CN attorney general says Interior violated APA

BY BRITTNEY BENNETT
Former Reporter
02/06/2018 04:00 PM
TAHLEQUAH – In a Jan. 16 federal court filing, Cherokee Nation Attorney General Todd Hembree states the U.S. Interior Department, with its decision to seek trust land for the United Keetoowah Band, violated the 1946 Administrative Procedures Act.

In his response to the U.S. Department of Justice, which on behalf of the Interior has appealed a federal court decision blocking trust land for the UKB, Hembree states a 2011 decision by the Bureau of Indian Affairs to grant the UKB 76 acres of trust land “must be set aside because it is arbitrary and capricious under the APA, not in accordance with the law and exceeds the statutory and regulatory authority” of the assistant secretary.

The APA governs the way in which federal administrative agencies propose and establish regulations. It also grants the judiciary oversight over all agency actions.

Hembree’s response claims several APA abuses, including improper interpretation of the Oklahoma Indian Welfare Act to grant the Interior secretary authority to take land into trust for a tribal corporation and improperly ignoring the required CN consent needed for such an act.

The UKB in 2000 purchased 76 acres in Tahlequah and later developed the tract with a community services building, cultural grounds and wellness center. The UKB then sought BIA approval to take the land into trust in 2004. The BIA approved the application in 2011.

In response, the CN 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.

In a May 2017 ruling, Judge Ronald White ruled 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 U.S. Supreme Court ruled in Carcieri v. Salazar that the Interior secretary’s 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 Corp. was formally recognized as an Indian band through a congressional statue in 1946 via the OIWA, an extension of the IRA to include Oklahoma tribes. The UKB received a federally approved constitution in 1950.

The Justice Department’s Dec. 1 appeal to White’s ruling argues that the OIWA retroactively 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 trust land. As such, it asked the U.S. Court of Appeals for the 10th Circuit Court to overturn White’s decision.

In response, Hembree asserts there is “nothing in the 1946 Act conferring any territorial jurisdiction on the UKB.” Instead, it claims the OIWA only allows the Interior secretary to grant charters and contains no conferred authority to grant trust acquisitions. Rather, trust acquisitions can only be granted under the IRA.

Hembree also states neither the UKB constitution nor the UKB Corp. charter, two distinct entities, claim the right to exercise authority in the CN’s territory.

A point of contention in the case has also been whether CN consent is needed before taking land into trust. The DOJ 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 CN “consultation.”

The CN asserts that the land in question resides within the last treaty boundaries of the CN as defined by both the Treaty of New Echota and 1866 Treaty, and as such requires express consent rather than consultation.

In reference to the DOI’s interpretation of the 1999 Appropriation Act, the CN states it only impacts a “narrow exception for lands purchased with federal funds for ‘Operation of Indian Programs,’” and that no such funds were used by UKB to purchase the 76 acres. “The 1999 Act does not negate the requirement that DOI obtain the consent of the Cherokee Nation before placing the Subject Tract into trust. The Department’s determination that consent was not required is contrary to law and must be reversed.”

The CN also requests the 10th Circuit reverse the BIA decision allowing trust land for the UKB. “If allowed to stand, the 2011 Decision would uproot 150 years of treaty obligations, contrary to direct Federal court rulings and numerous prior DOI determinations.”

Click here to viewthe case file.

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