US Argues in Tribal Land Dispute in 10th Circuit

DENVER (CN) – The U.S. Department of Interior argued before the 10th Circuit Wednesday in support of its decision to secure 76 acres of land into a trust for the otherwise landless United Keetoowah Band of Cherokee Indians, contending that it did not need to consult another tribe to do so.

Members of the United Keetoowah Band filled a bus and carpooled from Oklahoma to Denver on Wednesday. They filled the courtroom to standing room only to witness U.S. Attorney Avi Kupfer argue against a previous ruling to deny the land trust in favor of the Cherokee Nation.

“The Cherokee Nation before you today is the same Cherokee Nation … that signed the 1866 treaty,” said Cherokee Nation attorney David McCullough of Doerner, Saunders, Daniel & Anderson. “The reason we are here today is because the U.S. has decided that the United Keetoowah Band is a successor in interest and now has a shared reservation with the Cherokee Nation.”

U.S. Circuit Judge Carolyn McHugh pressed McCullough on whether both tribes were federally recognized and protected by the same laws.

“Let’s say one Cherokee nation settled in two different parcels of land, were federally recognized and had equal power,” McHugh said.

“Let’s say that, but that’s not the case here,” McCullough retorted.

“They are a recognized tribe today, and under the law you can’t favor one tribe over another,” McHugh said, adding that the United Keetoowah Band “already own it in fee, so what’s wrong with allowing it to go into the trust?”

“They need consent from the Cherokee Nation,” McCullough said.

“They only need to consult, don’t they?” McHugh said.

This is one of the questions the panel will decide: if the United Keetoowah Band requires the consent or the consultation of the Cherokee Nation, and if the DOI erred in accepting the United Keetoowah Band’s trust application.

In its own brief filed alongside the Interior Department, the United Keetoowah Band assert “the [Cherokee Nation of Oklahoma] spends much of its Brief mischaracterizing Cherokee history.”

“Kituwah” is considered the indigenous name of the Cherokees, a name that refers to their original eastern homeland. The 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.

“I think it’s important to zoom out a little bit, because the Indian Reservation Act doesn’t put a geographic limit on land that can go into a trust,” Kupfer added.

U.S. Circuit Judge Scott Matheson sought to clarify if the 10th Circuit was appropriate jurisdiction in a matter of Indian Affairs, which was one point Kupfer and McCullough seemed to agree on: this was the only legal avenue for the United Keetoowah to appeal.

Among the United Keetoowah Band of Cherokee, the Shawnee and Delaware are also landless tribes sharing the Cherokee Nation reservation in Oklahoma.

After the hearing, United Keetoowah Assistant Chief Jamie Thompson held up a piece of notebook paper with the names of dates of important treaties.

“To stop myself from shouting out, I had to write this down,” he said, with a hearty laugh.

Thompson said he was optimistic about the proceedings, saying “it went very well on our behalf.”

The United Keetoowah Band was first recognized by Congress in 1946 and holds 15,000 members, while the 366,000-member Cherokee Nation of Oklahoma became incorporated in 1975.

Circuit Judge Allison Eid also sat on the panel.

 

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