BY BRITTNEY BENNETT
EDITOR
TAHLEQUAH – The Supreme Court of the United States issued its decision June 22 to deny hearing the Cherokee Nation of Oklahoma's writ of certiorari, or a request for a case review, in a ruling that granted 76 acres of land in trust in Tahlequah to the United Keetoowah Band of Cherokee Indians.
"Speaking as a tribal member, this is a monumental day for the United Keetoowah Band of Cherokee Indians," said Chief Joe Bunch. "We had our highest courts in the land rule that we have the right to land in trust. Keetoowahs can now rest assured that with this ruling, the Cherokee Nation of Oklahoma cannot fight us or hamper our efforts for growth any longer. This will be the economic catalyst for our tribe moving forward in all facets of government and justice prevailed in this long overdue fight. I thank all our attorneys including Klint Cowan, Mike Rosette, Christina Vaughn, Jim McMillan and Arvi Kupfler. Additionally, I want to thank all the former chiefs for their courage in this fight, as well as the Council for their work and the Department of the Interior and former Secretary Larry Echohawk for their belief in us and what is right."
The UKB purchased its 76 acres of land in Tahlequah in 2000 and developed it for several uses including community services, cultural grounds and an elder center. In 2004, the tribe 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.
CNO filed a lawsuit against the BIA in response. Cherokee Nation v. Zinke, et al., now known as Cherokee Nation v. Bernhardt, Sec. of Interior, et al., alleged that the BIA violated treaties between CNO and the U.S. government.
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, but on Dec. 1, 2017 the U.S. Department of Justice attorneys filed an appeal of White’s decision.
The Tenth Circuit heard the case on May 16, 2018 and issued its decision on Sept. 5, 2019. It granted the UKB's 76-acre land in trust application, overturning the Northern District Court's decision. A CNO request asking the Tenth Circuit to re-examine its decision was denied on November 8, 2019.
CNO petitioned the Supreme Court, the highest court in the federal judiciary system, on January 23, 2020, with a writ of certiorari to determine whether the Tenth Circuit "correctly held that the Secretary of the Interior did not exceed his statutory authority" by taking the land into trust.
"The United States has never required a tribe to allow another tribe to assert sovereignty within its sovereign boundaries without its consent. This breathtaking outcome is an important and unprecedented infringement on the Nation’s sovereign rights, guaranteed to result in years of conflict and litigation, and thus worthy of immediate review," states the writ.
Solicitor General Noel J. Francisco, Assistant Attorney General Jeffrey Bossert Clark and Attorney William B. Lazarus did not agree, writing in a May 2020 brief that the writ of certiorari "should be denied."
CNO's writ asked the Supreme Court to re-examine if the BIA secretary was allowed to grant land in trust to UKB.
The Secretary of the Interior is authorized to acquire land into trust “for the purpose of providing land for Indians" under the Indian Reorganization Act of 1934. At the time, “Indian” in the Act was defined as “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction..."
This legislation excluded many tribes located in Oklahoma, leading to the creation of the Oklahoma Indian Welfare Act of 1936.
OIWA became an extension of IRA legislation and in Section 3 states "any recognized tribe residing within Oklahoma may receive a charter of incorporation from the Secretary of Interior, and shall have the right to self-determination, including the right to make their own bylaws." Additionally, Section 3 of the OIWA authorizes the Secretary to “issue to any such organized group a charter of incorporation” that “convey(s) the right to enjoy any rights or privileges secured to an organized Indian tribe under the (IRA)."
This would include the right to land in trust.
Congress recognized the UKB under OIWA in 1946, retroactively under the terms of OIWA.
CNO argued in its writ that the IRA’s definition of “Indian” applies only to tribes under federal jurisdiction in 1934 and that IRA trust land acquisitions are "only for the benefit of tribes under federal jurisdiction in 1934." As such, this right does not exist to tribes later recognized under OIWA, like UKB.
CNO cited another case, Carcieri v. Salazar, as an example, writing that in the case "this Court definitively interpreted the scope of the IRA, holding that it 'limits the exercise of the Secretary’s trust authority under (section 5 of the IRA) to those members of tribes that were under federal jurisdiction at the time the IRA was enacted (in 1934).'” As such, it argues the Tenth Circuit’s decision that the Secretary had such authority to grant land in trust to UKB "contravenes Carcieri."
The Tenth Circuit disagreed, 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 solicitor general and his team called CNO's attempted use of the Carcieri v. Salazar case "incorrect" and asserted that OIWA "does not define 'Indian' or cross-reference the IRA’s definition of that term."
"Nothing requires reading the OIWA’s Oklahoma-specific language to incorporate the IRA’s more general limitation on the definition of “Indian” for purposes of that Act," the brief states. "As the court of appeals correctly explained, however, Section 3’s application to '(a)ny recognized tribe or band of Indians residing in Oklahoma,' makes clear that the OIWA 'expand(s) the Secretary’s authority to particular Indian tribes not necessarily encompassed within the definitions of ‘Indian’ set forth in (the IRA).'”
CNO also argued in its writ that the BIA secretary's actions of taking land into trust for UKB violated its 1866, Article 26 treaty rights by "abrogating the Nation’s treaty rights to sovereignty and quiet possession of its reservation lands and the specifically-negotiated treaty terms under which other tribes might enter Cherokee territory."
The Tenth Circuit Court of Appeals held that the U.S. guarantee to protect the Cherokee Nation "against hostilities of other tribes" did not give CNO “power to veto” the BIA’s land in trust acquisition for the UKB. The court also noted that the ordinary meaning of "hostility" was "the practice of an open enemy; opposition in war; war; warfare.”
The solicitor general and his team wrote that the Tenth Circuit's interpretation "appropriately distinguished the UKB’s trust application from the sorts of 'violent conflict(s)' contemplated by the 1866 Treaty."
"In that context, 'the Treaty would have been understood to protect (the Cherokee) Nation from warlike aggression—not from a successful land-into-trust application," states the solicitor general's brief.
The solicitor general's brief also concludes the matter in the case null by adding: "In addition, both petitioner and UKB trace their lineage to the historical Cherokee Nation that entered into the 1866 Treaty, and both accordingly point to the Treaty as a source of their authority. Thus, an acquisition into trust on behalf of UKB does not violate a guarantee in the Treaty to protect 'the Cherokee nation' from hostilities of 'other tribes.'”
The brief also examines CNO's writ argument that the BIA secretary failed to adhere to a Congressional 1992 Appropriations Act that states “until such time as legislation is enacted to the contrary, (no) funds (shall) be used to take land into trust within the boundaries of the original Cherokee territory in Oklahoma without the consent of the Cherokee Nation.”
In their ruling, Tenth Circuit judges cited a 1999 Appropriations Act by Congress that amended the "consent" language to now state "no funds shall be used to take land into trust within the boundaries of the original Cherokee territory in Oklahoma without consultation.” While the judges admitted that the 1999 Act “does not specifically state that it overrides” the BIA’s trust regulation, “when a statute and a regulation are in conflict, the statute renders the regulation which is in conflict with it void and unenforceable.’”
The solicitor general and his team agreed, writing that the Tenth Circuit upheld BIA regulations by correctly determining that the 1999 Appropriations Act statute "overrides" the 1992 BIA regulation. As such, "the court of appeals also correctly held that petitioner’s consent was not required before the Secretary could take the UKB parcel into trust."
UKB officials and officials with the Eastern Oklahoma Region Bureau of Indian Affairs met Dec. 5, 2019 to sign the official land deed granting the tribe its land in trust. The 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.”
The case does not include the 2.03 acres of land near Walmart in Tahlequah that the UKB has also attempted to take into trust. The site was the old Keetoowah Cherokee Casino and that case is still pending litigation.
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