BY BRITTNEY BENNETT
TAHLEQUAH – The U.S. Court of Appeals for the Tenth Circuit ruled Sept. 5 that the United Keetoowah Band of Cherokee Indians in Oklahoma can take 76 acres of land in Tahlequah into trust, overturning a lower court injunction that denied the tribe from doing so in 2017.
“We want to thank the Lord for answering our prayers, no doubt about it,” said UKB Chief Joe Bunch in a Sept. 5 press conference. “This has been quite an ordeal, quite an undertaking since 2004. I certainly thank this Council for all they do and all the others involved with this. We certainly thank the Court of Appeals, the Department of Justice attorneys, our Attorney General Klint Cowan, all those who prayed, all those who visualized, all those who stood behind us. We thank each and every one of you.”
UKB Assistant Chief Jamie Thompson discussed how the journey to victory has been long, but the tribe has stayed committed. “The wheels of justice turn slow, but they always turn in your favor if you do what is right,” he said. “The UKB has always complied with what the federal government has asked.”
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 approved by the Department of the Interior’s Bureau of Indian Affairs in 2011.
The Cherokee Nation of Oklahoma 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, 2019.
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 examined 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 said “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 has the opportunity to appeal to the Supreme Court, but it was unclear as of press time if it plans to do so.
The Certiorari Act of 1925 gives the Supreme Court the discretion to decide whether or not to hear cases at all. On average, the Supreme Court agrees to only hear about 100-150 of the 7,000 cases that it is asked to review each year.
For now, UKB Secretary Joyce Hawk is looking ahead positively and said the decision will have immediate impacts on the tribe’s financial situation.
“With trust land, it’s kind of like restricted land. You don’t have to pay property taxes, all that goes away,” she said. “It was fee simple land, so we’ve been paying property taxes. Now we’ll no longer have to, so that’s substantial savings for the tribe. We’ll also try to retroactive it back if possible.”
Bunch said the ruling also means “opportunities” are on the horizon for the UKB.
“It’s the opportunity that’s there. It’s the ability to apply for and receive grants that have criteria such as land in trust,” he said. “Next on the charts are health, education and welfare as we go for all of those for our people. Land in trust is just a springboard, it’s the mechanism that propels us further into those federal program dollars for the different activities that come along.”
Also at the Sept. 5 press conference was former UKB Chief John Hair, 87, who spoke on the historic occasion to a room full of Keetoowah employees. He maybe summed up the situation best.
“My heart, my soul, my whole being is at ease. I feel so good today that there’s better things coming because of this decision,” he said. “I’m glad I’m here to hear all this. Council, I want you to carry on. We still have work to do, but it should be easier from this point on.”