The
Bureau of Indian Affairs can't place land in trust for the
United Keetoowah Band of Cherokee Indians without the "written" consent of the
Cherokee Nation, a federal judge has ruled.
In 2011, the BIA approved the United Keetoowah Band's application for 76 acres in Tahlequah, Oklahoma. But Judge Ronald A. White said the acquisition went against a regulation that requires the Cherokee Nation's consent.
"The Cherokee Nation is correct that its consent is required before land may be taken into trust in its former reservation," White wrote in his
19-page ruling on Wednesday.
As a result, the BIA is barred from acquiring the parcel until the Cherokee Nation agrees. But the judge also imposed another hurdle -- he said the United Keetoowah Band must prove that it can follow the land-into-trust process in the wake of the
U.S. Supreme Court decision in
Carcieri v. Salazar.
In
Carcieri, the court held that the BIA can place land in trust only for those tribes that were "under federal jurisdiction" in 1934. White said the agency has never conducted such an analysis for the United Keetoowah Band, whose status was recognized in 1946 through the
Oklahoma Indian Welfare Act.
"Upon remand, before taking any land into trust for the UKB or the UKB Corporation, the [BIA's Eastern] Region shall reach the question of how any acquisition for the UKB or the UKB Corporation is affected by Carcieri," White wrote. He said the analysis must be based on the
Indian Reorganization Act rather than the Oklahoma-specific law.
The ruling is a "critical win" for the Cherokee Nation, the tribe's top legal official said. “The court rightly deemed the BIA’s pursuit for trust land for another tribe within the Cherokee Nation’s jurisdiction was illegal,” Attorney General Todd Hembree said in a
press release.
A provision in the Omnibus Consolidated and Emergency Supplemental Appropriations Act mentions "consultation" of the Cherokee Nation but does not override a regulation that requires the tribe's consent regarding land-into-trust applications, a federal judge ruled on May 31, 2017. Source: Public Law No. 105-277
The United Keetoowah Band, whose citizens descend from the
historic Cherokee Nation, has been fighting for decades to secure trust land in Oklahoma. Up until the Obama administration, the BIA had never approved any of the tribe's applications.
A regulation found in
25 C.F.R. § 151.8 was always an obstacle. It requires consent -- "in writing" -- whenever one tribe seeks trust land within the reservation of another tribe.
But the BIA, during the Obama era, believed a 1999 appropriations law modified the regulation. Instead of consent, it mentions "consultation" of the Cherokee Nation.
White, however, determined that wasn't the case. He said the law only applies to funding for land-into-trust acquisitions -- "It does not override the land acquisitions regulations," he wrote.
"If Congress intended to remove the consent requirement for trust acquisitions within the former reservation of the Cherokee Nation, it could have explicitly stated so within the regulations when it revisited those regulations," the decision stated.
The United Keetoowah Band and the Cherokee Nation are both headquartered in Tahlequah.
The Cherokees are much larger in terms of citizenship and their leaders have long asserted exclusive jurisdiction over a 14-county area that comprises the former Cherokee Reservation.
Bureau of Indian Affairs Documents:
May
24, 2011, Decision |
September
10, 2010, Decision |
June 24, 2009 Decision
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