Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 1 of 40

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1 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 1 of 40 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA CHEROKEE NATION, and CHEROKEE NATION ENTERTAINMENT, LLC, vs. Plaintiffs KENNETH L. SALAZAR, in his official capacity as Secretary of the Interior, U.S. Department of the Interior, and MICHAEL S. BLACK, in his official capacity as Acting Assistant Secretary for Indian Affairs, U.S. Department of the Interior. Defendants. Case No. 12-CV-493 GKF TLW THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA CORPORATION'S MOTION FOR LEAVE TO INTERVENE AS DEFENDANT AND OPENING BRIEF IN SUPPORT The United Keetoowah Band of Cherokee Indians in Oklahoma Corporation ("Keetoowah Cherokee Corporation", pursuant to Rule 24 of the Federal Rules of Civil Procedure, hereby moves for leave to intervene as a defendant in this action. In support, the Keetoowah Cherokee Corporation states as follows: BACKGROUND Nature of the Present Action. This action arises out of the United Keetoowah Band of Cherokee Indians in Oklahoma's ("Keetoowah Cherokee" August 15, 2011 Application to the United States Department of the Interior ("DOI" to acquire land in trust for the Keetoowah Cherokee Corporation, and concerns a 2.03 acre tract of real property located within the boundaries of the

2 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 2 of 40 historic Cherokee reservation and owned in fee simple by the Keetoowah Cherokee (the "Subject Tract". The Keetoowah Cherokee and Keetoowah Cherokee Corporation have continuously operated a gaming facility (the "Gaming Facility" on the Subject Tract since 1986, which currently employs many tribal members and is the primary source of funding for the Keetoowah Cherokee. In April 2006, the Keetoowah Cherokee filed a Land into Trust Application on the Subject Tract ("Original Application". The Application requested that the United States, acting through the Bureau of Indian Affairs ("BIA", accept title to the Subject Tract. No final action was taken with respect to the Original Application. 4 On August 15, 2011, the Keetoowah Cherokee submitted an amended application to the BIA requesting that the United States acquire the Subject Tract in trust either for the Tribe as requested in the 2006 Trust Application or, in the alternative, for the Tribe's federallychartered corporation ("Amended Application". The Cherokee Nation of Oklahoma ("CNO", a Plaintiff named in this matter (as Cherokee Nation, filed comments opposing the Amended Application on December 1, The Keetoowah Cherokee filed a response to the CNO's comments on December 20, On July 30, 2012, following an administrative review process participated by the Keetoowah Cherokee, CNO, and Defendants to this action, the Acting Assistant Secretary for Indian Affairs ("Assistant Secretary" issued a decision on the Amended Application, which recommended that the Subject Tract be accepted into trust for the benefit of the Keetoowah Cherokee Corporation ("Trust Determination". 2

3 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 3 of 40 Plaintiffs CNO and Cherokee Nation Entertainment, LLC ("CNE" now challenge the Assistant Secretary's Trust Determination. II. The Keetoowah Cherokee Corporation's Interest in the Present Action. g The present action directly impacts the rights of the Keetoowah Cherokee Corporation, as this action concerns property on which the Keetoowah Cherokee Corporation conducts gaming, and challenges a decision to acquire land in trust for the Keetoowah Cherokee Corporation. 9. Furthermore, Plaintiffs' claims for relief rest upon legal arguments that directly impact and concern the legal rights and status of the Keetoowah Cherokee, and will continue to impact and affect the Keetoowah Cherokee Corporation's rights in the foreseeable future. These arguments concern, inter alia: a. the status of the historic Cherokee Reservation as the shared/former reservation of both the Keetoowah Cherokee and the CNO; and b. the Secretary's authority to acquire land in trust for the Keetoowah Cherokee Corporation. 10. The Keetoowah Cherokee has an interest in the Subject Tract, and that interest would be impaired by a determination in the present action concerning the legality of the Trust Determination or the Secretary's authority to accept the Subject Tract into trust. 11. Moreover, the Keetoowah Cherokee Corporation has an interest in continuing to conduct gaming operations at its Gaming Facility. If Plaintiffs succeed herein in overturning the Trust Determination and/or delaying the acceptance of the Subject Tract into trust until after August 30, 2013, the Keetoowah Cherokee Corporation's substantive rights and ability to continue gaming operations at the Gaming Facility will be directly affected. 3

4 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 4 of The existing Defendants have recognized that the Keetoowah Cherokee Corporation's rights may be substantially impacted by this matter and do not oppose the Keetoowah Cherokee's intervention in this case. 13. The Plaintiffs, in oral argument conducted on August 9, 2013, represented to the Court their mutual belief that the Keetoowah Cherokee Corporation is a necessary party to this action. 14. However, notwithstanding their statements regarding the Keetoowah Cherokee Corporation as a necessary party, and that this matter arises out of a challenge to a decision that grants benefits to the Keetoowah Cherokee Corporation, the Plaintiffs have objected to the Keetoowah Cherokee's intervention in this case. 15. The Keetoowah Cherokee Corporation's intervention in this case will neither unduly delay these proceedings nor unfairly prejudice any existing party. If intervention is permitted, the Keetoowah Cherokee Corporation will comply with any briefing and scheduling order(s set by this Court. ARGUMENT AND AUTHORITY The Keetoowah Cherokee Corporation should be permitted to intervene in this case as a matter of right. Rule 24(a(2 of the Federal Rules of Civil Procedure provides that any applicant who (1 timely files an application to intervene, (2 "claims an interest relating to the property or transaction which is the subject of the action," (3 "is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest," and (4 has interests that are not adequately represented by existing parties, shall be permitted to intervene in a pending action. Fed. R. Civ. P. 24(a(2. The Keetoowah Cherokee Corporation 4

5 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 5 of 40 satisfies each of these requirements and, therefore, should be permitted to intervene as a matter of right. A. The Keetoowah Cherokee Corporation's motion to intervene was timely filed. "The timeliness of a motion to intervene is determined 'in light of all of the circumstances." Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223, 1232 (10 th Cir (quoting Sanguine, Ltd. v. U.S. Dep't of Interior, 736 F.2d 1416, 1418 (10 th Cir In determining timeliness, the 10 th Circuit has recognized three factors of particular importance: (1 the length of time since the applicant knew of its interest in the case, (2 prejudice to the parties, and (3 prejudice to the applicant. Tyson Foods, Inc., 619 F.3d 1223, Length of Time Since the Keetoowah Cherokee Knew of its Interest. Courts are reluctant to allow intervention of an applicant that has delayed unduly in seeking to intervene. Tyson Foods, Inc., 619 F.3d at However delay is to be measured "from when the movant was on notice that its interest may not be protected by a party already in the case." Id. Although this matter was initiated on August 29, 2012, the Keetoowah Cherokee Corporation was not on notice that its interests may not be protected by a party already in the case until August 12, 2013, when the Court issued a preliminary injunction in favor of the Plaintiffs that was, in part, based upon the absence of the Keetoowah Cherokee Corporation from the case. The Keetoowah Cherokee Corporation has not unduly delayed in seeking to intervene indeed its request comes only days after it became aware of the apparent necessity of its intervention. 2. Prejudice to Existing Parties 5

6 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 6 of 40 Prejudice to the existing parties in a case is a critical factor in determining a motion to intervene. See Tyson Foods, Inc., 619 F.3d at "[T]he prejudice to other parties must be prejudice caused by the movant's delay, not by the mere fact of intervention." Tyson Foods, Inc., 619 F.3d at The intervention of the Keetoowah Cherokee Corporation at this stage of the case would not result in any prejudice to the existing parties. See Utah Ass 'n of Counties v. Clinton, 255 F.3d 1246, 1250 (10 th Cir In Clinton, the 10 th Cir. reversed the district court's denial of a motion to intervene, which was filed two and a half years after the initiation of the case. Id. at 1250, The court found that because the case was "far from ready for final disposition; no scheduling order has been issued, no trial date set, and no cut-off date for motions set[,]" there was no prejudice to plaintiffs stemming from the length of time between the initiation of the case and the request to intervene. See Clinton, 255 F.3d at Cf. Tyson Foods, Inc., 619 F.3d at 1236 (intervention by Tribe three weeks before scheduled trial would create "prejudice that would not have resulted from an earlier intervention.". No prejudice will be occasioned upon the existing parties as a result of the Keetoowah Cherokee Corporation's intervention. While this case was filed nearly a year ago, the administrative record has yet to be determined, no briefing (or motion schedule is in effect, and no trial date has been set. Moreover, the Defendants do not object to the requested intervention. Accordingly, intervention in this matter by the Keetoowah Cherokee Corporation, at this stage, will not result in any prejudice to the existing parties, and should be allowed. 3. Prejudice to the Keetoowah Cherokee Corporation The Keetoowah Cherokee Corporation could suffer great prejudice if it is not allowed to intervene, as made apparent by the recent preliminary injunction ruling. A judgment in favor of Plaintiffs in the instant case will prevent the Keetoowah Cherokee Corporation from realizing the 6

7 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 7 of 40 benefit of having land acquired in trust for the Keetoowah Cherokee Corporation despite the Trust Decision issued in the Keetoowah Cherokee Corporation's favor in July, Moreover, such a decision would result in the closure of the Keetoowah Cherokee's gaming facility the Tribe and the Corporation's primary source of funding and the employment of many tribal members would be snuffed out. In this case, the ultimate determination of the legal questions presented will likely be dispositive of the Keetoowah Cherokee Corporation's rights concerning the Subject Tract and potentially any parcel the Keetoowah Cherokee Corporation could have placed into trust in the future. Thus, the lone, inescapable conclusion is that the Keetoowah Cherokee Corporation will be prejudiced if intervention of right is not permitted. Id. B. The Keetoowah Cherokee Corporation claims a significant, protectable interest in the property that is the subject of this action. With respect to the second factor, the Keetoowah Cherokee Corporation has a substantial interest in the "property... which is the subject of this action." Fed. R. Civ. P. 24(a(2. To establish an "interest" that falls within the purview of Rule 24(a(2, a party must show that its interest in the property or transaction at issue is "direct, substantial, and legally protectable." See Stilwell v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d 1038, 1042 (10th Cir (quoting Alameda Water & Sanitation Dist. v. Browner, 9 F.3d 88, 90 (10th Cir The Keetoowah Cherokee Corporation, as the beneficiary of the Trust Decision, undeniably has an interest in the Trust Decision that Plaintiff's seek to overturn. In the event Plaintiffs are successful in overturning the Trust Decision, the Keetoowah Cherokee Corporation, who is entitled to have land placed in trust for its benefit under the Trust Decision, will loose the benefit granted to it pursuant to the Trust Decision. Moreover, a decision overturning the Trust Decision will permanently and irreparably impact the Keetoowah 7

8 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 8 of 40 Cherokee Corporation's ability to have any land placed into trust for its benefit in the future. This is precisely the type of interest that will "easily satisfy" the first requirement for intervention as of right. The Keetoowah Cherokee Corporation's interest is, therefore, more than sufficient to satisfy the Rule 24(a(2 "interest" requirement. C. The disposition of this action will, as a practical matter, impair the Keetoowah Cherokee Corporation's ability to protect its interests. Like the first and second requirements, the third Rule 24(a(2 requirement- which requires the Keetoowah Cherokee Corporation to demonstrate that its interest will be impaired by the disposition of this action is easily satisfied here. As discussed above, a judgment in favor of Plaintiffs in the instant case will have a direct, immediate effect on the Keetoowah Cherokee Corporation, preventing the placement of the Subject Tract into trust. The resolution of this matter is nothing more than an appeal of the land-to-trust application proceedings that have been the subject of administrative proceedings initiated by the Keetoowah Cherokee. The legal questions to be answered in this matter including whether the Assistant Secretary properly determined that the historic Cherokee Reservation is the shared/former reservation of the Keetoowah Cherokee and the CNO were addressed during the administrative proceedings concerning the Keetoowah Cherokee's Amended Application. If this case were to proceed and result in a decision favorable to the Plaintiffs, it could have the effect of permanently preventing any acquisition of land in trust for the Keetoowah Cherokee Corporation, which would also foreclose any future potential for gaming to be conduced by the Keetoowah Cherokee Corporation. Thus, the lone, inescapable conclusion is that the Keetoowah Cherokee Corporation's rights will certainly be impaired as a practical matter if intervention of right is not permitted. 8

9 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 9 of 40 D. The Keetoowah Cherokee Corporation's interests are not adequately represented by existing parties. The fourth and final Rule 24(a(2 factor is also satisfied in this case, as the Keetoowah Cherokee Corporation's interests are not adequately represented by the existing parties to this action. "[T]he requirement of Rule 24(a is satisfied 'if the applicant shows that the representation of his interest may be inadequate, and the burden of making that showing should be treated as minimal.'" Nat'lFarm Lines v. ICC, 564 F.2d 381, 383 (10th Cir (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972. Although the existing Defendants, would be positionally aligned with the Keetoowah Cherokee Corporation if intervention is permitted, this alone does not suffice to establish that the Keetoowah Cherokee Corporation's interests are adequately represented. Cf. Planned Parenthood, Inc. v. Citizens for Com. Action, 558 F.2d 861, 870 (8th Cir ("The District Court concluded that the applicants are adequately represented by defendants, with whom they seek to align themselves. We disagree.". Indeed, several courts, including this Court in its recent order granting the Keetoowah Cherokee intervention of right [Doc. # 48], have recognized the inadequacy of governmental representation of the interests of private parties. See, e.g., Nat'l Farm Lines, 564 F.2d at 383 (collecting cases. Even where, as here, the governmental defendants and the would-be intervenor both seek to uphold the same Trust Decision, their interests will differ: the instant action exposes the Keetoowah Cherokee Corporation to a risk of substantial loss, as a decision favorable to Plaintiffs will deprive the Keetoowah Cherokee Corporation of its ability to have the Subject Tract taken into trust, may hinder the Keetoowah Cherokee Corporation from having other lands 1 There can be no dispute that the Plaintiffs, who seeks to enjoin the enforcement of the Trust Decision obtained by and in favor of the Keetoowah Cherokee, will not represent the Keetoowah Cherokee Corporation's interests in this matter. 9

10 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 10 of 40 taken into trust, and will impact the Keetoowah Cherokee Corporation's ability to continue conducting gaming activities on the Subject Parcel; the Defendants, by contrast, bear no such risk of short- or long-term loss if the Trust Decision is overturned or an injunction is issued. Cf. Planned Parenthood, 558 F.2d at 870. Because the Keetoowah Cherokee Corporation has a financial interest in pursuing this litigation that is not shared by the Defendants, there is a divergence of interests sufficient to establish that the Government may not adequately represent the Keetoowah Cherokee Corporation here. Although the Keetoowah Cherokee Corporation initially believed that the Keetoowah Cherokee could adequately represent the interest of the Corporation, the Court's recent ruling concerning the issuance of a preliminary injunction in favor of Plaintiffs demonstrates otherwise. In its August 12, 2013 ruling, the Court found that Plaintiffs had demonstrated irreparable harm by virtue of the fact that the Keetoowah Cherokee Corporation was not a party and had not adequately waived its sovereign immunity and could therefore take action that would delay or prevent the unwinding of the trust acquisition. 2 Trns. Aug. 12, 2012 Ruling at 16:2-19 [Doc. # 92]. Because neither the Defendants nor the Keetoowah Cherokee can fully protect the Keetoowah Cherokee Corporation's interest in this action, the fourth and final Rule 24(a(2 factor has been satisfied. II. In the alternative, this Court should grant the Keetoowah Cherokee Corporation permissive intervention in this matter. In the event that this Court denies the Keetoowah Cherokee Corporation's motion to intervene as of right, this Court should nonetheless permit the Keetoowah Cherokee Corporation to intervene under Rule 24(b(2, which permits a timely applicant to intervene when "the applicant's claim or defense and the main action have a question of law or fact in common." So 2 The Keetoowah Cherokee Corporation disagrees with the Court's finding regarding the adequacy of the waiver provided by Resolution of the Keetoowah Cherokee Corporation's Corporate Authority Board. 10

11 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 11 of 40 long as these two factors are met and the Court, in its discretion, determines that the intervention will not unduly delay or prejudice the rights of the original parties, permissive intervention may be granted. Id. As discussed in Section I(A, supra, the Keetoowah Cherokee Corporation's Motion was filed very shortly after it determined that its interest were not adequately protected by existing parties, there is no scheduling order in place, no motions deadlines set, no trial date set, and the administrative record has not yet been completed; accordingly, there is no prejudice to existing parties, and this Motion is timely. Moreover, as discussed in Section I(C and the Keetoowah Cherokee Corporation's factual averments, supra, this case is, effectively, an appeal of the Trust Decision obtained by the Keetoowah Cherokee for the Keetoowah Cherokee Corporation. Accordingly, this action shares questions of both law and fact with the underlying action, such as the status of the historic Cherokee Reservation as the shared/former reservation of both the Keetoowah Cherokee and the CNO, and whether the Secretary has authority to acquire the Subject Tract in trust. Indeed, the Plaintiffs seek to invalidate the Secretary's decision to take land into trust, a decision in which the Keetoowah Cherokee Corporation has a cognizable and compelling interest. Finally, permissive intervention will not unduly delay or prejudice the rights of either the existing parties. The Keetoowah Cherokee's participation in this action will result in little, if any, delay as no deadlines are set. Moreover, no additional discovery will be required in the event intervention is permitted, as this is an appeal of an administrative decision, requiring no discovery other than the production of an administrative record. Finally, the Keetoowah Cherokee Corporation has certified that it is willing and able to comply with any briefing and 11

12 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 12 of 40 scheduling orders entered by the Court in this matter. Accordingly, the Keetoowah Cherokee Corporation's participation in this action will cause no prejudice to any of the existing parties. CONCLUSION Federal courts should allow intervention 'where no one would be hurt and greater justice could be attained.'" Utah Ass'n of Counties v. Clinton, 255 F.3d 1246, 1250 (10 th Cir (quoting Sierra Club v. Espy, 18 F.3d 1202, 1205 (5 th Cir. 1994(citation omitted. This case is, in effect, an appeal of an administrative decision initiated by the Keetoowah Cherokee for the benefit of the Keetoowah Cherokee Corporation, and concerning property on which the Keetoowah Cherokee Corporation conducts gaming. Because the Keetoowah Cherokee Corporation has timely intervened in this action, which could substantially impair the Keetoowah Cherokee Corporation's interests in the Subject Tract, and because the Keetoowah Cherokee Corporation's interest in the timely resolution of this matter are not adequately shared by the existing parties, the Keetoowah Cherokee Corporation should be permitted to intervene in this action as of right pursuant to Rule 24(a(2. Alternatively, the Keetoowah Cherokee Corporation requests that, in view of the legal questions shared between this action and collateral administrative proceedings, and given the absence of any prejudice, this Court grant the Keetoowah Cherokee Corporation permission to intervene under Rule 24(b(2. Pursuant to Rule 24(c, the Keetoowah Cherokee Corporation submits its proposed answer herewith as Exhibit "A." 12

13 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 13 of 40 Respectfully submitted, McAfee & Taft, A Professional Corporation s/ James C. McMillin James C. McMillin, OBA # Tenth Floor, Two Leadership Square 211 North Robinson Oklahoma City, Oklahoma Telephone: ( Facsimile: ( iames.mcmillin@mcafeetaft.com Jessica John-Bowman, OBA # South Boulder Avenue, Ste. 900 Tulsa, Oklahoma Telephone: ( Facsimile: ( i essica.i ohnbowman@mcafeetaft. com Attorneys for United Keetoowah Band of Cherokee Indians in Oklahoma Corporation And Christina M. Vaughn, OBA # South Boulder Avenue, Ste. 900 Tulsa, Oklahoma Telephone: ( Facsimile: ( christina.vaughn@mcafeetaft.com Attorney General, United Keetoowah Band of Cherokee Indians in Oklahoma 13

14 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 14 of 40 CERTIFICATE OF SERVICE I hereby certify that on August 15, 2013, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to all ECF registrants. s/ James C. McMillin James C. McMillin 14

15 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 15 of 40 Exhibit A

16 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 16 of 40 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA CHEROKEE NATION, and CHEROKEE NATION ENTERTAINMENT, LLC, vs. Plaintiffs KENNETH L. SALAZAR, in his official capacity as Secretary of the Interior, U.S. Department of the Interior, and MICHAEL S. BLACK, in his official capacity as Acting Assistant Secretary for Indian Affairs, U.S. Department of the Interior. Defendants. Case No. 12-CV-493 GKF TLW UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA CORPORATION'S PROPOSED ANSWER AND AFFIRMATIVE DEFENSE TO PLAINTIFFS' COMPLAINT Intervenor/Defendant United Keetoowah Band of Cherokee Indians in Oklahoma Corporation ("Keetoowah Cherokee Corporation" or Defendant hereby answers the allegations in Plaintiffs' Complaint [Dkt. No. 2.] The Keetoowah Cherokee Corporation denies any and all allegations in Plaintiffs' Complaint, whether express or implied, that are not specifically admitted, denied, or qualified herein. The numbered paragraphs of this Answer correspond to the numbered paragraphs and sections of the Complaint. NATURE OF THE ACTION The allegations in paragraph 1 provide Plaintiffs' characterization of this action to which Defendant needs not respond. To the extent a response is deemed required, Defendant denies the allegations. Additionally, the allegations in paragraph 1 include Plaintiffs' description, characterization, summarization or quoting of the Acting Assistant Secretary for Indian Affairs'

17 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 17 of 40 July 30, 2012, decision ("July 30, 2012, Decision", which speaks for itself and is the best evidence of its contents. To the extent the allegations are incomplete or inconsistent with the July 30, 2012, Decision, they are denied. Finally, Defendant is without sufficient information or knowledge to admit or deny the ownership status of Plaintiff Cherokee Nation Entertainment, L.L.C. ("CNE", and Defendant admits that Plaintiff Cherokee Nation ("CN", referred to herein by its proper name of Cherokee Nation of Oklahoma ("CNO" is listed as a federally recognized Indian Tribe. The allegations in paragraph 2 are conclusions of law to which Defendant needs not respond. To the extent a response is deemed required, Defendant denies the allegations. The allegations in paragraph 3 are conclusions of law to which Defendant needs not respond. To the extent a response is deemed required, Defendant denies the allegations. Additionally, the allegations in paragraph 3 include Plaintiffs' description, characterization, or summarization of the Oklahoma Indian Welfare Act of 1936 ("OIWA" and of certain federal regulations, which speak for themselves and are the best evidence of their contents. To the extent the allegations are incomplete or inconsistent with the plain language of either the statute or the regulations, they are denied. 4. The allegations in paragraph 4 are conclusions of law to which Defendant needs not respond. To the extent a response is deemed required, Defendant denies the allegations. Additionally, the allegations in paragraph 4 include Plaintiffs' description, characterization, or summarization of the Indian Reorganization Act of 1934 ("IRA", 25 U.S.C. 461 et seq., and of Carcieri v. Salazar, 555 U.S. 379 (2009, which speak for themselves and are the best evidence of their contents. To the extent the allegations are incomplete or inconsistent with the plain language of the IRA or of Carcieri v. Salazar, the allegations are denied. 2

18 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 18 of 40 The allegations in paragraph 5 are conclusions of law to which Defendant needs not respond. To the extent a response is deemed required, Defendant denies the allegations. 6. The allegations in paragraph 6 are conclusions of law to which Defendant needs not respond. To the extent a response is deemed required, Defendant denies the allegations. Additionally, the second sentence of paragraph 6 sets forth a request for relief as to which no answer is required, but to the extent a response is deemed required, Defendant denies that Plaintiffs are entitled to the requested relief or any relief whatsoever. Defendant admits the allegations of the first sentence of paragraph 7. The allegations of the second sentence of paragraph 7 include Plaintiffs' characterization and quoting of an August 7, 2012, notice, which is published in the Federal Register, and is the best evidence of its contents. To the extent the allegations are incomplete or inconsistent with the plain language of the August 7, 2012, notice, they are denied. With respect to the third sentence of paragraph 7, this sentence sets forth a request for relief as to which no answer is required, but to the extent a response is deemed required, Defendant denies that Plaintiffs are entitled to the requested relief or any relief whatsoever. JURISDICTION AND VENUE 8. The allegations of paragraph 8 are conclusions of law and jurisdictional allegations, and as such require no response. To the extent an answer is deemed required, it is admitted that this Court has jurisdiction of this action only to the extent that specific claims fit under the specific terms of the jurisdictional provision. 9. The allegations of paragraph 9 are conclusions of law and jurisdictional allegations, and as such require no response, but to the extent a response is required, Defendant admits that, as to the allegations contained in the first sentence of paragraph 9, venue lies in this 3

19 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 19 of 40 judicial district but aver that venue may lie in another equally or more appropriate district. As to the remaining allegations of paragraph 9, Defendant denies these allegations. 10. The first sentence of paragraph 10 provides Plaintiffs' characterization of treaties with the historic Cherokee Nation, which speak for themselves and are the best evidence of their contents. Defendant denies any allegations contrary to their plain language and meaning. Defendant denies the remaining allegations of paragraph 10. PARTIES 11. Defendant admits that Plaintiff CN is listed as a federally recognized Indian Tribe and is sometimes (and properly referred to as the "Cherokee Nation of Oklahoma." Defendant admits that the name given Plaintiff in its unapproved 2003 Constitution is Cherokee Nation; however, because the 2003 Constitution was never approved by the Secretary, the Tribe's proper name is the Cherokee Nation of Oklahoma, pursuant to its 1976 Constitution. Further, the "Constitution" speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. The last sentence of paragraph 11 is denied. 12. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 12 and on that basis denies those allegations at this time. 13. Defendant admits the allegations of paragraph Defendant admits that Michael S. Black is the Director of the Bureau of Indian Affairs; that he was Acting Assistant Secretary for Indian Affairs when he authored and signed the July 30, 2012, Decision; and that he is named in his official capacity. 4

20 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 20 of 40 HISTORICAL FACTS 15. The allegations in paragraph 15 are conclusions of law and as such require no response, but to the extent a response is deemed required, that allegations are denied. Additionally, the allegations in paragraph 15 provide Plaintiffs' characterization of the Treaty of New Echota and the 1866 Treaty, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 16. Defendant admits that citizens of the historic Cherokee Nation were removed to Indian Territory in The remaining allegations in paragraph 16 provide Plaintiffs' characterization of the Treaty of New Echota, the 1866 Treaty, and the Act of March 3, 1893, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 17. The allegations in paragraph 17 provide Plaintiffs' characterization of the Treaty of New Echota and the 1866 Treaty, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 18. Defendant admits that the historic Cherokee Nation adopted a written constitution in 1827 and The remaining allegations of paragraph 18 are conclusions of law and as such require no response. Moreover, the allegations provide Plaintiffs' characterization of the Constitutions, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 5

21 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 21 of The allegations in paragraph 19 provide Plaintiffs' quoting from and characterization of the 1866 Treaty, which speaks for itself and provides the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 20. The allegations in paragraph 20 provide Plaintiffs' quoting from and characterization of the 1866 Treaty, which speaks for itself and provides the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 21. Defendant admits the allegations of the first two sentences of paragraph 21 as to the historic Cherokee Nation and the CNO. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in final sentence of paragraph 21 prior to the last phrase thereof, and on that basis deny those allegations at this time. Defendant denies that many citizens of CN or CNO are also members of the Keetoowah Cherokee. 22. The allegations in paragraph 22 constitute conclusions of law to which no response is required, but to the extent a response is deemed required, the allegations are denied. 23. The first sentence of paragraph 23 constitutes a conclusion of law to which no response is required, but to the extent a response is deemed required, the allegations are denied. With respect to the second sentence of paragraph 23, Defendant admits that the CNO adopted a new constitution in The third sentence of paragraph 23 provides Plaintiffs' quoting from and characterization of the 1976 Constitution, which speaks for itself and provides the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. With respect to the fourth sentence of paragraph 6

22 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 22 of 40 23, Defendant admits that the CNO held a referendum at which a majority of the voters voted in favor of adoption of a new Constitution, but avers that this Constitution was never approved by the Secretary. The remaining allegations of paragraph 23 constitute conclusions of law to which no response is required, but to the extent a response is deemed required, the allegations are denied. 24. The allegations in paragraph 24 provide Plaintiffs' characterization of Harjo v. Kleppe, 420 F. Supp (D.D.C. 1976, aff'd sub nom, Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978, which speaks for itself and provides the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 25. The allegations in paragraph 25 provide Plaintiffs' quoting from and characterization of the July 30, 2012, Decision and the July 29, 1937, Solicitor Opinion, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 26. The allegations in paragraph 26 provide Plaintiffs' quoting from and characterization of a March 24, 1945, letter from the then-acting Secretary of the Department of the Interior to Chairman Jackson, Committee on Indian Affairs, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 27. The allegations in paragraph 27 provide Plaintiffs' quoting from and characterization of the Act of August 10, 1946, which speaks for itself and is the best evidence of 7

23 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 23 of 40 its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 28. Defendant admits the allegations of paragraph The allegations in paragraph 29 provide Plaintiffs' quoting from and characterization of the Assistant Secretary for Indian Affairs' April 17, 1987, Decision, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 30. The allegations in paragraph 30 provide Plaintiffs' characterization of the Acting Regional Director of the Muskogee Regional Office's December 15, 1988, and February 1, 1989, letters, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 31. The first sentence of paragraph 31 provides Plaintiffs' characterization of the legal conclusions of unnamed courts. Because Plaintiffs do not provide cites for these decisions, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in the first sentence of paragraph 31 and on that basis deny those allegations at this time. The remaining allegations of paragraph 31 provide Plaintiffs' characterization of and quoting from United Keetoowah Band v. Sec 'y of the Interior, No. 90-C- 608-B (N.D. Okla. May 31, 1991, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 32. The allegations in paragraph 32 provide Plaintiffs' characterization of and quoting from Buzzard v. Oklahoma Tax Commission, No. 90-C-848-B (N.D. Okla. Feb. 24, 1992, aff'd, 8

24 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 24 of F.2d 1073 (10th Cir. 1993, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 33. The allegations in paragraph 33 provide Plaintiffs' characterization of and quoting from United Keetoowah Band v. Mankiller, No. 92-C-585-B (N.D. Okla. 1993, aff'd, 2 F.3d 1161 (10th Cir. 1993, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 34. Defendant admits the allegations of the first and second sentence of paragraph 34. The third sentence of paragraph 34 constitutes a legal conclusion to which no response is required, but to the extent a response is deemed required, the allegation is denied. All remaining allegations in paragraph 34 are denied. 35. The allegations in paragraph 35 provide Plaintiffs' characterization of a 1986 purchase contract and warranty deed executed on November 30, 1990, which speak for themselves and are the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 36. Defendant admits that the Subject Tract is located within the last treaty boundaries of the historic Cherokee Nation, but deny the remaining allegations of the first two sentences of paragraph 36. Defendant denies the allegations of the last sentence of paragraph 36 because the definition of "Indian reservation," quoted by Plaintiffs is at 25 C.F.R (f, not 25 C.F.R (f. Defendants further state that 25 C.F.R (f speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 9

25 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 25 of The allegations in paragraph 37 provide Plaintiffs' quoting from and characterizations of the July 30, 2012, Decision and of a warranty deed dated February 23, 2012, which speak for themselves and are the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 38. Defendant admits the allegations of paragraph The allegations in paragraph 39 provide Plaintiffs' characterization of the Indian Gaming Regulatory Act of 1988 ("IGRA", 25 U.S.C et seq., which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 40. The allegations in paragraph 40 provide Plaintiffs' characterization of a letter dated July 21, 2011, from the Chairman of the National Indian Gaming Commission ("NIGC" to George Wickliffe, Chief, United Keetoowah Band of Cherokee Indians in Oklahoma ("July 21, 2011, Letter", which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 41. The allegations in paragraph 41 provide Plaintiffs' characterization of the July 21, 2011, Letter, a July 18, 2011, memorandum from Lawrence Roberts NIGC General Counsel to the NIGC Chairman ("Roberts Memorandum", and a 2000 legal opinion issued by Kevin Washburn, former NIGC General Counsel, which speak for themselves and are the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 10

26 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 26 of The allegations in the first two sentences of paragraph 42 provide Plaintiffs' characterization of the Roberts Memorandum, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. The remaining allegation in the last sentence of paragraph 42 constitutes a legal conclusion to which no response is required, but to the extent a response is deemed required, the allegation is denied. GENERAL ALLEGATIONS 43. Defendants admit that on April 12, 2006, the Keetoowah Cherokee submitted an application, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. Defendant admits that the BIA did not take a final action on the 2006 application. 44. Defendant admits that on August 15, 2011, the Keetoowah Cherokee submitted an amended application to the BIA Eastern Oklahoma Regional Office, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 45. The first sentence of paragraph 45 provides Plaintiffs' characterization of the Eastern Oklahoma Regional Director's November 4, 2011, letter, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to it plain language and meaning. Defendant admits that on December 1, 2011, the CNO filed comments (under the name Cherokee Nation with the BIA Eastern Oklahoma Regional Office, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 11

27 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 27 of Defendant admits that on July 30, 2012, the Secretary issued the challenged Decision, which speaks for itself and provides the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 47. Defendant admits that on August 7, 2012, the Secretary published notice in the Federal Register, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 48. The allegations of paragraph 48 provide Plaintiffs' quoting from and characterization of the July 30, 2012, Decision, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 49. The allegations of paragraph 49 provide Plaintiffs' quoting from and characterization of the July 30, 2012, Decision, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 50. The allegations of paragraph 50 provide Plaintiffs' characterization of the July 30, 2012, Decision, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 51. The allegations of the first sentence of paragraph 51 provide Plaintiffs' quoting from and characterization of the July 30, 2012, Decision, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, 12

28 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 28 of 40 or contrary to its plain language and meaning. The remaining allegations of paragraph 51 are conclusions of law, and as such require no response; moreover, they provide Plaintiffs' characterization of the IRA, 25 U.S.C. 465, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 52. The allegations of paragraph 52 provide Plaintiffs' characterization of the July 30, 2012, Decision, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations contrary to its plain language and meaning. Additionally, the allegations in the third sentence of paragraph 52 provide Plaintiffs' quoting from and characterization of IGRA, 25 U.S.C. 2719, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 53. The allegations of paragraph 53 provide Plaintiffs' quoting from and characterization of the July 30, 2012, Decision, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 54. The allegations of paragraph 54 provide Plaintiffs' quoting from and characterization of the July 30, 2012, Decision, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 55. The allegations of paragraph 55 provide Plaintiffs' characterization of the July 30, 2012, Decision, which speaks for itself and is the best evidence of its contents. Defendant denies 13

29 Case 4:12-cv GKF-TLW Document 96 Filed in USDC ND/OK on 08/15/13 Page 29 of 40 any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 56. The allegations of paragraph 56 are conclusions of law, and as such require no 57. The allegations of paragraph 57 are conclusions of law, and as such require no CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF 58. Defendant incorporates by reference herein its response to paragraphs 1 through 57 above. 59. The allegations of paragraph 59 are conclusions of law, and as such require no 60. The allegations of paragraph 60 are conclusions of law and as such require no response. Additionally, the allegations in paragraph 60 provide Plaintiffs' quoting from and characterization of 25 C.F.R. Part 151, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 61. The allegations of paragraph 61 provide Plaintiffs' quoting from and characterization of 25 C.F.R , which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 62. The allegations of paragraph 62 provide Plaintiffs' quoting from and characterization of the July 30, 2012, Decision, which speaks for itself and is the best evidence of 14