- Lani Hansen
Northern District rules casino parcel not eligible for gaming
BY BRITTNEY BENNETT
TULSA – The U.S. Northern District of Oklahoma Court ruled March 24 that the U.S. Department of the Interior could not take 2.03-acres of land in Tahlequah into trust for the purpose of tribal gaming for the United Keetoowah Band of Cherokee Indians.
“The Assistant Secretary's decision to take the 2.03-acre parcel into trust for the benefit of the UKB Corporation for the purpose of conducting Indian gaming was arbitrary, capricious, an abuse of discretion and contrary to law,” wrote Judge Gregory Frizzell in his ruling.
The Cherokee Nation of Oklahoma and Cherokee Nation Entertainment are the plaintiffs in the case, which was filed after a 2012 decision by the DOI Secretary to take the 2.03 acres of land into trust for UKB for the purposes of tribal gaming.
In his March 24 decision, Frizzell concluded that the 2.03-acre parcel does not meet the Indian Gaming Regulatory Act’s requirements for tribal gaming on tribal trust lands acquired after October 17, 1988.
The IGRA prohibits gaming on Indian lands held in trust by the Secretary after October 17, 1988, “unless the lands fall within certain statutory exceptions. One such exception arises if the Indian tribe has no reservation and the lands are in Oklahoma and within the boundaries of the Indian tribe’s former reservation, as defined by the Secretary.”
In 2012, the DOI Secretary ruled the 2.03-acre parcel could be taken into trust because it defined “former reservation” to mean “lands in Oklahoma that are within the exterior boundaries of the last reservation that was established by treaty, Executive Order, or
Secretarial Order for an Oklahoma tribe.”
The Secretary also noted the “highly unique facts presented” by the UKB: “In view of the origins of the Band as composed of Cherokee Indians, reorganized and separately recognized under express authorization from Congress and a constitution approved by the Assistant Secretary of the Interior expressly establishing its tribal headquarters in Tahlequah, Oklahoma, within the historic reservation boundaries, I believe the former reservation of the Cherokee Nation is also the former reservation of the UKB…”
Frizzell’s decision argues against this conclusion.
He writes that “no reservation has ever been established by treaty, Executive Order, or Secretarial Order for the UKB tribe” and that this view is “contrary to the language of the IRA,” which requires the lands to be “within the boundaries of the Indian tribe’s former reservation (emphasis added), not within the reservation of some other tribe in Oklahoma.”
He also writes that “the statement of ‘highly unique facts’ used by the Secretary to justify the 2012 decision are insufficient to quality the UKB for IGRA’s ‘former reservation’ exception.”
Frizzell’s opinion states he believes the Secretary “properly exercised his authority to define the term ‘former reservation’ to implement IGRA, but “contorted the applicable law when he determined that the UKB tribe once had a reservation.”
CNO and CNE argue that the Secretary’s decision to allow UKB to take land into trust for gaming under the “former reservation” decision went against three prior rulings in various cases that UKB “failed to show any treaty or Congressional act establishing UKB’s inherited right or claim to reservation land within the boundaries of the old Cherokee Indian Reservation.”
The Secretary explained he was justified in overturning this view due to a 1994 IRA Amendment and a 1999 Appropriations Act that stated CNO only needed to be consulted, and not asked for expressed consent, before land could be placed into trust within their boundaries.
Frizzell disagreed and wrote the Secretary “failed to justify the Department’s about-face on this issue with a reasoned analysis. For the foregoing reasons, this court concludes that the Assistant Secretary’s ‘former reservation’ decision was arbitrary, capricious, an abuse of discretion, and contrary to law.”
Frizzell does acknowledge Cherokee Nation v. Barnhardt, a 2019 decision by the U.S. Tenth Circuit Court of Appeals that allowed the Secretary to take land in the boundaries of the original Cherokee territory into trust for the UKB Corporation.
However, he argues that the Secretary “erroneously” used an ambiguous, rather than regulatory, interpretation of the IGRA’s “former reservation” requirements in the 2.03-acre decision.
It is Frizzell’s view that the regulatory interpretation should have been used, which would mean no gaming be allowed on the parcel because it does not meet IGRA requirements.
In his conclusion, Frizzell asserts that “gaming regulated by the Indian Gaming Regulatory Act cannot be conducted on the 2.03-acre parcel.”
UKB Chief Joe Bunch was aware of the recent decision and indicated the tribe would be appealing the ruling.
“We received word that Northern District Court Judge Frizzell ruled in favor of the Cherokee Nation of Oklahoma on our 2.03-acre casino property. He cited in his conclusion that UKB has no former reservation as defined in the Indian Gaming Regulatory Act. While this is disappointing, we believe his ruling is inaccurate and are reviewing our options,” said Bunch. “These options also include appealing to the Tenth Circuit Court in Denver, CO., who last year ruled in our favor to take our 76-acres of land into trust. We remain steadfast in our ability to win this case for the benefit of our tribal members.”
To read the full decision, click here.