Kialegee Tribal Town 

P.O. Box 332 

Wetumka, OK 74883 

Fax: 405-452-3413 

Dear Town King Hobia: 

This letter is to inform you that after reviewing the materials submitted by you, I am 

denying your Request for Reconsideration dated May 29,2012 ("Request'?. The Request 

presents a recent change of circumstance that you contend warrants reconsideration of the 

May 25 decision, namely the enrollment of Ms. Marcella Giles and Ms. Wynema Capps, 

the owners of the land at issue, as members of the Kialegee Tribal Town. Further, the 

Request takes issue with certain aspects of the legal opinion that was adopted as part of 

my decision on May 25,2012. 

I have concluded that the change in circumstance presented does not alter the May 25 

decision. The Tenth Circuit has specifically rejected the proposition that recent 

enrollment of landowners into a tribe confers jurisdiction with the tribe over the owner's 

land. See Miami Tribe of Okla. v. U.S., 656 F.3d 1129, 1144-45 fn. 16 (10th Cir. 

201 l)(finding that the Tribe's adoption of landowners as tribal members did not form a 

basis for tribal jurisdiction and noting that "[tlhe case law does not support the 

proposition that adoption of landowner by a tribe confers jurisdiction. See United States 

v. Mazurie, 419 U.S. 544,95 S.Ct. 710,42 L.Ed.2 706 (1975)"); see also Kansas v. US., 

249 F.3d 1213, 1230-31 (10th Cir. 2001) (finding that the Tribe's adoption of a tract's 

owners into the tribe did not alter the fact that the tribe did not have jurisdiction over the 

tract). 

Further, an NIGC Office of General Counsel legal opinion regarding the Iowa Tribe of 

Oklahoma concluded that an allotment remained within the jurisdiction of the Iowa Tribe 

of Oklahoma even though some of the owners who inherited interests in the property 

were members of another tribe. Therefore, the Kialegee Tribe's recent enrollment of Ms. 

Giles and Ms. Capps does not change tribal jurisdiction over the property at issue. Thus, 

the recent change of circumstance presented here does not alter the analysis or conclusion 

,. 

The Request asserts that "earlier treaties and relevant sections of the 1832, 1833 and 1866 

Treaties . . . mandate that the NIGC conclude that Tribal Towns have treaty rights." 

Request for Reconsideration at 1 (May 29,2012). The May 25 decision incorporates a 

NATIONA HEADQUARTERS 1441 L St. NW, Suite 9100. W~ahiingto, DC ZMMI, Tel: 202.632.7003 Fax: 202.632.7066 WWW.NIGC.GW 

1 REGIONAL OFFICES Portland. OR: Sacramemo. CA; Phoenix. AZ; St. Paul, MN:Tulsa, OK 
I legal opinion drafted by the NIGC Office of General Counsel and concurred in by the 

Department of the Interior Solicitor's Office. The legal opinion is limited to the question 

I of whether the Kialegee Tribal Town possesses jurisdiction over the Proposed Site and 

concludes that the Kialegee Tribal Town does not possess legal jurisdiction over the 

Proposed Site. See Memorandum to NIGC Chairwoman from General Counsel re: 

Kialegee Tribal Town - Proposed Gaming Site in Broken Arrow, Okla., at 11-12 (May 

24y2012)? - - 

Further, the report "The Kialegee Indian Town and the Creek Treaty of February 14,. 

1833: Historical Context and Significance" ("Report") submitted by the Tribe as part of 

the request for reconsideration does not change the conclusion set forth in the May 25 

decision. The Report acknowledges that "no minutes or proceedings survive for the treaty 

council of February, 1833, at Fort Gibson." Further, the Report explains that the purpose 

of the Treaty of 1833 "was to define the boundary between the Creek and Cherokee 

Nations in the Indian Temtory and to affirm the sovereignty of the Creeks within their 

reservation." Report at 5. The Report purports to identify participants in the 1833 treaty 

council and compares language among various treaties with the "Creek Nation of 

Indians." However, rather than identifying a basis of legal jurisdiction for the Kialegee 

Tribal Town, the Report supports the conclusion that fee title to the lands in Oklahoma 

vested in the Muskogee (Creek) Nation and that subseauent treaties were with the 

Muskogee (Creek) Nation. ~he'~eport states that the salegee Tribal Town is a political 

successor in interest to the signatories of the 1833 Treaty without any meaningful 

analysis. While the Town is historically part of the creek Nation and organized pursuant 

to OIWA as a recognized band, the Muskogee (Creek) Nation, the tribal political entity 

that signed the 1833 Treaty, still exists. Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978); 

Indian Country, U.S.A. v. Oklahoma, 829 F.2d 967 (10th Cir. 1987).' 

The request asserts that the May 25 decision's "reliance on the distinction between the 

Muscogee (Creek) Nation and Kialegee Tribal Town constitutions to assert that absent a 

specific reservation of rights the Kialegee cannot assert jurisdiction over treaty lands is 

misplaced." Request for Reconsideration, supra at 5. The request cites to WiZZiams v. 

Clark, 742 F.2d 549 (9th Cir. 1984) to assert that "multiple tribes can share treatyreserved jurisdiction at a single reservation." Request for Reconsideration, supra at 6. . However, that case is distinguishable £rom the present matter on several grounds. First, 

the Quileute Tribe was specifically named in the Treaty of Olympia along with the 

! Quinaults. Williams. 742 F.2d at 553 (citing Treaty of Olympia, Art. 1, 12 Stat. 971.). 

Second, the Supreme Court had recognized the Quileute Tribe's "rights in the Quinault 

Reservation such that its members were entitled to allotments there." Id. at 552 (citing 

United States v. Payne, 264 U.S. 446 (1924)). Third, the Court noted "that the Quinault 

Indian Nation Bylaws have not been approved by the Secretary of the Interior." Id. at 554 

I The Request contends that the Indian canon of construction must be used in this instance to interpret the 

would change the outcome here. See, e.g., Chichsaw Natron v. US., 534 U.S. 84,94 (2001) (Indian canon 

of construction not used where statute was not fairly capable of two interpretations). As previously 

I explained, the courts have affirmed that title to the lands within the former Creek reservation in Oklahoma 

vested in the Muscogee (Creek) Nation. Indian Countiy, U.S.A. v. Oklahoma, 829 F.2d 967 (10th Cu. 

1987). 
n.5. By contrast, the Muscogee (Creek) Nation's Constitution, duly reviewed and 

approved by the Secretary, expressly encompasses the Proposed Site within its territory. 

The jurisdictional reach of the Muscogee (Creek) Nation's Constitution is consistent with 

settled law. See Indian Country, U.S.A. v. Okla., 829 F.2d 967,971-72,974 (10th Cir. 

1987). Further, the Ninth Circuit expressly limited its holding to whether the Quileute 

Tribe should qualify as a "tribe in which the lands are located for purposes of . . . [25 

-U~S~e~64~Id~at55~he-C-o~~tate~t"wedm~t considerthe-extentoftheQuileute Tribe's jurisdiction over Quinault Reservation." Id. at 555 n.8. 

Finally, the request asserts that some of the case law cited in the May 25 decision speaks 

only to the relative rights between the Muscogee (Creek) Nation and the State of 

Oklahoma. However, the applicable case law confirms the Muscogee (Creek) Nation's 

jurisdiction as set forth in treaties and statutes. The Kialegee Tribal Town has not 

provided any case law confirming the Kialegee's legal jurisdiction over the Proposed 

Site. 

Accordingly, the Tribe's request for reconsideration of the decision is denied 

Sincerely, A 

Tracie L. Stevens 

Chairwoman 

cc: Deputy Solicitor Patrice Kunesh 

Department of the Interior 

1849 C Street NW 

Washington, DC 20240 

Fax: 202-208-5584 

Shane Rolls 

Golden Canyon Partners, LLC 

18001 Old Cutler Rd. Suite 533 

Miami, FL 33 157 

Fax: 605-235-9372 

Marcella S. Giles 

926 Ridge Dr. 

MO- va win! 

"7- 

1 P.O. Box 206 

Welty, OK 74833 
Trent Shores, Assistant U.S. Attomey 

1 10 W. Seventh St., Suite 300 

Tulsa, OK 741 19 

Fax: 918-560-7948 

Lynn H. Slade, Counsel for State of Oklahoma 

Modfall Sperling - -- - 

500 Fourth St. NW, Suite 1000 

Albuquerque, NM 871 02 

Fax: 505-848-9710 

Daniel Weitman 

Oklahoma Attorney General's Office 

313 NE 21S'St. 

Oklahoma City, OK 73105 

Fax: 405-521-3921