DOJ files appeal in UKB trust land case

BY BRITTNEY BENNETT
Former Reporter
12/19/2017 04:00 PM
TAHLEQUAH, Okla. – U.S. Department of Justice attorneys on Dec. 1 filed an appeal for the Interior Department asking the U.S. Court of Appeals for the 10th Circuit Court to overturn a ruling preventing trust land for the United Keetoowah Band.

The appeal states the U.S. Eastern District of Oklahoma Court “failed to defer to the BIA’s (Bureau of Indian Affairs) controlling analysis of the regulatory criteria that it considers when evaluating trust-acquisition applications.” It also states the lower court “inserted itself” into the BIA internal administrative process, and as such, its judgment “should be reversed.”

“We are extremely excited DOJ has appealed Judge (Ronald) White’s decision, in that, they are defending the UKB right to land in trust and former Assistant Secretary of Interior Larry Echo Hawk’s decision to take land in trust for the United Keetoowah (Band) of Cherokee Indians,” UKB Chief Joe Bunch said.

In 2000, the UKB purchased 76 acres in Tahlequah that were later developed with a community services building, cultural grounds and wellness center. In 2011, the BIA, which operates within the Interior Department, granted the UKB’s application to take that land into trust.

In response, the Cherokee Nation filed a lawsuit against the BIA in 2014 in the Northern District Court of Oklahoma in Tulsa. It argued the Interior’s actions violated jurisdictional treaties between the U.S. and CN and that land could not be taken into trust for the UKB without the CN’s consent.

White ruled in the CN’s favor on May 31, 2017, stating 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.”

White’s ruling adds that before taking “any land into trust for the UKB or the UKB Corporation, the Region shall consider the effect of Carcieri (v. Salazar) on such acquisition.”

In 2009, the Supreme Court ruled in Carcieri v. Salazar that the Interior’s secretary ability to take land into trust through the 1934 Indian Reorganization Act only applies to “persons of Indian descent who are members of any recognized Indian tribe now under federal jurisdiction.”

The UKB was formally recognized as a band of Indians through a congressional statue in 1946 via Section 3 of the Oklahoma Indian Welfare Act of 1936.

The Interior’s appeal asks the Appeals Court to review “whether the definition of ‘Indian’ under the IRA applies to land-into-trust acquisitions under the OIWA.”

The appeal argues that Section 3 of the OIWA grants the UKB Corp. the right to a charter of incorporation that conveys the “rights or privileges secured to an organized Indian tribe under the (IRA),” which includes the right of trust land.

“Regardless of what some might argue, UKB’s government-to-government relationship with the U.S. is equal to all other federally-recognized tribes,” Bunch said. “A positive decision for Keetoowah would allow Keetoowahs to have land in trust, separating our tribe from CNO (Cherokee Nation) and breaking the public service area barrier set by CNO self-determination policy, thus allowing Keetoowah’s to determine what is best for their tribal people.”

The appeal also argues that CN consent was not needed for UKB to take land into trust, as the CN argued under the 1866 Treaty. Instead, the appeal references a rider of the 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.”

“Congress acted clearly to allow UKB to take land in trust without Cherokee Nation of Oklahoma consent. I hope the 10th Circuit Court of Appeals recognizes that and reverses the lower court’s decision requiring CNO consent,” UKB Attorney General Klint Cowen said.

CN Communications officials said the Nation had no comment regarding the appeal because it doesn’t comment on pending litigation.

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