History of the United Keetoowah Band and Disputes with the Cherokee Nation INSTALLMENT SEVEN To watch/listen to this installment go to In the first decade of the 2000s, the UKB has attempted to place into “trust” about 76 acres of land that they own as private property and upon which their headquarters sits. Placing land into trust means that a parcel of property is held by the United States on behalf of a tribe. All Indian reservations are trust properties – legally held by the United States on behalf of the tribal governments. By federal law, all Indian casinos can only be established on trust property approved for that purpose, which is why the Cherokee Nation has for decades asserted that the UKB’s casino was an illegal operation, even though no one was acting on it. Federal laws and treaties have also established that tribes have exclusive jurisdictions within their historic boundaries and that other tribes may not place land into trust within a historic tribe’s territory without the permission of that tribe. So when the UKB makes applications, as they have numerous times since 1987, to have lands placed into trust within the Cherokee Nation’s boundaries, the Cherokee Nation has objected and those applications have all been denied by the Bureau of Indian Affairs, usually upon the recommendation of the regional director in Muskogee who is the person “on the ground” locally and thus most cognizant of the situation. And initially, the application for the 76 acres to be placed in trust was also rejected in 2008, as well as a subsequent application for the two acres that the UKB casino sits on to also be placed into trust. However, the following year, in 2009, a new Assistant Secretary for the Bureau of Indian Affairs, Larry EchoHawk, issued a “determination letter” just a few days before he was even sworn into office effectively stating that he accepted all of the UKB’s arguments about being a successor in interest to the “old” Cherokee Nation and having equal territorial and jurisdictional standing with the Cherokee Nation within the historic fourteen county area of northeastern Oklahoma. He asked the Regional Director for the BIA in Muskogee to reconsider the UKB’s trust application. But there had also been a recent Supreme Court decision called Carcieri that had stated that only tribes organized prior to the 1934 Indian Reorganization Act and 1936 OIWA (see earlier installments) had the right to have land placed into trust on their behalf. This potentially monkey-wrenched the Assistant Secretary’s clear desire to provide land for the UKB within Cherokee Nation territory, as the UKB had only been federally established since 1950, when their constitution and bylaws were approved. EchoHawk stated that he needed more time to review the implications of the Carcieri decision. Under intense pressure from the Cherokee Nation, EchoHawk withdrew some of his statements and denied that his letter had been an administrative “determination.” But he soon came up with some interesting interpretations of the Oklahoma Indian Welfare Act, effectively trying to evade the Carcieri decision. Although Secretary EchoHawk has since resigned, one of the Carcieri-evading arguments developed during his tenure is being advanced in the present court case. The Department of the Interior through its agency, the Bureau of Indian Affairs, has attempted to advance the United Keetoowah Band’s interests by asserting it may place land into trust for a corporation (something now called the UKB corporation), even if prohibited by the Carcieri decision from doing so for a tribe established only after the OIWA had been passed (as the UKB was). In 2010, the UKB’s application for the 76 acres in trust was amended to be for the UKB Corporation, and a second application was made for the 2.3 acres on which the casino sits. The BIA approved the application and placed the land into trust, but the Cherokee Nation filed for and received an injunction delaying it until the legal issues could be resolved. Meanwhile the attorney general of the state of Oklahoma finally moved on the casino in 2013, ordering that since it was not on trust land, and therefore not under the jurisdiction of the National Indian Gaming Commission (NIGC), it was operating illegally under state law. The state gave the UKB a deadline by which it should get the land into trust. A fast-moving timeline of events ensued as the Bureau frantically tried to push through trust applications and gaming licenses to get the UKB legal before the state’s deadline. They were unsuccessful and in August 2013, the casino was closed. In receiving an injunction to delay the BIA’s placement of UKB land into trust, the Cherokee Nation and Cherokee Nation Enterprises (which is the entity under which our gaming is managed) had filed suit against the Department of the Interior and the UKB/UKB Corporation. This case is now in front of Judge Gregory Frizzell of the federal Northern District Court of Oklahoma which is located in Tulsa. Although the case is rife with technical legal complexities, one of the major assertions now made by the DOI/BIA and the UKB is that historically there is a shared jurisdiction between the Cherokee Nation and the UKB. This is a new assertion, as previously the argument had been that there was an “old” Cherokee Nation that was terminated in 1906 and a “new” Cherokee Nation of Oklahoma that emerged in 1975, that is, after the UKB was established, but that argument has already been rejected by the federal courts. The various parties to the case have filed several legal briefs in the past year, and oral arguments were heard by the judge in late July. The final legal briefs were filed on September 8 and all parties are now awaiting the judge’s ruling. There is no deadline on the ruling and so it may be some time before he is able to sort through the competing versions of Cherokee history that have been placed before him, to contemplate the technical legal issues, and to ponder the legal precedents that exist between these two entities, as the judge is basically presented with the same question has been litigated numerous times in various manifestations over the past 25 years: can another tribe place land into trust and assert its jurisdiction within the historic Cherokee Nation treaty boundaries? I attended the oral arguments on July 25 and many of the points made by attorneys on both sides are interesting. Although many are technically complex and most of us as laypeople will not have the expertise to fully understand nor address them, the overarching arguments can be understood (although we must keep in mind that the court’s decision may be influenced by some of the technicalities, and if that is the case, I will try to address them to you in the future). The Cherokee Nation’s attorney pointed out that the “shared jurisdiction” argument was first made in 2012. The attorney pointed out that there is no treaty, no executive order, nothing that has ever said this except that the BIA, a federal agency, was now deciding to say this. Furthermore, CN’s attorney asserted that in effect the BIA was now saying that, implicitly and inherently, all treaty rights, federal court decisions, etc. of the Cherokee Nation no longer applied. The attorney argued that this was “arbitrary and capricious,” for which there is apparently a legal standard of definition. The attorney for Cherokee Nation Enterprises also noted that even the Regional Director of the BIA in its Muskogee office asserted that allowing shared jurisdiction would lead to major issues between the two tribes, since it already had in the instances of regulation of smoke shops and taxation. But at the national level, the BIA had ignored this observation by the person who was “on the ground” locally. The attorney for the BIA essentially asked the federal judge to re-interpret the Carcieri decision differently, and also asserted that since the UKB were people who had “come from” the Cherokee Nation that they had the same rights as the Cherokee Nation within the same land base. She also asserted that shared jurisdictions between tribes had proven to be workable, and offered the Navajos and the Hopis as an example of two tribes who had “worked out” their jurisdictional issues. (At this point, my jaw literally dropped and my eyes rolled! The only “working out” of issues that has occurred between the Navajos and Hopis has been due to federal orders that have impoverished and forcibly relocated about 10,000 Navajos and 100 Hopis, have required new lands to be added to the Navajo reservation, and have been – in the estimation of every scholar and grassroots activist who has ever encountered the issue in depth – the greatest boondoggle of Native maldevelopment the continent has ever seen! The dispute went on for over 120 years before it was “worked out.”) The attorney for the UKB cast both the UKB and CN as equal “descendants” of the “old” Cherokee Nation – that is, relied heavily on a history that has already been rejected in legal precedents. She also rebutted the assertion by CNE’s attorney that the Cherokee Nation’s gaming interests are harmed by the UKB’s operation because in fact, the UKB had already been gaming within the jurisdiction for years and, as she stated it, “The sky had not fallen.” (At this statement, laughter, murmuring, and head nodding broke out from the many UKB members in the courtroom.) But in the end, it was the CNE attorney who had the last word, reminding the judge that the existence of the two tribes’ casinos in the same jurisdiction wasn’t really the point. As he put it, “The sky may not have fallen, but the UKB casino has been operating illegally for 27 years!” We await the judge’s decision as to whether the jurisdiction that has historically belonged exclusively to the Cherokee Nation since 1828 must now be shared.
Posted on: Tue, 07 Oct 2014 20:15:16 +0000
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