BY BRITTNEY BENNETT
EDITOR
TAHLEQUAH – After waiting more than 15 years for approval, officials from the United Keetoowah Band of Cherokee Indians and the Eastern Oklahoma Region Bureau of Indian Affairs met Thursday, Dec. 5 to sign the official land deed granting the tribe 76 acres of land in trust.
“The handicaps that were upon us are removed. It is a great day today,” said UKB Chief Joe Bunch.
Earlier in the morning, UKB officials, members and supporters gathered to form the UKB Freedom Walk from downtown Tahlequah to the Jim Proctor Elder and Nutrition Center where the signing was later held. Former Chiefs John Hair, John Ross, Jim Henson and Dallas Proctor were also in attendance for the historic event.
“Certainly, this would not be complete without the hard work of each and everybody that’s been involved with this over the years,” said Bunch. “You know it’s been said by a former leader, I think his name was Henry Doublehead, he mentioned that this was the land of milk and honey. And this (he was referencing) was Keetoowah land forever and ever and ever. Other generations of Keetoowah people will have this land in trust for them for generations to come. It’s certainly a proud moment.”
Bunch was joined onstage for the signing of the land deed by Acting Regional Director of the Eastern Oklahoma Region Bureau of Indian Affairs Jessie Durham.
“This application has been 15 years and so I know you’ve waited a long time and it’s a good day for the United Keetoowah Band. Congratulations,” said Durham.
The signing comes after a lengthy court battle between UKB and the Cherokee Nation of Oklahoma, which objected to the Department of the Interior from taking land into trust for UKB within CNO’s boundaries.
The UKB purchased its 76 acres of land in Tahlequah in 2000 and developed it for several uses including community services, cultural grounds, a museum and an elder center.
In 2004 the UKB submitted its application to take the tract of land into trust, which was originally approved by the Department of the Interior’s Bureau of Indian Affairs in 2011.
CNO filed a lawsuit against the BIA in response to the decision. Cherokee Nation v. Zinke, et al. alleged that the BIA violated jurisdictional treaties agreed upon between the CNO and the U.S.
Judge Ronald A. White of the Northern District Court of Oklahoma in Tulsa heard the case on May 31, 2017 and ruled in CNO’s favor.
He stated that the Interior’s decision was “not in accordance with the law” and enjoined the Interior secretary from putting the UKB land into trust “without the Cherokee Nation’s written consent and full consideration of the jurisdictional conflicts and the resulting administrative burdens the acquisition would place on the (Interior’s Eastern Oklahoma) Region.”
On Dec. 1, 2017 the U.S. Department of Justice attorneys filed an appeal of White’s decision, with the Tenth Circuit finally hearing the case on May 16, 2018 and issuing its decision on Sept. 5.
The three-judge panel was presented with several issues in the case, including if the UKB had the same rights to ask for land in trust as other tribes do under Section 5 of the Indian Reorganization Act of 1934.
Section 5 of the IRA authorizes the Secretary of the Interior to take land into trust “for the purpose of providing land for Indians.”
At the time, “Indians” was defined as “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation…”
Congress recognized the UKB in 1946 under the terms of the Oklahoma Indian Welfare Act of 1936.
CNO argued this disqualified UKB from meeting the qualifications defined as “Indian” under the IRA and thus, land in trust should not be possible.
However, the BIA cited Section 3 of OIWA in its decision to grant land in trust to UKB, which states that a properly chartered Oklahoma Indian group such as the UKB “enjoy(s) any other rights or privileges secured to an organized Indian tribe under the (IRA)” of 1934.
This would include the right to land in trust.
The Tenth Circuit upheld the decision, writing that the BIA was “not required” to consider if UKB met the IRA’s definition of “Indian.” Instead, since the UKB is a “recognized tribe or band of Indians residing in Oklahoma” incorporated under OIWA, the BIA “properly concluded that statutory authority exists for the Secretary to take the Subject Parcel into trust for the UKB Corporation.”
The judges were also asked to examine CNO’s assertion that “consent” and not “consultation” was needed before granting trust land to UKB.
CNO argued that explicit consent was needed, claiming they were the historical successors of the original Cherokee Nation and any land in trust within their jurisdiction needed approval.
However, the Tenth Circuit judges cited a 1999 Appropriations Act by Congress that states “no funds shall be used to take land into trust within the boundaries of the original Cherokee territory in Oklahoma without consultation with the Cherokee Nation.”
The ruling did not go so far as to challenge CNO’s claim to successorship, but did further state that “the UKB are descended from the historical Cherokee Indian tribe.”
CNO also argued their 1866 treaty guarantees “protection for the Nation against ‘domestic feuds and insurrections’ and ‘hostilities of other tribes,’” including the UKB.
The judges stated, “while the relationship of the UKB and the Nation does not appear friendly, they are neither open enemies nor engaged in warfare.” As such, “no ‘hostilities,’ as contemplated in the 1866 Treaty, attach to the UKB’s land-into-trust application.
Accordingly, Nation consent is not required for the BIA to take the Subject Parcel into trust for the UKB.”
The judges also examined whether the BIA gave proper consideration to possible jurisdictional problems that may arise with CNO and UKB, as well as potential conflicts of land use and any administrative burdens on the Interior’s Eastern Region.
CNO called the decision to move forward with the application “arbitrary and capricious” in regards to these issues.
In their ruling, the judges wrote that “the relatively small size of the Subject Parcel and the fact that BIA services have been provided in the past suggest that any additional administrative burden will not be unreasonable. We reverse the district court’s order holding that the 2011 decision approving the UKB’s land-into-trust application was arbitrary and capricious, an abuse of discretion and otherwise not in accordance with law.”
CNO appealed the decision on Nov. 8 and asked the courts to rehear the case, which was subsequently denied, before then filing a motion to stay mandate against UKB.
On Dec. 2 that motion was also denied.
“Upon consideration of the responses and the reply, the motion is denied,” wrote Clerk Elisabeth A. Shumaker.
The UKB land deed guarantees that the 76 acres is now “forever free, clear and discharged of and from all former grants, charges, taxes, judgments, mortgages, and other liens and encumbrances of whatsoever nature.”
