Oklahoma v. Hobia
| Decision Date | 22 December 2014 |
| Docket Number | Nos. 12–5134,12–5136.,s. 12–5134 |
| Citation | 775 F.3d 1204 |
| Parties | State of OKLAHOMA, ex rel., Plaintiff–Appellee, v. Tiger HOBIA, as Town King and member of the Kialegee Tribal Town Business Committee, et al., Defendants–Appellants, and Florence Development Partners, LLC, as Oklahoma limited liability company, Defendant. The State of New Mexico, et al., Amici Curiae. State of Oklahoma, ex rel., Plaintiff–Appellee v. Florence Development Partners, LLC, an Oklahoma limited liability company, Defendant–Appellant, and Tiger Hobia, as Town King and member of the Kialegee Tribal Town Business Committee; Thomas Givens, as 1st Warrior and member of the Kialegee Tribal Town Business Committee; Kialegee Tribal Town, a federally chartered corporation, Defendants. The State of New Mexico; State of Michigan, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Matthew Justin Kelly of Fredericks Peebles & Morgan LLP, Washington, DC, (Martha L. King of Fredericks Peebles & Morgan LLP, Louisville, CO; Dennis J. Whittlesey, Jr. of Dickinson Wright PLLC, Washington, DC; H. James Montalvo, Law Offices of H. James Montalvo, P.A., South Miami, FL, with him on the briefs), for Defendants–Appellants.
Patrick R. Wyrick, Solicitor General, (E. Scott Pruitt, Attorney General, Oklahoma Office of the Attorney General, and M. Daniel Weitman, Assistant Attorney General, Oklahoma City, OK; Lynn H. Slade, William C. Scott and Sarah M. Stevenson of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, with him on the briefs), for Plaintiff–Appellee.
Gary K. King, Attorney General, State of New Mexico, Santa Fe, NM, and Christopher D. Coppin, Special Assistant Attorney General, State of New Mexico, Albuquerque, NM, filed an amicus curiae brief for the State of New Mexico.
Bill Schuette, Attorney General, State of Michigan, John J. Bursch, Solicitor General, State of Michigan, and S. Peter Manning and Louis B. Reinwasser, Assistant Attorneys General, State of Michigan, Lansing, MI, filed an amicus curiae brief for the State of Michigan.
Before BRISCOE, Chief Judge, KELLY and BACHARACH, Circuit Judges.
These matters are before the court on the State of Oklahoma's Petition for Rehearing or Rehearing En Banc. We grant panel rehearing to the extent of the amendments made to the revised Opinion attached to this order. The clerk of court is directed to vacate the decision issued originally on November 10, 2014 and to reissue the attached version.
The Petition for Rehearing or Rehearing En Banc, as well as the newly revised Opinion, were also transmitted to all of the judges of the court who are in regular active service and who are not recused. As no member of the panel and no judge in regular active service on the court requested that the court be polled, the request for en banc review is denied.
We once again address the subject of Indian gaming and, following the lead of the Supreme Court's recent decision in Michigan v. Bay Mills Indian Cmty., ––– U.S. ––––, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014), emphasize that any federal cause of action brought pursuant to 25 U.S.C. § 2710(d)(7)(A)(ii) of the Indian Gaming Regulatory Act (IGRA) to enjoin class III gaming activity must allege and ultimately establish that the gaming “is located on Indian lands.” 25 U.S.C. § 2710(d)(7)(A)(ii). If, as here, the complaint alleges that the challenged class III gaming activity is occurring somewhere other than on “Indian lands” as defined in IGRA, the action fails to state a valid claim for relief under § 2710(d)(7)(A)(ii) and must be dismissed.
The State of Oklahoma filed this action against officials of the Kialegee Tribal Town, a federally recognized Indian tribe in Oklahoma, claiming that they, along with a federally-chartered corporation related to the tribe and a related Oklahoma limited liability company, were attempting to construct and ultimately operate a class III gaming facility on a parcel of land in Broken Arrow, Oklahoma, that was neither owned nor governed by the Tribal Town, in violation of both IGRA and a state-tribal gaming compact. Defendants moved to dismiss the complaint, but the district court denied their motion. The district court subsequently granted a preliminary injunction in favor of the State that prohibited defendants from constructing or operating a class III gaming facility on the property at issue. Defendants now appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that, in light of Bay Mills, the State has failed to state a valid claim for relief. We therefore reverse and remand to the district court with instructions to vacate its preliminary injunction and to dismiss the State's complaint.
Factual background
The Kialegee Tribal Town (the Tribe) is a federally recognized Indian tribe, organized under Section 3 of the Oklahoma Indian Welfare Act (OIWA), 25 U.S.C. § 503 et seq. The Tribe, headquartered in Wetumka, Oklahoma, first received federal recognition in 1936. The Tribe has no reservation and, in a 1990 application it submitted to the Bureau of Indian Affairs (BIA), stated “that it ‘had no land.’ ” Add. at 25.
The Tribe is governed in accordance with a constitution and by-laws that were approved by the Secretary of the Interior (Secretary) on April 14, 1941, and ratified by the Tribe on June 12, 1941. The 1941 Constitution established the Kialegee Tribal Town Business Committee (Business Committee) as the Tribe's governing body.
Defendant Tiger Hobia is the Tribe's Town King, a member of the Business Committee, and a citizen and resident of the State of Oklahoma. Defendant Thomas Givens is the Tribe's 1st Warrior, a member of the Business Committee, and a citizen and resident of the State of Oklahoma.
Defendant Kialegee Tribal Town (the Town Corporation) is a federally chartered corporation. Its federal charter was issued under Section 3 of the OIWA, approved by the Secretary of the Interior on July 23, 1942, and ratified by the Tribe on September 17, 1942. The charter provides the Town Corporation with the power to sue and be sued.
Florence Development Partners, LLC (Florence Development) is an Oklahoma limited liability company doing business in the State of Oklahoma.
In 2004, the State of Oklahoma established a model tribal gaming compact that effectively constitutes a “pre-approved” offer to federally recognized tribes in the State (Model Compact). Add. at 27. If a tribe accepts the Model Compact, obtains approval of the Model Compact by the Secretary of the Interior, and complies with the requirements of IGRA, the tribe can operate class III gaming facilities on its Indian lands.
On April 12, 2011, the Tribe accepted the Model Compact, and the Tribe and State entered into what is referred to as “the Kialegee Tribal Town and State of Oklahoma Gaming Compact” (Tribal–State Gaming Compact). App. at 692. The Secretary of the Interior approved the Tribal–State Gaming Compact on July 8, 2011. The Tribal–State Gaming Compact authorizes the Tribe to operate gaming “only on its Indian lands as defined by IGRA.” Add. at 27 (internal quotation marks omitted).
By their own admission, defendants “engaged in the construction of and [had] plan[ned] to operate the Red Clay Casino as a[c]lass III gaming facility under IGRA,” App. at 394, “at the southwest corner of Olive Avenue and Florence Place, in Broken Arrow, Oklahoma,” id. at 30.
The property on which the gaming facility was being built (the Property) is located more than 70 miles away from the Tribe's headquarters and is not held in trust by the United States for the Tribe. Instead, at the time the construction began, the Property was “owned by [sisters] Wynema Capps and Marcella Gibbs, as tenants in common, subject to federal restraints against alienation.” Id. at 32. Both Capps and Giles were enrolled members of the Muscogee (Creek) Nation.
The ownership of the Property can be traced to Tyler Burgess, an enrolled Creek Indian of full blood. “In 1901, the Creek Nation and the United States entered into [an] agreement governing the allotment of the Creek Nation's lands.” Add at 35. “Under Section 23 of the 1901 agreement, the Principal Chief of the Muskogee Nation was to execute and deliver to each citizen of the Muskogee Nation an allotment deed conveying to him all right, title, and interest of the Creek Nation and of all other citizens in and to the lands embraced in his allotment certificate.” Id. (internal quotation marks omitted). “On August 6, 1903, as part of the allotment of those lands, an allotment deed and homestead patent [for 160 acres] were issued to Tyler Burgess.” Id. Burgess was not a member of the Tribe, but rather was an enrolled member of Lochapoka Town (a division of the Creek Nation).
Burgess's allotted land subsequently passed by descent to two heirs: Capps and Giles. Capps and Giles hold the land as tenants in common, subject to federal restrictions and restraints against alienation. The land encompasses the Property at issue.
The Property is not held in trust by the United States for the Tribe or for the benefit of any enrolled member of the Tribe. And, as of May 18, 2012 (the date of the preliminary injunction hearing held by the district court in this case), the Property was not held by either the Tribe or an enrolled member of the Tribe subject to restriction by the United States against alienation.
In May 2010, the Town Corporation, “as Tenant, executed a Prime Ground Lease with Capps and Giles, as Landlord, for the ... Property as a site for a proposed casino facility.” Id. at 40. Capps and Giles subsequently filed a petition in Oklahoma state district court seeking approval, pursuant to the Act of August 4, 1947, 61 Stat. 731, of the proposed Prime Ground Lease. On August 17, 2011, the state district court entered...
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