UNITED STATES DISTRICT COURT

Transcription

1 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 1 of 25 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA (1 THE CHEROKEE NATION, vs. Plaintiff(s (2 S.M.R. JEWELL, in her official capacity as Secretary of the Interior, U.S. Department of the Interior, and (3 KEVIN WASHBURN, in his official capacity as Acting Assistant Secretary for Indian Affairs U.S. Department of the Interior, and (4 ROBERT IMPSON, in his official capacity as Eastern Oklahoma Regional Director, Bureau of Indian Affairs, Defendant(s Civil Action No. 14-cv-19-GKF-FHM PLAINTIFFS BRIEF IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION David McCullough, OBA No S. Douglas Dodd, OBA No Doerner, Saunders, Daniel & Anderson, L.L.P. Two West Second Street, Suite 700 Tulsa, Oklahoma Telephone: ( Facsimile: ( dmccullough@dsda.com sddodd@dsda.com Todd Hembree, OBA No Attorney General Cherokee Nation P.O. Box 948 Tahlequah, OK Tel: ( Fax: ( todd-hembree@cherokee.org Attorneys for The Cherokee Nation January 22, 2014

2 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 2 of 25 TABLE OF CONTENTS Page INTRODUCTION... 1 BACKGROUND... 3 A. Cherokee Nation Government and Treaty Territory B. The UKB and the UKB Corporation STANDARD OF REVIEW... 6 ARGUMENTS AND AUTHORITY... 6 A. Plaintiffs Are Likely to Succeed on the Merits A Determination of Likelihood of Success Is Subject to the APA Standard of Review The 2011 Decision Relies on Unprecedented and Legally Unsupported Rationales Advanced by the Department for the First Time in a Trust Application Approval The ASIA s and Regional Director s Determinations That the Department Has the Authority to Accept the Subject Tract in Trust for the UKB Corporation is Contrary to Law The ASIA s and Regional Director s Determination that Cherokee Nation Consent Was Not Required for the Trust Acquisition Is Contrary to Law B. Irreparable Harm to the Nation Will Result If a Trust Deed Is Issued Introduction Irreparable Harm will Occur Because There is No Legal Certainty that the Department Can Return Tribal Trust Land to Fee Status After the Issuance of a Trust Deed Irreparable Harm Will Occur Because Issuance of a Trust Deed Will Cause Serious Jurisdictional Conflicts Between the Cherokee Nation and the UKB C. There is Little Possibility of Harm to Defendants if Relief is Granted D. There is a Strong Public Interest in Granting Plaintiffs Motion CONCLUSION ii

3 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 3 of 25 Federal Cases TABLE OF AUTHORITIES Page Arizona v. United States, U.S., 132 S.Ct ( Buzzard v. Oklahoma Tax Commission, No. 90-C-848-B (N.D. Okla. Feb. 24, 1992, aff'd, 992 F.2d 1073 (10th Cir Carcieri v. Salazar, 555 U.S. 379 ( , 9, 17 Cherokee National v. Acting Eastern Oklahoma Regional Director, Bureau of Indian Affairs, Docket No. IBIA Cherokee Nation and Cherokee Nation Entertainment, LLC v. S.M.R. Jewell, and Kevin Washburn Defendants and United Keetoowah Bank of Cherokee Indians in Oklahoma and United Keetoowah Bank of Cherokee Indians in Oklahoma Corporation, Intervenor Defendants, case number 12-cv-493-GKF-TLW... 2 Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140 (10 th Cir Crowe & Dunlevy, P.C. v. Stidham, 609 F.Supp.2d 1211 (N.D.Okla , 16 Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F. 3d 1149 (10th Cir Elwell v. Oklahoma ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303 (10 th Cir Gaines v. Ski Apache, 8 F.3d 726 (10th Cir Hillsdale Env. Loss Prevention, Inc. v. U.S. Army Corps of Eng'rs, 702 F.3d 1156 (10 th Cir In re Sac & Fox Tribe of Mississippi in Iowa/Meskwaki Casino Litig., 340 F.3d 749 (8 th Cir Kansas Hosp. Ass'n v. Whiteman, 835 F.Supp (D. Kan Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917 (6th Cir Motor Vehicle Mfrs. Ass n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 ( , 10 N. Mariana Islands v. United States, 686 F.Supp. 2d 7 (D.D.C Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 491 F. Supp. 2d 1056 (N.D. Okla iii

4 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 4 of 25 New Mexico ex rel. Richrdson v. Bureau of Land Mgmt, 565 F.3d 683 (10 th Cir O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F. 3d 973 (10th Cir Oklahoma v. Hobia, Op. and Order, 2012 WL at *1-8, (N.D. Okla. July 20, , 6 Patchak v. Salazar, 132 S.Ct ( Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10 th Cir Public Lands Council v. Babbitt, 167 F.3d 1287 (10 th Cir RoDa Drilling Co. v. Siegal, 552 F.3d 1203 (10 th Cir SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096 (10th Cir. 1991, overruled on other grounds Schrier v. University of Colorado, 427 F. 3d 1253 (10th Cir Seneca-Cayuga Tribe v. State of Okla., 874 F.2d 709 (10 th Cir United Keetoowah Band v, Mankiller, No. 92-C-585-B (N.D. Okla. Jan. 27, 1993, aff'd, 2 F.3d 1161, 1993 WL , (10th Cir Federal Statutes 25 U.S.C. 1779(3... 3, 4 25 U.S.C. 2719(a(2(A(i U.S.C , 9 25 U.S.C U.S.C U.S.C , 5, 9 28 U.S.C. 2409a(a Other Authorities Act of June 18, 1934, 48 Stat Act of June 26, 1936, 49 Stat Act of August 10, 1946, Pub. L. No , 1, 60 Stat iv

5 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 5 of 25 Act of March 3, 1893, Ch. 209, 27 Stat. 612, 640, Administrative Procedures Act, 5 U.S.C. 706( Administrative Procedures Act, 5 U.S.C. 707( H.R. Rep. No ( Land Acquisitions, 61 Fed. Reg (Apr. 24, Oklahoma Indian Welfare Act of 1936, 25 U.S.C Public Law , 84 Stat Public Law , 105 Stat. 990 ( Public Law , 112 Stat Public Law , 25 U.S.C. 1779(3... 3, 4 Quiet Title Act, 28 U.S.C. 2409(a S. Rep. No ( Treaty of December 29, 1835, 7 Stat. 478 (Proclamation, May 23, , 5 Treaty of July 19, 1866, 14 Stat. 799 (Proclamation August 11, , 5 45 Fed. Reg (Sept. 18, Fed. Reg (Nov. 13, Appropriations Act, Public Law , 112 Stat Federal Regulations 25 C.F.R , C.F.R C.F.R , C.F.R (f C.F.R (b... 9, 10, C.F.R (b... 13, C.F.R v

6 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 6 of C.F.R C.F.R. pt vi

7 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 7 of 25 INTRODUCTION On January 6, 2014, the Interior Board of Indian Appeals ( IBIA entered an Order Dismissing Appeal in Cherokee Nation v. Acting Eastern Oklahoma Regional Director, Bureau of Indian Affairs, Docket No. IBIA (the Cherokee Appeal. In the Cherokee Appeal, the Cherokee Nation sought review of a May 24, 2011 decision (2011 Decision of the Acting Eastern Oklahoma Regional Director ( Regional Director, Bureau of Indian Affairs ( BIA which approved an application by the United Keetoowah Band of Cherokee Indians in Oklahoma ( UKB for the United States to accept title to land, owned in fee by the UKB, in trust for the United Keetoowah Band of Cherokee Indians in Oklahoma Corporation ( UKB Corporation, pursuant to Section 3 of the Oklahoma Indian Welfare Act of 1936 (OIWA, 25 U.S.C The land, referred to by the UKB as the "Community Services Parcel", comprises approximately 76 acres located in Cherokee County, Oklahoma, within the Cherokee Nation s Treaty Territory and former reservation ( Subject Tract. Because in 2013, the United States Department of the Interior ( DOI revised a section of regulations governing decisions by the Secretary of the Interior (the Secretary to approve or deny applications by Indian tribes to acquire land in trust and eliminated the previous 30-day waiting period after notice for the Secretary to acquire land into trust, the dismissal of the Cherokee Appeal permits the Secretary to now acquire the Subject Tract into trust with no notice or time for judicial appeals of the Secretary s land-into-trust decision. See 78 Fed. Reg (Nov. 13, 2013 (to be codified at 25 C.F.R. pt Before filing its Complaint on January 13, 2014, counsel for the Nation contacted counsel for the DOI at the U.S. Department of Justice in Washington, D.C. to inquire if the DOI had already taken the Subject Tract into trust for the UKB Corporation, and if not, if DOI had a time 1

8 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 8 of 25 schedule for taking the Subject Tract into trust for UKB Corporation. Counsel for DOI advised it appears that an acquisition would not take place this week and later confirmed that if they learned to the contrary (that acquisition was planned by DOI before the end of the week (Friday, January 17, 2014, they would advise counsel for the Cherokee Nation. Counsel for Nation requested that DOI enter into a self-stay arrangement whereby the DOI would agree and state in a letter that it would not take the Subject Tract into trust for the UKB Corporation without providing the Nation advance written notice to permit the Nation to seek injunctive relief from this Court. As of this filing, the Nation understands DOI has not yet taken the 76-acres into trust, but has not agreed to provide a self-stay letter and has offered no assurances that it will further delay taking the Subject Tract into trust. The Cherokee Nation ( Nation brought this action challenging the 2011 Decision on January 13, Its Complaint (Doc. 2 expressly seeks a temporary, preliminary and permanent injunction prohibiting the Secretary from accepting the Subject Tract into trust since there exists no legal authority empowering him to do so." Doc. 2 at The instant action is almost identical in its legal issues to the one filed by the Cherokee Nation and Cherokee Nation Entertainment, LLC against the DOI in August 2012 appealing the July 30, 2012 decision of the Assistant Secretary of the Interior for Indian Affairs ( ASIA to take a 2.03 acre tract of land in Tahlequah, Oklahoma into trust for the UKB Corporation for gaming. That appeal of the July 30, 2012 DOI decision (Cherokee Nation and Cherokee Nation Entertainment, LLC v. S.M.R. Jewell, and Kevin Washburn Defendants and United Keetoowah Bank of Cherokee Indians in Oklahoma and United Keetoowah Bank of Cherokee Indians in Oklahoma Corporation, Intervenor Defendants, case number 12-cv-493-GKF-TLW (the 2012 Action, is now at issue before this Court with the Cherokee Plaintiffs filing of their merits Reply (Doc. 139 on Friday 2

9 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 9 of 25 January 17, This Court has scheduled a hearing on the merits of the 2012 Action for Friday, May 9, 2014 at 9:30 a.m. The issues in the 2012 Action and the instant case are the same. Even the January 6, 2014 IBIA Order Dismissing the Nation s administrative appeal recognizes the 2012 Action and the impact the decision of this Court in the 2012 Action will have in the 76-acre matter: even assuming that we may have jurisdiction to consider some issues, another factor has presented itself during the pendency of this appeal: The Assistant Secretary issued a final Departmental decision to accept another parcel in trust for the UKB Tribal Corporation, and Appellant has challenged that decision in Federal court, raising precisely the same issues for which it seeks Board review in this appeal. Because the Assistant Secretary decided the same issues, and the Department is now defending the Assistant Secretary's decision in litigation, the Board will abstain from exercising whatever residual jurisdiction it may have. (emphasis added The IBIA s January 6, 2014 Order Dismissing Appeal ( IBIA Order (Exhibit A to the Nation s Complaint Doc. 2 and 6 is attached as Exhibit A to this Brief for the Court s convenience. In the absence of immediate injunctive relief from this Court, the DOI will transfer title to the Subject Tract into the name of the United States in trust for the UKB Corporation. The Nation seeks a temporary restraining order and/or preliminary injunction enjoining the transfer of title pending resolution on the merits of this action. BACKGROUND A. Cherokee Nation Government and Treaty Territory. The Cherokee Nation is a federally recognized Indian tribe with a constitutional form of government dating back to 1827 and a long history of treaty relations with the United States. The Nation has maintained a continuous government-to-government relationship with the United States and has exercised governmental functions since the earliest history of the United States. 12-cv-493, Doc. 36-3, AR3593, citing CN Ex. 9 at 2; and Pub. L. No (2002, 25 U.S.C. 3

10 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 10 of (3. In 1835 and 1866 the United States entered into treaties expressly protecting the Nation s governmental authority 1 over the Nation's territorial area defined in its treaties and owned in fee by the Nation in Indian Territory. 2 The Department recognized these treaty protections in a 1993 Indian lands opinion issued by the Tulsa Field Solicitor 3 : With little exception, the exterior boundaries of the present Cherokee Nation were agreed to by the terms of the [1835] Treaty of New Echota... Id. The 1993 opinion concluded that, Historically, the Cherokee Nation has exercised governmental authority over the fourteen county area... ( Treaty Territory. Id. Even the 2011 Decision acknowledges the location of the Subject Tract within the treaty boundaries of the Cherokee Nation : The subject property is located within Cherokee County, Oklahoma within the treaty boundaries of the Cherokee Nation as defined by the terms of the Treaty of New Echota, entered into on December 29, 1835 (7 Stat The 1835 Treaty provided that the Cherokee Nation relinquish all land east of the Mississippi River in exchange for land in Oklahoma and Kansas. By the terms of the Treaty of July 19, 1866 (14 Stat. 799, all land in Kansas and 6 tracts in 1 The Treaty of December 29, 1835, 7 Stat. 478 (Proclamation, May 23, 1836 ( 1835 Treaty, art 5, expressly guaranteed the Nation the right to self-governance within its treaty territory, so long as consistent with the Constitution and laws enacted by Congress regulating trade with Indians. This guarantee was protected by the Treaty of July 19, 1866, 14 Stat. 799 (Proclamation August 11, 1866 ( 1866 Treaty, art 13, which reaffirmed and declared in full force all provisions of prior treaties not inconsistent with the provisions of the 1866 Treaty. 2 The Nation acquired fee patent title to its new lands in 1838 as required by the 1835 Treaty. The Nation s land base was later reduced, due to cessions of lands in western Indian Territory under the Treaty of July 19, 1866, 14 Stat. 799 (Proclamation August 11, 1866 ( 1866 Treaty and cessions of the Nation s Cherokee Outlet lands under an agreement ratified by Act of March 3, 1893, ch. 209, 27 Stat. 612, 640, The Tulsa Field Solicitor determined in the 1993 opinion that lands within the Cherokee Nation s territory as established by treaties constitute Cherokee Nation former reservation lands for purposes of applying the after acquired Indian lands exception in IGRA, 25 U.S.C. 2719(a(2(A(i. 4

11 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 11 of 25 Oklahoma were sold. Since the cessions of 1866, the Cherokee Nation boundaries set by the 1835 Treaty, which comprise all or a portion of 14 counties in eastern Oklahoma, have not changed. The Bureau has consistently recognized this area as the "former reservation" of the CN [Cherokee Nation] Decision (Attached as Exhibit B at 6. The treaty boundaries of the Cherokee Nation as defined in the Nation s Treaty Territory includes Tahlequah, the historic and present site of the Cherokee Nation Capitol, in Cherokee County. B. The UKB and the UKB Corporation. The UKB never maintained a treaty relationship with the United States and never held title to the lands owned in fee by the Cherokee Nation. In 1945 the Acting Secretary of the Interior informed Congress that the Department declined the UKB s request to organize under the OIWA because the Department could not make a positive finding that they were a tribe or band within the meaning of the OIWA. Letter of March 24, 1945 from the Acting Secretary to Chairman Jackson, Committee on Indian Affairs, reprinted in H.R. Rep. No , at 2 (1945 and S. Rep. No , at 3 (1946. Congress authorized the UKB's organization the following year by approving the Act of August 10, 1946, Pub. L. No , 1, 60 Stat. 976 ( 1946 Act, which simply provides: That the Keetoowah Indians of the Cherokee Nation of Oklahoma shall be recognized as a band of Indians residing in Oklahoma within the meaning of section 3 of the Act of June 26, (emphasis added The UKB organized under section 3 of the OIWA, 25 U.S.C. 503, in 1950, with a federally approved constitution. 12-cv-493, Doc. 4 The 1946 Act's recognition of the UKB as a band for purposes of organization under the OIWA placed the UKB in no greater legal position than the Kialegee Tribal Town, which the Department administratively determined to a band for the same organizational purposes. Just as the Kialegee is only a subset band of the Muscogee (Creek Nation, the UKB is only a subset band of the Cherokee Nation. See Oklahoma v. Hobia, Op. and Order, 2012 WL at *1-8, (N.D. Okla. July 20,

12 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 12 of 25 45, AR The UKB Corporation was approved at the same election under authority of section 3 of the OIWA. Id. The UKB and the UKB Corporation are separate and distinct legal entities. 5 The UKB Constitution and the UKB Corporation's charter make no claims to any geographic or territorial jurisdiction. STANDARD OF REVIEW Injunctive relief is appropriate when the Plaintiffs demonstrate (1 a likelihood of success on the merits; (2 a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3 that the balance of equities tips in the movant s favor; and (4 that the injunction is in the public s interest. Oklahoma v. Hobia, Op. and Order, 2012 WL (citing Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1157 (10 th Cir The same standard applies to the issuance of temporary restraining orders. See e.g., Kansas Hosp. Ass n v. Whiteman, 835 F.Supp. 1548, 1551 (D.Kan The Cherokee Plaintiffs are entitled to a temporary restraining order and preliminary injunction under this standard. ARGUMENTS AND AUTHORITY A. Plaintiffs Are Likely to Succeed on the Merits. 1. A Determination of Likelihood of Success Is Subject to the APA Standard of Review. There is a strong likelihood of the Cherokee Nation s success on the merits in this case under the Administrative Procedures Act ( APA, 5 U.S.C. 706(2, because the 2011 Decision includes a number of conclusions that are not in accordance with the law, are in excess of 5 See Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 918 (6th Cir (Chickasaw Nation Industries, Inc., a federally chartered tribal corporation under section 503 of the OIWA, is wholly owned by the Chickasaw Nation tribe but is an entity separate and distinct from the Chickasaw Nation. ; See also Gaines v. Ski Apache, 8 F.3d 726, 729 (10th Cir and Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 491 F. Supp. 2d 1056, 1059 (N.D. Okla (the tribal constitutional and corporate entities organized under 476 and 477 of the IRA are separate and distinct entities. 6

13 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 13 of 25 statutory authority, and are without observance of procedure required by law. This Court has already found that the Nation made a strong showing of likelihood of prevailing on the merits in the 2012 Action (Spoken Decision on Motion for Preliminary Injunction, Doc. 92 in the 2012 Action. The 2011 Decision is also arbitrary and capricious under the APA, 707(2. Agency action is arbitrary and capricious under the APA if the agency (1 entirely failed to consider an important aspect of the problem, (2 offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, (3 failed to base its decision on consideration of the relevant factors, or (4 made a clear error of judgment. See Hillsdale Env. Loss Prevention, Inc. v. U.S. Army Corps of Eng rs, 702 F.3d 1156, 1165 (10th Cir. 2012, citing New Mexico ex rel. Richardson v. Bureau of Land Mgmt, 565 F.3d 683, 704 (10th Cir The 2011 Decision Relies on Unprecedented and Legally Unsupported Rationales Advanced by the Department for the First Time in a Trust Application Approval. The 2011 Decision by the Regional Director, which was made at the direction of the Assistant Secretary Indian Affairs ( ASIA was the first by the Department of the Interior to claim authority to acquire land in trust pursuant to section 3 of the OIWA. In the 2012 Action, the claims made and relief sought by the Cherokee Nation are almost identical to those made in the instant action. In the 2012 Action, at the time the ASIA issued the challenged 2012 Decision, a Departmental briefing paper was circulated. The paper identified Noteworthy Issues addressed in the 2012 Decision and stated: This decision and the one already made on the 76-acres are the first to find authority to acquire land in trust pursuant to section 3 of the OIWA. These decisions marks [sic] the first trust acquisitions approved for a tribal corporation of a tribe first recognized after cv-493, Doc. 43-6, AR4380 (emphasis added; see also 12-cv-493, Doc. 72. The decisions 7

14 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 14 of 25 are so implausible that [they] could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 ( The ASIA s and Regional Director s Determinations That the Department Has the Authority to Accept the Subject Tract in Trust for the UKB Corporation is Contrary to Law. The ASIA's decision, as reflected in the 2011 Decision, that the OIWA authorizes a trust acquisition for the UKB Corporation is contrary to law. The ASIA developed this theory to circumvent the Supreme Court s ruling in Carcieri v. Salazar, 555 U.S. 379 (2009, which was decided while the UKB s 2006 Gaming Tract trust application was pending. In Carcieri, the Court held that DOI cannot accept land into trust under section 5 of the IRA 6 for any Indian tribe that was not under federal jurisdiction in Id. at The UKB was organized in 1950, but the 2011 Decision states: The Assistant Secretary stated that this section of the IRA "prohibits the Department from finding that the UKB lacks territorial jurisdiction while other tribes have territorial jurisdiction," and concluded that "the UKB, like Cherokee Nation, possesses the authority to exercise territorial jurisdiction over its tribal lands." 2011 Decision at 7. As the briefing paper produced by the DOI in 2012 Action stated: the Assistant Secretary determined that he could acquire land in trust for the UKB Corporation under the OIWA so the temporal limitation on acquiring land in the IRA that the Supreme Court found in the Carcieri decision did not apply. Doc. 43-6, AR Section 5 of the IRA states in pertinent part: Title to any lands or rights acquired pursuant to this Act or the Act of July 28, 1955, as amended 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. 25 U.S.C. 465 (emphasis added. 8

15 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 15 of 25 In attempting to circumvent Carcieri, the ASIA and the Regional Director erroneously determined that section 3 of the OIWA implicitly authorizes the Secretary to take land into trust for the UKB Corporation Decision at 4 (emphasis added. However, that section provides that charters approved by the Secretary may convey to the incorporated group... any other rights or privileges secured to an organized Indian tribe under the IRA. 25 U.S.C Thus, it merely grants tribal corporations the same rights as the tribes themselves not greater rights. Because Carcieri makes clear the UKB has no right to have the land taken into trust under 5 of the IRA, 3 of the OIWA does not create such a right for the benefit of the UKB Corporation. Indeed, the Department failed to apply its own trust acquisition regulations, 7 which expressly acknowledge limitations on acquisitions for federal chartered corporations in the regulatory definition of tribe:... For purposes of acquisitions made under the authority of 25 U.S.C. 488 and 489, or other statutory authority which specifically authorizes trust acquisitions for such corporations, Tribe also means a corporation chartered under section 17 of the Act of June 18, 1934 (48 Stat. 988, 25 U.S.C. 477 or section 3 of the Act of June 26, 1936 (49 Stat. 1967; 25 U.S.C C.F.R (b (emphasis added. These circumstances are not present in this case. These specific limitations on the ASIA s authority to acquire land in trust for a chartered tribal corporation confirm the Department s understanding that a federal chartered tribal corporation may acquire trust property only when expressly authorized by law. Section 3 of the OIWA does not mention trust acquisitions at all, either for a tribe or a tribal corporation, but rather cross-references section 5 of the IRA, which in turn authorizes trust acquisitions for tribes, but not for tribal corporations. The Department s recognition that the IRA and the OIWA do not 7 The 2012 Decision purportedly approved the UKB s application to accept land into trust under 25 C.F.R. Part 151, which sets forth the authorities, policy, and procedures governing the acquisition of land by the United States in trust status for individual Indians and tribes. 25 C.F.R ; Doc. 28-4, AR 21. 9

16 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 16 of 25 provide statutory authority for trust acquisitions for federal chartered tribal corporations is addressed succinctly in the 1980 comment accompanying the final regulatory definition of tribe in 25 C.F.R (b: Another criticism of this definition was its failure to include tribal corporations. Tribal corporations were not included because the acquisition authority in the Indian Reorganization Act is limited to an Indian tribe or individual Indian ; however, it has been pointed out that other statutory authority does provide for the acquisition of land in trust for tribal corporations; namely section 2 of Public Law (84 Stat. 120; 25 U.S.C In view of this, the definition has been changed to include corporations for limited purposes. 45 Fed. Reg (Sept. 18, 1980 (emphasis added. It is significant that the Department did not interpret the other rights or privileges provisions in section 3 of the OIWA as authorizing trust acquisitions by corporations chartered under section 3; otherwise, the references in 151.2(b to specific authorizing statutes would have included section 3. 8 The ASIA s finding that section 3 of the OIWA implicitly authorizes a trust acquisition for a federal chartered tribal corporation is contrary to the legally binding land acquisition regulations which have governed trust acquisitions for more than 30 years. When an agency departs from a prior interpretation of a statute that it is charged with implementing, the agency must justify the change of interpretation with a reasoned analysis. Public Lands Council v. Babbitt, 167 F.3d 1287, 1306 (10 th Cir (quoting Motor Vehicle Mfrs. Ass n, 264 U.S. at 42. There is no reasoned analysis here. The regulations, 25 C.F.R (b, authorize the ASIA to take land into trust for a chartered corporation if a statute specifically authorizes such action. The ASIA found only implicit authority to take the land into trust for the UKB Corporation. As such, the ASIA s decision is contrary to his authority under the regulations. 8 After all, [c]ommon sense, reflected in the canon expressio unius est exclusio alterius, suggests that the specification of [one provision] implies the exclusion of others. Elwell v. Oklahoma ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303, 1312 (10 th Cir. 2012, (quoting Arizona v. United States, U.S., 132 S.Ct. 2492, 2520 (

17 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 17 of 25 Put simply, the ASIA is permitted to acquire land in trust only for an individual Indian or [a] tribe under 25 C.F.R , and the UKB Corporation does not meet the definition of tribe in 151.2(b. Thus, the law and implementing regulations do not permit the ASIA to take land into trust for the UKB Corporation. 4. The ASIA s and Regional Director s Determination that Cherokee Nation Consent Was Not Required for the Trust Acquisition Is Contrary to Law. In the 2011 Decision, the Regional Director stated: [b]ecause the interest of the UKB in the historic Cherokee Nation, if any, has not been finally determined, we have considered herein the off-reservation factors. 9 In other words, the 2011 Decision found that the subject property is located within the former reservation of the Cherokee Nation and the ASIA had withdrawn his previous conclusion that the UKB was a successor in interest to the historic Cherokee Nation. Id. Departmental regulations provide that an Indian tribe may acquire land in trust status on a reservation other than its own only when the governing body of the tribe having jurisdiction over such reservation consents in writing to the acquisition. 25 C.F.R Here, the Regional Director clearly found that UKB had no interest in the historic Cherokee Nation and processed the application as an off-reservation acquisition. Thus, consent is required from the tribe having jurisdiction over such reservation. However, the Regional Director in the 2011 Decision (p.3 states: The Assistant Secretary s 2009 Decision concluded that Congress overrode 25 C.F.R with respect to lands within the boundaries of the former Cherokee reservation by including in the Interior and Related Agencies Appropriations Act 9 The Regional Director determined that the Assistant Secretary found that he need not decide whether this is an on-reservation or off-reservation acquisition because the result is the same under both analyses Decision at 9. 11

18 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 18 of 25 of the following language: "until such time as legislation is enacted to the contrary, no funds shall be used to take land into trust within the boundaries of the original Cherokee territory in Oklahoma without consultation with the Cherokee Nation." 112 Stat Thereafter, the Assistant Secretary specifically concluded that the Cherokee Nation of Oklahoma (CN "does not need to consent to the acquisition in trust of the UKB's land. It is only necessary that the Department consult with the CN. The Department satisfied this requirement when it solicited comments from the CN." The 1999 Appropriations Act provides that no funds shall be used to take land into trust within the boundaries of the original Cherokee territory in Oklahoma without consultation with the Cherokee Nation. The 1999 Appropriations Act amended language previous found in a 1991 Appropriations Act in which Congress appropriated funds for operation of Indian programs by direct expenditure, contracts, cooperative agreements and grants.. See Pub. L. No , 105 Stat. 990, (1991. The wording in the 1991 legislation restricts expenditures of federal funds as follows: That until such time as legislation is enacted to the contrary, none of the funds appropriated in this or any other Act for the benefit of Indians residing within the jurisdictional service area of the Cherokee nation of Oklahoma shall be expended by other than the Cherokee nation, nor shall any funds be used to take land into trust within the boundaries of the original Cherokee territory in Oklahoma without the consent of the Cherokee Nation. 105 Stat The different wording in the subsequent (and separate 1999 Appropriations Act, which references consultation rather than consent, does not have the significance attributed to it by ASIA. The one constant in both appropriations acts is that each act applies only to funds appropriated under that act. Thus, even if DOI s interpretation of the 1999 Appropriations Act is correct (which it is not, any limitation on the consent requirement in 25 C.F.R. Part would have applied only in those instances where the land to be taken into trust was purchased with 10 Pub. L. No , 112 Stat Hereinafter referred to as the 1999 Appropriations Act. 12

19 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 19 of 25 funds allocated under the 1999 Appropriations Act. Neither Regional Director nor the ASIA allege that any federal funds were used to purchase the Tract. Therefore, the Regional Director s determination that Cherokee Nation consent was not required for the UKB trust acquisition in Cherokee Nation former reservation is contrary to law and DOI s regulations. B. Irreparable Harm to the Nation Will Result If a Trust Deed Is Issued. 1. Introduction. If title is transferred to the United States in trust for the UKB Corporation, the Nation will suffer irreparable harm. A plaintiff satisfies the irreparable harm requirement by demonstrating a significant risk that he or she will experience harm that cannot be compensated after the fact by monetary damages. Crowe & Dunlevy, P.C., 609 F.Supp.2d 1211, 1222 (N.D.Okl quoting RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10 th Cir While purely speculative harm is not sufficient, [a] plaintiff who can show a significant risk of irreparable harm has demonstrated that the harm is not speculative and will be held to have satisfied that burden. Id. Finally, in determining this factor, the court should assess whether such harm is likely to occur before the district court rules on the merits. Id. 2. Irreparable Harm will Occur Because There is No Legal Certainty that the Department Can Return Tribal Trust Land to Fee Status After the Issuance of a Trust Deed. There is a significant risk of irreparable harm to the Nation if a trust deed to the Subject Tract is issued to the UKB Corporation while this suit is pending, due to the potential irrevocability of the transfer. Former regulations, 25 C.F.R (b, required the ASIA to provide a 30-day notice of intent to take a tract into trust, in order to afford parties an opportunity to judicially challenge that decision before issuance of a trust deed. Section (b was promulgated in 1996 to address Departmental concern that the Quiet Title Act ("QTA", 28 U.S.C. 2409(a, barred an APA suit challenging the ASIA s authority to accept land into trust 13

20 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 20 of 25 under the IRA. This concern arose from the Department's view that the QTA (as opposed to the APA provided the sole waiver of immunity from suit involving the United States title to land, subject to the exception that the QTA s waiver of immunity from suit does not apply to trust or restricted Indian lands. 28 U.S.C. 2409a(a; see "Land Acquisitions," 61 Fed. Reg (Apr. 24, In November 2013, the Department revised a section of regulations governing decisions by the Secretary to approve or deny applications by Indian tribes to acquire land in trust and eliminated the 30-day waiting period after notice for the Secretary to acquire land into trust claims changed its regulations such authority based on Patchak v. Salazar, 132 S.Ct (2012, which involved a third party's challenge to the Secretary's decision to place land into trust on behalf of an Indian tribe. There are no regulations currently in place setting out the procedure for unwinding a trust acquisition if a court finds that the ASIA erred in taking the land into trust, and there appear to have been no cases to date in which trust land has been taken out of trust status after issuance of a trust deed as a result of a challenge to a trust acquisition decision. The legal status of this issue is simply too speculative and poses a significant risk or irreparable harm, particularly in a case such as this, in which the likelihood of success is so strong. This Court granted the Nation s Motion for Preliminary Injunction (Doc. 84 in the 2012 Action and enjoined the DOI from taking a 2.03 acre tract of land into trust for the UKB Corporation. 3. Irreparable Harm Will Occur Because Issuance of a Trust Deed Will Cause Serious Jurisdictional Conflicts Between the Cherokee Nation and the UKB. The issuance of a trust deed for the Subject Tract will, for the first time since the Cherokee Nation entered the treaty conveying the Oklahoma reservation to the Nation, result in a 14

21 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 21 of 25 foreign Indian tribe asserting jurisdiction over the land within the Cherokee Nation s Treaty Territory, and will result in irreparable harm. In the 2011 Decision (p. 7, the Regional Director identified a number of potential jurisdictional issues and stated: As the Bureau office closest to tribal affairs in northeastern Oklahoma, the Eastern Oklahoma Region remains concerned that jurisdictional conflicts will arise between the UKB and the CN if property is placed into trust for the UKB within the former reservation boundaries of the Cherokee Nation Decision at p. 7. Of the concerns addressed by the Regional Director in the 2011 Decision, law enforcement issues are especially volatile. The Cherokee Nation has a crossdeputization agreement with the State of Oklahoma, agreed to by the Bureau of Indian Affairs, relating to sharing resources with state and federal officials for law enforcement within the Nation s geographical boundaries. 12 If the Subject Tract is placed in trust and becomes Indian country, the UKB can be expected to obstruct Cherokee Nation Marshals exercise of police authority at the site, potentially wreaking havoc with the Marshals working relationship with the county and resulting in criminal jurisdictional issues, to the detriment of gaming patrons. An Indian Tribe s sovereign governmental authority to regulate the activities within its jurisdiction is a unique and intangible power, the interference with which is not easily calculable and certainly not fully compensable with money damages. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10 th Cir (determining that a significant interference with tribal self-government constitutes irreparable harm, (quoting Seneca-Cayuga Tribe v. State of Okla., 874 F.2d 709, 716 (10 th Cir (affirming the grant of preliminary injunction. 11 The Regional Director went on to conclude: However, the Assistant Secretary concluded in his 2009 Decision that the perceived jurisdictional conflicts between the UKB and the CN are not so significant that I should deny the UKB s application. The Assistant Secretary s findings and conclusions on this issue are binding on the Region. Id. at pp ICA No , Cross-Deputization Agreement between the Cherokee Nation, the State of Oklahoma, and the U.S. Government, filed Oct. 10, 1994, Oklahoma Secretary of State. 15

22 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 22 of 25 C. There is Little Possibility of Harm to Defendants if Relief is Granted. After determining the harm that would be suffered by the moving party if the preliminary injunction is not granted, the court must then weigh that harm against the harm to the defendant if the injunction is granted. Crowe, 609 F.Supp.2d at Defendants will suffer no cognizable injury should this Court stay the transfer until proper judicial review. Providing the injunctive relief requested will be merely maintaining the status quo. "[T]he status quo is 'the last uncontested status between the parties which preceded the controversy until the outcome of the final hearing.'" Schrier v. University of Colorado, 427 F. 3d 1253, 1260 (10th Cir (emphasis added (quoting Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F. 3d 1149, 1155 (10th Cir (quoting SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1100 n.8 (10th Cir. 1991, overruled on other grounds, O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F. 3d 973, 975 (10th Cir It is also described as the "'last peaceable uncontested status existing between the parties before the dispute developed.'" Schrier, 427 F. 3d at 1260 (emphasis added. "In determining the status quo for preliminary injunctions, this court looks to the reality of the existing status and relationship between the parties and not solely to the parties' legal rights." Schrier, 427 F. 3d at The status quo is that the land is in fee status; a foreign Indian tribe has never, in the more than 175 years since the Cherokee Nation acquired its reservation in Oklahoma, been authorized by the United States government to exercise jurisdiction over land within the Cherokee historical jurisdictional boundaries; and that, as between the Nation, the DOI and UKB Corporation, the Nation is the only Indian tribe exercising governmental jurisdiction over trust lands within the Nation s historical jurisdictional boundaries. There is therefore no harm in delaying the possible 16

23 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 23 of 25 transfer of the Subject Tract into trust for the UKB Corporation until the parties have adjudicated this case on its merits. D. There is a Strong Public Interest in Granting Plaintiffs Motion. The issuance of a preliminary injunction will not be adverse to the public interest. It is clear that [t]he public interest is served when administrative agencies comply with their obligations under the APA. N. Mariana Islands v. United States, 686 F.Supp. 2d 7, 21 (D.D.C The public interest cannot be served by Defendants failure to comply with the IRA and the OIWA as Plaintiff has set forth in this brief. The public interest is served, therefore, by maintaining the status quo which is that the Nation is the only Indian tribe exercising governmental jurisdiction over trust lands within the Nation s historical jurisdictional boundaries. CONCLUSION A preliminary injunction would preserve the status quo until there is a proper judicial review of the administrative record of this case which is presently an incomplete record. The Cherokee Nation has a strong likelihood of success on the merits in light of the Department' unprecedented and unsupported decisions that the OIWA authorizes a federal chartered tribal corporation to serve as a trust beneficiary of title held in trust by the United States (as a rationale for the sole purpose of circumventing the Carcieri decision, and that the. Preservation of the status quo (i.e., the fee status of the Subject Tract will not cause harm to the UKB, particularly when weighed against the irreparable harm that issuance of a trust deed will cause to the Nation, due to the strong uncertainties concerning the Department's legal ability to take the land out of trust, the serious jurisdictional conflicts that will arise between the Nation and the UKB, and the 17

24 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 24 of 25 absence of a remedy at law for economic harm. Plaintiff respectfully requests that the Court enjoin the transfer pending a resolution of this action on the merits. Respectfully submitted, DOERNER, SAUNDERS, DANIEL & ANDERSON, L.L.P. By: s/david M. McCullough David McCullough, OBA No S. Douglas Dodd, OBA No Two West Second Street, Suite 700 Tulsa, Oklahoma Telephone: ( Facsimile: ( dmccullough@dsda.com sddodd@dsda.com and s/todd Hembree Todd Hembree, OBA No Attorney General Cherokee Nation P.O. Box 948 Tahlequah, OK Tel: ( Fax: ( Attorneys for The Cherokee Nation 18

25 Case 4:14-cv GKF-FHM Document 8 Filed in USDC ND/OK on 01/22/14 Page 25 of 25 CERTIFICATE OF SERVICE I hereby certify that on January 22, 2014, I electronically transmitted the foregoing document to the Clerk of the U.S. District Court for the Northern District of Oklahoma using the ECF System for filing and transmittal of a Notice of Electronic Filing to all ECF registrants. /s/ David McCullough David McCullough v1 19