Ahead of the presidential administration change in January, a last-minute solicitor general memo from the U.S. Department of Interior recognized the United Keetoowah Band of Cherokee Indians “has an ownership interest in the Cherokee Reservation as a successor in interest to the tribal signatory of the Treaty of 1846.”
The memo could have extensive implications for the UKB’s criminal jurisdiction, casino compacts and, as the UKB argues, even health care for UKB members. Inextricably connected, the UKB and the Cherokee Nation have been involved in a long-running dispute over the whether the UKB is a “successor in interest” to the Cherokee Nation that signed treaties with the United States. The UKB maintains it is a successor of the tribal nation, while the Cherokee Nation maintains there has been continuity of government and that the modern and historic Cherokee Nations are one and the same.
Robert T. Anderson, a member of the Bois Forte Band of Ojibwe and University of Washington law professor, wrote the Jan. 17 Department of Interior memo that declared the secretary of the interior can take land within the Cherokee Nation Reservation into trust for the UKB. For tribes, placing land into a trust with the federal government offers a bevy of benefits, and the UKB has long petitioned to do so.
“I conclude that the [Oklahoma Indian Welfare Act] authorizes the secretary to take land in trust for UKB, the Cherokee Reservation is the UKB’s reservation for the Part 151 Regulations, UKB has exclusive tribal jurisdiction over its trust lands, and that lands taken into trust for the UKB for gaming purposes within the Cherokee Reservation constitute ‘Indian lands’ eligible for gaming under the Indian Gaming Regulatory Act,” Anderson wrote. “This memorandum does not in itself constitute the approval of any land-into-trust application, but is binding on the department as it considers any such applications that UKB may file.”
Released on the last full business day of President Joe Biden’s administration, the memo drew the immediate ire of the Cherokee Nation’s leaders, who promised to challenge its implications.
“One lawyer made this decision on his way out the door,” Cherokee Nation Attorney General Chad Harsha said. “And I would say that having reviewed that opinion, it is deeply flawed, and it does not reflect the history of the Cherokee Nation. We’ve challenged this opinion and the flawed legal basis on which it rests. We’re pursuing all options, including potential litigation.”
While Cherokee Nation leaders took an aggressive tone toward the memo, UKB leaders praised it for affirming that the UKB is “equal” to the Cherokee Nation.
“We have constantly had to defend who we are at this point, to defend who we are and defend our federal recognition,” said Tori Holland, UKB Tribal Council attorney and the UKB unseated delegate to the U.S. House of Representatives. “We’ve been saying all along that we are equal to the Cherokee Nation of Oklahoma. They have always said that we are not, and it’s nice that the United States finally put it in writing that we are.”
One reservation, two tribes: a complex and shared history
Anderson’s memo found that the UKB are the successors of the Keetoowah Society, a group of more conservative “full blood” members of the tribe who organized in secret for traditional political and religious meetings starting in the mid 19th century. Because of the group’s secretive nature, an exact formation date is unknown, but Anderson found evidence the organization existed by April 1858. By the 1860s, the society was an active force in the Cherokee Nation’s politics. While there was no territorial government in Indian Territory, the Cherokee Nation had its own democratic government with three branches and an bicameral legislature. As Oklahoma statehood approached, many members of the society protested the allotment of the Cherokee Nation’s communal lands.
In July 1905, Cherokee Nation Principal Chief William Charles Rogers did not call for new elections in anticipation of the federal dissolution of the nation’s government. (Congress never finalized the tribe’s dissolution.) The Keetoowah Society refused to accept Rogers’ decision, held their own governmental elections, impeached Rogers and elected Frank Boudinot as principal chief. (The United States recognized neither Boudinot nor the elected Keetoowah government.)
Anderson, quoting Cherokee author Robert J. Conley, described the official Cherokee Nation’s government as “dormant” after a slew of congressional acts to limit the government in the early 20th century.
During the so-called dormancy period, the officially recognized government of the Cherokee Nation consisted largely of presidentially appointed chiefs. Boudinot and likeminded Cherokees continued to organize unrecognized groups and petition the federal government on behalf of Cherokee interests. In 1930, he told Congress the Keetoowahs represented “more than half of the Cherokees by blood” and argued the Keetoowahs could legally act on behalf of the nation.
“The Cherokee Tribe, or, rather, the Cherokee Nation was a political entity, with an independent government, having a varied citizenship of Cherokees by blood, freedmen who had been slaves of Cherokees and their descendants, who were incorporated in the nation in 1866, and a few intermarried whites, 286 in number,” Boudinot testified while seeking reimbursement for legal expenses. “According to my theory, which has been passed on by the Supreme Court, a part of a tribe or some of the tribe, or a reasonable portion of the tribe, may act for and on behalf of the others.”
After the Oklahoma Indian Welfare Act passed in 1936, several Keetoowah factions — pronounced “Kih-too-wah” — began the process of applying for recognition as a Cherokee band. Tribes can become federally recognized by any one of the U.S. federal government’s three branches. The executive branch can recognize a tribe through a complex Bureau of Indian Affairs process, the judiciary can recognize a tribe during litigation (although the court will technically find a prior executive or legislative action that recognized the tribe), or Congress can pass a bill declaring the tribe federally recognized. Prior to the end of treaty making with tribes in the 19th century, the president could also recognize tribes through treaties and executive orders.
By February 1942, a large portion of the Keetoowah factions united to apply for federal recognition as the “United Keetoowah Band of Cherokee Indians in Oklahoma.” On Aug. 10, 1946, Congress officially recognized the tribe through legislation as a “band of Indians residing in Oklahoma.” After the act was passed, three Keetoowah groups approached the U.S. Department of Interior seeking to be recognized as the official UKB government. A constitution for the band was approved by voters in 1949 and officially ratified in 1950. Despite the UKB’s newfound recognition, however, the federal government continued to recognize the existing Cherokee Nation and its Principal Chief W.W. Keeler, who served in appointed and elected capacities from 1949 to 1975.
“As of 1950, the Cherokee Reservation was occupied by two federally recognized Cherokee tribes: the United Keetoowah Band of Cherokee Indians of Oklahoma led by its council and chief, and the Cherokee Nation led by its executive committee and principal chief,” Anderson concluded. “Congress did not provide detailed instructions regarding how these two tribes were supposed to relate to each other and to the Cherokee Reservation.”
Limited memo with expansive implications
In writing his memo, Anderson limited its effects to the question of taking land into trust for the UKB within the Cherokee Reservation, but other jurisdictional issues will be implicated by his memo’s findings to support that conclusion.
“I conclude that the Cherokee Reservation is UKB’s reservation, and that the [Department of the Interior] should review UKB’s fee-to-trust application using the on-reservation criteria of [C.F.R. Title 25 Section 151.9],” Anderson wrote. “This conclusion is based on the following two findings: (1) that UKB has an ownership interest in the Cherokee Reservation as a successor in interest to the Treaty of 1846; and (2) that Congress intended for UKB to possess governmental jurisdiction over the Cherokee Reservation and enjoy the benefits of the OIWA on its own reservation when it enacted the Keetoowah Recognition Act.”
While the immediate legal effect of the memo is limited to fee-to-trust applications, the underlying findings also support the argument the UKB has other rights within the Cherokee Reservation. Highlighting the expansive implications, a UKB press release heralded the memo as finding “the rights over the Oklahoma Cherokee Reservation once exercised by the historic Cherokee Nation continue today through both the UKB and the Cherokee Nation of Oklahoma equally.”
“This determination by the [Department of the Interior] should end any misinformation about the relationship between the CNO and UKB,” the release said. “The UKB and CNO are equal successors to the historic Cherokee Nation, equal and independent sovereigns in every way.”
In addition to clashing over land-into-trust applications, the Cherokee Nation — which does not include “of Oklahoma” in its formal name — and UKB have publicly argued over criminal jurisdiction within the Cherokee Reservation. In October, Cherokee Nation Principal Chief Chuck Hoskin Jr. wrote an op-ed in the Cherokee Phoenix maintaining the UKB has no criminal jurisdiction within the Cherokee Reservation, while the UKB maintains it possesses criminal jurisdiction throughout the entire 14-county reservation. Before Anderson’s memo, litigation between the tribes over criminal jurisdiction was likely. After the memo, it is almost certain.
“In the dying days of the Biden administration, the solicitor general at the Department of (the) Interior issued a shameful and cowardly ruling that inaccurately and wrongly interprets the Cherokee Nation’s treaties. The solicitor’s opinion is unsupported by law and history, and is offensive to the Cherokee people,” Hoskin said in a Jan. 17 statement. “Tribes and lawmakers alike should be deeply alarmed by a federal lawyer rewriting generations of historical and legal precedent with a stroke of his pen. We plan to ask the courts to correct this wrong interpretation and to follow the well-established historic and legal precedent. But the truth remains: the Cherokee Nation has sovereign authority and exclusive tribal jurisdiction over our 7,000 square-mile reservation in Oklahoma. We look forward to working with the members of our congressional delegation to ensure this ill-advised opinion is not implemented.”
If the memo is upheld and enforced, its effects could mirror the effects of the McGirt decision in Oklahoma by creating several new legal questions regarding the extent of each government’s jurisdiction on the reservation. While the memo’s effects could be significant, critics are likely to emphasize that the jurisdictional confusion is being created by one mid-ranking executive official’s memorandum instead of by the U. S. Supreme Court, the head of the judicial branch.
Casino question prompts solicitor general memo
Beyond the question of criminal jurisdiction, Anderson’s opinion also gives UKB officials hope that the tribe can once again operate a casino, something it has been impeded from doing for more than a decade. The opinion states that land taken into trust for gaming purposes within the Cherokee Reservation would qualify as “Indian Lands” under the Indian Gaming Regulatory Act, meaning such property would be eligible for gaming.
The UKB has a pending application with the U.S. Bureau of Indian Affairs seeking to put of tribal land in Tahlequah into federal trust to be used for gaming purposes, and UKB leaders are focused on developing the two-acre tract, which was the site of its old casino. Ahead of Anderson’s memo, UKB leaders had also considered making trust applications for two other sites, near Enid and Guthrie, but officials now say their focus is back on the Tahlequah property.
For nearly 30 years, the UKB operated a casino on Muskogee Avenue in south Tahlequah. But in 2013, the tribe closed its casino, which opened in 1986, after it lost an appeal to put the land into trust as required by the Indian Gaming Regulatory Act. In 2012, the Department of the Interior approved the UKB’s fee-to-trust land application for gaming purposes, but the approval was challenged in U.S. District Court by the Cherokee Nation. In March 2020, a district court judge issued an opinion holding that the Department of the Interior had authority to take the land into trust, but that the agency had not sufficiently established a basis for concluding the land was eligible under the Indian Gaming Regulatory Act’s exception for “former reservations” in Oklahoma.
In his memo, Anderson wrote that statutes and regulations long referred to reservations in Oklahoma as “former reservations” because many of them were presumed disestablished. However, in the McGirt v. Oklahoma decision, the U.S. Supreme Court ruled the Muscogee (Creek) Reservation was never disestablished, and the subsequent Hogner v. State decision concluded the Cherokee Reservation also remains intact. As a result, the Department of the Interior withdrew its 2012 approval of UKB’s application and successfully requested the U.S. 10th Circuit Court to vacate the March 2020 district court approval so the federal agency could reexamine the issue in light of the McGirt ruling.
Anderson invited the UKB and the Cherokee Nation to submit briefs, which included expert reports and numerous exhibits. UKB officials argued the band is a “successor in interest” to the treaties signed by the Cherokee Nation under the United States v. Washington litigation, saying that as such, UKB shares coequal jurisdiction with the Cherokee Nation over the Cherokee Reservation. The Cherokee Nation argued the UKB cannot qualify as a successor in interest, claiming a treaty right to exclusive tribal jurisdiction over the reservation.
Meanwhile, UKB officials and Gov. Kevin Stitt signed a gaming compact in July 2020, which authorized the tribe to operate a casino within one mile of a state or federal highway or turnpike in Logan County. But the Oklahoma Supreme Court found the UKB compact — and a compact Stitt signed with the Kialegee Tribal Town — to be invalid for not being approved by the legislative Joint Committee on State-Tribal Relations.
Because the state court decisions were issued after the compacts had been approved by default when then-Secretary of Interior David Bernhardt took no action on his department’s federal review after 45 days, the Cherokee Nation, Chickasaw Nation, Choctaw Nation and Citizen Potawatomi Nation sued in the U.S. District Court for the District of Columbia to prevent the compacts from taking effect under federal law. The defendant tribes, including the UKB, moved to dismiss the case in an effort to protect the approved status of their new compacts. In November 2022, the court dismissed the UKB and the KTT as defendants in the case because the two smaller tribes are not operating casinos, meaning the larger plaintiff tribes lacked standing to challenge their compacts.
In Otober 2023, Stitt’s office asked that the new UKB and Kialegee compacts be considered by the Joint Committee on State-Tribal Relations, but the legislative body unanimously rejected the agreements. If the UKB ultimately receives approval to place land in trust for gaming, it would need to operate under a renewed version of the state’s Model Tribal Gaming Compact.
Tahlequah trust application pending, ‘nothing will happen soon’ in Enid, Guthrie
With the Anderson memo now stating their successor interest within the Cherokee Reservation, UKB leaders are waiting for a Department of Interior ruling on the tribe’s request to place the 2.03-acre site of its former Tahlequah casino into trust “to improve and advance the economic status of its members.”
The UKB is waiting for a land and trust determination on the parcel, UKB Attorney General Klint Cowan said Monday, Jan. 27.
“We own it, but it’s not held in trust by the federal government, so we’re asking the federal government to take it into trust which should then enable us to game on it,” Cowan said.
Holland, the UKB Tribal Council attorney, said Anderson’s opinion is a boost to the tribe’s application with the BIA. She said the tribe doesn’t have a time frame on when such a determination will be made by the federal agency.
“The 2.63 acres is currently pending approval for trust, and that would be done by the Eastern District of the Bureau of Indian Affairs,” Holland said.
The UKB has also looked at attempting to develop casino operations at two other sites, one west of Enid in Garfield County and the other near Guthrie in Logan County, far west of the Cherokee Reservation.
“The tribe is still talking about all of its options, but nothing will happen soon, because there’s been no final agency action yet to take land into trust for gaming for us and wherever the tribe attempts to do a gaming facility,” Cowan said. “The land would need to be taken into trust for gaming for the tribe, and that’s not going to happen quickly, so there’s nothing really happening at this point with the western Oklahoma parcels. We haven’t even submitted a land and trust application for that for either Guthrie or Enid, so there’s not even anything pending at this point for those properties. That would be a years-long process — I mean, years — so it’s nothing that will happen soon. The general idea is to wait until the BIA decides whether to take the land in trust in Tahlequah and then proceed.”
