Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cherokee Nation v. S.M.R. Jewell

United States District Court, E.D. Oklahoma

May 31, 2017

THE CHEROKEE NATION, Plaintiff,
v.
S.M.R. JEWELL, in her official capacity as Secretary of the Interior, U.S. Department of the Interior, KEVIN WASHBURN, in his official capacity as Acting Assistant Secretary for Indian Affairs, U.S. Department of the Interior, and ROBERT IMPSON, in his official capacity as Eastern Oklahoma Regional Director, Bureau of Indian Affairs, Defendants, and UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA, and UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA CORPORATION, Intervenor/Defendants.

          ORDER [1]

          HONORABLE RONALD A. WHITE UNITED STATES DISTRICT JUDGE.

         On May 24, 2011, the Bureau of Indian Affairs (“BIA”), Eastern Oklahoma Region (“Region”) for the United States Department of the Interior (“DOI”) issued a Decision (“2011 Decision”) approving an amended application of the United Keetoowah Band of Cherokee Indians in Oklahoma (“UKB”) to take a 76 acre tract located in Cherokee County (“Subject Tract”) into trust for the use and benefit of the UKB Corporation. The UKB owns the Subject Tract in fee. The Subject Tract is also located within the former reservation of the Cherokee Nation.

         The Cherokee Nation filed this action challenging the 2011 Decision, pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701-706 (“APA”) and 25 U.S.C. § 465.[2] The Cherokee Nation argues that the 2011 Decision is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law because, inter alia, there is no statutory or regulatory authority to take land into trust for the UKB Corporation, the Cherokee Nation's consent is required to take the Subject Tract into trust, the 2011 Decision violates its treaties, and the 2011 Decision ignores precedent, the jurisdictional conflicts between the Cherokee Nation and the UKB, and the administrative burdens that would be created by the trust acquisition.

         The Cherokee Nation urges this court to set aside the 2011 Decision and to enjoin the Secretary of the Interior (“Secretary”) from accepting the Subject Tract into trust. Now before the court are the Administrative Record and the merits briefs submitted by the Cherokee Nation [Docket No. 67 and 78], by S.M.R. Jewell, Kevin Washburn, and Robert Impson (“Federal Defendants”) [Docket No. 79-1], and by the UKB [Docket No. 77]. For the reasons set forth below, the court finds in favor of the Cherokee Nation, remands this action to the Region, and enjoins the Secretary from taking the Subject Land into trust for the UKB or the UKB Corporation without the Cherokee Nation's written consent and full consideration of the jurisdictional conflicts between the Cherokee Nation and the UKB and the resulting administrative burdens the acquisition would place on the Region.

         History of the UKB Application

         Following is the history of the UKB fee-to-trust application provided in the 2011 Decision. The UKB initially submitted its application to acquire the Subject Tract[3] into trust on June 9, 2004. On April 7, 2006, the Region issued a decision declining to take the Subject Tract into trust (“2006 Decision”). The UKB appealed the 2006 Decision. On May 2, 2008, the Region requested a remand for reconsideration in response to a directive issued by the Assistant Secretary - Indian Affairs (“Assistant Secretary”) on April 5, 2008 (“2008 Directive”). On June 4, 2008, the Interior Board of Indian Appeals (“IBIA”) vacated the 2006 Decision and remanded the case to the Region for reconsideration.

         On August 6, 2008, the Region again denied the UKB's application (“2008 Decision”). The UKB appealed the 2008 Decision to the IBIA. On September 4, 2008, the Acting Assistant Secretary informed the IBIA that he was taking jurisdiction of the appeal.[4] The Assistant Secretary then issued decisions dated June 24, 2009 (“2009 Decision”), July 30, 2009, and September 10, 2010 (“2010 Decision”), which vacated the 2008 Decision and remanded the application to the Region.

         The Assistant Secretary concluded in his 2010 Decision that the UKB should be allowed to amend its application to invoke alternative authority for the acquisition of the land into trust. The UKB amended its application on October 5, 2010, requesting that the Subject Tract be taken into trust for the UKB Corporation rather than the UKB and pursuant to Section 3 of the Oklahoma Indian Welfare Act of June 26, 1936 (“OIWA”), 25 U.S.C. § 503, [5] rather than pursuant to Section 5 of the Indian Reorganization Act of June 18, 1934 (“IRA”), 25 U.S.C. § 465. The Assistant Secretary sent a letter dated January 21, 2011 to the UKB further clarifying matters pertaining to the application (“2011 Letter”).

         The DOI does not presently hold and has not ever held any land in trust for the UKB or the UKB Corporation.

         2011 Decision Findings [6]

         In accordance with the Assistant Secretary's June 24, 2009, July 30, 2009 and September 10, 2010 Decisions, his June 21, 2011 Letter to the UKB, and the Region's review and evaluation of the UKB's amended application, the Region found that statutory authority for the acquisition of the Subject Tract in trust for the UKB Corporation exists in 25 C.F.R §§ 151.3(a)(2) and (3) and Section 3 of the OIWA, 25 U.S.C. § 503. 2011 Decision, Docket No. 67-5, at 53.

         In the 2011 Decision, the Region made the following findings:

         1. 25 C.F.R. § 151.3 & OIWA

         The Region found that 25 C.F.R. § 151.3(a)[7] authorizes the Secretary to take land into trust for the UKB Corporation. 2011 Decision, Docket No. 67-5, at 46 and 53. Section 151.3(a)(2) applies because the UKB owns the Subject Tract in fee. Section 151.3(a)(3) applies because the Secretary found that the UKB has a need for the Subject Tract to be taken into trust so that the UKB may exercise jurisdiction over it, thus facilitating tribal self-determination. Id. at 46.

         The Region further found that “Section 3 of the OIWA, 25 U.S.C. § 503[8], implicitly authorizes the Secretary to take land into trust for the UKB Corporation.” Id. at 46 and 53. Pertinent to the Region's finding is the following language: “Such charter may convey to the incorporated group, in addition to any powers which may properly be vested in a body corporate under the laws of the State of Oklahoma, the right . . . to enjoy any other rights or privileges secured to an organized Indian tribe under the [IRA].” 25 U.S.C. § 5203 (West) (formerly cited as 25 U.S.C. § 503).

         (a) Subject to the provisions contained in the acts of Congress which authorize land acquisitions, land may be acquired for a tribe in trust status:

(1) When the property is located within the exterior boundaries of the tribe's reservation or adjacent thereto, or within a tribal consolidation area; or
(2) When the tribe already owns an interest in the land; or
(3) When the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing.

         25 C.F.R. § 151.3.

         2. 25 C.F.R. § 151.8 & 1999 Appropriations Act - Consent/Consultation

         The Region determined that consultation with, rather than the consent of, the Cherokee Nation is required before the Secretary may take land into trust for the UKB Corporation. The Subject Tract is located within the former reservation[9] of the Cherokee Nation. Specifically, it “is located within the last treaty boundaries of the Cherokee Nation as defined by the terms of the Treaty of New Echota . . . and the 1866 treaty between the Cherokee Nation and the United States . . . .” 2011 Decision, Docket No. 67-5, at 47. An Indian tribe[10] “may acquire land in trust status on a reservation other than its own only when the governing body of the tribe having jurisdiction over such reservation consents in writing to the acquisition . . . .” 25 C.F.R. § 151.8 (emphasis added).

         The Region concluded, however, that Congress overrode the consent requirement of 25 C.F.R. § 151.8 with respect to lands within the boundaries of the former Cherokee reservation by including in the “Interior and Related Agencies Appropriations Act of 1999”[11] (“1999 Appropriations Act”) the following language: “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 consultation with the Cherokee Nation.” 1999 Appropriations Act, 112 Stat. 2681-246 (emphasis added). The Region consulted with the Cherokee Nation.[12]

         3. 25 C.F.R. § 151.9 - The Application

         The Region found that the amended fee-to-trust application dated October 5, 2010 by the UKB requesting that the Subject Tract be placed in trust for the UKB Corporation satisfied the requirements of 25 C.F.R. § 151.9.[13]

         4. 25 C.F.R. §§ 151.10 and 151.11 - Evaluating Criteria

         Section 151.10 lists criteria the Secretary must consider when evaluating requests for acquisition of land in trust when the land is “on-reservation.”[14] Section 151.11 lists the criteria to be considered for land that is “off-reservation.”[15] The Assistant Secretary determined that he need not decide whether the Subject Tract is an on- or off-reservation acquisition, as the result is the same under both analyses.[16] Following are the Region's findings as to each of the criteria listed in § 151.10:

(a) As noted above, the Region found statutory authority in Section 3 of the OIWA, 25 U.S.C. § 503.
(b) As noted above, the Region determined that the UKB, having no land in trust, has a need for this land to be taken into trust to facilitate tribal self-determination.
(c) The Region found that the UKB's stated uses for the Subject Tract - for the operation of programs that provide services to its tribal members - are permissible. The Subject Tract holds community program buildings and a dance ground. 2008 Directive, Docket No. 67-2, at 185. The UKB's ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.