Analysis: Comanche v. Chickasaw at the High Court

OKLAHOMA CITY – The Tenth U.S. Circuit Court of Appeals in Denver has rebuffed the arguments of the Comanche, a western Oklahoma tribe, in the case of “Comanche v. Zinke.” But in March the Comanche submitted a brief to the U.S. Supreme Court asking justices to consider issues raised in litigation. 

The case was examined in detail in a page one analysis in the October 2018 edition of The City Sentinel (“Just another appeals court hearing, or the start of something big?”) 

Leaders of the Comanche Nation were furious at being ignored when the Bureau of Indian Affairs (BIA) ignored their opposition to location of a Chickasaw casino along the Red River in southwestern Oklahoma. BIA allowed the powerful larger tribe in 2017 to break ground for a new casino along the Red River, at a site where the smaller Native American Nation had planned a new business operation. 
Comanche leaders voted to appeal to the U.S. Supreme Court the circuit court’s ruling. The Denver panel had upheld a district court decision from Oklahoma, siding with the Chickasaw and the Bureau of Indian Affairs. 

The Tenth U.S. Circuit Court of Appeals acknowledged federal agencies are required to consult with “appropriate State and local agencies and Indian tribes” in such matters, but that in relevant procedures “use of the term ‘appropriate’ suggests an agency possesses discretion in determining which bodies to consult.”

An angry Robert Tippeconnie, the Comanche’s secretary treasurer, told David Rogers of, “I am just dismayed by how the court treated the lack of consultation. A federal agency should apply and be subject to the law.”

In the new “Petition for a Writ of Certiorari” to the nation’s High Court, lawyers for the Comanche note, “In Oklahoma, just six Tribes – 15% of the 39 federally recognized Tribes in the State – have managed to corner 85% of an Indian gaming market now generating more than four billion dollars in net revenue annually.”
Further analysis shows that just three tribes (Chickasaw, Cherokee and Choctaw) have two-thirds of all the tribal gaming businesses. And, one (the Chickasaw Nation) has one-third of all of the tribal gaming market under its control.

In its litigation, the Comanche Nation argued broadly that perpetuation of the historic advantages afforded the larger tribes as a result of federal policy have damaged smaller Indian nations, with the brief concluding that “The latest acquisition for the benefit of the Chickasaw Nation of Oklahoma — a Tribe already operating approximately two dozen post 1988 gaming operations to the tune of a billion dollars annually – is an existential threat to the economic lifeline of the Comanche Nation.” 
Four justices will have to agree to take up the case. A trio of Justices – Neil Gorsuch, Clarence Thomas and Elena Kagan – could be pivotal actors in the upcoming deliberations, which could come in the next several weeks. 

NOTE: McGuigan is founder of CapitolBeatOK, an online news service, and publisher/editor of The City Sentinel newspaper. He has won numerous awards for his reporting and commentary, including for his coverage of tribal issues in Oklahoma.