10th Circuit Sides With Tribe in Land Fight With Cherokee Nation

(CN) – The formerly landless United Keetoowah Band of Cherokee in Oklahoma may finally have a plot to call home, after a 10th Circuit panel lifted an injunction Thursday to allow the Bureau of Indian Affairs to divvy up a piece of Cherokee Nation land.

“We have been called various names throughout the time, at one time a ‘former tribe,’ at one time an ‘error’ in the federal registry, and even so far as to call us a ‘foreign-federally recognized tribe,’ but today we are the United Keetoowah Band of Cherokee Indians,” said UKB Chief Joe Bunch to applause at a press conference.

“What that means in collective pivoting is it’s the opportunity that’s there, the ability to apply and receive grants with criteria such as land in trust, so next is health education and welfare to go after those opportunities for our people,” Bunch said.

The Cherokee Nation did not consent when the bureau granted the UKB’s request to put 76 acres of land near Tahlequah, Oklahoma, into a trust, and questioned whether the UKB even qualified under the government’s definition of “Indian.”

While UKB bought the land in 2000, the Eastern District of Oklahoma sided with the Cherokee Nation in 2017. The UKB appealed to the 10th Circuit Court of Appeals in Denver this past May.

“Because it is undisputed that the UKB is a ‘recognized tribe or band of Indians residing in Oklahoma,’ that has incorporated pursuant to Oklahoma Indian Welfare Act, the Bureau of Indian Affairs properly concluded that statutory authority exists for the secretary [of the Department of Interior] to take the subject parcel into trust for the UKB Corporation,” U.S. Circuit Judge Allison Eid, a Donald Trump appointee, wrote in a 34-page opinion.

A 2009 Supreme Court case recognized only tribes formed before the Indian Reorganization Act of 1934. Congress recognized the UKB in 1946. But the Oklahoma Indian Welfare Act of 1936 extended the Indian Reorganization Act’s protections to all tribes within the Sooner State.

“The Bureau of Indian Affairs was therefore not required to consider whether the UKB meets the Indian Reorganization Act’s definition of ‘Indian,’” Eid wrote for the panel.

The Cherokee Nation pointed to its 1866 treaty guaranteeing “protection for the Nation against ‘domestic feuds and insurrections’ and ‘hostilities of other tribes.’”

But the court considered it a stretch to call UKB’s quest for land hostile.

“We doubt that the current litigation between the Nation and the UKB constitutes a ‘feud’ within the meaning of article 26 because this dispute is not a ‘deadly quarrel’ to be satisfied only ‘with blood,’” Eid wrote. “While the relationship of the UKB and the Nation does not appear friendly, they are neither open enemies nor engaged in warfare.”

“Kituwah” is considered the indigenous name of the Cherokees, a name that refers to their original eastern homeland. The 15,000-member United Keetoowah Band currently occupies and has paid for the 76-acre plot in dispute – it is home to sacred lands, meeting halls, and the stage for pow wows.

The Cherokee Nation of Oklahoma encompasses 366,000 members and spans 14 counties.

Attorney David McCullough of the Tulsa firm Doerner, Saunders, Daniel & Anderson represented the Cherokee Nation. U.S. Attorney Avi Kupfer argued on behalf of the Department of Interior. Neither party responded to requests for comment by press time.

U.S. Circuit Judges Scott Matheson Jr. and Carolyn McHugh, both Barack Obama appointees, rounded out the panel.

“The wheels of justice turn slow, but they always turn in your favor if you do what is right,” said UKB assistant chief Jamie Thompson, who attended the court hearing in May.

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