Thinking about ‘Comanche Nation v. Zinke’ – Just another appeals court hearing, or the start of something big?
Published: September 23rd, 2018
Editor’s Note: The map atop this story is of “Comancheria” about 1850, a Wiki document adapted from an old postal service map.
OKLAHOMA CITY – In the Rocky Mountain State over coming days, an incremental battle over public policy in and adjacent to Indian lands will unfold before the U.S. Court of Appeals for the Tenth Circuit.
The joust could become monumental to interested parties: the U.S. Department of the Interior, the Comanche of Oklahoma, and the Chickasaw Nation (think: David and Goliath), as well as the state of Oklahoma.
David Rogers, writing for Politico, reports, “What triggered this fight is a new Red River Chickasaw casino, which Interior approved last year with no notice to the Comanche, whose ancestral lands are just miles away. Blindsided, the Comanche hope to turn the tables by using a landmark 2012 Supreme Court decision to challenge the department’s actions under the Administrative Procedure Act. The suit seeks to build on the past decade of cases in which top federal judges have seemed to supersede Congress in altering old concepts of Indian law.”
Rogers writes well, and the reporting in his story, posted September 18, is thorough. He relies, among other things, on Open Records requests aimed at Interior, Oklahoma state government and other places.
In “Feds accused of stacking deck for Chickasaw gaming empire,” Rogers relates, “[W]hat emerges most is a story about survival and the search for some measure of rough justice. The inequities are as stark as any tale of cattle barons in the past. And the fight brings to the surface years of resentment over how Washington treats the poorer Plains tribes of western Oklahoma versus the more powerful Five Civilized Tribes in the east.”
The case before the court in Colorado (Comanche Nation v. Zinke) is but one installment in a long saga touching many Oklahoma tribes, referenced over the past decade in my own reporting and commentary.
The controversy ties in to the efforts of Oklahoma U.S. Rep. Tom Cole, a Moore Republican, to secure a “land fix” for the Chickasaw (Cole is a member), who have faced rising scrutiny and occasional public criticism for a seeming-unfailing ability to win every close call touching jurisdiction (or mere presence) in Indian Country (https://capitolbeatok.worldsecuresystems.com/reports/an-editor-s-notebook-another-land-fix-strategic-communications-on-taxpayer-s-dime-pruitt-lost-and-re).
As Rogers wrote, various Nations who did not reside here formerly, came to Oklahoma in the Nineteenth Century, with the major tribes arriving “after being forcibly removed from the Southeast to make room for white expansion. New injustices followed when their Oklahoma lands were next divvied up under an allotment system that was disastrous to Native Americans across the nation. But the Five [i.e. those known as the Five Civilized Tribes] retained a precious independence that allowed them to escape the federally-imposed tribal constitutions and blood quantum rules that would long shackle many western tribes.”
Advantages in law and procedure enjoyed by the Cherokee, Choctaw, Muscogee Creek, Seminole and – most particularly – the Chickasaw accelerated after passage of the Indian Gaming Regulatory act three decades ago. The edge put in place has “proved crucial” to the Big Five, as Rogers narrates:
“In a modern Oklahoma lands rush, the Five were quick to secure dozens of trust agreements, allowing them to open casinos at choice locations with minimal federal review. This gives them a 70 percent market share today and insurmountable lead over the Plains tribes, left more isolated in the west and subject to a tougher regulatory regime.”
The push for the Chickasaw to take their casino operations ever-further to the west “is plainly a worry for the poorer Plains tribes, who occupied much the same territory prior to Washington assigning the lands to the Chickasaw in 1855.
“The increased competition for the Texas market poses a threat to the smaller gaming operations on which tribes like the Comanche and Apache depend for revenues. Yet Washington shows no sign of trying to mitigate these inequities. Instead, POLITICO found the opposite: an almost ‘hide-the-ball’ approach to rivals like the Comanche and no meaningful consultation with top state officials.”
Continuing with Rogers, “The issue came to a head for the Comanche when Interior approved the new casino on property purchased just four years before by the Chickasaw in Jefferson County. The 30.5 acre site is 127 miles southwest of the Chickasaw headquarters in Ada, Oklahoma. But it butts up against ancestral lands and individual allotments of the Comanche. In fact, it’s so far west that it jumps over historic markers more than 10 miles to the east, where the Comanche were fighting the Spanish on the Red River before the Chickasaw came to Oklahoma.”
Despite the historical record, he reports, “the Comanche are not even mentioned in the 18-page record-of-decision filed by Interior.” Jimmy Arterberry, a Comanche leader I have talked to occasionally in recent years, understated the matter to Rogers: “That’s the mystery of it all, the fact that there wasn’t any discussion.”
Oklahoma agencies, including the state Historical Society and the Archeological Survey (with more than passing knowledge of evidence in southwest Oklahoma) encouraged some element of fair play for the Comanche, but they were in the end ignored.
Swirling around the case are concerns that the Chickasaw are on the verge of so thoroughly marginalizing the smaller Oklahoma tribes that the latter will have no choice but to go – quickly and hat-in-hand – to the big boys to pick up scraps from the table of largesse.
For decades, powerful lawyers who represent the big tribes secured, for junior colleagues, retainers with smaller tribes. Ostensibly, the juniors were to serve as deft counsel. But somehow year after year, the interests of the little guys went unaddressed or addressed partially.
As Rogers so ably narrates, not only was the Comanche ignored in federal review, it was “then left in the dark by Washington for six months after the decision to green-light the neighboring casino. Interior signed off on the project on the very last day of the Obama administration in January 2017, but no public notice was published in the Federal Register until mid-July. The delay was ostensibly to allow the new Trump Administration time to review the matter. But no one asked the Chickasaw to pause while this was being done.
“Instead, the tribe broke ground in May  and POLITICO found documents showing the Chickasaw had already filed a facility license notice with the National Indian Gaming Commission in June, more than a month before Interior’s decision finally became public in the Federal Register.”
Among issues that may, or may not, be addressed in Denver is the relevance (or lack thereof) of the National Environmental Protection Act (NEPA) in both inter-tribal disputes and tensions among the Nations with federal and state agencies.
Rogers reported that (theoretically, at least) for the sake of timely assessments of environmental impact in development (including at places like the Red River), “NEPA requires a ‘diligent’ effort to involve the public. The record shows no public comment from anyone in the 30-day review period” – just before Interior green-lighted the Chickasaw project at the expense of the Comanche.”
Worth noting is that soon after the Chickasaw Red River push was approved by the Feds, shifts in the site plan were made, perhaps in conflict with the admittedly limited public record before the go-ahead was given.
In the near-future (but probably not in time for the 2018-19 term), all of this may reach the U.S. Supreme Court, which has been tinkering with precedents that leave Indian policy development largely to Congress (and when House and Senate are silent, to the executive – that is, to the Interior Department). To be clear, the sins of the past have been absolutely bipartisan.
At the High Court, fresh scrutiny of precedents in this broad area of law has come from diverse directions. The late Justice Antonin Scalia and Justice Elana Kagan each demonstrated a willingness to look critically at precedent (https://capitolbeatok.worldsecuresystems.com/reports/patchak-s-progeny-should-be-no-dice-no-roulette-and-no-more-special-deals-for-big-tribes).
Should the Comanche case ultimately go to the nation’s capital for review, Kagan as well as Scalia’s replacement (Neil Gorsuch) might make the Chickasaw work hard to retain their near-monopoly of power in certain parts of Oklahoma. Perhaps the justices say no to the latest land grab.
Some justices have, in slow motion, seemed to recognize that the U.S. government has created what is called (and so Rogers deems it) an “Oklahoma exception” to various aspects of otherwise governing practices. As he writes, “The sheer size of the Oklahoma exception – covering millions of acres – poses an administrative challenge.”
Further, a 1988 law, at least on its surface, “requires that before a casino is allowed, a tribe must also show it has jurisdiction and governmental powers over the site.” Trouble is, “As the Chickasaw expand its gaming empire west, these claims of jurisdiction have gotten thinner and thinner, and become more of a flash point.”
Continuing with Mr. Rogers:
“In 2006, the BIA [Bureau of Indian Affairs] seemed to offer some guidance when it circulated a draft rule which defined ‘former reservation’ lands under the Oklahoma exception as those that are ‘within the jurisdiction of an Oklahoma tribe and that are within the boundaries of the last reservation for that tribe in Oklahoma.’ But after the Apache seized on this point to try to block an earlier Chickasaw casino in the Chisholm corridor, the jurisdiction portion was dropped without explanation and the casino approved.”
In order to give approval to the new Chickasaw facility along the Red River, the Comanche are contending, as Rogers reports, “Interior had to bend the Indian Gaming Regulatory Act so far that it broke the law.”
That was not the first time rules were at least bent, and perhaps broken.
As CapitolBeatOK reported last year, the Loyal Shawnee Tribe was granted approval for a casino based in the Oklahoma Panhandle – a place far from their headquarters (https://capitolbeatok.worldsecuresystems.com/reports/as-the-stomach-turns-a-tribal-casino-in-guymon-makes-no-sense). As your humble servant observed at that time, “If there’s going to be a deal, real estate in southwest Oklahoma makes more sense for the Shawnees’ economic ambitions. But a Shawnee casino along the I-40 corridor might interfere with long-range ambitions of the largest Indian Gaming player hereabouts, the Chickasaw. Their furthest west casinos are now at Pocassett and Duncan. It is no secret the Chickasaw Tribe would like to go border to border, across all of southern Oklahoma. They have lots of options, but some of their trust land victories remain in dispute or at least debatable.”
One still-debatable proposition will get new attention next week, in Denver. Rogers and his reporting is not new to this matter. He pondered this sagely in an October 2015 Politico story:
“From Oklahoma to California, rich tribes play the political system to protect their share of the gaming markets. Lost is any perspective on the hundreds of poorer tribes just trying to establish some economic foothold and homeland for themselves. …” (https://www.politico.com/story/2015/10/new-indian-wars-washington-215208)
I believed a year ago and believe now that the Guymon idea did not make much sense for the Shawnee. Further, it seems a less-than-deft play for the Chickasaw as they develop an economic base beyond gaming (https://capitolbeatok.worldsecuresystems.com/reports/patchak-s-progeny-should-be-no-dice-no-roulette-and-no-more-special-deals-for-big-tribes).
The Guymon deal and the Red River power play only make sense if you think the rich should get richer, the poor should stay in their place, and knowledgeable observers should remain silent in the face of injustice
Note: McGuigan is founder of CapitolBeatOK.com, an online news service based in Oklahoma City. He has reported on state government and on “Indian Country” issues regularly since 1990. In 2013, his reporting on the late Archie Hoffman and aspirations of the Cheyenne & Arapaho Tribes of Oklahoma won first place from the Society of Professional Journalists, Oklahoma Chapter, in the “diversity news reporting” category.