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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

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 (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 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 -

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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

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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 -

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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. However, these facts are inconsistent with

these proceedings. For the reasons expressed below the facts in the Miami Tribe case are not

applicable to the Kialegee Tribal Town and the State's reliance on this case is riddled with error.

First, the TREATY OF 1790, 7 Stat. 35, establishes that the United States intended and

understood that it was dealing with the Tribal Towns when it entered into Treaties with the

proclamation Feb. 16, 1815) (signed by "Yoholo Micco, of Kialegee . . . [and] Socoskee Emautla, of Kialegee . . . "); TREATY WITH THE CREEKS 1825, 7 Stat. 237 (Feb. 12, 1825, proclamation Mar. 7, 1825) (". . . we, the undersigned chiefs and head men of the Creek nation, do hereby agree to relinquish all the right, title, and control of the Creek nation to the said reserve, unto him the said William M'Intosh and his heirs, forever, in as full and ample a manner as we are authorized to do. Signed [among others, by] Yoholo Micco, his x mark . . . "); TREATY WITH THE CREEKS OF 1826, 7 Stat. 286 (Jan. 24, 1826, proclamation, Apr. 22, 1826) (signed by "Yoholo Micco, his x mark"); SUPPLEMENTAL ARTICLE TO THE CREEK TREATY OF JANUARY 24, 1826, 7 Stat. 289 (March 31, 1826) (signed by "Yoholo Micco, his "x mark . . ."). - 5 -

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Creek Nation. Article 1 of the Treaty specifically recognized that the Creek nation included all

of the tribal towns:

There shall be perpetual peace and friendship between all the citizens of the United States of America, and all the individuals, towns and tribes of the Upper, Middle and Lower Creeks and composing the Creek nation of Indians .

As further evidence of the participation of the Kialegee is the fact that the Creek Treaties

of Cession for the lands east of the Mississippi in exchange for reservation lands in Oklahoma

were signed by the leaders of all of the Tribal Towns. Moreover, this position was supported by

the Office of the Solicitor of the Department of the Interior. In the Memorandum from the

Office of the Solicitor dated July 15, 1937, and submitted into evidence during the preliminary

injunction hearing as Exhibit 28 by the State, the United States Solicitor acknowledged that the

tribal towns were, in fact, the governing units of the Creek Confederacy. [Hr’g Tr. 104:22]. The

Solicitor stated:

For the information of the Solicitor's office an anthropological report, compiled by Morris Opler, was submitted which deals with the history and present character of these towns. The report provides data and character of these towns. This report provides data and opinions of authorities on the Creeks showing that the Creeks were a Confederacy composed of a number of tribes, each referred to as a "Talwa." This word was generally translated into the English word "town" but rather covers the conception contained in the word "tribe."

"Each Talwa was self-governing. It was composed of people living in a single locality , but membership was dependent rather than residence since a Creek Indian belonged to the Talwa of his mother. These towns were originally recognized by the Federal Government as the governing units in the Creek confederacy. The treaties of 1790 and 1796 with the Creeks were signed by the representatives of the various towns. However, because of the pressure of the white people for land and the fact that the towns declared war and peace independently of each other, the Federal authorities found it advisable to insist on centralization of the Creeks to avoid dealing with each Talwa. The Indians opposed this centralization and it was not until after the Civil War, in which the Towns took opposing positions, that the Federal Government achieved the formation of a single government among the Creek Indians .

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[Emphasis supplied.]

Based upon the foregoing, it is clear that the Department of Interior concluded that the Creek

Confederacy was comprised of independent and self-governing Tribes. It wasn't until after 1865

that the United States succeeded in dealing with a single and centralized Creek government.

As the tribal towns have been recognized signatories and a "part" of the Creek nation, the

same analysis must be applied to the treaties of cession (which all pre-dated the civil war)

wherein the Creek Confederacy ceded its lands east of the Mississippi in exchange for

reservation lands in Oklahoma and were signed by the leaders of all of the Tribal Towns. For

example, 1825 CREEK TREATY , 7 Stat. 237, at Article 2 provided: " . . . that the United States will

give, in exchange for the lands hereby acquired, the like quantity, acre for acre , westward of the

Mississippi, on the Arkansas river, commencing at the mouth of the Canadian Fork thereof . . .".

[Emphasis supplied.] Additionally, the 1826 CREEK TREATY , 7 Stat. 286, at Article 2, provided

that "the Creek Nation of Indians cede to the United States all the land belonging to the said

Nation in the State of Georgia . . . also, another tract of land lying within the said State . . ."

[Emphasis supplied.]. Finally, the 1827 CREEK TREATY , 7 Stat. 307, in the preamble, provided

that ". . . the object of said Treaty being to embrace a cession by the Creek Nation, of all the

lands owned by them within the chartered limits of Georgia . . .". [Emphasis supplied.] In

exchange for the above referenced lands ceded by the Tribal Towns east of the Mississippi the

United States gave to all Creek Indians the lands which constitute the former Creek reservation

in Oklahoma. This is clearly documented by the 1832 CREEK TREATY , 7 Stat. 366, which stated:

"The Creek country west of the Mississippi shall be solemnly guaranteed to the Creek Indians, nor shall any State or Territory ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves, so far as may be compatible with the general jurisdiction which Congress may think proper to exercise over them . . . ." (Art. 14). [Emphasis supplied.]

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* * *

". . . as soon as the boundaries of the Creek country West of the Mississippi are ascertained, [Congress shall] cause a patent or gran t to be executed to the Creek tribe" (Art. 14). [Emphasis supplied.]

* * * … on the Arkansas river, commencing at the mouth of the Canadian Fork thereof . . . (Art. 2). [Emphasis supplied.]

Each of the Tribal Towns were removed and relocated to lands reserved for them by executed

treaty, which for the Creeks was the 1833 Treaty. The critical provision with regard to this

matter is found at Article 4, which specifically identified the lands reserved to the Creeks as their

permanent reservation:

ART. IV. It is hereby mutually understood and agreed between the parties to this treaty, that the land assigned to the Muskogee [or Creek] Indians, by the second article thereof, shall be taken and considered the property of the whole Muskogee or Creek nation , as well as those now residing upon the land, as the great body of said nation who still remain on the east side of the Mississippi *** [Emphasis supplied.]

It is a fact that the Kialegee Tribal Town was a signatory to the above referenced treaties.

By executing these treaties the Kialegee Tribe ceded its lands east of the Mississippi to the

United States in exchange for reservation lands in Oklahoma. The States' contention that

Congress intended to only vest the Muscogee (Creek) Nation with title and rights to the land

located in Oklahoma not only conflicts with the intent of the 1832 and 1833 treaties which

clearly expressed that lands west of the Mississippi were exchanged for lands ceded by the Creek

Indians but conceivably exposes the United States to land claims by the Kialegee, -

Quassarte and Thlopthlocco Tribal Towns. Moreover, the notion is directly contrary to the

Supreme Court-confirmed Indian Canon of Interpretation and the related doctrine that treaties

must be interpreted as the tribes themselves would under the terms. Indeed, the State's own

expert witness, Dr. Gary Anderson, conceded that the treaty epoch Creek Indians understood

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property interests to be "communal." "Communal" was Dr. Anderson's word and it is telling that

the attorneys for the State abandoned his work from that point forward in the hearing.

When a litigant turns its back on its own expert, that is an admission that the expert had

conceded – albeit reluctantly – that the State's entire treaty property ownership theory was

simply wrong and neither ethnohistory nor consistent with the Indian Canon of Interpretation.

The Muscogee (Creek) Nation did not own the land occupied by each of the Tribal

Towns. As discussed above, the Interior Solicitor confirmed that the United States accepted that

each tribal town was self-governing and lived in a single locality. And each Tribal Town ceded

the lands its members occupied east of the Mississippi. Today, the Kialegee Tribal Town by all

accounts is a landless tribe. If the State's argument is taken at face value and the Kialegee has no

right to assert jurisdiction over the former Creek reservation set aside for all Creek Indians, then

the Kialegee Tribal Town has never received compensation for its lands which it ceded under the

TREATIES OF 1821, 1825 and 1826.

C. The Kialegee Tribal Town Is a Political Successor to the Creek Confederacy and Has Jurisdiction Over Lands Within the Treaty- Established Reservation.

A successor in interest is a tribe whose members descend from members of a historical

tribe and that has maintained a governmental organization. United States. v. Washington , 520

F.2d 676, 693 (9th Cir. 1975). At the same time, tribes need not maintain a static culture and

"[c]hanges in tribal policy and organization attributable to adaptation will not necessarily destroy

treaty tribe [and therefore successor in interest] status." United States v. Suquamish Indian

Tribe , 901 F.2d 772, 776 (9th Cir. 1990).

The Kialegee Tribal Town is one of several tribal towns with shared histories tracing

directly to the historic Creek Nation Confederacy. Kialegee Tribal Town v. Muscogee Area

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Dir., Bureau of Indian Affairs, 19 IBIA 296, 297 (Apr. 17, 1991). As such, Kialegee and

Muscogee descend from the Creek Nation Confederacy and are comprised of members

descended there from. Moreover, the Act authorizing the Kialegee to organize pursuant to the

OIWA imposed no limitations on sovereignty of the Tribal Town – which stemmed from the

sovereignty of its predecessor, the historic Creek Nation Confederacy – but rather served to

recognize that sovereignty. Indeed, Kialegee organized pursuant to the OIWA in 1941 and was

recognized as a sovereign nation. The Muscogee (Creek) Nation's current political structure also

differs significantly from that of the Creek Nation Confederacy due, in part, to the effects of the

FIVE TRIBES ACT OF APRIL 1906, 34 Stat. 137. For instance, Muscogee (Creek)'s current

constitution altered the delegation of legislative authority by dividing the former Creek

reservation as it geographically appeared in 1900 into eight districts where Creeks reside rather

than re-creating the former political organization (the National Council), which established

representation by each individual tribal town. Muscogee (Creek) Nation Constitution and By-

laws, Art. I (1979). Nevertheless, the Kialegee Tribal Town and the Muscogee (Creek) Nation

descend from the Creek Nation Confederacy and both have maintained their respective

governmental organizations since their organization under the OIWA (the Kialegee in 1941 and

the Muscogee in 1979).

In light of the histories and precedents discussed supra, the sovereignty of the Creek

Nation Confederacy survives through and in both the Kialegee and the Muscogee (Creek) as

political successors to the Confederacy. Accordingly, each has a separate and independent right

to exercise jurisdiction over the former Creek reservation free from interference or objection of

the other.

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D. No Act of Congress Has Abrogated or Diminished the Treaty Rights of the Muscogee (Creek) Nation and the Tribal Towns Concerning the Former Creek Reservation.

Congress has never abrogated or diminished the treaty rights of the Muscogee (Creek)

Nation and the Tribal Towns concerning the former Creek reservation. [Hr’g. Tr. 33:23] In fact,

the State conceded throughout this litigation that the Indian Allotment Land at issue is a portion

of the lands allotted to a member of the Creek Nation and remains in restricted fee status. [Hr’g.

Tr. 43:23]. Unlike the Miami Tribe case where the Secretary of the Interior concluded that the

allottee had erroneously received her allotment despite the lack of tribal membership in either

Miami Tribe, the State has neither questioned the validity of the underlying allotment. Nor can

the state assert that Tyler Burgess was not a member of the Creek tribe. 4

Furthermore, the Indian Allotment Land at issue is located within the former Reservation

of the Creek Nation Confederacy as the boundaries existed prior to allotment. [Hr’g. Tr. 347:2;

145:16]. Congress has made clear that Indian Country includes "all allotted lands, the Indian

titles to which have not been extinguished." Mustang v. Harrison , 94 F.3d 1382, 1385 (10th Cir.

1996). With respect to Oklahoma tribes, Indian Country consists of all land within the limits of a

tribe's reservation together with the lands constituting the tribe's former reservation. 18 U.S.C. §

1151(c); see also United States v. Pelican 232 U.S. 442 (1914). In fact, the State in its effort to

block the Kialegee from exerting jurisdiction repeatedly conceded that that the Muscogee

(Creek) Nation could assert jurisdiction over the Property for purposes of authorizing gaming.

4 The basis for the NIGC's denial of the Kialegee Tribe's request for reconsideration is also largely premised on the Court's ruling in v. United States . The Tribe will soon submit to the NIGC a second request for reconsideration based on the argument that the Kialegee Tribe jurisdiction is not solely based on the enrollment of the Allotees as Kialegee tribal members and therefore the NIGC's previous determinations are erroneous.

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Notwithstanding, the Kialegee Tribal Town's authority over the property is derived from

the referenced treaties which the Tribe executed with the United States wherein the Kialegee

Tribal Town exchanged lands which it and not the Muscogee (Creek) Nation occupied and

owned for the reservation lands in Oklahoma. The Kialegee Tribal Town's authority over the

Property is not solely based on the enrollment of Marcella Giles and Wynema Capps, as was the

case with the Miami Tribe in Kansas. For this very reason the Tenth Circuit's decision in Miami

has no real applicability. The rationale espoused by the Tenth Circuit Court's ruling in Miami

concluded that where Congress has abrogated a Tribe's authority over its lands the Tribe's

adoption of the landowners into the Tribe alone does not replace a Congressional grant of

jurisdiction and therefore is not sufficient to restore the tribe's jurisdiction over the land. No

congressional act has divested the Creek Tribes and namely the Kialegee Tribal Town of its

authority over the former Creek reservation lands. Consequently, the States reliance on Miami

Tribe of Oklahoma v. United States is woefully misplaced. 5

CONCLUSION

The enrollment of the Marcella Giles and Wynema Capps as members of the Kialegee

Tribal Town provides the Kialegee Tribal Town with a direct interest in the Property and

constitutes a change in circumstances that warrants reconsideration. It is important to realize that

the Muscogee (Creek) Nation, by the State's own account, can authorize the operation of gaming

on every Creek allotment, parcel of restricted land and Trust land in Tulsa, Creek, Hughes,

Mayes, McIntosh, , Okmulgee, Okfuskee, Muskogee and Wagoner counties. To accept

the State's argument against the Defendants, and to deny the Kialegee Tribal Town's treaty rights

5 The basis for the NIGC's denial of the Kialegee Tribe's request for reconsideration is also largely premised on the Court's ruling in Miami Tribe of Oklahoma v. United States . The Tribe has submitted a second request for reconsideration based on the argument that the Kialegee Tribe jurisdiction is not solely based on the enrollment of the allotees into the tribe as member and therefore the NIGC's determination is erroneous. - 12 -

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will not prevent gaming on other sites, nor will it ensure that gaming will not occur on every

restricted parcel in Tulsa County.

The State's argument simply starts and ends with a false premise. Defendants respectfully

request that this Court dissolve the injunction and allow Defendants to develop a gaming facility

on the property in accordance with State of Oklahoma compact and the Indian Gaming

Regulatory Act.

Respectfully submitted,

DICKINSON WRIGHT PLLC

/s/Dennis J. Whittlesey Dennis J. Whittlesey, OBA #009578 DICKINSON WRIGHT PLLC 1875 Eye Street, NW – Suite 1200 Washington, D.C. 20006 Tel: 202/659-6928

and

Joseph R. Farris, OBA #2835 Paula J. Quillin, OBA #7368 FELDMAN, FRANDEN, WOODARD & FARRIS Williams Center Tower II, Suite 900 2 West 2nd Street Tulsa, Oklahoma 74103 Tel: 918/583-7129 Fax: 918/584-3814

ATTORNEYS FOR DEFENDANTS TIGER HOBIA, FLORENCE DEVELOPMENT PARTNERS, LLC and KIALEGEE TRIBAL TOWN, a federally chartered corporation

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CERTIFICATE OF SERVICE

I hereby certify that on the 5 th day of July, 2012, I electronically transmitted the foregoing

document to the Clerk of the Court using the ECF System for filing and transmittal of a Notice of

Electronic Filing to the following ECF registrants:

M. Daniel Weitman [email protected]

Lynn H. Slade [email protected]

William C. Scott [email protected]

R. Tom Hillis [email protected]

Jared B. Cawley [email protected] /s/Dennis J. Whittlesey

DC 80268-7 208302v1

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