TULSA, Okla. – The fight over an Oklahoma tribe’s pending land in trust application was back before a federal judge Friday.
For more than five hours, attorneys for the Cherokee Nation, United Keetoowah Band of Cherokee Indians in Oklahoma, the Department of the Interior and Cherokee Nation Entertainment presented oral arguments before Northern District Judge Gregory Frizzell. The Cherokee Nation and Cherokee Nation Entertainment are attempting to obtain a permanent injunction to prevent the DOI from approving a joint land in trust application from the UKB and its corporate entity.
The application is for a 2.03-acre parcel of land into trust, which would allow the UKB’s lone casino in Tahlequah to resume operations. Under the terms of its constitution, the Cherokee Nation must fight all attempts from any other tribe to take land into trust within its 14-county jurisdictional area. Both tribes are headquartered in Tahlequah and at one time, had casinos within five miles of each other.
“This is not a simple issue,” Frizzell said at the end of oral arguments. “There are a lot of sub-matters at play here. Both sides have their work cut out for them.”
Cherokee Nation and its gaming arm, Cherokee Nation Entertainment, maintain that both would suffer irreparable harm if the UKB’s casino was allowed to reopen. The tribe argues that it would hurt its sovereignty while attorneys for CNE cited its reliance on being the only tribal gaming entity within the Cherokee Nation’s jurisdiction as part of the reason it has built up multiple casinos over the last 20 years. CNE currently employs about 3,800 people across its eight – soon to be nine – casinos.
“CNE did not submit comments during the public comment period,” UKB Attorney General Christina Vaughn said. “Additionally, their casinos have been open while the UKB’s was. There is no reasonable expectation of exclusivity as they claim.
“Both tribes gamed down the street from each other for years and the world didn’t end, your honor.”
Under the terms of the Indian Gaming Regulatory Act, tribes can only conduct gaming on trust property within their own jurisdiction or get permission from the tribe in question if attempting to open a casino within another tribe’s borders. In a July 2012 decision to allow the UKB’s application, then-acting Assistant Secretary of Indian Affairs Michael Black wrote that the UKB had met the federal requirements for acquiring land into trust, effectively giving the two tribes co-jurisdiction within the 14 northeastern Oklahoma counties that comprise the former Cherokee Reservation and eliminating the need for the Cherokee Nation to approve of the casino. Instead, federal officials argued, they only need to solicit comments from the larger tribe, which they did.
“It is not a shared reservation,” CNE attorney David Keglovitz said. “The tribes do not have shared jurisdiction – it is exclusively Cherokee Nation’s. If the tribe wanted to, it could walk into the UKB’s smoke shops and start collecting taxes on the purchases.”
Originally opened as Keetoowah Bingo in 1986, the Keetoowah Cherokee Casino employed 150 people and funded the paychecks of 70 tribal employees before it closed in August 2013 under the terms of a $2 million settlement between the UKB and Oklahoma Attorney General Scott Pruitt. Last summer, Frizzell granted the Cherokee Nation’s requests for a temporary injunction and temporary restraining order to prohibit the property from being taken in trust.
All parties are facing a Sept. 8 deadline for their rebuttal filings from Friday’s hearing. Noting the compressed timeline at the preliminary injunction level last summer, Frizzell noted that while he stands by his previous decision, there was no guarantee that he would make the injunction permanent in light of supplemental information filed since then.
“It appears that the court may adjust some of its conclusions made at the time of the preliminary injunction hearing,” he said. “I appreciate having additional time to look at these issues more closely.”
