Cherokee Nation Sues Interior for United Keetoowah Band’s Two-Acre Trust Land

Gale Courey Toensing
9/5/12

The Cherokee Nation and its business arm, Cherokee Nation Entertainment, have sued Interior Department officials for taking into trust a small parcel of land where the United Keetoowah Band of Cherokee Indians has operated a casino for almost two decades.

The lawsuit was filed August 29 in the Northern District Court of Oklahoma and names Interior Secretary Ken Salazar and Acting Assistant Secretary for Indian Affairs Michael Black as defendants. The United Keetoowah Band (UKB) is not named as a defendant.

The Cherokee Nation of Oklahoma (CNO) and Cherokee Nation Entertainment (CNE) are challenging Black’s July 30 decision to take into trust 2.03 acres of land called the Keetoowah Casino Property located in Cherokee County, Oklahoma. Black announced the decision in a 10-page letter to UKB Chief George Wickliffe.

On August 7, the Interior Department published a federal notice announcing the land acquisition would be placed into trust in 30 days, giving time for parties to “seek judicial review” of the Interior Department’s decision. The decision came in the 11th hour before a tribal-state agreement would have shut down the casino until the land was placed in trust. “Without this decision, our casino would’ve shut down and placed the jobs of 200 people and the life-altering services this casino provides to our tribal members in jeopardy,” Assistant Chief Charles Locust said. “But, that didn’t happen.”

The CNO/CNE lawsuit seeks a temporary restraining order and preliminary injunction preventing the secretary from taking the land into trust until the court rules on its complaint.

The lawsuit is the latest round in a battle between UKB and the large and powerful Cherokee Nation of Oklahoma that has been waged for more than 100 years over jurisdiction, land and other issues. The current case highlights how uniquely complicated issues of Indian law and land are.

The UKB has been federally recognized since 1946 and has operated a casino on the two-acre parcel since 1986, but neither the tribe nor its United Keetoowah Band Corporation currently have any lands held in trust by the United States. The Interior Department took 76 acres of land into trust for UKB in 2011, but the Cherokee Nation appealed that determination to the Interior Board of Indian Appeals where a decision is pending. The 76-acre parcel includes the tribe's sacred dance grounds, its community gathering and celebration place, its elder center, wellness center, child development center, civil defense center, tribal programs building and a museum.

Although the 2.03-acre parcel where UKB’s casino is located is not held in trust or in the restricted status that allows Indian gaming to occur, the National Indian Gaming Commission (NIGC) approved the UKB’s gaming ordinance in 1995. But the NIGC determined that the casino is not located on Indian lands and so “the UKB now has an urgent need to have the property placed in trust,” Black writes. He notes that the UKB used almost $1.25 million in gaming revenues in 2010 to provide social services for tribal members. “The UKB may suffer substantial financial loss if the property is not placed in trust,” he writes.

In justifying the decision to take the land into trust, Interior found that UKB’s gaming parcel is located within the last treaty boundaries of the Cherokee Nation “in an area generally identified as the former Cherokee reservation,” and that “the former Cherokee reservation is also the former reservation of the UKB within the meaning of the Indian Gaming Regulatory Act.” Previous to that finding, the Interior Department needed the permission of the CNO to take land into trust for the UKB on the CNO’s former reservation. “The Cherokee Nation has consistently refused to grant its consent,” Black writes. However, now that the department has found that the former Cherokee reservation is also the former UKB reservation, the department no longer requires consent from the Cherokee Nation.

Cherokee Attorney General Tom Hembree says that Interior’s arguments regarding the nation’s “former reservation” fly in the face of “an unbroken line” of prior Interior determinations and court cases. He refutes the argument that the Secretary has sole authority to take land into trust by citing the Treaty of 1866 which says, “The United States may settle any civilized Indians, friend with the Cherokees and adjacent tribes, with the Cherokee country … on such terms as may be agreed upon by any such tribes and the Cherokees, subject to the approval of the President of the United States.”

He also cites a 1930’s Interior ruling that denies the UKB was a separate tribe because it was “neither historically nor actually a governing unit of the Cherokee Nation, but a society of citizens within the Nation with common beliefs and aspirations.” He also cites the Oklahoma Indian Welfare Act which prohibits the Secretary from taking land into trust for a corporation.

Citing the Supreme Court’s infamous Carcieri v Salazar ruling, the Cherokee attorney also asserts the land into trust is unlawful under the Indian Reorganization Act because the UKB was not “under federal recognition” in 1934 when that law passed.

Finally, Hembree argues that regardless of where the Secretary was taking the land into trust for UKB or UKB Corporation, he failed to follow the Department’s own regulatory guidelines.

“For these and other reasons, this Court should issue an order declaring the Department’s action to be arbitrary and capricious, an abuse of discretion, contrary to law, and as such, in violation of the Administrative Procedure Act,” Hembree writes.

James Mcmillan, UKB’s attorney, told Indian Country Today Media Network that the Band is reviewing the nation’s lawsuit and had not yet decided whether to intervene. He declined further comment.

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