Case 4:12-cv-00493-GKF-TLW Document 132 Filed in USDC ND/OK on 12/11/13 Page 1 of 58
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA
CHEROKEE NATION, and
CHEROKEE NATION ENTERTAINMENT,
LLC,
Plaintiffs,
vs.
S.M.R. JEWELL,
in her official capacity as
Secretary of the Interior
U.S. Department of the Interior
Defendants,
UNITED KEETOOWAH BAND OF
CHEROKEE INDIANS IN OKLAHOMA, and
UNITED KEETOOWAH BAND OF
CHEROKEE INDIANS IN OKLAHOMA
CORPORATION,
Intervenor Defendant(s).
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PLAINTIFFS’ MERITS BRIEF
William David McCullough,
OBA No. 10898
S. Douglas Dodd, OBA No. 2389
Doerner, Saunders, Daniel
& Anderson, L.L.P.
Two West Second Street, Suite 700
Tulsa, Oklahoma 74103-3117
Telephone: (918) 582-1211
Facsimile: (918) 925-5316
Todd Hembree , OBA No. 14739
Attorney General
Cherokee Nation
P.O. Box 948
Tahlequah, OK 74465-0948
Telephone: (918) 456-0671
Facsimile: (918) 458-5580
L. Susan Work, OBA No. 3799
Hobbs Strauss Dean & Walker, LLP
101 Park Avenue, Suite 700
Oklahoma City, OK 73102
Telephone: (405) 602-9425
Facsimile: (405) 602-9426
Attorneys for Cherokee Nation
David E. Keglovits, OBA No. 14259
Amelia A. Fogleman, OBA No. 16221
GableGotwals
100 West Fifth Street, Suite 1100
Tulsa, Oklahoma 74103-4217
Telephone: (918) 595-4800
Facsimile: (918) 595-4990
Attorneys for Cherokee Nation
Entertainment, LLC
Case 4:12-cv-00493-GKF-TLW Document 132 Filed in USDC ND/OK on 12/11/13 Page 2 of 58
TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................................................... 1
HISTORICAL BACKGROUND ................................................................................................... 2
A. Cherokee Nation Government and Treaty Territory............................................... 2
B. Status of UKB ......................................................................................................... 8
C. The UKB’s Illegal Gaming Operations................................................................... 9
TRUST APPLICATION PROCEDURAL HISTORY................................................................. 10
A. The Trust Application for the 76-Acre Community Services Parcel .................... 10
B. The Trust Application for the 2.03-Acre Casino Tract ......................................... 12
STANDARD OF REVIEW .......................................................................................................... 13
ARGUMENTS AND AUTHORITIES......................................................................................... 15
I.
THE 2012 DECISION THAT THE DEPARTMENT POSSESSES STATUTORY
AUTHORITY TO PLACE THE 2.03-ACRE TRACT INTO TRUST ON BEHALF
OF THE UKB CORPORATION IS CONTRARY TO LAW AND THE ASIA’S
OWN POLICIES AND REGULATIONS..................................................................... 15
A. The ASIA Relied on the OIWA as Statutory Authority for a Trust Acquisition
for the UKB Corporation in an Attempt to Circumvent the Supreme Court’s
Ruling in Carcieri v. Salazar. ............................................................................... 15
B. Section 3 of the OIWA and the Land Acquisition Regulations Do Not Permit
Tribal Corporations Such as the UKB Corporation to Acquire Trust Land,
Except Under Limited Circumstances Not Applicable in this Case. .................... 17
C. The ASIA Did Not Follow the Department’s Own Regulations and Policies in
Approving the UKB’s Application to Place the Tract in Trust for the UKB
Corporation, Which Is a Separate Entity................................................................ 20
II.
THE 2012 DECISION THAT THE CHEROKEE NATION’S “FORMER
RESERVATION” IS SHARED BY THE UKB FOR PURPOSES OF
COMPLIANCE WITH THE INDIAN GAMING REGULATORY ACT
AND TRUST ACQUISITION REQUIREMENTS IS CONTRARY TO LAW,
ARBITRARY, AND CAPRICIOUS. ............................................................................ 23
A. The 2012 “Former Reservation” Decision Is Contrary to IGRA’s
Requirements for Tribal Gaming on Tribal Trust Lands Acquired
After October 17, 1988. ........................................................................................ 23
B. The 2012 “Indian Lands” Decision Is Contrary to IGRA’s “Indian Lands”
and Tribal Jurisdictional Requirements. ............................................................... 26
C. The 2012 “Former Reservation”/”Indian Lands” Decision” is Contrary to
Law Established by Controlling Judicial Precedents. .......................................... 27
ii
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D. The 2012 “Former Reservation”/”Indian Lands” Decision Is Arbitrary and
Capricious. ............................................................................................................ 34
III.
THE 2012 DECISION’S APPROVAL OF THE UKB TRUST APPLICATION
WITHOUT CHEROKEE NATION CONSENT IS ARBITRARY AND
CAPRICIOUS AND CONTRARY TO LAW............................................................... 36
A. The 2012 Decision Violates Regulations Requiring Cherokee Nation
Consent to Trust Acquisitions within its Treaty Territory. ................................... 36
B. The 2012 Decision Violates Treaties Protecting the Nation’s Governmental
Authority within its Treaty Territory. ................................................................... 40
IV.
THE 2012 DECISION CONCERNING JURISDICTIONAL CONFLICTS IS
ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW............................. 41
A. The ASIA Failed to Give Sufficient Weight to Evidence Regarding
Jurisdictional Conflicts that Will Occur If the Tract is Placed in Trust................ 41
B. The ASIA’s Interpretation of IRA §476(g) Is Contrary to Law. .......................... 44
V.
THE 2012 DECISION FAILED TO PROPERLY CONSIDER WHETHER
THE BIA IS SUFFICIENTLY EQUIPPED TO DISCHARGE THE
ADDITIONAL RESPONSIBILITIES THAT WOULD RESULT FROM
THE TRUST
ACQUISITION AND IS ARBITRARY AND CAPRICIOUS. .................................... 46
CONCLUSION............................................................................................................................. 47
iii
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TABLE OF AUTHORITIES
Page
Federal Cases
Accord Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394 (1981)............................................ 30
Angel v. Buffington, 330 U.S. 183 (1947) ...................................................................................... 30
Arizona v. United States, __ U.S.__, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) ........................... 20
Buzzard v. Oklahoma Tax Commission, No. 90-C-848-B (Order, Feb. 24, 1992,
N.D. Okla.).................................................................................................................... 29, 30, 31
Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984). .......................................................... 29
Calloway v. District of Columbia,216 F.3d 1 (D.C. Cir. 2000)..................................................... 38
Carcieri v. Salazar, 555 U.S. 379 (2009) ........................................... 13, 15, 16, 17, 18, 27, 28, 48
Cherokee Nation of Okla. v. Norton, 241 F. Supp. 2d 1374 (N.D. Okla. 2002)........................... 34
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).................................................................. 2
Cherokee Nation v. Oklahoma, 461 F.2d 674 (10th Cir. 1972)................................................... 4, 5
Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) ...................................................................... 5
Citizen Band Potawatomi Indian Tribe of Okla. v. Collier, 142 F.3d 1325
(10th Cir. 1998)......................................................................................................................... 39
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)............................................... 14
City of Colorado Springs v. Solis, 589 F.3d 1121 (2009)....................................................... 14, 19
Comcast Corp. v. FCC, 579 F.3d 1 (D.C. Cir. 2009) ................................................................... 44
County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation,
502 U.S. 251 (1992).................................................................................................................. 33
Creek Nation v. United States, 318 U.S. 629 (1943) ...................................................................... 4
Elwell v. Oklahoma ex rel. Bd. of Regents of University of Oklahoma, 693 F.3d 1303
(10th Cir. 2012), cert. denied, Elwell v. Oklahoma ex. Rel. Bd. Of Regents of University of
Oklahoma, 133 S. Ct. 1255 (2013) ........................................................................................... 20
Gaines v. Ski Apache, 8 F.3d 726 (10th Cir. 1993) ....................................................................... 21
Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971)...................................................................... 4
Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978) ............................................................................ 4
Harjo v. Kleppe, 420 F.Supp. 1110 (D.D.C. 1976) ................................................................ 4, 5, 6
Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of Engineers,
702 F.3d 1156 (10th Cir. 2012) ................................................................................................ 14
Kansas v. United States, 249 F.3d 1213 (10th Cir. 2011) ................................................. 25, 30, 32
McAlpine v. United States, 112 F.3d 1429 (1997)........................................................................ 14
Memphis Biofuelds, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 918 (6th Cir. 2009) .......... 21
Miami Tribe of Oklahoma v. United States, 656 F.3d 1129 (10th Cir. 2011) ............................... 25
Miami Tribe of Oklahoma v. United States, 927 F.Supp. 1419 (D. Kan. 1996)........................... 32
Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985)....................................................... 33
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983).............................................................................................................. 15, 45
Motor Vehicle Mfrs. Association v. State Farm, 264 U.S. 29 (1983)........................................... 20
Motor Vehicle Mfs. Assn. v. State Farm Mutual Ins. Co, 463 U.S. 29 (1983) ....................... 15, 44
Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 491 F.Supp.2d 1056 (N.D. Ok. 2007) ...... 21
iv
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New Mexico ex rel. Richardson v. Bureau of Land Management,
565 F.3d 683 (10th Cir.2009) .................................................................................................. 14
Oklahoma v. Hobia, 2012 WL 2995044 (July 20, 2012 N.D. Okla.) ................... 25, 27, 31, 32, 33
Public Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999) .......................................... 20, 35
Ramey Constr. Co., Inc. v. Apache Tribe of the Mescalero Reservation,
673 F.2d 315 (10th Cir. 1982) ................................................................................................... 21
Sault Ste. Marie Tribe of Chippewa Indians v. United States, 576 F.Supp.2d 838
(W.D. Mich. 2008).................................................................................................................... 33
Sokaogon Chippewa Cmty. Mole Lake Band of Lake Superior Chippewa v. Babbitt,
929 F.Supp. 1165 (SW.D. Wis. 1996) ...................................................................................... 28
South Dakota v. Department of Interior, 401 F.Supp.2d 1000 (D.S.D. 2005) ............................. 44
South Dakota v. U.S. Dept. of Interior, 487 F.3d 548 (8th Cir. 2007)........................................... 46
Thomas Brooks Chartered v. Burnett, et al., 920 F.2d 634 (10th Cir. 1990) ................................ 19
TVA v. Hill, 437 U.S. 153 (1978) .................................................................................................. 38
United Keetoowah Band of Cherokee Indians of Oklahoma v. United States,
U.S. Fed. Cl., Case No. 03-1433L ..................................................................................................28
United Keetoowah Band of Cherokee Indians of Oklahoma v. U.S., 480 F.3d 1318
(Fed., Cir. 2007) ..............................................................................................................................28
United Keetoowah Band v. Mankiller, 1993 WL 30793, aff'd 2 F.3d 1161 (1993) ...... 30, 31, 42, 43
United Keetoowah Band v. Oklahoma, E.D. Okla. Case No. 04-CV-340.................................... 10
United Keetoowah Band v. Sec'y of the Interior, No. 90-C-608-B
(N.D. Okla. May 31, 1991) ....................................................................................................... 29
United States v. Dion, 476 U.S. 734 (1986).................................................................................. 38
United States v. Munsingwear, Inc., 340 U.S. 36 (1950) ............................................................. 30
United States v. Will, 449 U.S. 200 (1980)..................................................................................... 38
Utah v. Babbitt, 53 F.3d 1145 (10th Cir. 1995);........................................................................... 34
Wheeler v. U.S Dep’t of the Interior, Bureau of Indian Affairs,
811 F.2d 549 (10th Cir. 1987) .................................................................................................... 2
Federal Statutes
Act of April 26, 1906, 34 Stat. 137................................................................................................. 4
Act of May 7, 1970, Pub. L. 91-240, 84 Stat. 203, codified at 25 U.S.C. §375d ........................... 6
Act of June 18, 1934, 48 Stat. 988, 25 U.S.C. 477 ................................................................. 18, 21
Act of June 26, 1936, 49 Stat. 1967, 25 U.S.C. 503 ........................................... 8, 9, 12, 17, 18, 21
Act of July 1, 1902, 32 Stat. 716 (Cherokee Nation Allotment Act).............................................. 4
Act of August 10, 1946, Pub. L. No. 79-715, §1, 60 Stat. 976 (1946) ........................................... 8
Act of October 5, 1988, Pub. L. 100-472, 102 Stat. 2295 .............................................................. 7
Act of October 9, 1962, Pub. L. 87-775.......................................................................................... 5
Act of October 22, 1970, Pub. L. No. 91-495, 84 Stat. 1091 ......................................................... 6
Act of October 25, 1994, Pub. L. 103-413, 108 Stat. 4272, codified at
25 U.S.C. §§458aa-458hh..................................................................................................... 7, 47
Administrative Procedures Act, 5 U.S.C. §706(2).................................................................. 13, 46
Five Tribes Act of April 26, 1906, 34 Stat. 137 ............................................................................. 5
Interior and Related Agencies Appropriations Act of 1999, Pub. L. No. 105-277,
112 Stat. 2681-246 .................................................................................................................... 37
Jnt. Res. No. 7, March 2, 1905, 34 Stat. 822 .................................................................................. 4
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Treaty of New Echota, Treaty of December 29, 1835, 7 Stat. 478................................................. 2
7 Stat. 18 ......................................................................................................................................... 7
7 Stat. 414 ....................................................................................................................................... 2
14 Stat. 799 ................................................................................................................................. 2, 7
27 Stat. 612 ..................................................................................................................................... 2
32 Stat. 716 ................................................................................................................................... 32
32 Stat. 716, §63 ............................................................................................................................. 4
76 Stat. 77 .........................................................................................................................................
84 Stat. 120 ................................................................................................................................... 19
88 Stat. 2203 ................................................................................................................................... 6
112 Stat. 2681 ............................................................................................................................... 37
5 U.S.C. §553................................................................................................................................ 39
5 U.S.C. §706.............................................................................................................. 13, 44, 45, 46
25 U.S.C. §§331, et seq................................................................................................................... 3
25 U.S.C. §339................................................................................................................................ 3
25 U.S.C. §375d.............................................................................................................................. 6
25 U.S.C. §450-450n (Indian Self-Determination and Education Assistance Act)........................ 6
25 U.S.C. §455-458e....................................................................................................................... 6
25 U.S.C. §§458aaa-458aaa-1 ........................................................................................................ 6
25 U.S.C. §464................................................................................................................................ 5
25 U.S.C. §465.............................................................................................................................. 16
25 U.S.C. § 473............................................................................................................................... 5
25 U.S.C. §476........................................................................................................................ 21, 44
25 U.S.C. §476(f).................................................................................................................... 44, 45
25 U.S.C. §476(g) ......................................................................................................................... 44
25 U.S.C. §488........................................................................................................................ 18, 19
25 U.S.C. §489........................................................................................................................ 18, 19
25 U.S.C. §§501, et seq.(Oklahoma Indian Welfare Act) .............................................................. 8
25 U.S.C. §§991-998 ...................................................................................................................... 5
25 U.S.C. §1779............................................................................................................................ 28
25 U.S.C. §1779(3) ......................................................................................................................... 7
25 U.S.C. § 2701-2721 (Indian Gaming Regulatory Act) ........................................................ 9, 28
25 U.S.C. §2703(b) ....................................................................................................................... 26
25 U.S.C. §2703(4) ................................................................................................................. 31, 32
25 U.S.C. §2710(b)(1) .................................................................................................................. 26
25 U.S.C. §2710(d)(1) .................................................................................................................. 26
25 U.S.C. § 2719..................................................................................................................... 23, 33
25 U.S.C. § 2719(a)(2)(A)(i). ..................................................................................... 23, 26, 34, 39
1866 Treaty ............................................................................................................. 2, 38, 39, 40, 41
Other Authorities
2 Op. Sol. on Indian Affairs 1846, (U.S.D.I. 1979)...................................................................... 22
4 C.N.C.A. §21(a). .......................................................................................................................... 7
4 C.N.C.A. §21(d)........................................................................................................................... 7
140 Cong. Rec. 11,235 (1994) ...................................................................................................... 45
1839 Cherokee Nation Constitution, art. I, sec. 1....................................................................... 2, 3
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2003 Cherokee Nation Constitution art, XVI ................................................................................. 3
Cherokee Nation v. Coleman, IBIA No. 11-122........................................................................... 12
Cherokee Nation LA 06-90 (Aug. 11, 1990) 7
http://www.nigc.gov/Reading_Room/Indian_Land_Opinions.aspx............................................. 36
Kialegee Tribal Town of Okla. v. Muskogee Area Dir., 19 I.B.I.A. 296, 303 (1991) .................. 39
OIWA. H.R. Rep. No. 79-447 (1945)............................................................................................. 8
Oklahoma Indian Welfare Act of June 26, 1936 ............................................................................ 8
S. Rep. No. 79-978 3 (1946) ........................................................................................................... 8
Solicitor's Opinion, 65 I.D. 483 (1958) ........................................................................................ 21
The Cherokee Nation or Tribe of Indians v. United States, 12 Ind. Cl. Comm. 426
(Dkt. 173-A, Op. of the Comm., August 8, 1963) ...................................................................... 5
United Keetoowah Band v. Eastern Oklahoma Regional Director, 47 IBIA 87 (2008) .............. 10
United Keetoowah Band of Cherokee Indians in Oklahoma v. Muskogee Area Director,
BIA, 22 IBIA 75 (June 4, 1992) ................................................................................................ 25
Federal Regulations
25 C.F.R. §2.20(c)......................................................................................................................... 11
25 C.F.R. §151.1 ..................................................................................................................... 18, 23
25 C.F.R. §151.2(b) ................................................................................................................ 19, 20
25 C.F.R. §151.2(f) ..................................................................................................................... 36
25 C.F.R. §151.3 ........................................................................................................................... 20
25 C.F.R. §151.8 ............................................................................................................... 36, 37, 38
25 C.F.R. §151.9 ........................................................................................................................... 22
25 C.F.R. §151.10 ................................................................................................................... 41, 42
25 C.F.R. §151.10(a)..................................................................................................................... 42
25 C.F.R. §151.10(b) .................................................................................................................... 42
25 C.F.R. §151.10(f) ......................................................................................................... 41, 42, 44
25 C.F.R. §151.10(g) .................................................................................................................... 46
25 C.F.R. §151.11 ......................................................................................................................... 42
25 C.F.R. §151.11(b) .................................................................................................................... 39
25 C.F.R. §292.2 ............................................................................................................... 23, 26, 34
25 C.F.R. §502.12(b)(1)................................................................................................................ 26
45 Fed. Reg. 62034 ....................................................................................................................... 19
State Cases
Oklahoma ex rel. Okla. Tax Comm'n v. Thlopthlocco Tribal Town, 839 P.2d 180
(Okla. 1992) .............................................................................................................................. 21
State Statutes
3A O.S. §261................................................................................................................................... 9
Okla. Stat. tit. 21, §941 ................................................................................................................... 9
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INTRODUCTION
In this action, Plaintiffs Cherokee Nation (“Nation”) and Cherokee Nation Entertainment
(“CNE”)1 (collectively the “Cherokee Plaintiffs”) challenge a July 30, 2012 decision (“2012
Decision”) of the Assistant Secretary – Indian Affairs (“ASIA”) for the United States
Department of the Interior (“Department” or “DOI”). Doc. 28-4, AR17-AR26.2
In the 2012
Decision, the ASIA announced his intent to take into trust for gaming purposes a 2.03 acre tract
located in Cherokee County (“Tract”) for the use and benefit of United Keetoowah Band of
Cherokee Indians in Oklahoma Corporation (“UKB Corporation”). The 2012 Decision was
made without Cherokee Nation consent, even though the Tract is located within the Cherokee
Nation’s historic boundaries established by treaties in the early 1800s (“Treaty Territory”). In
order to address this issue, as well as other legal obstacles, the ASIA found, for the first time
ever, that “the former reservation of the Cherokee Nation is also the former reservation” of the
United Keetoowah Band of Cherokee Indians in Oklahoma (“UKB”), with governmental
authority equal to the Cherokee Nation within the Nation’s Treaty Territory. Doc. 28-4, AR21.3
If allowed to stand, the 2012 Decision would uproot 150 years of treaty obligations, contrary to
direct Federal court rulings and numerous prior DOI determinations.
1
CNE is a wholly owned subsidiary of Cherokee Nation Businesses, LLC, which is wholly
owned by the Nation. CNE operates several casinos, including casinos in Tulsa and Cherokee
Counties.
2
The most pertinent portions of the administrative record cited in this brief are contained
in Appendix 1 to this brief for convenience of the Court and the parties, including an index
listing the cited ECF document numbers in numerical order.
3
In the “briefing paper” to accompany the 2012 Decision, the ASIA states, “This decision
is the first time the Department has recognized two tribes as having the same former reservation
for purposes of qualifying for the exception in IGRA for acquiring land in trust after 1988.”
Doc. 42-6, AR4380 (emphasis added).
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HISTORICAL BACKGROUND
A. Cherokee Nation Government and Treaty Territory
The Cherokee Nation, a federally recognized Indian tribe, is “a distinct organization
capable of governing itself, consistent with its existence even prior to the signing of treaties with
the United States.” Wheeler v. U.S. Dep’t of the Interior, Bureau of Indian Affairs, 811 F.2d
549, 551 (10th Cir. 1987) (citing Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)). The
United States historically recognized the Nation’s governmental authority in its treaty relations
with the Nation, particularly in the 1835 and 1866 treaties that expressly protected the Nation’s
governmental authority4 within the jurisdictional boundaries established by treaty (“Treaty
Territory”).5
Consistent with its treaty rights, the Nation has exercised its governmental
authority through its 1827, 1839, 1976, and 2003 Constitutions, each of which was adopted and
implemented under the Nation’s inherent sovereign authority. These constitutions have defined
the Treaty Territory over which the Cherokee Nation exercises governmental jurisdiction.6 The
4
The Treaty of New Echota, Treaty of December 29, 1835, 7 Stat. 478 (Proclamation, May
23, 1836) (“1835 Treaty”), art 5, expressly guaranteed the Nation the right to self-government
within its treaty territory, so long as consistent with the Constitution and laws enacted by
Congress regulating trade with Indians. This guarantee was protected by the Treaty of July 19,
1866, 14 Stat. 799 (Proclamation August 11, 1866) (“1866 Treaty”), art 13, which reaffirmed and
declared in full force all provisions of prior treaties not inconsistent with the provisions of the
1866 Treaty. The 1835 treaty protection of self-government was not inconsistent with the 1866
treaty.
5
The Nation acquired fee patent title to its lands in 1838 as required by the 1835 Treaty.
The Nation’s jurisdictional boundaries were later reduced to the present 14-county area in what is
now northeastern Oklahoma, due to cessions of lands in western Indian Territory under the 1866
Treaty and cessions of the Nation’s Cherokee Outlet lands under an agreement ratified by Act of
March 3, 1893, ch. 209, 27 Stat. 612, 640, § 10.
6
The 1839 Cherokee Nation Constitution, art. I, sec. 1, defined the Nation’s boundaries by
reference to the 1833 Cherokee Nation Treaty, Act of Feb. 14, 1833, 7 Stat., 414 (Proclamation,
Apr. 12, 1834), which contains the same legal description as the description in the 1835 treaty,
art. 2. The 1976 Constitution, art.VI, sec. 2, references “the historic boundaries of the Cherokee
Nation” in its residency requirement for the office of Principal Chief. The 2003 Constitution
defines the Nation’s boundaries in article II, entitled “Territorial Jurisdiction,” as follows: “The
boundaries of the Cherokee Nation territory shall be those described by the patents of 1838 and
2
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1976 Constitution, approved pursuant to a referendum called by the Secretary of the Interior,
specifically states the “provisions of this Constitution overrule and supersede the provisions of
the Cherokee Nation constitution enacted the 6th day of September 1839.” 1976 Cherokee
Nation Constitution, art. XVI. The 2003 Constitution also expressly supersedes the provisions of
its predecessor Constitutions.
2003 Cherokee Nation Constitution, art. XVI.
None of the
Nation’s Constitutions establish or recognize that any clan, organization, town, group, society, or
other entity may exercise any governmental authority within the Nation’s Treaty Territory.7
The Cherokee Nation government has withstood enormous pressures. The Cherokee
people inhabited large portions of Southeastern United States prior to removal to Indian Territory
in the 1830s. After Congress passed the Indian Removal Act in 1830, the Cherokee Nation
ceded its lands east of the Mississippi River and removed to its present Treaty Territory. In
1887, Congress passed the Dawes Act, also called the General Allotment Act. Act of February
8, 1887, 24 Stat. 388, codified at 25 U.S.C. §§ 331, et seq. The Dawes Act provided for the
allotment of tribal lands to individual members of most tribes nationwide, but it excluded the
“Five Civilized Tribes” (Cherokee, Choctaw, Chickasaw, Muscogee (Creek) and Seminole
Nations) (“Five Tribes”) from the Act. 25 U.S.C. § 339.
In 1893, Congress created the Dawes Commission and empowered it to seek allotment of
the lands of the Five Tribes. Their resulting individual allotment acts reflected a Congressional
1846 diminished only by the Treaty of July 19, 1866, and the Act of March 3, 1893.” The 1976
Constitution, art. XVII, and the 2003 Constitution, art. XVII, established the seat of government
of the Cherokee Nation at Tahlequah, Oklahoma. See 1839, 1976, and 2003 Cherokee Nation
Constitutions, Appendix 2.
7
While protecting the Nation’s governmental integrity, both the 1976 and 2003
Constitutions expressly respect the rights of its citizens to participate in organizations, such as
the UKB, as follows: “Nothing in this Constitution shall be construed to prohibit the right of any
Cherokee to belong to a recognized clan or organization in the Cherokee Nation.” 1976
Constitution, art. XIV; 2003 Constitution, art. XIV.
3
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plan to dissolve the governments of the Five Tribes by 1906.
See e.g., Cherokee Nation
Allotment Act of July 1, 1902, 32 Stat. 716, § 63 (stating that the “tribal government of the
Cherokee Nation shall not continue longer than” March 4, 1906). However, that plan was
aborted two days before the deadline for dissolution when Congress approved a joint resolution
continuing the Five Tribes’ existence and governments until completion of allotment.8 The next
month, Congress enacted the Five Tribes Act, which continued the Five Tribes’ government
“until otherwise authorized by law.”9 There have been no Congressional enactments
discontinuing the Five Tribes’ governments since that time, and the federal courts have
recognized that the Five Tribes were never terminated. See Creek Nation v. United States, 318
U.S. 629, 638 (1943); Cherokee Nation v. Okla., 461 F.2d 674, 678 (10th Cir. 1972);10
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971); Harjo v. Kleppe, 420 F. Supp. 1110,
1129 (D.D.C. 1976), aff’d sub nom, Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978).
8
The joint resolution provides: “That the tribal existence and present tribal governments
of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole Tribes or Nations or Indians in the
Indian Territory are hereby continued in full force and effect for all purposes under existing laws
until all property of such tribes, or the proceeds thereof, shall be distributed among the
individual members of said tribes unless hereafter otherwise provided by law.” Jnt. Res. No. 7,
March 2, 1906, 34 Stat. 822 (emphasis added).
9
In contrast to the joint resolution, the Five Tribes Act simply provides: “That the tribal
existence and present tribal governments of the Choctaw, Chickasaw, Cherokee, Creek, and
Seminole tribes or nations are hereby continued in full force and effect for all purposes
authorized by law, until otherwise provided by law.” Act of April 26, 1906, 34 Stat. 137, § 28.
10
“The Supreme Court has said that ‘when Congress has once established a [Indian]
reservation, all tracts included within it remain a part of the reservation until separated therefrom
by Congress.’ There has been no separation here; the tribal governments still exist; and
Oklahoma was admitted to the Union in 1907 upon compliance with the Enabling Act of June
16, 1906, 34 Stat. 267, which required a disclaimer of title to all lands owned “by any Indian or
Indian tribes.” Cherokee Nation v. Okla., 461 F.2d at 678 (emphasis added) (citation omitted).
4
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The Cherokee Nation further withstood the pressure of the DOI’s persistent “bureaucratic
imperialism” in DOI’s dealings with the Five Tribes following statehood,11 and continued to
exercise governmental authority even before its adoption of its new constitution in 1976. For
example, in the 1960s, the Cherokee Nation successfully litigated land claims against the United
States. See The Cherokee Nation or Tribe of Indians v. United States, 12 Ind. Cl. Comm. 426
(Dkt. 173-A, Op. of the Comm., Aug. 8, 1963) and Act of Oct. 9, 1962, Pub. L. 87-775, 76 Stat.
77, 25 U.S.C. §§ 991-998 (claim award relating to the Cherokee Outlet). In the early 1970s, the
Cherokee Nation, with the Choctaw and Chickasaw Nations, also successfully litigated claims
concerning the Arkansas Riverbed. Choctaw Nation v. Okla., 397 U.S. 620 (1970); Cherokee
Nation v. Oklahoma, 461 F.2d 675 (10th Cir. 1972).
Congress also recognized the Nation’s identity and government in its enactment of
various laws after statehood.
One of these laws, the Indian Reorganization Act of 1934,
acknowledged the existence of the Cherokee Nation by naming it as one of a number of tribes
excluded from five of its sections. 25 U.S.C. § 473.12 Two other laws enacted before adoption
of the Cherokee Nation’s 1976 Constitution likewise recognized the Cherokee Nation
11
“The available evidence clearly reveals a pattern of action [following statehood] on the
part of the Department and its Bureau of Indian Affairs designed to prevent any tribal resistance
to the Department’s methods of administering those Indian affairs delegated to it by Congress.
This attitude, which can only be characterized as bureaucratic imperialism, manifested itself in
deliberate attempts to frustrate, debilitate, and generally prevent from functioning the tribal
governments expressly preserved by § 28 of the [Five Tribes] Act [of April 26, 1906, 34 Stat.
137].” Harjo, 420 F. Supp. at 1130. This interference is continuing in DOI’s present efforts to
debilitate the Cherokee Nation’s government by attempting to enable a band to encroach on the
Nation’s territorial jurisdiction.
12
“. . . Provided, That sections 4, 7, 16, 17, and 18 of this Act [25 U.S.C.A. §§ 464, 467,
476, 477, 478] shall not apply to the following-named Indian tribes, the members of such Indian
tribes, together with members of other tribes affiliated with such named tribes located in the
State of Oklahoma, as follows: Cheyenne, Arapaho, Apache, Comanche, Kiowa, Caddo,
Delaware, Wichita, Osage, Kaw, Otoe, Tonkawa, Pawnee, Ponca, Shawnee, Ottawa, Quapaw,
Seneca, Wyandotte, Iowa, Sac and Fox, Kickapoo, Pottawatomi, Cherokee, Chickasaw,
Choctaw, Creek, and Seminole.” 25 U.S.C. § 473. (Emphasis added.)
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government. The first law, the Act of May 1970, authorized the escheat of restricted lands of
citizens of the Five Tribes to the tribe from which title derived.13 The second law, the Act of
October 22, 1970, expressly recognized the authority of the Five Tribes’ chiefs who were
selected in accordance with procedures established by the governing entity of each tribe.14 This
act foreclosed future misinterpretation of section 6 of the 1906 Act by BIA officials, who had
used that section to justify illegal federal appointments of the chiefs of the Five Tribes for
decades after statehood.
Consistent with the Nation’s sovereign status, the Nation and the United States have
maintained a continuous government-to-government relationship. The Nation’s government, like
those of many other tribes, was strengthened by the Indian Self-Determination and Education
Assistance Act (“ISDEAA”) of 1975.15 The Cherokee Nation was one of a small group of tribes
nationwide selected to participate when Congress amended the ISDEAA to authorize a self-
13
The Act of May 7, 1970, Pub. L. 91-240, 84 Stat. 203, codified at 25 U.S.C. § 375d,
provides: “That upon the final determination of a court having jurisdiction or by decision of the
Secretary of Interior after a period of five years from the death of the decedent, it is determined
that a member of the Cherokee, Chickasaw, Choctaw, or Seminole Nations or Tribes of
Oklahoma or a person of blood of said tribes has died intestate without heirs, owning trust or
restricted Indian lands in Oklahoma or an interest therein or rents or profits therefrom, such
lands, interests, or profits shall escheat to the Nation or tribe from which title to the trust or
restricted Indian lands or interest therein was derived and shall be held thereafter in trust by the
United States for said nation or tribe.”
14
Section 1 of the Act October 22, 1970, Pub. L. No. 91-495, 84 Stat. 1091, provides that
“notwithstanding any other provisions of law, the principal chiefs of the Cherokee, Choctaw,
Creek, and Seminole Tribes of Oklahoma and the governor of the Chickasaw Tribe of Oklahoma
shall be popularly selected by the respective tribes in accordance with procedures established by
the officially recognized tribal spokesman and/or governing entity.” In Harjo, the court rejected
DOI’s argument that the Act of October 20, 1970 was “a repeal of the tribes’ right to
constitutional self-government in favor of a one-man elected monarchy.” 420 F. Supp. at 1140.
The court found that “the fundamental congressional judgment underlying the Act was a desire
to facilitate tribal self-determination to the maximum extent possible.” Id. at 1141.
15
Act of January 4, 1975, Pub. L. No. 96-638, 88 Stat. 2203, codified as amended at 25
U.S.C. §§ 450-450n, 455-458e, 458aa-458hh, 458aaa-458aaa-1.
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governance demonstration project in 1988.16 This program, which was made permanent and
extended to additional tribes in 1994, enables compacting tribes to determine their individual
funding needs and to utilize federal funds in accordance with multi-year funding agreements
negotiated government-to-government between tribes and DOI.17
In 1989, the Cherokee Nation adopted a gaming code, enacted as Title 4 of the Cherokee
Nation Code Annotated (“C.N.C.A.”). The gaming code requires any person conducting gaming
on Cherokee Nation property to have a valid and current public gaming license issued by the
Gaming Commissioner of the Cherokee Nation. 4 C.N.C.A. § 21(a). The code states that it is a
crime to conduct public gaming operations within the jurisdiction of the Cherokee Nation
without the written approval and licensure of the Gaming Commission. 4 C.N.C.A. § 21(d).
Significantly, in its findings in the 2002 Cherokee, Choctaw, and Chickasaw Claims
Settlement Act, Congress expressly recognized the Cherokee Nation’s “most recent” 1976
constitution and the Nation’s relationship with the United States, as follows:
The Cherokee Nation, a federally recognized Indian tribe with its present
tribal headquarters south of Tahlequah, Oklahoma, having adopted its most recent
constitution on June 26, 1976, and having entered into various treaties with the
United States, including but not limited to the Treaty at Hopewell, executed on
November 28, 1785 (7 Stat. 18), and the Treaty at Washington, D.C., executed on
July 19, 1866 (14 Stat. 799), has maintained a continuous government-togovernment relationship with the United States since the earliest years of the
Union.
25 U.S.C. § 1779(3)(emphasis added).
Any suggestion that the present day Cherokee Nation is not the same entity as the original
Cherokee Nation simply has no foundation in law.
16
Act of Oct. 5, 1988, Pub. L. 100-472, 102 Stat. 2296; Cherokee Nation LA 06-90 (Aug.
11, 1990 Council approval of self-governance compact).
17
Act of Oct. 25, 1994, Pub. L. 103-413, 108 Stat. 4272, codified at 25 U.S.C. §§ 458aa –
458hh (including a finding that “the tribal right of self-government flows from the inherent
sovereignty of Indian tribes and nations.”)
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B. Status of UKB
In contrast to the Cherokee Nation’s sovereign status, the UKB never maintained a treaty
relationship with the United States and never held title to the lands owned in fee by the Cherokee
Nation. No evidence has been presented indicating that UKB members resided or reside in a
specific geographic area within the Nation’s Treaty Territory.
In 1937, a group identified as the Keetoowah Society sought permission to organize
under Section 3 of the Oklahoma Indian Welfare Act of June 26, 1936, 25 U.S.C. §§ 501, et seq.
(“OIWA”). That same year, the DOI Solicitor determined that the Keetoowah Society was a
voluntary society and could not be considered a “recognized band” under section 3 of the OIWA:
The primary distinction between a band and a society is that a band is a political
body. In other words, a band has functions and powers of government. It is
generally the historic unit of government in those tribes where bands exist. . . .
This essential character is not possessed by the Keetoowah Society nor any of its
factions. It is neither historically nor actually a governing unit of the Cherokee
Nation, but a society of citizens within the Nation with common beliefs and
aspirations.
Op. of July 29, 1937. Doc. 119-2, AR4915.
On March 24, 1945 the Acting Secretary of the Interior informed Congress that DOI
again declined the UKB’s request to organize under the OIWA because DOI could not make a
positive finding that the society was a tribe or band within the meaning of the OIWA. H.R. Rep.
No. 79-447, at 2 (1945); S. Rep. No. 79-978, at 3 (1946). The next year Congress approved the
Act of August 10, 1946, Pub. L. No. 79-715, § 1, 60 Stat. 976 (“1946 Act”): “That the
Keetoowah Indians of the Cherokee Nation of Oklahoma shall be recognized as a band of
Indians residing in Oklahoma within the meaning of section 3 of the Act of June 26, 1936.”
There is nothing in the 1947 act conferring territorial jurisdiction on the UKB. In contrast,
section 2 of the same 1946 Act “set aside for the use and benefit of the Indians of the Cheyenne
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and Arapaho Reservation in Oklahoma” a specified school reserve tract.
The UKB organized in 1950 under section 3 of the OIWA, 25 U.S.C. § 503, with a
federally approved constitution. Doc. 45, AR1749-1758. The UKB Corporation was approved
at the same election under authority of section 3 of the OIWA. Id. The UKB and the UKB
Corporation are separate and distinct legal entities.
The UKB Constitution and the UKB
Corporation Charter do not claim that the UKB has authority to exercise governmental authority
in the Cherokee Nation’s Treaty Territory or in any other defined geographic area. Doc. 45,
AR1749-1758. They make no claims to any geographic or territorial jurisdiction anywhere.
C. The UKB’s Illegal Gaming Operations
The UKB continuously operated a casino on the 2.03-acre Tract (which was and remains
fee land)18 from 1986 until the casino’s closure on August 30, 2013. Doc. 28-4, AR18. This
gaming was conducted in violation of federal and state law, including the Indian Gaming
Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721, the Oklahoma State-Tribal Gaming Act, 3A
O.S. §§ 261-282, and various criminal laws, including without limitation 21 O.S. §§ 941-42.
The UKB was aware of these violations. The National Indian Gaming Commission (“NIGC”)
approved the UKB’s gaming ordinance in 1995 “for gaming only on Indian lands as defined in
the IGRA,” [Doc. 45, AR1974] but stated that the UKB had no “Indian lands” under IGRA and
“is not authorized to conduct class II or class III gaming.” Doc. 45, AR1981. The UKB did not
appeal that finding and, according to a July 18, 2011 memorandum from NIGC counsel, “it also
was not followed – not by the UKB or the NIGC.” Doc. 121, AR5084. The NIGC reached the
same conclusion again on September 29, 2000. Doc. 45, AR1974-1979.
18
The UKB purchased the Tract in unrestricted fee status through installment payments and
received title by warranty deed filed in Cherokee County on January 2, 1991. Doc 121-1, AR
5096.
9
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In 2004, the State of Oklahoma sought to close the UKB casino. United Keetoowah
Band v. Okla., E.D. Okla. Case No. 04-CV-340 (the “Eastern District Case”). In 2011, the
Oklahoma Attorney General urged NIGC to make another decision on the “Indian lands” issue,
as required by a 2006 court order in the Eastern District Case. Doc. 120-3, AR4977-4978.
NIGC issued a more detailed decision on July 21, 2011, reaching the same conclusion as the
2000 NIGC decision. Doc. 46, AR2790-92. The NIGC Chairman incorporated by reference and
enclosed a July 18, 2011, NIGC general counsel memorandum finding that the Tract does not
qualify as Indian lands under IGRA, that the NIGC does not have jurisdiction to regulate the
gaming activities there, and that the Department’s Office of the Solicitor has concurred with the
opinion. Doc. 121, AR5077-5095. The casino was closed on August 30, 2013, under agreed
orders that required the UKB to close the casino if the Tract was not held in trust by the United
States by that date. Eastern District Case, Dkt. 148, 150, 151. The Cherokee Nation was
allowed to file a brief, amicus curiae, but was not a party to the Eastern District case.
TRUST APPLICATION PROCEDURAL HISTORY
A. The Trust Application for the 76-Acre Community Services Parcel
The trust application for the 2.03-acre Tract shares a common history with a separate
UKB trust application for a non-contiguous 76-acre “community services parcel” also located in
Cherokee County. On June 9, 2004, the UKB submitted an application to DOI requesting that
the 76-acre parcel be taken into trust. Doc. 45, AR 2176. The Regional Director of the Eastern
Oklahoma Regional Office, Bureau of Indian Affairs (“Regional Director”) issued a decision on
April 7, 2006 (“the 2006 Decision”) denying the UKB’s request. Doc. 36-6, AR3909-3914. The
UKB appealed the 2006 Decision to the Interior Board of Indian Appeals (“IBIA”). Doc. 45, AR
2176.
10
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On April 5, 2008, the ASIA, Carl J. Artman, directed the Regional Director to request
remand from the IBIA and to reconsider the 2006 Decision (“2008 Directive”). Doc. 119-4,
AR4931-4932. The Regional Director requested remand on May 2, 2008, Doc. 119-5, AR49364937, and the IBIA remanded the matter for reconsideration on June 4, 2008. United Keetoowah
Band v. E. Okla. Reg’l Dir., 47 IBIA 87 (2008), Doc. 119-6, AR4939-4945 . On August 6, 2008,
the Regional Director issued a second decision (“the 2008 Decision”), again denying the UKB’s
application. Doc. 119-7, AR4946-4971. The UKB appealed the 2008 Decision to the IBIA.
Doc. 45, AR 2176.
On September 4, 2008, before an IBIA decision, the Acting ASIA, George T. Skibine,
informed the IBIA that the ASIA was taking jurisdiction over the appeal pursuant to 25 C.F.R. §
2.20(c). Doc. 120-1, AR4972. The IBIA transferred the appeal to the ASIA. Doc. 1202,AR4974-4976. Following transfer of the appeal, the ASIA, Larry Echo Hawk, issued four
decisions involving the 76-acre parcel over an 18-month time period, dated June 24, 2009,
Doc. 35-4, AR3234-3246 (“June 2009 Decision”); July 30, 2009, Doc.35-4, AR 3248-3251
(“July 2009 Decision”); September 10, 2010, Doc. 35-4, AR3253-3257 (“2010 Decision””); and
January 21, 2011, Doc. 45, AR2229-2230 (“January 2011 Decision”). As discussed in more
detail in Parts I - V of this brief, these four decisions were specifically referenced in the 2012
Decision involving the 2.03-acre Tract. Doc. 28-4, AR22, 24.
On October 5, 2010, the UKB amended its application by requesting that the 76-acre
parcel be taken into trust for the UKB Corporation. Doc. 45, AR 2176. On May 24, 2011, the
Regional Director, under the constraints of the four decisions issued by ASIA Echo Hawk in
2009, 2010, and 2011, issued a decision determining that the 76-acre parcel would be taken into
trust for the UKB Corporation (“the 2011 Decision”). Doc. 45, AR 2176-2186. Because the
11
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2011 Decision was issued by the Regional Director and not a final Department decision, the
Nation filed an appeal of those limited aspects of that decision subject to further administrative
review in Cherokee Nation v. Coleman, IBIA No. 11-122.19
B. The Trust Application for the 2.03-Acre Casino Tract
The UKB filed the application for the 2.03-acre Tract on April 10, 2006, Doc. 45,
AR1650-1799. The UKB amended the application in August 2011, three months after the 2011
Decision involving the 76-acre parcel, to request that the Tract be taken by the United States into
trust for either the UKB or the UKB Corporation. Doc. 35, AR3048.
On April 19, 2012, the Regional Director issued a memorandum recommending approval
of the Tract application. The memorandum reflected the constraints imposed on the Regional
Director by the ASIA, in its references to the ASIA’s June 2009 Decision and 2010 Decision.
Doc. 121-1, AR5095, AR 5098. The Acting ASIA, Michael Black, thereafter issued the 2012
Decision approving the application on behalf of the UKB Corporation, along with a
memorandum to the Regional Director authorizing acceptance of the Tract into trust. Doc. 28-4,
AR17-AR26; Doc. 28-5, AR27-28. On August 7, 2012, the Department published a notice in the
Federal Register of “a final agency determination” stating that the ASIA had “decided to accept
approximately 2.03 acres of land into trust for the United Keetoowah Band of Oklahoma
Corporation under the authority of the Oklahoma Indian Welfare Act Reorganization Act [sic] of
1936, 25 U.S.C. 503.” Doc. 2, Compl., Ex. 2.
DOI originally stayed finalization of the trust acquisition for the Tract during the
pendency of the present action. DOI changed its position when the deadline for closure of the
casino approached, and notified the Cherokee Nation, on July 15, 2013, of its intent to take the
19
No decision is anticipated in that case within the next several months.
12
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Tract into trust in thirty (30) days. The Cherokee Nation sought and obtained a preliminary
injunction in the present action that prevented DOI’s acceptance of a trust deed. DOI and the
UKB sought a stay of the preliminary injunction, which was denied by this Court on August 12,
2013, and by the Tenth Circuit on August 26, 2013. Doc. 91 and Doc. 106. The Tenth Circuit
dismissed the DOI and UKB appeals of this Court’s Preliminary Injunction Order on November
25, 2013.
STANDARD OF REVIEW
The 2012 Decision is subject to reversal under the Administrative Procedures Act
(“APA”), 5 U.S.C. § 706(2), because it includes a number of conclusions that are not in
accordance with the law, exceed statutory authority, and fail to observe procedural requirements,
including its determinations that: (1) land can be placed into trust under section 3 of the OIWA
on behalf of a federally chartered corporation upon request by the tribe affiliated with that
corporation, rendering Carcieri20 inapplicable; (2) the Cherokee Nation’s “former reservation” is
also the “former reservation” of the UKB and lands therein can be acquired after the effective
date of IGRA under requirements concerning on-reservation, as opposed to off-reservation,
lands; (3) the placement of a tract into trust will automatically confer the status of “Indian lands”
on a tribe under IGRA for gaming purposes without the necessity of complying with other IGRA
requirements, including the requirement that the tribe possess and exercise governmental
authority over the tract; (4) it is not necessary to comply with treaties and regulations requiring
another tribe’s consent to a trust application involving land located within that tribe’s reservation
if the Department believes the tribe shares the reservation with the other tribe; and (5) the 1994
amendment of section 476 of the IRA prohibits the Department from complying with regulations
requiring consideration of jurisdictional conflicts.
20
Carcieri v. Salazar, 555 U.S. 379 (2009). See discussion of Carcieri in Part I below.
13
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The 2012 Decision is also arbitrary and capricious under the APA, § 707(2). Agency
action is “arbitrary and capricious” under the APA if the agency (1) entirely failed to consider an
important aspect of the problem, (2) offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise, (3) failed to base its decision on consideration of the
relevant factors, or (4) made a clear error of judgment. Hillsdale Envtl. Loss Prevention, Inc. v.
U.S. Army Corps of Engineers, 702 F.3d 1156, 1165 (10th Cir. 2012) (citing New Mexico ex rel.
Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 704 (10th Cir. 2009)).
Agency action shall be set aside if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 414 (1971). “The critical question in answering this inquiry is ‘whether the decision was
based on a consideration of the relevant factors and whether there has been a clear error of
judgment.’” City of Colo. Springs v. Solis, 589 F.3d 1121, 1131 (10th Cir. 2009) (citing
McAlpine v. United States, 112 F.3d 1429, 1436 (10th Cir. 1997) (quoting Overton Park, 401
U.S. at 416)). As will be discussed below, the 2012 Decision must be set aside because it is
arbitrary and capricious under the APA, not in accordance with the law, and in excess of
statutory authority and regulations of the Assistant Secretary.
14
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ARGUMENTS AND AUTHORITIES
I.
THE 2012 DECISION THAT THE DEPARTMENT POSSESSES
STATUTORY AUTHORITY TO PLACE THE 2.03-ACRE TRACT INTO
TRUST ON BEHALF OF THE UKB CORPORATION IS CONTRARY TO
LAW AND THE ASIA’S OWN POLICIES AND REGULATIONS.
A. The ASIA Relied on the OIWA as Statutory Authority for a Trust
Acquisition for the UKB Corporation in an Attempt to Circumvent the
Supreme Court’s Ruling in Carcieri v. Salazar.
At the time the ASIA issued his 2012 Decision, a Departmental “briefing paper” was
circulated. The paper identified “Noteworthy Issues” addressed in the 2012 Decision and stated:
This decision and the one already made on the 76-acres are the first to find
authority to acquire land in trust pursuant to section 3 of the OIWA. These
decisions marks [sic] the first trust acquisitions approved for a tribal corporation
of a tribe first recognized after 1934.
Doc. 42-6, AR4380 (emphasis added); see also Doc. 72. Clearly, even the ASIA recognizes that
the decision that section 3 of the OIWA authorizes a trust acquisition for the UKB Corporation
deviates from established federal law, court decisions and the Department’s own policies and
regulations. This decision is “so implausible that it could not be ascribed to a difference in view
or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins., 463 U.S. 29, 43 (1983).
The ASIA developed this theory to circumvent the Supreme Court’s ruling in Carcieri v.
Salazar, 555 U.S. 379 (2009), which was decided while the UKB’s two trust applications were
pending. In Carcieri, the Court held that DOI cannot accept land into trust under section 5 of the
IRA for any Indian tribe that was not “under federal jurisdiction” in 1934. Id. at 382-83. In
the 2012 Decision, the ASIA acknowledged the UKB was organized in 1950, but concluded that
“land could be taken into trust on the former Cherokee reservation for the UKB Corporation.”
Doc. 28-4, AR 22.
15
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Shortly thereafter, the ASIA stated in his June 2009 Decision that he had “authority to
take land into trust pursuant to section 5 of the IRA.”21 However, he deferred final decision on
his authority to take land into trust for the UKB “until the Department has developed a more
comprehensive understanding of Carcieri,” and invited the parties to address the Carcieri issue.
Doc. 35-4, AR3237. Notwithstanding that invitation, he mentioned in the 2010 Decision that the
UKB was organized in 1950 under authorization of the 1946 Act (implying that Carcieri would
preclude approval of the trust applications under authority of section 5 of the IRA) and presented
the UKB with three options designed to circumvent the Carcieri decision:
1) continue to invoke my authority under Section 5 of the Indian Reorganization
Act but seek to have the land taken in trust for one or more half-blood members
who could later transfer their interest to the UKB;22
2) invoke my authority under Section 3 of the Oklahoma Indian Welfare Act
(OIWA) and seek to have the land held in trust for the UKB Corporation;23 or,
3) invoke my authority under Section 1 of the OIWA and supplement the record
with evidence to show that the parcel satisfies the conditions.24
Doc. 35-4, AR3253.
21
Section 5 of the IRA states in pertinent part: “Title to any lands or rights acquired
pursuant to this Act or the Act of July 28, 1955, as amended shall be taken in the name of the
United States in trust for the Indian tribe or individual Indian for which the land is acquired, and
such lands or rights shall be exempt from State and local taxation. 25 U.S.C. § 465 (emphasis
added). See Appendix 2 for full text of 25 U.S.C. § 465.
22
This first option was not viable for either of the two trust applications because it would
have required that “half-blood members” make the trust application—not the UKB. Further, this
scenario would not accomplish the circumvention of Carcieri as contemplated by the ASIA. The
trust to trust transfer of the property would still have required the ASIA to issue a trust deed in
the name of the United States for the use and benefit of the UKB.
23
Only this second option was a potentially useful rationale for purposes of the 2.03-acre
Tract trust application. See 2012 Decision, Doc. 28-4, AR 22 (“reaffirming a decision that land
could be taken into trust on the former Cherokee reservation for the UKB Corporation.”).
24
This third option was not viable for the 2.03-acre Tract trust application because it would
not result in placement of the land into trust for gaming purposes. Section 1 of the OIWA
authorizes the Secretary to acquire land into trust provided “such lands shall be agricultural and
grazing lands.” The 2006 trust application for the 2.03-acre Tract states the property “is and will
be used for economic development purposes for the benefit of the members of the UKB. The
UKB intends to use the Subject Property for gaming.” Doc. 35-4, AR3080.
16
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According to the ASIA’s January 21, 2011, Decision clarifying the 2010 Decision,
Carcieri did not apply to trust acquisitions for a tribal corporation under section 3 of the OIWA.
Doc. 45, AR2229. The Regional Director stated in her April 19, 2012 memorandum that the
2010 Decision had already determined that section 3 of the OIWA “implicitly authorized” the
Secretary to take the land into trust for the UKB Corporation. Doc. 121-1, AR5096. The 2012
Decision also referenced the 2010 Decision that section 3 of the OIWA “implicitly authorizes the
Secretary to take land into trust for the UKB Corporation.” Doc. 28-4, AR22.
As the “briefing paper” to accompany the 2012 Decision stated, “the Assistant Secretary
determined that he could acquire land in trust for the UKB Corporation under the OIWA so the
temporal limitation on acquiring land in the IRA that the Supreme Court found in the Carcieri
decision did not apply.” Doc. 42-6, AR4380. Thus, the second option (utilizing section 3 of the
OIWA) presented in the 2010 Decision was ultimately relied upon for both trust applications,
Doc. 45, AR2176-2177; Doc. 28-4, AR22.
B. Section 3 of the OIWA and the Land Acquisition Regulations Do Not
Permit Tribal Corporations Such as the UKB Corporation to Acquire
Trust Land, Except Under Limited Circumstances Not Applicable in this
Case.
Section 3 of the OIWA provides that charters approved by the Secretary of the Interior
“may convey to the incorporated group . . . any other rights or privileges secured to an organized
Indian tribe” under the IRA. 25 U.S.C. § 503. (See Appendix 2 for full text.) The ASIA erred
as a matter of law in the 2012 Decision by relying on section 3 as statutory authority for the
acquisition, based on his finding that this provision “implicitly authorizes the Secretary to take
land into trust for the UKB Corporation.” Doc. 28-4, AR22 (emphasis added).
Rather than
explaining his reasoning, the ASIA simply cited his 2010 Decision. In the 2010 Decision, the
ASIA noted that section 3(r) of the 1950 UKB Charter authorizes the UKB Corporation to
17
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acquire “property of every description, real and personal,” and then mischaracterized that
authority as being equivalent to Secretarial authority to take land into trust for the Corporation.
In reaching that conclusion, the ASIA relied on the theory that trust acquisitions are “rights or
privileges secured to an organized Indian tribe under [the IRA].” Doc. 35-4, AR3254.
However, the IRA provides that charters approved by the Secretary “may convey to the
incorporated group . . . any other rights or privileges secured to an organized Indian tribe” under
the IRA. 25 U.S.C. § 503. Thus, it merely grants tribal corporations the same rights as the tribes
themselves—not greater rights. Because Carcieri makes clear the UKB has no right to have the
land taken into trust under section 5 of the IRA, section 3 of the OIWA does not create such a
right for the benefit of the UKB Corporation.
In reaching the conclusion that land may be placed in trust for the benefit of the UKB
Corporation, the ASIA failed to apply the Department’s own trust acquisition regulations, which
expressly acknowledge limitations on trust acquisitions for federal chartered tribal
corporations.25 These limitations are contained in the following regulatory definition of
“tribe:”
For purposes of acquisitions made under the authority of 25 U.S.C. 488 and 489,
or other statutory authority which specifically authorizes trust acquisitions for
such corporations, “Tribe” also means a corporation chartered under section 17 of
the Act of June 18, 1934 (48 Stat. 988, 25 U.S.C. 477) or section 3 of the Act of
June 26, 1936 (49 Stat. 1967; 25 U.S.C. 503).
25
The 2012 Decision purportedly approved the UKB’s application to accept land into
trust under 25 C.F.R. Part 151, which sets forth the “authorities, policy, and procedures
governing the acquisition of land by the United States in trust status for individual Indians and
tribes.” 25 C.F.R. § 151.1. The 2012 Decision states: “The procedures and policies governing
the Secretary’s exercise of discretion for acquiring lands in trust for Indian tribes and
individuals are set forth in authorizing legislation and in 25 C.F.R. Part 151.” Doc. 28-4, AR 21.
(emphasis added).
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25 C.F.R. 151.2(b) (emphasis added).26 (See Appendix 2 for full text.) “The failure of an agency
to follow its own regulations is challengeable under the APA.” City of Colo. Springs, 589 F.3d
at 1129 (10th Cir. 2009)(quoting Thomas Brooks Chartered v. Burnett, 920 F.2d 634, 642 (10th
Cir. 1990)).
These specific limitations on the ASIA’s authority to acquire land into trust for a
chartered tribal corporation establish the Department’s recognition that a federal chartered tribal
corporation may acquire trust property only when expressly authorized by law. Section 5 of the
IRA expressly authorizes trust acquisitions only for tribes—not for tribal corporations. Section 3
of the OIWA contains no authorization for any trust acquisitions and only references section 5 of
the IRA. The Department’s recognition that the IRA and the OIWA do not provide statutory
authority for trust acquisitions for tribal corporations is addressed succinctly in the 1980
comment accompanying the final regulatory definition of “tribe” in 25 C.F.R. § 151.2(b) as
follows:
Another criticism of this definition was its failure to include tribal corporations.
Tribal corporations were not included because the acquisition authority in the
Indian Reorganization Act is limited to an “Indian tribe or individual Indian”;
however, it has been pointed out that other statutory authority does provide for the
acquisition of land in trust for tribal corporations; namely section 2 of Public Law
91-229 (84 Stat. 120; 25 U.S.C. 489). In view of this, the definition has been
changed to include corporations for limited purposes.”
45 Fed. Reg. 62034 (Sept. 18, 1980) (emphasis added). It is significant that the Department
did not interpret the “other rights or privileges” provisions in section 3 of the OIWA as
authorizing trust acquisitions by corporations chartered under section 3; otherwise, the references
in § 151.2(b) to specific authorizing statutes would have included section 3.
“After all,
‘[c]ommon sense, reflected in the canon expressio unius est exclusio alterius, suggests that the
26
The two statutes cited as providing express statutory authority for federal chartered tribal
corporations involve land acquired with a Farmers Home Administration (FHA) Direct Loan
Account loan under the terms specified in 25 U.S.C. § 488.
19
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specification of [one provision] implies’ the exclusion of others.” Elwell v. Okla. ex rel. Bd. of
Regents of Univ. of Okla., 693 F.3d 1303, 1312 (10th Cir. 2012), cert. denied, Elwell v.
Oklahoma ex. Rel. Bd. Of Regents of University of Oklahoma, 133 S. Ct. 1255 (2013) (citing
Ariz. v. United States, __ U.S.__, 132 S.Ct. 2492, 2520 (2012)).
The ASIA’s finding that section 3 of the OIWA “implicitly authorizes” a trust acquisition
for a federal chartered tribal corporation is contrary to the legally binding land acquisition
regulations which have governed trust acquisitions for more than 30 years. “When an agency
departs from a prior interpretation of a statute that it is charged with implementing, the agency
must justify the change of interpretation with a ‘reasoned analysis.’” Public Lands Council v.
Babbitt, 167 F.3d 1287, 1306 (10th Cir. 1999) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm,
264 U.S. 29, 42 (1983)). There is no reasoned analysis here. The regulations, 25 C.F.R. §
151.2(b), authorize the Secretary to take land into trust for a chartered corporation only if a
statute specifically authorizes such action. The ASIA found only “implicit” statutory authority
under section 3 of the OIWA to take the land into trust for the UKB Corporation. As such, the
ASIA’s decision is contrary to his authority under the law and regulations.
Put simply, the ASIA is permitted to acquire land in trust only for “an individual Indian
or [a] tribe” under 25 C.F.R. §151.3, and the UKB Corporation does not meet the definition of
“tribe” in § 151.2(b). Thus, the law and implementing regulations do not permit the ASIA to
take land into trust for the UKB Corporation.
C. The ASIA Did Not Follow the Department’s Own Regulations and
Policies in Approving the UKB’s Application to Place the Tract in Trust
for the UKB Corporation, Which Is a Separate Entity.
The UKB, not the UKB Corporation, submitted the trust application for both tracts. The
UKB submitted an amended trust application for the 2.03-acre Tract, asking “that the Secretary
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accept the Gaming [Tract] into trust either for the [UKB] as requested in the 2006 Trust
Application, or, in the alternative, for the [UKB’s] federally-chartered corporation.” Doc. 35-4,
AR3049. The ASIA chose to approve the UKB application on behalf of the UKB Corporation as
trust beneficiary, contrary to the Department’s own policies and procedures.
The UKB and the UKB Corporation are separate and distinct legal entities. Indian tribes
were authorized to organize as governmental entities under section 16 of the IRA, 25 U.S.C. §
476, and as business entities under section 17 of the IRA, 25 U.S.C. § 477. These entities
organized under the IRA are considered to be separate and distinct.27 Section 3 of the OIWA
authorized Oklahoma tribes to adopt a constitution and bylaws and authorized the Secretary to
“issue to any such organized group a charter of incorporation.” 25 U.S.C. § 503. These entities
organized under the OIWA are also considered to be separate and distinct.28
The ASIA recognized this distinction in his 2010 Decision:
Within the UKB tribal structure are the tribal government and the tribal
corporation. They are separate entities. Solicitor’s Opinion, 65 I.D. 483 (1958), 2
Op. Sol. on Indian Affairs 1846, (U.S.D.I. 1979). The UKB Government
represents the UKB in its governmental affairs. And the UKB Corporation
represents the UKB in its business affairs.
Doc. 36-2, AR3588, fn. 1 (emphasis added).
27
See Gaines v. Ski Apache, 8 F.3d 726, 729 (10th Cir. 1993) (tribe’s “constitutional and
corporate entities [are] separate and distinct”); Ramey Constr. Co. v. Apache Tribe of the
Mescalero Reservation, 673 F.2d 315, 320 (10th Cir. 1982) (noting the “distinctness” of a tribe
from a tribal corporation); Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 491 F. Supp. 2d
1056, 1059 (N.D. Okla. 2007) (“The constitutional entity created pursuant to § 476 and the
corporate entity created pursuant to § 477 are considered separate and distinct entities.”).
28
See Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 918 (6th Cir.
2009) (Chickasaw Nation Industries, Inc., a “federally chartered tribal corporation” under section
503 of the OIWA, “is wholly owned by the Chickasaw Nation tribe but is an entity separate and
distinct from the Chickasaw Nation.”); Okla. ex rel. Okla. Tax Comm' n v. Thlopthlocco Tribal
Town, 839 P.2d 180, 183-184 (Okla. 1992) (“Congress authorized the tribes to organize two
separate entities: a political governing body to exercise preexisting powers of self-government
pursuant to section 16 of the Act, and a new tribal corporation to engage in business transactions
pursuant to section 17.”).
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The land acquisition regulations require that a “Tribe desiring to acquire land in trust
status shall file a written request for approval of such acquisition with the Secretary.” 25 C.F.R. §
151.9. The Department’s fee-to-trust handbook sets forth the application requirements:
All fee-to-trust applications must contain the following . . .:
1.
Written request.
A written request need not be in any special form but must contain
each of the following items.
a.
A statement that the applicant is requesting approval of a
trust acquisition by the United States of America for their benefit.29
b.
Identification of applicant(s). . . .
f.
A Legal instrument (such as a deed), to verify applicant
ownership. . . .
2.
In addition to the requirements of Step 1, above, the Tribal
applicant will also submit the following: . . .
b.
Statutory Authority.
Doc. 123, AR4987-4988 (emphasis added).
While the UKB arguably submitted an application on its own behalf, it also requested the
application be processed “in the alternative,” for the UKB Corporation. Doc. 35-4, AR3049.
Because the UKB and UKB Corporation are separate and distinct legal entities, the ASIA should
have required that the UKB Corporation submit the application for acceptance of the land into
trust for its benefit. The ASIA abused his discretion in processing the UKB application in a
manner not in conformity with his own regulations and rules as set forth in 25 C.F.R. Part 151
and the Fee-to-Trust Handbook.
29
This provision is taken directly from the regulatory requirement that the applicant in a
fee-to-trust application must be the same legal entity as the proposed trust beneficiary. 25 C.F.R.
§ 151.9. Here, the UKB was the applicant, but the UKB Corporation is the beneficiary, a
conflation of legally separate and distinct parties not permitted by the regulations.
22
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II.
THE 2012 DECISION THAT THE CHEROKEE NATION’S “FORMER
RESERVATION” IS SHARED BY THE UKB FOR PURPOSES OF
COMPLIANCE WITH THE INDIAN GAMING REGULATORY ACT
AND TRUST ACQUISITION REQUIREMENTS IS CONTRARY TO
LAW, ARBITRARY, AND CAPRICIOUS.
A. The 2012 “Former Reservation” Decision Is Contrary to IGRA’s
Requirements for Tribal Gaming on Tribal Trust Lands Acquired After
October 17, 1988.
The Regional Director’s April 19, 2012 memorandum recommended placement of the
2.03-acre Tract into trust, subject to a determination “that the property may be acquired in trust
for gaming purposes.” Doc. 121-1, AR5095. This was a new factor not addressed with respect
to the 76-acre parcel application, and was directed at special requirements in IGRA, 25 U.S.C. §
2719, prohibiting gaming on land acquired in trust after October 17, 1988 unless one of several
specific requirements are met. These requirements include more stringent requirements for offreservation acquisitions in § 2719(b)(1)(A), which can be avoided if the Indian tribe has no
reservation and the land is in Oklahoma and “within the boundaries of the Indian tribe’s former
reservation,30 as defined by the Secretary . . . .” 25 U.S.C. § 2719(a)(2)(A)(i) (emphasis added).
Doc. 28-4, AR20.
The 2012 Decision applied the less stringent requirement in § 2719(a)(2)(A)(i) by issuing
a determination that the former reservation of the Cherokee Nation is also the former reservation
of the UKB for the purposes of applying the “former reservation” exception.
The ASIA
bypassed the regulatory definition of “former reservation,” which has been defined by the
Secretary in 25 C.F.R. § 292.2 as the “last reservation that was established by treaty, Executive
Order, or Secretarial Order for an Oklahoma tribe.” The ASIA cited no UKB treaty, executive
30
The statutory reference to “former reservations” in Oklahoma reflects assumptions (rather
than judicial decisions) since statehood that tribes in Oklahoma have no reservations. The
Cherokee Nation maintains that it possesses unique legal rights within its Treaty Territory under
its treaties with the United States, regardless of reservation or non-reservation classification.
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order, or secretarial order ever establishing any reservation for the UKB. None exists. Instead,
the ASIA suggested that the Secretary may “define” an Oklahoma tribe’s “former reservation”
on a case by case basis, by stating, erroneously, that the “express language” of IGRA “makes it
clear” “that the determination of whether the land is within the boundaries of the tribe’s former
reservation is a determination for the Secretary to make.” Doc. 28-4, AR20 (emphasis added).
The ASIA also rationalized that IGRA and the regulations do not “address the question of
whether two federally recognized tribes, one of which was formed under express congressional
authorization from citizens of the other, can share the same former reservation for purposes of
qualifying for the ‘former reservation’ exception.” Doc. 28-4, AR20. This rationalization is
based on a misinterpretation of the 1946 Act. There is nothing in that law (and also nothing in
Cherokee Nation’s laws) authorizing or requiring UKB separation or affecting the ability of
UKB members to enjoy all rights and privileges enjoyed by other Cherokee citizens. Instead,
almost fifty years after passage of the 1946 Act, the UKB unilaterally attempted to establish
separate citizenship through adoption of a September 16, 1990 enrollment ordinance (referenced
in Doc. 36-3, AR3597) interfering with Cherokee Nation citizenship by providing:
All persons whose names are on the rolls of the Band as of September 15, 1990
who are also enrolled with any other Indian Tribe, Band, or Nation shall be
deemed to have relinquished their enrollment in the Band as of October 15, 1990
unless they shall have filed with the Band their written notarized relinquishment
of their enrollment with any other Indian Tribe(s), Band(s), or Nation(s) with
which they are enrolled on or before October 15, 1990.
Res. 90-UKB-9-4; see United Keetoowah Band of Cherokee Indians in Okla. v. Muskogee Area
Dir., BIA, 22 IBIA 75, 85 (June 4, 1992) (“Resolution 90-UKB 9-4 was enacted in virtual
secrecy, provided no opportunity for input from or consideration by tribal members, was applied
arbitrarily, and denied members affected by it of their right to tribal membership without due
24
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process.”).31 Such unilateral action does not reflect Congressional intent in its approval of the
1946 Act or limit Cherokee Nation territorial jurisdiction established and recognized for more
than two centuries. “The question of jurisdiction ‘focuses principally on congressional intent and
purpose, rather than recent unilateral actions’ of a tribe.” Okla. v. Hobia, 2012 WL 2995044, at
*15 (N.D. Okla. July 20, 2012) (citing Kan. v. United States, 249 F.3d 1213, 1229 (10th Cir.
2011) and Miami Tribe of Okla. v. United States, 656 F.3d 1129, 1145 (10th Cir. 2011)).
The ASIA found, with no consideration of the Cherokee Nation’s treaty history, that
“[t]here is no question that the UKB occupied the former Cherokee reservation nor that the
Keetoowah Society of Oklahoma Cherokees was formed out of the Cherokee Nation of
Oklahoma.” Doc. 28-4, AR20. The ASIA based this conclusion on (1)“the origins of the Band
[UKB] as composed of Cherokee Indians,” which the ASIA again mischaracterized as
“reorganized and separately recognized under express authorization from Congress,” and (2) the
UKB constitution’s establishment of UKB tribal headquarters in Tahlequah “within the historic
reservation boundaries.” Doc. 28-4, AR20. If the ASIA had correctly applied the regulatory
definition in 25 C.F.R. § 292.2, he would have reached the inescapable conclusion that no treaty,
executive order or Secretarial order ever established a reservation for the UKB, and the UKB
accordingly has no “former reservation” as defined by the regulations.
31
In a November 1990 UKB election, 92 of the 174 UKB individuals who voted were
enrolled with both the UKB and the Cherokee Nation, and 106 of the 179 individuals who voted
in the resulting run-off election were enrolled with both the UKB and the Cherokee Nation.
United Keetoowah Band of Cherokee Indians in Oklahoma v. Muskogee Area Director, BIA, 22
IBIA at 79. These statistics demonstrate that the 1946 Act and the 1950 UKB Constitution and
Charter did not separate the UKB from the Cherokee Nation.
25
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B. The 2012 “Indian Lands” Decision Is Contrary to IGRA’s “Indian
Lands” and Tribal Jurisdictional Requirements.
IGRA expressly provides that an Indian tribe may engage in gaming only on “Indian
lands” which must be “within such tribe’s jurisdiction.” 25 U.S.C. § 2710(b)(1),(d)(1).32 “Indian
lands” includes “any lands title to which is either held in trust by the United States for the benefit
of any Indian tribe or individual . . . and over which an Indian tribe exercises governmental
power.” 25 U.S.C. § 2703(B) (emphasis added). NIGC regulations further clarify the definition
of “Indian lands” with respect to trust lands as follows: “Land over which an Indian tribe
exercises governmental power and that is . . . [h]eld in trust by the United States for the benefit
of any Indian tribe or individual . . . .” 25 C.F.R. § 502.12(b)(1) (emphasis added).
The 2012 Decision found that, once acquired in trust, “the UKB may conduct gaming on
this property pursuant to 25 U.S.C. § 2719(a)(2)(A)(i) and the implementing regulations set forth
in 25 C.F.R. Part 292.” Doc. 28-4, AR21. This completely ignores IGRA’s “Indian lands”
requirement that a gaming tribe must possess and exercise jurisdiction over the gaming site. This
finding is particularly problematic because NIGC counsel reached the same conclusion in the
July 18, 2011, Indian lands opinion involving the Tract. That opinion correctly found that the
tract fails to meet the IGRA Indian lands requirement.33 It nevertheless concluded, with no legal
analysis concerning UKB’s claimed territorial jurisdiction over the Tract, that “if the Gaming
32
Section 2710(b)(1) of IGRA provides that an Indian tribe “may engage in, or license and
regulate, class II gaming on Indian lands within such tribe's jurisdiction” if certain requirements
listed therein are met. Section 2710(d)(1) provides that “Class III gaming activities shall be
lawful on Indian lands only if such activities” are authorized by an ordinance or resolution that
“is adopted by the governing body of the Indian tribe having jurisdiction over such lands.”
(Emphasis added.)
33
The UKB did not assert reservation status of the Tract, and the 2000 and 2011 UKB
Indian lands opinions state that the Tract is not a reservation for purposes of IGRA. Because that
is a non-issue in this case, there can be no confusion regarding the Cherokee Nation’s right to
assert its complete and sole authority over the area within its territorial boundaries for other
governmental purposes in the future.
26
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Site is taken into trust by the United States, the UKB will have exclusive jurisdiction, and this
opinion shall be revisited,” citing as authority only the June 2009 and 2010 Decisions. Doc. 121,
AR5093, fn.8. This bootstrap reasoning is contrary to court decisions and DOI’s past positions as
discussed in Part II.C. and II.D. of this brief. It in effect obliterates the IGRA requirements that
there must be a legal basis for tribal jurisdiction over tribal trust lands in order for the tribe to
conduct gaming thereon. Moreover, it has set a dangerous precedent for DOI failure to properly
implement IGRA. For example, the NIGC counsel similarly relied on the June 2009 Decision in
a May 24, 2012, Indian lands opinion finding that the title history of a restricted Creek allotment
“demonstrates Muscogee (Creek) Nation jurisdiction and an absence of Kialegee jurisdiction,”
but the Kialegees would have exclusive jurisdiction over land held in trust for the Tribal Town.
Okla. v. Hobia, No. 12-CV-054, N.D. Okla., Notice of Federal Action, Doc. 134 at 13, Ex. 2.
C. The 2012 “Former Reservation”/”Indian Lands” Decision” is Contrary to
Law Established by Controlling Judicial Precedents.
1. The Decision is Contrary to Controlling Rulings of this Court.
The first hint that DOI might decide that the UKB shares a “former reservation” with the
Cherokee Nation appeared in the June 2009 Decision, which suggested, as a possible way of
avoiding application of Carcieri, that the UKB was the successor-in-interest to the “historical”
Cherokee Nation and thus under Federal jurisdiction in 1934 when the IRA was enacted.
Doc.45, AR2207, AR2208, fn. 1, 2209. However, the July 2009 Decision “clarified” the June
Decision by stating that it “did not render a final ruling on the status of the UKB as successor-ininterest” and “did not intend to make any binding findings regarding the status of the historic
Cherokee Tribe.”34 Doc. 35-4, AR3248-3251. The 2010 Decision withdrew the successor-in34
The July 2009 Decision’s emphasis on the non-finality of the June 2009 Decision’s
characterization of the UKB as a successor-in-interest to the Cherokee Nation was a selfprotective measure on the part of DOI. If that characterization had become a final decision, the
27
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interest theory altogether for purposes of the 76-acre parcel application. Doc. 35-4, AR3253. As
a result, the 2011 Decision contained no finding that the Cherokee Nation Treaty Territory was
shared by the UKB as a successor in interest. By that time the Department had developed its
theory regarding use of section 3 of the OIWA in order to bypass Carcieri.
The 2012 Decision shifted to a “former reservation” theory in order to apply IGRA’s
after-acquired lands provisions to the 2.03-acre Tract application. As recognized by this Court in
the preliminary injunction ruling in the present case, the 2012 Decision ignored DOI’s “own
previous decisions, case law, and the legal history of the Cherokee Nation, including its treaty
rights.” Doc. 92 at 14. The 2012 Decision instead stated that it was necessary to discuss “only
the background relevant to the limited question of whether the parcel is within the former
reservation of the UKB within the meaning of Indian Gaming Regulatory Act (IGRA) and DOI’s
regulations at Parts 151 and 292.” Doc.28-4, AR17. This approach reflects a total disconnect
from the well-reasoned prior decisions in three Northern District of Oklahoma cases in which the
UKB was a party. There is no basis for DOI’s claim to superior agency expertise in overriding
UKB could have claimed that the June 2009 Decision was an admission of Federal liability in the
UKB’s pending claims suit against the United States under the Cherokee, Choctaw, and
Chickasaw Nations Claims Settlement Act, 25 U.S.C. §§ 1779-1779g. A joint status report filed
in that case on July 27, 2009 – just three days before the July 2012 Decision – includes the
parties’ proposed schedule for a motion for summary judgment “on the issues of whether the
[UKB] is a successor-in-interest to the historic Cherokee Nation and whether that status is
sufficient to support the claim . . .” (emphasis added) United Keetoowah Band of Cherokee
Indians of Okla. v. United States, Case No. 03-1433L, U.S. Fed. Cl., Doc. 117; see also United
Keetoowah Band of Cherokee Indians of Okla. v. United States, 480 F.3d 1318, 1327 (Fed. Cir.
2007) (explaining basis for claim and denying Cherokee Nation intervention). There have been
ongoing settlement discussions in the case regarding DOI acceptance of the 76-acre parcel and
the 2.03-acre Tract into trust for the UKB in return for UKB’s agreement to dismiss the claims
suit. Id., Amended Joint Status Reports, Doc. 119, ¶¶ 5-8, Doc. 121, Doc. 123, Doc. 125, Doc.
130, Doc. 139, Doc. 145, p. 7-9. See Sokaogon Chippewa Cmty. Mole Lake Band of Lake
Superior Chippewa v. Babbitt, 929 F. Supp. 1165, 1176 (W.D. Wis. 1996) (the Department’s
review of an application to take land in trust is subject to the due process clause and must be
unbiased).
28
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these court decisions, which recognize the treaty rights of the Cherokee Nation and conclude that
the UKB has no claim to territorial jurisdiction within the Nation’s Treaty Territory. C.f.
Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843, n.9 (1984) (“[t]he judiciary is the final
authority on issues of statutory construction and must reject administrative constructions which
are contrary to clear congressional intent”).
In the first of these three decisions, United Keetoowah Band v. Secretary of the Interior,
No. 90-C-608-B (N.D. Okla. May 31, 1991), the UKB challenged the Department’s longstanding
position that, because the Nation was the Tribe with sovereign authority over Indian country
lands within its Treaty Territory, the Nation’s consent was required for any application by the
UKB to have land acquired in trust status within the Treaty Territory. Doc.30-17, AR458-459.
In holding that the Nation was an indispensable party to the case, this Court agreed with DOI’s
then-position that the subject lands of the “old” Cherokee Reservation are under the jurisdiction
of one sovereign, the Cherokee Nation, and not the UKB. The Court also emphasized that prior
case law indicates that Congress, the Secretary, and the courts have not made any distinction
between the Cherokee Nation at the time of Oklahoma statehood and the current Cherokee
Nation of Oklahoma. The Court further stated that the federal government “has long recognized
the special interests of the Cherokee Nation in these lands.” Doc. 30-17,AR463, AR467, AR469.
This Court reached the same conclusions in Buzzard v. Oklahoma Tax Commission, No.
90-C-848-B (N.D. Okla. Feb. 24, 1992), Doc. 32-3, AR1256-1269, aff'd, 992 F.2d 1073 (10th
Cir. 1993), Doc. 30-17, AR519-524. The UKB claimed that it was “heir to the unallotted lands
within the original Cherokee Indian Reservation,” that it was entitled to exercise tribal
sovereignty over those lands, and that the lands were “transform[ed] into Indian country upon the
UKB’s purchase in fee.” Doc. 32-3, AR1262. The Court rejected these claims, stating:
29
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The UKB . . . offers no authority to support its claim that it is heir to the original
Cherokee Indian Reservation. The Act of August 10, 1946 simply recognizes the
UKB as a “band of Indians residing in Oklahoma”; it does not set aside a
reservation for the UKB or acknowledge the UKB’s jurisdiction over the original
Cherokee Indian Reservation. Also, while the Act’s recognition of the UKB
permitted the UKB to incorporate under Section 3 of the [Oklahoma Indian
Welfare Act], nothing in Section 3 creates or recognizes the UKB’s claim to the
original Cherokee Indian Reservation.
Doc. 32-3, AR1263. at 8 (emphasis added).
The Court further found, “[c]ontrary to the UKB’s claim,” that the Secretary had
consistently recognized that the lands within the Nation’s Treaty Territory were under the
exclusive jurisdiction and control of the Cherokee Nation, not the UKB, and that “the original
Cherokee Indian Reservation is the former reservation of the Cherokee Nation, not the UKB.”
Doc. 32-3, AR1263-1264 (citation omitted). The Court concluded “that UKB has failed to show
any treaty or Congressional act establishing UKB’s ‘inherited’ right or claim to reservation land
within the boundaries of the old Cherokee Indian Reservation.” Doc. 32-3, AR1264 (footnote
omitted). As specifically noted by the Tenth Circuit in an appeal involving other issues in the
case, the UKB did not challenge the District Court’s holding in Buzzard “that the UKB is not
an heir to the Cherokee Nation.” 992 F.2d at 1075 n.5. The UKB is bound by that decision.
Kan. v. United States, 249 F.3d at 1230; Accord Federated Dep't Stores, Inc. v. Moitie, 452 U.S.
394, 398 (1981); United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950); Angel v. Buffington,
330 U.S. 183, 189 (1947) (“If a litigant chooses not to continue to assert his rights after an
intermediate tribunal has decided against him, he has concluded his litigation as effectively as
though he had proceeded through the highest tribunal available to him.”).
In the third case, the UKB challenged the Cherokee Nation’s authority to enforce its
tobacco tax and licensing requirements on individual restricted allotments that the UKB used for
smoke shops. United Keetoowah Band v, Mankiller, No. 92-C-585-B (N.D. Okla. Jan. 27, 1993,
30
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attached to and aff'd, 2 F.3d 1161 (10th Cir. 1993), 1993 WL 307937, Doc. 30-17, AR526-531.
The Court held that the UKB’s challenge “directly attack[ed] the sovereignty of the Cherokee
Nation over the subject land . . .” Id. at AR529. The Court noted that it had “previously decided
that the Cherokee Nation is the only tribal entity with jurisdictional authority in Indian Country
within the Cherokee Nation,” and that it had “previously determined . . . that the Cherokee
Nation's sovereignty is preeminent to that of the UKB in Cherokee Nation Indian Country.” Id.
The Court concluded that, given the Court’s two prior holdings on the superiority of the Nation’s
interests and jurisdiction, principles of res judicata and collateral estoppel barred the UKB from
again raising the merits of its successor-in-interest claim. Doc. 30-17, AR529. The Court
dismissed the case based on its determination that the Cherokee Nation was an indispensable
party and was protected from suit by sovereign immunity.
This Court’s decisions in the United Keetoowah Band, Buzzard, and Mankiller cases are
controlling in the present case. The UKB, which was a party in all three cases, and DOI which
was a party in United Keetoowah Band and in Mankiller, are precluded from challenging the
Cherokee Nation’s exclusive tribal governmental authority over Indian country – whether that be
restricted allotments or trust lands – within its Treaty Territory.
More recently, this Court considered similar issues with respect to the Kialegee Tribal
Town and the Muscogee (Creek) Nation in Oklahoma v. Hobia, 2012 WL 2995044 (N.D. Okla.
July 20, 2012). In that case, the Kialegees attempted to establish that a proposed gaming site
within the Muscogee (Creek) Nation’s boundaries on a restricted Creek allotment to be leased by
the Kialegees constituted “Indian lands” as defined by IGRA, 25 U.S.C. § 2703(4).35 The Court
35
The Hobia case did not involve any arguments regarding the “former reservation”
exception in IGRA concerning after-acquired trust land in Oklahoma, because the proposed
gaming site in that case was restricted land that already had Indian country status.
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ruled that the Muscogee (Creek) Nation has exclusive jurisdiction over the site and that the
Kialegee “does not share jurisdiction with the Muscogee (Creek) Nation” over the site. The
Court noted that “Courts have uniformly held tribal jurisdiction is a threshold requirement to the
exercise of governmental power as required under IGRA’s definition of Indian lands.”36
The
Court stated:
Although separately recognized by the federal government, the Kialegee Tribal
Town does not have “shared jurisdiction” over all lands within the historic bounds
of the Creek Nation. If the Tribal Town shares jurisdiction over those lands as it
claims, the likely result will be “races” between the four federally recognized
Creek entities to establish governmental control over parcels of Indian Country
within those historic bounds.
Okla. v. Hobia, 2012 WL 2995044, at *18.
This Court thus identified a major defect in the same shared “former reservation” (i.e.,
shared jurisdiction) concept applied to the Cherokee Nation and the UKB in the 2012 Decision:
the introduction of a divisive legal concept that could thwart the Five Tribes’ successful
reestablishment of strong tribal governments in the face of almost insurmountable odds
following the allotment era.37 The implementation of a shared reservation concept would result
in an invasion and invite legal civil wars within each Nation, impeding their ability to more
productively utilize time and resources for other important governmental matters.
36
See Hobia, 2012 WL 2995044, at *15 (citing Kan. v. United States, 249 F.3d at 1229
(“before a sovereign may exercise governmental power over land, the sovereign, in its sovereign
capacity, must have jurisdiction over that land”); and Miami Tribe of Okla. v. United States, 927
F. Supp. 1419, 1423 (D. Kan. 1996) (“Absent jurisdiction, the exercise of governmental power
is, at best, ineffective, and at worst, invasion.”)).
37
This Court reviewed the unique allotment history of the Five Tribes and the Muscogee
(Creek) Nation’s allotment agreement in Hobia, and still concluded that the Muscogee Nation
maintained exclusive tribal jurisdiction over restricted allotted tribal lands. State v. Hobia, 2012
WL 2995044, at *7, 17. The Cherokee Nation’s lands were allotted to Cherokee citizens under
the same federal laws and the 1902 Cherokee Nation allotment act, Act of July 1, 1902, 32 Stat.
716. There is nothing in these laws that would result in any different conclusions as to the
Cherokee Nation’s exclusive tribal jurisdiction over restricted and trust lands within its treaty
territory.
32
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It is also significant that the UKB, like the Kialegees, was organized under the OIWA and
has a constitution and federal chartered corporation that make no claims to any geographic or
territorial jurisdiction. The 1946 Act’s legislative recognition of the UKB as a “band” for
purposes of organization under the OIWA placed the UKB in no greater legal position than the
Department’s administrative recognition of the Kialegees as a “band” for the same
organizational purposes. Just as the Kialegee is a subset “band” of the Muscogee (Creek)
Nation, the UKB is a subset “band” of the Cherokee Nation. See Okla. v. Hobia, 2012 WL
2995044, at *1-8, 14-19.
2. DOI’s Application of the Indian Canon of Construction Was
Contrary to Law.
As recognized by this Court in the order granting preliminary injunction, Doc. 92, at 14,
the ASIA erred in applying the Indian canons of construction in favor of the UKB in its
application of the “shared reservation” theory to IGRA’s “former reservation” requirement. The
ASIA noted that “[u]nder the Indian canons of construction, ‘statutes are to be construed liberally
in favor of the Indians, with ambiguous provisions interpreted to their benefit.’” Doc 28-4,
AR20 (citation omitted). Citing a number of cases involved competing interpretations of statutes
in disputes between Indians and non-Indians,38 the ASIA concluded:
The term “former reservation” in IGRA is ambiguous as applied to the facts at
hand. Interpreting the provision to the benefit of the [UKB] would permit the
gaming parcel to be taken into trust pursuant to 25 U.S.C. § 2719(a)(2)(A)(i).
Id. (emphasis added).
38
The ASIA cited County of Yakima v. Confederated Tribes & Bands of the Yakima Indian
Nation, 502 U.S. 251 (1992) (Indian Nation challenged county’s authority to impose and levy tax
on tribal land); Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985) (taxation dispute
between Blackfeet tribe and the State of Montana); Sault Ste. Marie Tribe of Chippewa Indians
v. United States, 576 F. Supp. 2d 838 (W.D. Mich. 2008) (tribe’s challenge of Department’s
decision that it could not conduct gaming on certain land).
33
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The ASIA’s reliance on the canons of construction in construing IGRA’s “after-acquired
lands” requirements in favor of the UKB is arbitrary and capricious and contrary to law. First,
there is no ambiguity in the term “former reservation” in IGRA; that term is defined by
regulation, 25 C.F.R. § 292.2, as discussed in Part II.A of this brief. Second, the Tenth Circuit
and this Court squarely have held that this canon of statutory construction does not apply where,
as here, there are Indians on both sides of the issue and construing the statute in favor of some
Indians will adversely impact other Indians. See Utah v. Babbitt, 53 F.3d 1145, 1150 (10th Cir.
1995); Cherokee Nation of Okla. v. Norton, 241 F. Supp. 2d 1374, 1380 (N.D. Okla. 2002)
(finding the canon to be inapplicable in case involving “judicial review of a Federal agency
decision that hinged in part on the interpretation of Federal laws . . . affecting competing Native
American interests”).
The 2012 Decision indisputably involves competing interests and poses a threat of real
harm to the Nation and CNE. The Cherokee Nation has strongly opposed the UKB application
throughout the agency process as a threat to the Nation’s sovereign authority over its Treaty
Territory that could establish a precedent to enable the UKB Corporation to obtain trust status of
other tracts in the Nation’s Treaty Territory, and expose CNE to legal gaming competition within
that territory. Congress should not be assumed to favor one ward over another. Here, the
Department has done just that. Accordingly, the ASIA acted arbitrarily and capriciously and
contrary to law in applying this canon of construction to these facts, and the 2012 Decision
should be reversed.
D. The 2012 “Former Reservation”/”Indian Lands” Decision Is Arbitrary
and Capricious.
Until recently, DOI has consistently recognized that the Cherokee Nation possesses
jurisdiction exclusive of any other tribe over Indian country within its Treaty Territory. As
34
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recognized by this Court, the 2012 Decision’s finding that the UKB shares jurisdiction with the
Nation is not only contrary to law, it also constitutes a complete – and unexplained – about-face.
This Court further recognized that DOI’s change in position failed to meet the requirement that
when an agency departs from prior interpretation of a statute it is charged with implementing, the
agency must justify the change of interpretation with a reasoned analysis. Doc. 92 at 12 (citing
Pub. Lands Council v. Babbitt, 167 F.3d 1287, 1306 (10th Cir. 1999)).
The 2012 Decision acknowledged the existence of past court and departmental rulings
concerning the lack of UKB territorial jurisdiction. Doc. 28-4, AR17. It then described the UKB
history in a single paragraph, explaining that the UKB was merely “an organization of Cherokee
Indians” and that they were not allowed to organize under the OIWA until Congress enacted the
1946 Act. Doc. 28-4, AR18. The ASIA summarily concluded that there is “no question” that the
UKB occupied the Cherokee Nation’s “former reservation” and that the UKB “was formed out
of the Cherokee Nation.”
The ASIA failed to even mention (and obviously to consider)
historical evidence before it concerning the Department’s successor-in-interest theory, some of
which may have been relevant to a “former reservation” theory, absent the three Court decisions
that precluded DOI from challenging Cherokee Nation authority. See Doc. 32-3, AR1195-1346;
Doc. 30-17, AR426-564; Doc. 36-3, AR3591-3630.
The 2012 Decision is implausible in light of the Department’s repeated recognition that
the UKB never had a reservation and findings that the Cherokee Nation possesses jurisdiction
exclusive of any other tribe over Indian country within its Treaty Territory.39 The 2012 Decision
39
See Doc. 30-17, AR450-452 (1987 ASIA decision finding that the 1946 Act did not
create a reservation for the UKB or purport to give the UKB any authority to assert jurisdiction,
that the UKB “has never had a reservation in Oklahoma, that the Band has never exercised
independent governing authority over any of the Cherokee Nation's reservation lands,” and that
the UKB could not take land into trust without Cherokee Nation consent); Doc. 30-17, AR454,
35
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provided no explanation at all as to how its new finding that the UKB shares the Nation’s
“former reservation” can be harmonized with those decisions.
III.
THE 2012 DECISION’S APPROVAL OF THE UKB TRUST
APPLICATION WITHOUT CHEROKEE NATION CONSENT IS
ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW.
A. The 2012 Decision Violates Regulations Requiring Cherokee Nation
Consent to Trust Acquisitions within its Treaty Territory.
Departmental regulations provide that an Indian tribe “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. In Oklahoma,
the term “Indian reservation” means “that area of land constituting the former reservation
of the tribe as defined by the Secretary.” 25 C.F.R. § 151.2(f). As noted in the 2012
Decision, “consistent with this regulatory provision, the Secretary has previously declined to
take any lands into trust for the UKB within the boundaries” of the Cherokee Nation’s Treaty
Territory without the consent of the Cherokee Nation, which “has consistently refused to grant its
consent.” Doc. 28-4, AR21; see Doc. 30-17, AR451 (April 17, 1987 letter from ASIA to UKB
456, 1 (1988 and 1989 letters from Regional Director reiterating that conclusion); Doc. 30-17,
AR533, (2002 Regional Director letter stating that the “UKB is not the Cherokee Nation nor
does the UKB have any claim as a successor or have interest as an entity of the Cherokee
Nation”); Doc. 30-17, AR535-538, 540-545, 546-548 (2002 and 2003 letters from Department
declining to approve UKB proposal to enter into a PL 638 contract for law enforcement, realty,
and tribal court programs, and including statements that the “UKB lacks a jurisdictional land
base over which it can exercise territorial jurisdiction;” [Doc. 119-7 AR4697] that the UKB
“lacks authority to exercise territorial jurisdiction over any area of Indian Country;” and that the
Secretary “has consistently opined that the Cherokee Nation exercise exclusive jurisdiction over
trust and restricted lands within the former Cherokee treaty boundaries”). Doc. 119-7, AR4953
(Aug. 6, 2008 Regional Director decision denying the UKB 76-acre trust application and stating:
“The UKB does not have a ‘former reservation’ of its own. . . There are no treaties, statutes or
Executive Orders that set aside lands for the UKB.” See also Sept. 21, 1993 Indian Lands
Opinion for Cherokee Nation by Sharon Blackwell, Tulsa Field Solicitor at
http://www.nigc.gov/Reading_Room/Indian_Land_Opinions.aspx (“With little exception, the
exterior boundaries of the present Cherokee Nation were agreed to by the terms of the [1835]
Treaty of New Echota. . . .Historically, the Cherokee Nation has exercised governmental
authority over the fourteen county area.”).
36
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Chief); Doc. 36-6, AR3910 (April 7, 2006 letter from Regional Director to UKB Chief, stating:
“[T]he Bureau finds that the UKB does not have a former reservation and the request is
insufficient for consideration” of the tribal consent requirement.”).
However, DOI began to evade the applicability of the consent requirement in § 151.8 for
purposes of UKB trust applications within the Cherokee Nation’s Treaty Territory in 2008, based
on a 1999 appropriations rider. See Doc. 119-4, AR4932 (April 5, 2008 Memorandum from the
ASIA to the Regional Director discussing 1999 appropriations act); Doc. 119-7, AR4948 (Aug.
6, 2008 memorandum from the Regional Director to the UKB Chief, referencing the 1999
appropriations act). Consistent with this new theory, the ASIA determined in the June 2009
Decision that “Congress overrode” the prohibition in 25 C.F.R. § 151.8 against approval of the
UKB’s trust applications absent Cherokee Nation consent, by enactment of the following
provision in the 1999 appropriations act, 112 Stat. 2681-246 (emphasis added): “[U]ntil 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.” Interior and Related Agencies Appropriations Act of 1999, Pub. L. No. 105277, 112 Stat. 2681-246 (emphasis added). See Doc. 35-4, AR3237-3238.
The June 2009 Decision concluded that under the 1999 appropriation act, the
Department was only required to consult with the Nation, rather than obtain the Nation’s
consent as required by the regulations. Doc. 35-4, AR3237-3238. The 2011 Decision
regarding the 76-acre parcel specifically relied on the interpretation of the 1999
appropriations act contained in the June 2009 Decision, and concluded that the requirement
for the consultation was met when the Region solicited comments from the Nation in 2005
in connection with the UKB’s initial application for the 76-acre parcel. Doc. 45, AR2178.
37
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The Regional Director’s April 19, 2012 memorandum regarding the 2.03-acre Tract also
specifically relied on the interpretation in the June 2009 Decision and found that the
requirement for consultation had been met. Doc. 121-1, AR5099.
The record does not reflect such consultation.
More importantly, the ASIA’s
interpretation of the 1999 appropriations act was contrary to law. The plain wording of the
appropriations act merely imposed an additional consultation requirement upon the use of federal
funds in trust acquisitions. The 1999 appropriations act does not state or imply that it affects any
other existing law or regulation, including the tribal consent requirements in 25 C.F.R. § 151.8. The
ASIA’s interpretation would mean that the appropriations act worked a de facto repeal of the
Department’s regulation. The courts will not construe an appropriations act to amend substantive
law unless it is clear that Congress intended to change the substantive law. United States v. Will,
449 U.S. 200, 221 (1980). There is a “‘very strong presumption’ that appropriations acts do not
amend substantive law,” and, as a result, appropriations language must be construed narrowly.
Calloway v. Dist. of Columbia, 216 F.3d 1, 9-10 (D.C. Cir. 2000) (citing TVA v. Hill, 437 U.S.
153, 190, 195 (1978)).
Furthermore, the ASIA’s interpretation diminishes the Nation’s right to veto entry of
other tribes in its Treaty Territory guaranteed by article 15 of its 1866 treaty described in Part
III.B of this brief, and is contrary to the requirement that there must be “clear evidence that
Congress actually considered the conflict between its intended action on the one hand and Indian
treaty rights on the other, and chose to resolve that conflict by abrogating the Treaty.” United
States v. Dion, 476 U.S. 734, 739–40 (1986). Nothing in the language of the 1999 appropriations
act even mentions the consent requirement of Article 15 of the 1866 Treaty, much less explicitly
and expressly abrogates it.
38
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The ASIA did not mention the 1999 appropriations act at all as a reason for again
circumventing the tribal consent requirement in the 2012 Decision, although DOI has attempted
to resurrect that argument in this case. The ASIA instead bypassed the consent requirement in
the 2012 Decision by advancing a completely new theory for purposes of the trust application for
the 2.03-acre Tract:
However, now that we have determined the former reservation of the Cherokee
Nation is also the former reservation of the UKB for the purposes of applying the
exception under 25 U.S.C. §2719(a)(2)(A)(i), the regulatory requirement for
consent of the Cherokee Nation is no longer applicable.40 By receiving and
considering the comments of the Cherokee Nation on the instant acquisition, as
well as in the case of the recent acquisition of the community services parcel, the
Department has satisfied any requirements to consult with the Cherokee Nation.
Doc. 28-4, AR21 (emphasis added).
The conclusion that the UKB shares the Cherokee Nation’s “former reservation” is
contrary to law as shown in Part II of this brief. Equally important, it is contrary to the Tenth
Circuit decision in Citizen Band Potawatomi Indian Tribe of Oklahoma v. Collier, 142 F.3d
1325, 1334 (10th Cir. 1998), as well as the Department’s ruling in Kialegee Tribal Town of Okla.
v. Muskogee Area Dir., 19 I.B.I.A. 296, 303 (1991).
40
Having erroneously concluded that the Cherokee Nation and the UKB share a “former
reservation,” the ASIA in effect implemented draft regulations proposed by the Department in
2000 that, if promulgated, would have made it unnecessary to obtain the consent of a tribe to the
trust acquisition by another tribe on a “shared reservation.” 66 Fed. Reg. 3452-01, 3462-01,
2001 WL 31920, proposed rule § 151.11(b) (stating that a tribe, including tribes in Oklahoma,
may acquire land in trust on another tribe’s reservation if the recognized tribe’s governing body
consents in writing, except that no consent is required if the proposed acquisition is inside a
reservation “that is shared by two or more tribes, and the acquisition is for one of these tribes
...”). This application of a past draft regulation violates the APA, 5 U.S.C. § 553, which
establishes procedures for the promulgation of rules. These procedures have not been followed
and, contrary to the 2012 Decision, the 2000 proposed rule cannot be applied.
39
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B. The 2012 Decision Violates Treaties Protecting
Governmental Authority within its Treaty Territory.
the
Nation’s
The 2012 Decision that the Cherokee Nation’s consent to the UKB trust acquisition is not
necessary and that UKB can exercise territorial jurisdiction over the Tract if placed into trust for
the UKB Corporation violates Cherokee Nation treaties that recognize the Nation’s exclusive
sovereign authority over trust lands within its Treaty Territory and grant the Nation a veto power
over the entry of other tribes upon such lands.41
Article 15 of the 1866 Treaty specifically recognizes the need for the Cherokee Nation’s
agreement prior to settling within its boundaries “any civilized Indians, friendly with the
Cherokees . . . on such terms as may be agreed upon by any such tribe and the Cherokees.”
Additionally, article 26 of the 1866 Treaty protects the Cherokee Nation’s right to “the quiet and
peaceful possession of their country and protection . . . against hostilities of other tribes.”
Although the UKB’s members consist of those Cherokees by blood who have enrolled as UKB
members, the UKB falls within the intent of treaty protections of the Cherokee Nation from
hostilities of “other tribes” threatening the “quiet and peaceful possession” of the Nation’s Treaty
Territory, because it has attempted to separate from the Nation, prohibits its members from also
maintaining citizenship in the Cherokee Nation, and seeks to usurp the territorial jurisdiction of
the government of the Cherokee Nation, as evidenced by repeated clashes with the UKB
over many years. The UKB has sought to divert the distribution of federal funds from the
Cherokee Nation to the UKB for various purposes, including law enforcement, and has
expressed its intent to “exercise sole jurisdiction over the land rather than allow the Cherokee
41
As previously discussed, article 5 of the 1835 Treaty expressly protected the Cherokee
Nation’s right to self-government within its treaty territory. The 1866 Treaty, article 31,
reaffirmed the promises made by the United States to the Cherokee Nation in all prior treaties,
including that promise.
40
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Nation to continue its jurisdiction over Indian lands” within the Nation’s Treaty Territory.
Doc.119-7, AR4953. This relationship is certainly a “hostile” one. Most profoundly, the
conflict is one of identity, because the UKB has repeatedly asserted that it is a “successor-ininterest” to the Cherokee Nation, thus claiming as its own the very historical sovereignty of the
Cherokee Nation. If the ASIA believes that the Cherokee Indians who signed the Treaty in 1866
would not have understood the language of article 26 to protect them from such “hostilities of
other tribes,” the burden is on him to show some different contemporaneous understanding of
the treaty language than its plain meaning then, and today.
The 2012 Decision also violates article 8 of the 1866 Treaty, which provides: “No
license to trade in goods, wares, or merchandise shall be granted by the United States to trade in
the Cherokee Nation, unless approved by the Cherokee national council.” It is no far stretch to
conclude that a commercial gaming enterprise (which also includes the sale of merchandise) falls
within the prohibition against the conduct of business in the Nation’s Treaty Territory without its
express consent. The United States should not have granted such “license” without the approval
of the Cherokee National Council, which it did not seek nor obtain.
IV.
THE 2012 DECISION CONCERNING JURISDICTIONAL CONFLICTS IS
ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW.
A. The ASIA Failed to Give Sufficient Weight to Evidence Regarding
Jurisdictional Conflicts that Will Occur If the Tract is Placed in Trust.
Departmental regulations require the ASIA to consider “jurisdictional problems and
potential conflicts of land use which may arise” from any proposed trust acquisition. 25 C.F.R. §
151.10(f).42 The Regional Director, under the constraints imposed by the ASIA’s June 2009
42
Based on the ASIA’s conclusion that the acquisition “is within the former reservation of
the UKB,” the 2012 Decision expressly applied 25 C.F.R. § 151.10, which establishes
requirements for on-reservation trust acquisitions for both individual Indians and for tribes. Doc.
28-4, AR21. The Nation discusses the requirements of § 151.10(a), (b), (f) and (g) in this brief –
41
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Decision,43 recommended approval of the trust application for the Tract in spite of her detailed
description of potential jurisdictional conflicts in her April 19, 2012 memorandum.44 She found
that jurisdictional issues were “likely” and stated, as “the Bureau office closest to tribal affairs in
northeastern Oklahoma,” the Bureau “remains concerned that jurisdictional conflicts will arise
between the UKB and the [Nation] if property is placed into trust for the UKB within the former
reservation boundaries of the [Nation].” Doc. 121-1, AR5102.
Two of the many jurisdictional problems likely to arise involve taxing and gaming
regulation.
The federal courts have previously determined that Indian country within the
Nation’s boundaries, albeit “owned” by UKB members, is properly under the taxing and
regulatory control of the Cherokee Nation Tax Commission. See United Keetoowah Band v.
not because it views this as an on-reservation application (which it does not), but because those
subsections are incorporated by reference by 25 C.F.R. § 151.11, which governs off-reservation
applications by tribes. The Department’s failure to consider all of the off-reservation
requirements in § 151.11, including requirements concerning a business plan, violate the APA.
The UKB requested in its 2011 amended trust application for the 2.03-acre Tract that the
Department consider the factors in both § 151.10 and § 151.11, and addressed the business plan
in the application, including submission of financial statements. Doc. 45, AR3062. The
Department erroneously abandoned consideration of the off-reservation requirements in § 151.11
at some point in the Tract application process, after deciding to characterize the Cherokee
Nation’s “former reservation” as shared by the UKB. This was inconsistent with the
Department’s prior consideration of the requirements of both § 151.10 and § 151.11 as part of its
decision regarding the 76-acre tract. The Department there found that a business plan under §
151.11(c) was not necessary because the 76-acre parcel was not acquired for business purposes.
Doc. 45, AR2184. Such is obviously not the case with regard to the 2.03-acre Tract.
43
The Regional Director stated that the June 24, 2009 Decision had concluded that the
“UKB, like [the Nation], possesses the authority to exercise territorial jurisdiction over its tribal
lands.” Doc. 121-1, AR5102. According to the 2011 Decision approving the 76-acre
application, the “Assistant Secretary’s findings and conclusions on this issue [jurisdictional
conflicts] are binding on the Region.” Doc. 45, AR2183; see also Doc. 35-4, AR3245.
44
This description was consistent with earlier findings regarding jurisdictional conflicts.
See Doc. 36-6, AR3912-3913 (2006 Decision denying the 76-acre parcel application, finding that
the Cherokee Nation “exercises exclusive jurisdiction” over trust lands within its treaty territory
and that “jurisdictional problems and significant land use issues exist”); Doc. 119-7, AR4950
(2008 Regional Director decision denying 76-acre parcel application, stating that the “Region
finds that the potential for jurisdictional problems is of utmost concern and weighs heavily
against approval of this acquisition at this time.”).
42
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Mankiller, 1993 WL 307937, at *2, 4. Another pivotal jurisdictional conflict involves law
enforcement services. As specifically noted by the Regional Director in 2008 and again in 2012,
the UKB, which does not provide law enforcement services and has only a security force that
works with the Cherokee County law enforcement officials, plans to exercise “sole jurisdiction”
if its lands are placed in trust. Doc. 119-7, AR4953; see also Doc. 121-1, AR 5102. Also as
noted by the Regional Director, the Cherokee Nation Marshal Service performs law enforcement
responsibilities on trust lands in its Treaty Territory and would undertake those responsibilities
with respect to the Tract if placed in trust. Doc. 119-7, AR4951; see also Doc. 121-1, AR 5102.
The Nation has a cross-deputization agreement with the State of Oklahoma, agreed to by the
Bureau of Indian Affairs, relating to sharing resources with state and federal officials for law
enforcement within the Nation’s geographical boundaries.45 If the Tract is placed in trust and
becomes Indian Country, law enforcement conflicts are certain to occur.
The Regional Director also noted in her 2012 memorandum that the casino building
encroached on an adjacent tract owned in fee by the UKB and stated that there is “potential for
jurisdictional issues given that a portion of the casino building would be subject to state
jurisdiction.”46 The Regional Director, without additional comment, stated that the UKB had
responded to this concern by enacting a resolution stating its intent to submit a trust application
for the adjacent tract and promising that “in the meantime” it would not conduct gaming
45
ICA No. 93-0019, “Cross-Deputization Agreement between the Cherokee Nation, the
State of Oklahoma, and the U.S. Government,” filed Oct. 10, 1994, Oklahoma Secretary of State.
46
The ASIA noted this concern in the 2012 Decision without adequately explaining its
impact on title and title insurance, simply stating: “[T]he UKBs ownership of the parking lot
tract satisfies the Department that no legal liabilities will arise as result of the encroachment.”
Doc. 28-4, AR24. This is a strange conclusion because once placed into trust, the United States
would hold title to the land, while the UKB maintained ownership of the adjacent tract where a
portion of the casino building is located – certainly causing risk of title issues. This reckless
approach demonstrates the ASIA’s determination to proceed with the transaction at all costs,
without a reasoned analysis.
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activities on the portion of the building that lies outside the Tract.
There is nothing in the Regional Director’s April 19, 2012 memorandum or elsewhere in
the record stating the view that there are adequate means to address the jurisdictional conflicts,
contrary to the ASIA’s statement in the 2012 Decision: “While there may be jurisdictional
disputes in the future, the Regional Director believes that there is adequate foundation for
resolving them, and we concur.” This vague lip service consideration of potential jurisdictional
problems in the 2012 Decision wholly fails to follow the dictates of 25 C.F.R. § 151.10(f). This
is particularly obvious when compared to the level of consideration upheld in South Dakota v.
Department of Interior, 401 F. Supp. 2d 1000 (D.S.D. 2005). There, the Director reviewed
intergovernmental agreements entered into by the tribe involved and local officials to address
such needs as law enforcement and fire protection, and considered land use and zoning issues.
The Director responded in detail to concerns of every local government that voiced objections to
the trust determination. The determination here is devoid of any such considerations and is
arbitrary and capricious. An agency’s refusal to consider evidence bearing on the issue before it
constitutes arbitrary agency action within the meaning of the APA, 5 U.S.C. § 706. See, e.g.,
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co, 463 U.S. 29, 43 (1983); Comcast Corp. v.
FCC, 579 F.3d 1, 8 (D.C. Cir. 2009).
B. The ASIA’s Interpretation of IRA §476(g) Is Contrary to Law.
The ASIA also avoided consideration of jurisdictional conflicts in the 2012 Decision by
misinterpreting a 1994 amendment of the IRA, 25 U.S.C. § 476. Citing the June 2009 Decision,
the ASIA found that section 476(g) of the IRA “prohibits the Department from finding that the
UKB lacks territorial jurisdiction while other tribes have territorial jurisdiction,” and that “the
UKB, like [the Nation], possesses the authority to exercise territorial jurisdiction over its tribal
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lands.” Doc. 28-4, AR24. This reliance on the 1994 amendment is contrary to the plain wording
of the amendment, which added new subsections (f) and (g) to section 476 of the IRA.
Subsection (f) prohibits the issuance of certain types of discriminatory regulations and decisions
after the effective date of the amendment. Subsection (g) applies to exactly the same types of
discriminatory regulations and decisions that were already in effect at the time of the
amendment, as follows:
(g) Privileges and immunities of Indian tribes; existing regulations
Any regulation or administrative decision or determination of a department or
agency of the United States that is in existence or effect on May 31, 1994, and
that classifies, enhances, or diminishes the privileges and immunities available to
a federally recognized Indian tribe relative to the privileges and immunities
available to other federally recognized tribes by virtue of their status as Indian
tribes shall have no force or effect.
25 U.S.C. § 476(f) (emphasis added).
The 1994 amendment of § 476 simply articulates a principle of administrative equality
and non-discrimination that extends to all federally recognized tribes. As one co-sponsor of the
amendment explained, the “amendment is intended to prohibit the Secretary or any other Federal
official from distinguishing between Indian tribes or classifying them based not only on the IRA
but also based on any other Federal law.” See 140 Cong. Rec. 11,235 (1994) (statement of Sen.
McCain). The ASIA’s interpretation of sub-section (g) as authorizing a tribe to acquire trust
lands within the territory of another tribe is much more expansive than its plain wording.
Although the Cherokee Nation does not dispute that any federally recognized tribe, including the
UKB, should have an equal opportunity to acquire trust lands, this does not mean that any
federally recognized tribe should be allowed to acquire trust lands in another tribe’s
jurisdictional area. Such an extreme interpretation could negatively impact tribes nationwide,
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because it means that any tribe could acquire trust land in the jurisdictional area of any other
tribe, wherever that land might be located.
V.
THE 2012 DECISION FAILED TO PROPERLY CONSIDER WHETHER
THE BIA IS SUFFICIENTLY EQUIPPED TO DISCHARGE THE
ADDITIONAL RESPONSIBILITIES THAT WOULD RESULT FROM
THE TRUST ACQUISITION AND IS ARBITRARY AND CAPRICIOUS.
In examining the administrative record, the court must determine “whether the decision
was based on a consideration of the relevant factors. South Dakota v. U.S. Dep’t of Interior, 487
F.3d 548, 551 (8th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)). The ASIA abused his discretion
in failing to adequately consider all relevant factors with regard to 25 C.F.R. § 151.10(g), which
requires consideration of “whether the Bureau of Indian Affairs is equipped to discharge the
additional responsibilities resulting from the acquisition of land in trust status.” In fact, the
ASIA’s conclusion is not supported in the administrative record at all, as reflected in the ASIA’s
findings that (1) the proposed UKB Tract trust acquisition is within the Nation’s Treaty Territory
and that “the lands within the former treaty boundaries of the [Cherokee Nation] are the
[Cherokee Nation]’s service area for purposes of administering BIA programs;” (2) the Cherokee
Nation, through a self-governance compact, administers “the program functions associated with
the management of trust lands” that were previously provided by the BIA; (3) all funds
previously spent by the BIA to provide these services have been “transferred to the [Cherokee
Nation] Compact” and as a consequence the Tahlequah BIA Regional Office (which previously
administered such programs) has been closed; and (4) “[t]here are no remaining direct service
funds in the Region that have not been previously provided to the [Cherokee Nation] in its SelfGoverning Compact.” Doc. 28-4, AR24-25.
Although the 2012 Decision concludes that “additional duties” associated with the newly
acquired trust land may “increase the workload” of the BIA, and that no funds are available to
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carry out that work, the ASIA states the BIA “has concluded they are capable of providing
services for UKB and we concur.” Doc. 28-4, AR25. This ignores the statement in the Regional
Director’s April 2012 memorandum that the “additional duties may be a hardship on the Region
unless additional appropriations or budget allocations are obtained to off-set the additional direct
services to be provided by the Region.” Doc. 121-1, AR5103. The ASIA did not identify where
the BIA would obtain additional funds.
The ASIA also failed to consider whether federal funds obtained by UKB would diminish
the funds currently provided to the Cherokee Nation, thereby degrading the Nation’s ability to
provide services within its Treaty Territory. The Department’s failure to consider the impact of
the proposed trust acquisition on the Nation and on its continued ability to receive funds and
provide services to Indians within the Nation’s Treaty Territory under its self-governance
compact pursuant to the ISDEA, 25 U.S.C. §§ 458aa-458hh, was arbitrary and capricious, an
abuse of discretion and contrary to law.
CONCLUSION
The Nation and CNE respectfully request that the Court enter judgment reversing the
2012 Decision and finding that it was arbitrary and capricious and in violation of the law,
including a declaratory judgment that: (1) the IRA, OIWA, and federal regulations do not
authorize the placement of the Tract into trust on behalf of the UKB Corporation, and Carcieri
precluded the approval of the Tract because the UKB was organized in 1950, after the 1934 and
1936 respective effective dates of the IRA and the OIWA; (2) the Cherokee Nation’s “former
reservation” is not the “former reservation” of the UKB; (3) the Tract is not within the “former
reservation” of the UKB and cannot be acquired for the benefit of the UKB or the UKB
Corporation after the effective date of IGRA under requirements concerning on-reservation, as
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opposed to off-reservation, lands; (4) the placement of the Tract into trust will not automatically
confer the status of “Indian lands” on the tract under IGRA for purposes of UKB gaming
operations because there has been no finding that the UKB possesses and exercise governmental
authority over the tract (and there is no legal basis for such finding, which would be contrary to
the Nation’s treaties); (5) the Tract cannot be placed into trust absent the Cherokee Nation’s
consent, which has not been granted; and (6) the 1994 amendment of section 476 of the IRA
does not prohibit the Department from complying with regulations requiring consideration of
jurisdictional conflicts.
Plaintiffs further request this Court to convert the Preliminary Injunction it granted on
August 12, 2013 (Doc. 92) to a Permanent Injunction as prayed for in Plaintiffs’ Complaint
(Doc. 2).
Plaintiffs further request declaratory judgment that the regulatory requirements for offreservation acquisitions apply to the Tract application, including the requirement for a business
plan; that defendants failed to consider important aspects of the issues in addressing regulatory
requirements pertaining to likely jurisdictional conflicts that would result from the trust
acquisition, and the ability of the BIA to provide services; and that defendants further offered no
plausible explanation for its decisions concerning those regulatory requirements, which were
counter to the evidence before the Department.
The Department has engaged in selective favoritism throughout the entire administrative
process in this case. In an unbridled effort to aid and abet the UKB in gaming within the
Nation’s jurisdiction, the Department has ignored case law, treaty guarantees, federal gaming
regulations, and its own administrative procedures. Administrative deference is properly granted
to agency action that is lawful, measured, and consistent with best practices. The Department’s
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actions here were none of those, and deserve no deference. Plaintiffs respectfully request that
this Court so hold, granting the relief above, and any other relief to which Plaintiffs may be
entitled.
Respectfully submitted,
s/Todd Hembree
Todd Hembree
Attorney General
Cherokee Nation
P.O. Box 948
Tahlequah, OK 74465-0948
Telephone: (918) 456-0671
Facsimile: (918) 458-5580
[email protected]
s/William David McCullough
Wm. David McCullough, OBA No. 10898
S. Douglas Dodd, OBA No. 2389
Doerner, Saunders, Daniel
& Anderson, L.L.P.
Two West Second Street, Suite 700
Tulsa, Oklahoma 74103-3117
Telephone: (918) 582-1211
Facsimile: (918) 925-5316
[email protected]
[email protected]
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s/L. Susan Work
L. Susan Work, OBA No. 3799
Hobbs, Straus, Dean & Walker, LLP
101 Park Ave., Suite 700
Oklahoma City, OK 73102
Telephone: (405) 602-9245
Facsimile: (405) 602-9426
[email protected]
Attorneys for Cherokee Nation
and
s/David E. Keglovits
David E. Keglovits, OBA No. 14259
Amelia A. Fogleman, OBA No. 16221
GableGotwals
100 West Fifth Street, Suite 1100
Tulsa, Oklahoma 74103-4217
Telephone: (918) 595-4800
Facsimile: (918) 595-4990
[email protected]
[email protected]
Attorneys for Cherokee Nation
Entertainment, LLC
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CERTIFICATE OF SERVICE
I hereby certify that on December 11, 2013, I electronically transmitted the foregoing
document to the Clerk of the U.S. District Court for the Northern District of Oklahoma using the
ECF System for filing and transmittal of a Notice of Electronic Filing to all ECF registrants.
s/William David McCullough
William David McCullough
2932698v1
51