of the Kialegee Tribal Town Tribe. The fact that both Allottees are now enrolled members of the Kialegee Tribal Town was not before the Court on May 18, 2012. In light of the Court's oral ruling which acknowledged that the Court's ruling might be different in Wagoner County where the owner of the land was an enrolled member of the Kialegee Tribal Town, reconsideration by this Court is appropriate and consistent with the standards established by this Court for evaluating a motion for reconsideration. As enrollees of the tribe, the Kialegee Tribal Town may exert jurisdiction over the site. Therefore, the injunction should be dissolved. Moreover, the State's concern that permitting the Kialegee Tribal Town to assert jurisdiction over the Property could expose the entire state to a proliferation of casinos is unavailing. Individual owners of restricted land cannot "cut deals" with any tribe. A tribes' sovereign authority over a particular tract of land, as in the case of the Kialegee Tribal Town, derives from a Congressional delegation of jurisdiction and tribal enrollment by the Indian Allotment Land property owners. As such, tribal membership criteria – particularly blood - 3 - Case 4:12-cv-00054-GKF-TLW Document 145 Filed in USDC ND/OK on 07/05/12 Page 4 of 14 quantum requirements – must be satisfied in order to become an enrolled member of that tribe. 2 Without satisfying these two jurisdictional requirements there is no way to establish a legal relationship between the property owner and the Tribe to allow gaming. In the case of the Kialegee Tribal Town, the blood quantum requirements have remained unchanged for 71 years . The Tribe did not modify its Constitution to circumvent the Court. And contrary to the State's assertion, Marcella Giles and Wynema Capps were not adopted by the Tribe – they were enrolled pursuant to the Constitution. Marcella Giles and Wynema Capps meet the Blood quantum requirements contained under Article III, Section 1 of the Constitution and By-Laws of the Kialegee Tribal Town approved by the Department of the Interior on June 12, 1941. As such they have enrolled as members of the Kialegee Tribe and have come under the tribe's jurisdiction. B. The Muscogee (Creek) Nation Does Not Have Exclusive Jurisdiction Over the Former Creek Reservation Because the Kialegee Tribal Town was a signatory to Treaties of Cession of Eastern Lands In Exchange for the Oklahoma Reservation. Contrary to the State's argument, the Muscogee (Creek) Nation does not have exclusive jurisdiction over tribal lands in Oklahoma. In fact, the Kialegee Tribal Town specifically derives its jurisdiction over the Tyler Burgess Allotment from treaties executed by the United States Government and the Kialegee Tribal Town. 3 The tribal enrollment of Marcella Giles and 2 One error that has occurred in this litigation, including by the National Indian Gaming Commission , has been the assumption that the applicable law is identical to tribal members who are enrolled as a matter of right and adopted members who are adopted into a tribe without satisfying Tribal Constitutional blood quantum requirements. Indeed, the newspapers are filled with stories of non-Indians being adopted into tribes as "adopted members" including the well- publicized recent adoption of the President of the United States by an Indian tribe. The standards are different, and the rights are different. Comparing the rights of an enrolled tribal member to those of an adopted tribal member is a fool's errand. 3 The United States treated directly with the Kialegee as a member of the Creek Confederacy. See , for example, TREATY WITH THE CREEKS , 7 Stat. 120 (Aug. 9, 1814, - 4 - Case 4:12-cv-00054-GKF-TLW Document 145 Filed in USDC ND/OK on 07/05/12 Page 5 of 14 Wynema Capps into the Kialegee Tribal Town was accomplished, in part, to provide the Tribe with a direct interest in the subject property. This change in circumstances clearly establishes the Kialegee Tribe with jurisdiction over the site. In opposing the Defendants' request for reconsideration, the State relies extensively upon Miami Tribe of Oklahoma v. United States , 656 F.3d 1129 (10th Cir. 2011), in an effort to diminish the relevance of Marcella Giles and Wynema Capps becoming members of the Kialegee Tribal Town. However, Miami Tribe is inapposite to the facts before this Court. In Miami Tribe , the Court concluded "Among other events in 1873, the tribe agreed to sell its land in Kansas and Congress expressly abrogated the tribe's jurisdiction over those Kansas lands." The Court then noted that the tribe had been paid for the reserve it was claiming to assert jurisdiction over and concluded that a tribe cannot exercise jurisdiction without a congressional grant of jurisdiction in that particular case. Since the Miami Tribe had been expressly divested of jurisdiction through an act of Congress, adopting the landowners into the tribe was in and of itself insufficient to confer jurisdiction on the Tribe.
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