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Parsing Carcieri

WASHINGTON – The United Keetoowah Band of Cherokee Indians of Oklahoma has been given a road map toward having a 76-acre parcel of land taken into trust that steers clear of the U.S. Supreme Court’s controversial Carcieri ruling.

Assistant Secretary-Indian Affairs Larry Echo Hawk issued a decision Sept. 10 asking the band to amend its application for land into trust in one of three ways that would reaffirm his authority to take land into trust without violating the high court’s ruling of February 2009 – including using Section 5 of the Indian Reorganization Act that the Carcieri decision was based on.

The Supreme Court’s Carcieri v. Salazar ruling overturned the Department of the Interior’s 70-plus years of practice of taking land into trust for Indian tribes federally recognized after 1934.

Carcieri held that the secretary has no authority to take land into trust for the Narragansett Indians because they are not an eligible Indian tribe as defined by the 1934 Indian Reorganization Act. Only tribes that meet the definition of “Indian tribe” under the IRA are eligible for the trust land status, that is, according to the court, tribes that were “under federal jurisdiction” on June 1, 1934.

But Indian tribes are not the only entities eligible for trust land under the IRA – individual Indians are too. Section 5 of the IRA says: “Title to any lands or rights acquired pursuant to this act 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.”

One of the ways the UKB could amend its trust land application, Echo Hawk said, is for the band to continue to invoke the secretary’s authority to take land into trust under the IRA, but rather than apply as a tribe, “seek to have the land taken into trust for one or more half-blood members who could later transfer their interest to the UKB.”

The band could also invoke the secretary’s authority under Section 3 of the Oklahoma Indian Welfare Act and seek to have land in trust for the UKB as an incorporated group. Section 3 authorizes the secretary to charter corporations and that “such charters may convey to the incorporated group. … any other rights or privileges secured to an organized Indian tribe under the (Indian Reorganization) Act of June 18, 1934.”

The band could also invoke the secretary’s authority under Section 1 of the OIWA, which authorizes him to take land into trust for a tribe, band, group or individual Indian provided that the lands “shall be agricultural and grazing land of good character and quality in proportion of the respective needs of the tribe.”

The UKB has been in a jurisdictional battle with the large and powerful Cherokee Nation of Oklahoma over jurisdiction, land and other issues for more than 100 years.

Echo Hawk said he withdrew that portion of a decision he made in June 2009 dealing with the controversial “successor in interest” issue, “because I do not decide this issue based on the UKB’s status as a successor.”

Historically, the Cherokee tribe was terminated in the early 1900s and there is a theory that either the CNO or the UKB or both are successors in interest to that historic tribe, said James McMillan, the UKB’s attorney.

“The immediate significance of that for our purposes is it would take us out of the Carcieri problems because it would mean that either one of us would have been recognized in 1934 and, therefore, could have taken land into trust,” McMillan said.

“The way the decision was made, it did not have to reach the successor in interest issue. The opinion in no way suggests the UKB is not a successor in interest.”

The UKB celebrated Echo Hawk’s decision.

“We look at this as a complete victory,” said Keetoowah Cherokee Chief George Wickliffe.

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 new museum.

Wickliffe said the tribe “has every confidence” that the BIA will act quickly to accept their pending trust applications once the amended application is filed.

The Cherokee Nation had a different perspective on the decision.

“BIA Reaffirms That UKBCIO Has No Treaty Rights, Declines to Take Land Into Trust” was the headline of a press release posted on the CNO website.

“This is an argument that’s been played out for decades, but the end result is always the same,” said Chad Smith, Cherokee Nation principal chief.

“No matter how many times the UKBCIO says they are the Cherokee Nation, and has the rights of the Cherokee Nation, they are not the Cherokee Nation and they don’t have any treaties. If the UKBCIO leadership spent its time and money trying to work together with the Cherokee Nation rather than trying to tear down the Cherokee Nation’s sovereignty, our Cherokee people would probably be a lot better off. But as long as they keep trying to steal the Cherokee Nation’s identity and assets, we have to keep defending ourselves.

“We are not opposed to the UKBCIO having land in trust, as long as it is not within the Cherokee Nation’s boundaries.”