Nos , IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. THE CHEROKEE NATION, Plaintiff-Appellee. and

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1 Appellate Case: Document: Date Filed: 01/16/2018 Page: 1 Nos , IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT THE CHEROKEE NATION, Plaintiff-Appellee v. RYAN ZINKE, et al., Defendants-Appellants and UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA, et al., Defendants-Intervenors-Appellants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA, No. 6:14-cv RAW (Hon. Ronald A. White) APPELLEE S APPENDIX 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: (918) Facsimile: (918) dmccullough@dsda.com sddodd@dsda.com Attorneys for The Cherokee Nation

2 Appellate Case: Document: Date Filed: 01/16/2018 Page: 2 INDEX Plaintiff s Merit Brief (August 15, 2015) Docket Aple. App. #01 Federal Defendants Response Merits Brief (October 26, 2015) Docket Aple. App. #53 Letter from BIA to George Wickliffe, UKB Chief (August 8, 2008) AR Aple. App. #104 Constitution of the Cherokee Nation, 1839 AR Aple. App. #130 Act of Union Between the Eastern and Western Cherokees AR Aple. App. #141 Warranty Deed for Purchase of Subject Tract AR Aple. App. #143 Letter from Akin Gump to Acting Director, Eastern Oklahoma Regional Office (November 15, 2010) AR Aple. App. #144 from Scott Keep to Pilar Thomas (March 4, 2010) AR Aple. App. #155 Memorandum for the Commissioner of Indian Affairs (July 29, 1937) AR Aple. App. #156 ii

3 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 1 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 3 INTHE UNITED STATES DISTRICT COURT FOR THE EASTERN 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, and Defendant(s) (5) UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA, and (6) UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA CORPORATION, Intervenors/Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 14-cv-428-RAW PLAINTIFF S MERITS BRIEF Todd Hembree, OBA No Attorney General Cherokee Nation P.O. Box 948 Tahlequah, OK Telephone: (918) Facsimile: (918) todd-hembree@cherokee.org Wm. 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: (918) Facsimile: (918) dmccullough@dsda.com sddodd@dsda.com Aple. App. #01

4 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 2 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 4 TABLE OF CONTENTS Page INTRODUCTION...1 HISTORICAL BACKGROUND...3 Cherokee Nation Government and Treaty Territory...3 Status of UKB...8 TRUST APPLICATION PROCEDURAL HISTORY...9 STANDARD OF REVIEW...10 ARGUMENTS AND AUTHORITIES...12 I. THE 2011 DECISION S APPROVAL OF THE UKB TRUST APPLICATION WITHOUT CHEROKEE NATION CONSENT IS ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW...12 A. Congress did not override the consent requirement in 25 C.F.R with the passage of the 1999 Act...13 II. B. The 2011 Decision Violates Treaties Protecting the Nation s Governmental Authority within its Treaty Territory THE 2011 DECISION THAT THE DEPARTMENT POSSESSES STATUTORY AUTHORITY TO PLACE THE SUBJECT TRACT INTO TRUST ON BEHALF OF THE UKB CORPORATION IS CONTRARY TO LAW AND THE DEPARTMENT S OWN POLICIES AND REGULATIONS...19 A. The Department Relied on the OIWA as Statutory Authority for a Trust Acquisition for the UKB Corporation in an Attempt to Circumvent the Supreme Court s Ruling in Carcieri v. Salazar...19 B. Section 3 of the OIWA and the Land Acquisition Regulations Do Not Permit Tribal Corporations Such as the UKB Corporation to Acquire Trust Land, Except Under Limited Circumstances, Not Applicable in this Case C. The ASIA Did Not Follow the Department s Own Regulations and Policies in Approving the UKB s i Aple. App. #02

5 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 3 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 5 III. IV. Application to Place the Subject Tract in Trust for the UKB Corporation, Which Is a Separate Entity...27 D. The 2011 Decision Is Arbitrary and Capricious THE 2011 DECISION CONCERNING JURISDICTIONAL CONFLICTS IS ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW...33 A. The ASIA Failed to Give Sufficient Weight to Evidence Regarding Jurisdictional Conflicts that Will Occur If the Tract is Placed in Trust...33 B. The ASIA s Interpretation of IRA 476(g) Is Contrary to Law THE 2012 DECISION FAILED TO PROPERLY CONSIDER WHETHER THE BIA IS SUFFICIENTLY EQUIPPED TO DISCHARGE THE ADDITIONAL RESPONSIBILITIES THAT WOULD RESULT FROM THE TRUST ACQUISITION AND IS ARBITRARY AND CAPRICIOUS CONCLUSION...39 ii Aple. App. #03

6 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 4 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 6 TABLE OF CONTENTS Page Cases Ariz. v. United States, U.S., 132 S.Ct (2012) Calloway v. Dist. of Columbia, 216 F.3d 1 (D.C. Cir. 2000) Carcieri v. Salazar, 555 U.S. 379 (2009)... 1, 2, 19, 20, 21, 22, Cherokee Nation et al. v. S.M.R. Jewell, et al., case number 12-cv-493 (N.D.OK) Cherokee Nation v. Acting Eastern Oklahoma Regional Director, Bureau of Indian Affairs, Docket No. IBIA Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)... 3 Cherokee Nation v. Oklahoma, 461 F.2d 675 (10th Cir. 1972)... 6 Choctaw Nation v. Okla., 397 U.S. 620 (1970)... 6 City of Colo. Springs v. Solis, 589 F.3d 1121 (10th Cir. 2009)... 12, 25 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)... 11, 12 Comcast Corp. v. FCC, 579 F.3d 1, 8 (D.C. Cir. 2009) Elwell v. Okla. ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303 (10th Cir. 2012) Gaines v. Ski Apache, 8 F.3d 726 (10th Cir. 1993) 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)... 6 Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Engineers, 702 F.3d 1156 (10th Cir McAlpine v. United States, 112 F.3d 1429 (10th Cir. 1997) Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917 (6th Cir. 2009) Motor Vehicle Mfrs. Ass n of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29 (1983)... 20, 26, 36 iii Aple. App. #04

7 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 5 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 7 Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 491 F. Supp. 2d 1056 (N.D. Okla. 2007) New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009) Okla. ex rel. Okla. Tax Comm' n v. Thlopthlocco Tribal Town, 839 P.2d 180 (Okla. 1992) Public Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999) Ramey Constr. Co. v. Apache Tribe of the Mescalero Reservation, 673 F.2d 315 (10th Cir. 1982) Sokaogon Chippewa Cmty. Mole Lake Band of Lake Superior Chippewa v. Babbitt, 929 F. Supp (W.D. Wis. 1996) South Dakota v. Department of Interior, 401 F. Supp. 2d 1000 (D.S.D. 2005) South Dakota v. U.S. Dep t of Interior, 487 F.3d 548 (8th Cir. 2007) Thomas Brooks Chartered v. Burnett, 920 F.2d 634 (10th Cir. 1990) TVA v. Hill, 437 U.S. 153, 190 (1978) UKB v. United States, Case No. 08-cv-1087 (D.D.C. Dkt. No. 74-1, p. 27)... 8 United Keetoowah Band of Cherokee Indians of Okla. v. United States, Case No L United Keetoowah Band v. E. Okla. Reg l Dir., 47 IBIA 87 (2008) United Keetoowah Band v. Mankiller, 1993 WL , at *2, 4 (10 th Cir. 1993)... 34, 35 United States v. Dion, 476 U.S. 734 (1986) United States v. Will, 449 U.S. 200 (1980) Wheeler v. U.S. Dep t of the Interior, Bureau of Indian Affairs, 811 F.2d 549 (10th Cir. 1987)... 3 Statutes 7 Stat., 414 (Proclamation, Apr. 12, 1834) Stat. 478 (Proclamation, May 23, 1836) Stat , 4 iv Aple. App. #05

8 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 6 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 8 24 Stat. 388, codified at 25 U.S.C. 331, et seq Stat. 612, 640, Stat. 716, Stat Stat Stat Stat , Stat Stat Stat Stat Stat Stat Stat Stat , Stat U.S.C , 36, 38 5 U.S.C. 706(2) U.S.C. 1779(3)... 7, U.S.C U.S.C n U.S.C e U.S.C. 458aa-458hh U.S.C. 458aaa U.S.C. 458aaa v Aple. App. #06

9 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 7 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 9 25 U.S.C. 461 et seq... 2, U.S.C U.S.C.A U.S.C.A U.S.C.A , 27, 36, U.S.C.A , 25, U.S.C.A U.S.C U.S.C U.S.C. 501, et seq U.S.C , 20, 21, 23, 24, U.S.C g Other Authorities 1839 Cherokee Nation Constitution Cherokee Nation Constitution, art. XVI Cherokee Nation Constitution, art. XVI... 4 Fee-to-Trust Handbook ICA No , Cross-Deputization Agreement between the Cherokee Nation, the State of Oklahoma, and the U.S. Government Sept. 21, 1993 Indian Lands Opinion for Cherokee Nation by Sharon Blackwell, Tulsa Field Solicitor Solicitor s Opinion, 65 I.D. 483 (1958), 2 Op. Sol. on Indian Affairs 1846, (U.S.D.I. 1979) Treatises The Treaty of New Echota, Treaty of December 29, vi Aple. App. #07

10 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 8 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 10 The Treaty of July 19, , 4 Regulations 25 C.F.R C.F.R , 36, C.F.R (f)... 33, C.F.R C.F.R (b)... 25, C.F.R , 13, 14, C.F.R C.F.R. 2.20(c) C.F.R C.F.R. Part , 24, CFR 83 et seq. (2008) Fed. Reg (Sept. 18, 1980) H.R. Rep. No , at 2 (1945)... 9 S. Rep. No , at 3 (1946)... 9 vii Aple. App. #08

11 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 9 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 11 INTRODUCTION In a decision rendered on May 24, ( 2011 Decision ), the Eastern Oklahoma Regional Director of the Bureau of Indian Affairs ( Regional Director ) for the United States Department of the Interior ( Department or DOI ) found that a subsidiary band of the Cherokee Indians that was created in the mid-twentieth century has legal and governmental rights within the jurisdictional area of the Cherokee Nation that are equal to the authority of the Cherokee Nation itself. Through legal convolutions, logical contortions and conjecture, the 2011 Decision disregards and seeks to uproot 150 years of Treaty obligations, the Department s own prior decisions, the clear precedent of the federal district courts and the Tenth Circuit Court of Appeals, and the United States Supreme Court s holding in Carcieri v. Salazar, 555U.S.379(2009). This action challenges the final agency decision rendered by the Regional Director who approved an amended application of the United Keetoowah Band of Cherokee Indians in Oklahoma ( UKB ) to take a 76 acre tract located in Cherokee County ( Subject Tract ) into trust for the use and benefit of United Keetoowah Band of Cherokee Indians in Oklahoma Corporation ( UKB Corporation ). The Subject Tract is located within the Cherokee Nation s historic boundaries established by treaties in the early 1800s ( Treaty Territory ). In the 2011 Decision, based on directives from the Assistant Secretary for Indian Affairs ( ASIA ), the Regional Director determined that DOI had the statutory authority to take the Subject Tract into trust for the UKB Corporation, despite the fact that (1) the 1 Doc. 65, AR3071--AR3081. (hereinafter AR - ). The most pertinent portions of the administrative record cited in this brief are contained in the Appendix to this brief for convenience of the Court. Aple. App. #09

12 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 10 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 12 Supreme Court in Carcieri clearly held that DOI cannot utilize Section 5 of the Indian Reorganization Act 2 ( IRA ) to take land into trust for tribes, like the UKB, that were federally recognized after 1934, and that (2) Section 3 of the Oklahoma Indian Welfare Act 3 ( OIWA ) (i.e. the statutory provision under which the Assistant Secretary purported to take the land into trust for the UKB Corporation in order to avoid the impact of Carcieri) contains no express grant of authority to take land into trust and, prior to the 2011 Decision, has never been construed to contain such implicit authority. Because the Regional Director and the DOI would exceed its statutory authority by taking the Subject Tract into trust, the Court should reject the 2011 Decision and prevent its implementation. Moreover, the Regional Director and DOI also utilized a novel finding in a Congressional appropriations bill to bypass the Department s own regulations that clearly require the UKB to obtain the Cherokee Nation s consent for acquisition of any land within the Nation s jurisdiction. Until recently, DOI had consistently enforced this consent requirement in considering any application by the UKB regarding land within Cherokee Nation jurisdiction. The federal courts also recognized the applicability of the consent requirement to UKB trust applications relating to Cherokee land. Thus, the ASIA s cursory conclusion that the requirement no longer applies despite the Cherokee Nation s continued and undisputed jurisdiction over the land is arbitrary and capricious and must be rejected. In short, the Regional Director s decision to take the subject tract into trust for the UKB exceeded his and the Department s statutory authority, was arbitrary and capricious, constituted an abuse of discretion, and violates the Administrative Procedures Act. 2 Act of June 18, 1934, 48 Stat. 988, 25 U.S.C. 461 et seq. 3 Act of June 26, 1936, 49 Stat. 1967, 25 U.S.C. 501, et seq. 2 Aple. App. #10

13 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 11 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 13 Plaintiff Cherokee Nation ( Nation ) timely appealed the Regional Director s 2011 Decision in the Interior Board of Indian Appeals ( IBIA ). Cherokee Nation v. Acting Eastern Oklahoma Regional Director, Bureau of Indian Affairs, DocketNo.IBIA On January 6, 2014, the IBIA entered an Order dismissing the Cherokee Nation appeal. See Order Dismissing Appeal, 58 IBIA 153. Doc. 6, pp On January 13, 2014, the Nation filed this present action seeking to enjoin the Regional Director and DOI from taking the Subject Tract into trust for the UKB Corporation. On January 31, the Defendants agreed that no action would be taken to place the Subject Tract into trust until this Court has issued an opinion on the merits. Doc. 18, p. 5. If allowed to stand, the 2011 Decision would uproot 150 years of treaty obligations, contrary to direct Federal court rulings and numerous prior DOI determinations. HISTORICAL BACKGROUND Cherokee Nation Government and Treaty Territory The Cherokee Nation, a federally recognized Indian tribe, is a distinct organization capable of governing itself, consistent with its existence even prior to the signing of treaties with the United States. Wheeler v. U.S. Dep t of the Interior, Bureau of Indian Affairs, 811F.2d549,551(10thCir.1987)(citingCherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)). The United States historically recognized the Nation s governmental authority in its treaty relations with the Nation, particularly in the 1835 and 1866 treaties which expressly protected the Nation s governmental authority 4 within its Treaty 4 The Treaty of New Echota, Treaty of December 29, 1835, 7 Stat. 478 (Proclamation, May 23, 1836) ( 1835 Treaty ), art 5, expressly guaranteed the Nation the right to self-government 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 3 Aple. App. #11

14 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 12 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 14 Territory. 5 Consistent with its treaty rights, the Nation has exercised its governmental authority through its 1827, 1839, 1976, and 2003 Constitutions, each of which was adopted and implemented under the Nation s inherent sovereign authority. These constitutions have defined the Treaty Territory over which the Cherokee Nation exercises governmental jurisdiction. 6 The 1976 Constitution, approved pursuant to a referendum called by the Secretary of the Interior, specifically states the provisions of this Constitution overrule and supersede the provisions of the Cherokee Nation constitution enacted the 6 th day of September Cherokee Nation Constitution, art. XVI. The 2003 Constitution also expressly supersedes the provisions of its predecessor Constitutions Cherokee Nation Constitution, art. XVI. NoneoftheNation sconstitutionsestablishorrecognize that any clan, organization, town, group, society, or other entity may exercise any governmental authority within the Nation s Treaty Territory. The Cherokee Nation government has withstood enormous pressures. The Cherokee 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. The 1835 treaty protection of self-government was not inconsistent with the 1866 treaty. 5 The Nation acquired fee patent title to its lands in 1838 as required by the 1835 Treaty. The Nation s jurisdictional boundaries were later reduced to the present 14-county area in what is now northeastern Oklahoma, due to cessions of lands in western Indian Territory under the 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 1839 Cherokee Nation Constitution, art. I, sec. 1, defined the Nation s boundaries by reference to the 1833 Cherokee Nation Treaty, Act of Feb. 14, 1833, 7 Stat., 414 (Proclamation, Apr. 12, 1834), which contains the same legal description as the description in the 1835 treaty, art. 2. AR The 1976 Constitution, art.vi, sec. 2, references the historic boundaries of the Cherokee Nation in its residency requirement for the office of Principal Chief. AR The 2003 Constitution defines the Nation s boundaries in article II, entitled Territorial Jurisdiction, as follows: The boundaries of the Cherokee Nation territory shall be those described by the patents of 1838 and 1846 diminished only by the Treaty of July 19, 1866, and the Act of March 3, The 1976 Constitution, art. XVII, and the 2003 Constitution, art. XVII, established the seat of government of the Cherokee Nation at Tahlequah, Oklahoma. 4 Aple. App. #12

15 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 13 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 15 people inhabited large portions of Southeastern United States prior to removal to their Indian Territory in the 1830s. After Congress passed the Indian Removal Act in 1830, the Nation ceded its lands east of the Mississippi River and was removed to its present Treaty Territory. In 1887, Congress passed the Dawes Act, also called the General Allotment Act. Act of February 8, 1887, 24 Stat. 388, codified at 25 U.S.C. 331, et seq. The Dawes Act provided for the allotment of tribal lands to individual members of most tribes nationwide, but excluded the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, Muscogee (Creek) and Seminole Nations) ( Five Tribes ) from the Act. 25 U.S.C In 1893, Congress created the Dawes Commission and empowered it to seek allotment of the lands of the Five Tribes. Their resulting individual allotment acts reflected acongressionalplantodissolvethegovernmentsofthefivetribesby1906. See e.g., Cherokee Nation Allotment Act of July 1, 1902, 32 Stat. 716, 63 (stating that the tribal government of the Cherokee Nation shall not continue longer than March 4, 1906). However, that plan was halted two days before the deadline for dissolution when Congress approved a joint resolution 7 continuing the Five Tribes existence and governments until completion of allotment. The following month, Congress enacted the Five Tribes Act, which continued the Five Tribes government until otherwise authorized by law. 8 There 7 The joint resolution provides: That the tribal existence and present tribal governments of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole Tribes or Nations or Indians in the Indian Territory are hereby continued in full force and effect for all purposes under existing laws until all property of such tribes, or the proceeds thereof, shall be distributed among the individual members of said tribes unless hereafter otherwise provided by law. Jnt. Res. No. 7, March 2, 1906, 34 Stat. 822 (emphasis added). 8 In contrast to the joint resolution, the Five Tribes Act simply provides: That the tribal existence and present tribal governments of the Choctaw, Chickasaw, Cherokee, Creek, and 5 Aple. App. #13

16 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 14 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 16 have been no Congressional enactments discontinuing the Five Tribes governments since that time, and the federal courts have recognized that the governments of the Five Tribes were never terminated. See Cherokee Nation v. Okla., 461F.2d674,678(10thCir.1972); 9 Harjo v. Kleppe, 420F.Supp.1110,1129(D.D.C.1976),aff d sub nom, Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978). The Cherokee Nation further withstood the pressure of the DOI s persistent bureaucratic imperialism in DOI s dealings with the Five Tribes following Oklahoma statehood, 10 and continued to exercise governmental authority even before its adoption of its new constitution in For example, in the early 1970s, the Cherokee Nation, with the Choctaw and Chickasaw Nations, successfully litigated claims concerning the Arkansas Riverbed. Choctaw Nation v. Okla., 397U.S.620(1970);Cherokee Nation v. Oklahoma, 461 F.2d 675 (10th Cir. 1972). Congress also recognized the Nation s identity and government in its enactment of various laws after Oklahoma statehood. One of these laws, the Indian Reorganization Act Seminole tribes or nations are hereby continued in full force and effect for all purposes authorized by law, until otherwise provided by law. Act of April 26, 1906, 34 Stat. 137, The Supreme Court has said that when Congress has once established a [Indian] reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress. There has been no separation here; the tribal governments still exist; and Oklahoma was admitted to the Union in 1907 upon compliance with the Enabling Act of June 16, 1906, 34 Stat. 267, which required a disclaimer of title to all lands owned by any Indian or Indian tribes. Cherokee Nation v. Okla., 461 F.2d at 678 (emphasis added) (citation omitted). 10 The available evidence clearly reveals a pattern of action [following statehood] on the part of the Department and its Bureau of Indian Affairs designed to prevent any tribal resistance to the Department s methods of administering those Indian affairs delegated to it by Congress. This attitude, which can only be characterized as bureaucratic imperialism, manifested itself in deliberate attempts to frustrate, debilitate, and generally prevent from functioning the tribal governments expressly preserved by 28 of the [Five Tribes] Act. Harjo, 420 F. Supp. at This interference is continuing in DOI s present efforts to debilitate the Cherokee Nation s government by attempting to enable a band to encroach on the Nation s territorial jurisdiction. 6 Aple. App. #14

17 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 15 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 17 of 1934, acknowledged the existence of the Cherokee Nation by naming it as one of a number of tribes excluded from five of its sections. 25 U.S.C Consistent with the Nation s sovereign status, the Nation and the United States have maintained a continuous government-to-government relationship. The Nation s government, like those of many other tribes, was strengthened by the Indian Self- Determination and Education Assistance Act ( ISDEAA ) of The Cherokee Nation was one of a small group of tribes nationwide selected to participate when Congress amended the ISDEAA to authorize a self-governance demonstration project in Significantly, in its findings in the 2002 Cherokee, Choctaw, and Chickasaw Claims Settlement Act, Congress expressly recognized the Cherokee Nation s most recent 1976 constitution and the Nation s relationship with the United States, as follows: The Cherokee Nation, a federally recognized Indian tribe with its present tribal headquarters south of Tahlequah, Oklahoma, having adopted its most recent constitution on June 26, 1976, and having entered into various treaties with the United States, including but not limited to the Treaty at Hopewell, executed on November 28, 1785 (7 Stat. 18), and the Treaty at Washington, D.C., executed on July 19, 1866 (14 Stat. 799), has maintained a continuous government-togovernment relationship with the United States since the earliest years of the Union. 25 U.S.C. 1779(3) (emphasis added) Provided, That sections 4, 7, 16, 17, and 18 of this Act [25 U.S.C.A. 464, 467, 476, 477, 478] shall not apply to the following-named Indian tribes, the members of such Indian tribes, together with members of other tribes affiliated with such named tribes located in the State of Oklahoma, as follows: Cheyenne, Arapaho, Apache, Comanche, Kiowa, Caddo, Delaware, Wichita, Osage, Kaw, Otoe, Tonkawa, Pawnee, Ponca, Shawnee, Ottawa, Quapaw, Seneca, Wyandotte, Iowa, Sac and Fox, Kickapoo, Pottawatomi, Cherokee, Chickasaw, Choctaw, Creek, and Seminole. 25 U.S.C (Emphasis added.) 12 Act of January 4, 1975, Pub. L. No , 88 Stat. 2203, codified as amended at 25 U.S.C n, e, 458aa-458hh, 458aaa-458aaa Act of Oct. 5, 1988, Pub. L , 102 Stat. 2296; Cherokee Nation LA (Aug. 11, 1990 Council approval of self-governance compact). 7 Aple. App. #15

18 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 16 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 18 The present-day Cherokee Nation is the same entity as the original Cherokee Nation. Status of UKB In contrast to the Cherokee Nation s sovereign status, the UKB never maintained a treaty relationship with the United States14 and never held title to the lands owned in fee by the Cherokee Nation. 15 In 1937, a group identified as the Keetoowah Society sought permission to organize under Section 3 of the OIWA. That same year, the DOI Solicitor determined that the Keetoowah Society was a voluntary society and could not be considered a recognized band under section 3 of the OIWA: The primary distinction between a band and a society is that a band is a political body. In other words, a band has functions and powers of government. It is generally the historic unit of government in those tribes where bands exist.... This essential character is not possessed by the Keetoowah Society nor any of its factions. It is neither historically nor actually a governing unit of the Cherokee Nation, but a society of citizens within the Nation with common beliefs and aspirations. Op. of July 29, AR [UKB] was not a party to any of the treaties [between the United States and the Cherokee Nation]. This statement of fact was made by the U.S. Justice Department on behalf of DOI in a motion for judgment on the pleadings filed in defense of an action brought by the UKB against DOI. See UKB v. United States, Case No. 08-cv-1087 (D.D.C. Dkt. No. 74-1, p. 27). The statement was specifically addressing the Treaty of 1817 and the Treaty of 1846 which were at issue in that case. However, the DOI concluded that the treaties were signed and ratified before [UKB] existed as an entity and long before [UKB] was recognized by the United States. As a result, [UKB] has no actionable rights under the treaty. Id. 15 To the extent that the [UKB] contests the present ownership interests in lands that were held in fee by the Cherokee Nation and then allotted, [UKB] cites nothing that would support [UKB] s claim to those lands. The Cherokee Nation s lands were granted in fee under Articles 1 and 4 of the Treaty of [The UKB] was not a party to the Treaty of 1846 but rather came into existence and was formally recognized long after the treaty. Id. at Aple. App. #16

19 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 17 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 19 On March 24, 1945 the Acting Secretary of the Interior informed Congress that DOI again declined the UKB s request to organize under the OIWA because DOI could not make a positive finding that the society was a tribe or band within the meaning of the OIWA. H.R. Rep. No , at 2 (1945); S. Rep. No , at 3 (1946). The next year Congress approved the Act of August 10, 1946, Pub. L. No , 1, 60 Stat. 976 ( 1946 Act ): 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, AR There is nothing in the 1946 Act conferring any territorial jurisdiction on the UKB. In contrast, section 2 of the same 1946 Act set aside for the use and benefit of the Indians of the Cheyenne and Arapaho Reservation in Oklahoma a specified school reserve tract. Id. The UKB organized in 1950 under section 3 of the OIWA, 25 U.S.C. 503, with a federally approved constitution. AR The UKB Corporation was approved at the same election under authority of section 3 of the OIWA. AR The UKB and the UKB Corporation are separate and distinct legal entities. The UKB Constitution and the UKB Corporation Charter do not claim that the UKB has authority to exercise governmental authority within the Cherokee Nation s Treaty Territory or in any other defined geographic area. AR The UKB make no claims to any geographic or territorial jurisdiction anywhere. TRUST APPLICATION PROCEDURAL HISTORY On June 9, 2004, the UKB submitted an application to DOI requesting that the Subject Tract be taken into trust. AR The Regional Director issued a decision on April 7, 2006 ( 2006 Decision ) denying the UKB s request. AR The UKB 9 Aple. App. #17

20 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 18 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 20 appealed the 2006 Decision to the IBIA. AR On April 5, 2008, the ASIA directed the Regional Director to request remand from the IBIA and to reconsider the 2006 Decision ( 2008 Directive ). AR The IBIA remanded the matter for reconsideration on June 4, United Keetoowah Band v. E. Okla. Reg l Dir., 47 IBIA 87 (2008), AR On August 6, 2008, the Regional Director issued a second decision ( the 2008 Decision ), again denying the UKB s application. AR The UKB appealed the 2008 Decision to the IBIA. AR On September 4, 2008, before an IBIA decision, the ASIA informed the IBIA that DOI was taking jurisdiction over the appeal pursuant to 25 C.F.R. 2.20(c). AR The IBIA transferred the appeal to the ASIA. AR Following transfer of the appeal, the ASIA issued four decisions involving the Subject Tract over an 18-month time period, dated June 24, 2009, AR ( June 2009 Decision ); July 30, 2009, AR ( July 2009 Decision ); September 10, 2010, AR ( 2010 Decision ); and January 21, 2011, AR ( January 2011 Decision ). On October 5, 2010, the UKB amended its application by requesting that the Subject Tract be taken into trust for the UKB Corporation. AR On May 24, 2011, the Regional Director, under the constraints of the four decisions issued by the ASIA in 2009, 2010, and 2011, issued the 2011 Decision determining that the Subject Tract would be taken into trust for the UKB Corporation. STANDARD OF REVIEW The 2011 Decision is subject to reversal under the Administrative Procedures Act, 5 U.S.C. 706(2) ( APA ), because it includes a number of conclusions that are not in accordance with the law, exceeds statutory authority, and fails to observe procedural 10 Aple. App. #18

21 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 19 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 21 requirements, including the 2011 Decision s improper determinations that: (1) consent of the Cherokee Nation for the taking of the Subject Tract is not required; (2) land can be placed into trust under section 3 of the OIWA on behalf of a federally chartered corporation upon request by the tribe affiliated with that corporation, rendering Carcieri inapplicable; (3) the UKB may acquire land in trust within the Nation s Treaty Territory under requirements concerning either on-reservation or off-reservation lands, thereby diminishing the Nation s Treaty Territory; (4) jurisdictional conflicts would not arise between the Cherokee Nation and the UKB; and (5) the 1994 amendment of section 476 of the IRA prohibits the Department from complying with regulations requiring consideration of jurisdictional conflicts. 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. Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Engineers, 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. 2009)). Agency action shall be set aside if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414 (1971). The critical question in answering this inquiry is whether the decision was based on a consideration of the relevant factors and whether there has been a 11 Aple. App. #19

22 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 20 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 22 clear error of judgment. City of Colo. Springs v. Solis, 589 F.3d 1121, 1131 (10th Cir. 2009) (citing McAlpine v. United States, 112F.3d1429,1436(10thCir.1997)(quoting Overton Park, 401 U.S. at 416)). As will be discussed below, the 2011 Decision must be set aside because it is arbitrary and capricious under the APA, not in accordance with the law, and exceeds the statutory and regulatory authority of the Assistant Secretary. ARGUMENTS AND AUTHORITIES I. THE 2011 DECISION S APPROVAL OF THE UKB TRUST APPLICATION WITHOUT CHEROKEE NATION CONSENT IS ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW. To be clear, DOI 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. (emphasis added) 25 C.F.R In Oklahoma, the term Indian reservation means that area of land constituting the former reservation of the tribe as defined by the Secretary. 25 C.F.R (f). The UKB property is located within the last treaty boundaries of the Cherokee Nation as defined by the terms of the Treaty of New Echota [citation omitted] and the 1866 treaty between the Cherokee Nation and the United States [citation omitted]. AR3073. As a result, the Regional Director and the Department had consistently refused to take land into trust for the UKB within the boundaries because the subject lands fall within the Cherokee Nation s former reservation, [and] their consent is required under 25 CFR April 17, 1987 letter from ASIA to UKB Chief, AR However, DOI attempts to evade the applicability of the consent requirement in to the UKB trust application based on a 1999 appropriations rider. See AR 793 (February 14, 2008 Memorandum from Associate Solicitor to ASIA discussing Aple. App. #20

23 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 21 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 23 Appropriations Act and referencing January 31, 2008 memorandum reaching same conclusion); AR791 (April 5, 2008 Memorandum from the ASIA to the Regional Director discussing 1999 appropriations act); AR (Aug. 6, 2008 letter from the Regional Director to the UKB Chief, referencing the 1999 appropriations act). Consistent with this new theory, the ASIA determined in the June 2009 Decision that Congress overrode the prohibition in 25 C.F.R against approval of the UKB s trust applications absent Cherokee Nation consent, by enactment of the Interior and Related Agencies Appropriations Act of 1999, Pub. L. No , 112 Stat ( 1999 Act ). The 1999 Act does not negate the requirement that DOI obtain the consent of the Cherokee Nation before placing the Subject Tract into trust. The Department s determination that consent was not required is contrary to law and must be reversed. Furthermore, DOI s interpretation diminishes the Nation s right, guaranteed by article 15 of its 1866 treaty, to veto entry of other tribes in its Treaty Territory and is contrary to the requirement that there must be clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the Treaty. United States v. Dion, 476 U.S. 734, (1986). Nothing in the language of the 1999 Act even mentions the consent requirement of Article 15 of the 1866 Treaty, much less explicitly and expressly abrogates it. A. Congress did not override the consent requirement in 25 C.F.R with the passage of the 1999 Act. The 2011 Decision acknowledges 25 C.F.R. Part 151 and its application to Cherokee Nation Treaty Territory. The Department has consistently found the former treaty lands of the Five Civilized Tribes to be former reservations. AR3073. Despite the long line 13 Aple. App. #21

24 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 22 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 24 of decisions requiring consent by the Cherokee Nation for any land to be taken into trust within the Nation s Treaty Territory, the Regional Director found that the Assistant Secretary s 2009 Decision concluded that the Congress [in the 1999 Act] overrode 25 C.F.R with respect to lands within the boundaries of the former Cherokee reservation. AR3073. The 1999 Act contains the following language: [U]ntil 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 (emphasis added). The ASIA concluded in his June 2009 Decision that, under the 1999 Act, DOI was only required to consult with the Cherokee Nation, rather than obtain the Nation s consent as required by the 25 C.F.R AR The 2011 Decision regarding the Subject Tract specifically relied on the June 2009 Decision s interpretation of the 1999 Act and concluded that the requirement for the consultation with the Cherokee Nation was met when the Region solicited comments from the Nation in 2005 in connection with the UKB s initial application for the Subject Tract. 16 AR The DOI s interpretation of the 1999 Act was contrary to law. The 1999 Act does not state or imply that it affects or changes any other existing law or regulation, including the tribal consent requirements in 25 C.F.R The 1999 Act did no more than substitute consultation 16 The record does not reflect such consultation. The plain wording of the appropriations act merely imposed a consultation requirement, in addition to the consent requirement under 25 C.F.R , upon the use of federal funds in trust acquisitions. However, as will be shown hereafter, the 2011 Decision that the DOI need only consult with the Cherokee Nation on this trust application represents a misinterpretation of the 1999 Act. 14 Aple. App. #22

25 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 23 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 25 for consent in the language of an earlier statute, the Interior Appropriations Act for FY 1992, 17 which required Cherokee Nation consent in connection with the use of any federal funds for trust land acquisitions within the boundaries of the Nation s Treaty Territory. Nowhere in the text of the 1999 Act does Congress state that this limitation on the use of federal funds otherwise affects any existing law that defines the conditions and procedures by which trust land acquisitions are to be considered on their merits. The Department s interpretation would mean that the appropriations act was a de facto repeal of the Department s regulation. Courts will not construe an appropriations act to amend substantive law unless it is clear that Congress intended to change the substantive law. United States v. Will, 449 U.S. 200, 221 (1980). There is a very strong presumption that appropriations acts do not amend substantive law, and, as a result, appropriations language must be construed narrowly. Calloway v. Dist. of Columbia, 216 F.3d 1, 9-10 (D.C. Cir. 2000) (citing TVA v. Hill, 437 U.S. 153, 190, 195 (1978)). The substantive law here, as DOI recognizes in 25 C.F.R , is that tribal consent is required when one Tribe seeks to acquire land into trust on a former reservation other than its own. To the extent the 1999 Act impacts Section at all, it impacts only anarrowexceptionforlandspurchasedwithfederalfundsappropriatedfor Operationof Indian Programs as defined in the 1999 Act. 18 AR Thus, the ASIA was incorrect in the June 2009 Decision when he stated that Congress overrode Section Pub. L. No , 105 Stat. 990 (1991). 18 Any other conclusion would be an absolute diminishment of the Cherokee Nation sovereignty. On its face, the 1999 Act is not tribe-specific to the UKB. Following DOI s interpretation, Congress granted concurrent jurisdiction over the Cherokee Nation Treaty Territory to every other Tribe in the United States. Such a reading of the 1999 Act would be absurd. 15 Aple. App. #23

26 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 24 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 26 in the 1999 Act and the Cherokee Nation does not need to consent to the acquisition in trust of the UKB s land. AR In short, the 1999 Act was an exercise of Congressional fiscal power, not a diminishment of the rights of the Cherokee Nation under 25 C.F.R In considering the consent requirement of Section 151.8, the Regional Director relied upon the ASIA s 2009 Decision. 19 See AR The Regional Director made no independent determination that the Subject Tract was purchased with funds appropriated to the UKB pursuant to the 1999 Act. Absent such a determination, the Regional Director s determination that the consent requirement of Section was not applicable, was arbitrary and capricious and contrary to law. The administrative record clearly shows the Subject Tract was not purchased with funds appropriated under the 1999 Act or any subsequent appropriation acts. In its original trust application, the UKB states the Subject Tract was purchased by the Band in 2000 using tribal and federal funds. 20 AR 04 (emphasis added). Thus, on the face of the trust application, the Subject Tract could not have been purchased with funds appropriated for Operation of Indian Programs. AR The requirement for mere consultation with the Cherokee Nation would have applied, if at all, only to trust applications where the 19 In originally denying the UKB s trust application, the Regional Director found that consent by the Cherokee Nation was required. AR 673. When considering the issue on remand, the Regional Director relied upon the ASIA s determination that the 1999 Act no longer required consent of the Cherokee Nation. AR The Subject Tract was purchased for $120, AR The warranty deed conveying the land to the UKB was filed February 18, AR Aple. App. #24

27 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 25 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 27 land was purchased with funds appropriated for Operation of Indian Programs. 21 The DOI must process all other trust applications consistent with the consent requirements in Section The DOI s determination that consent was not required, followed by the Regional Director in the 2011 Decision, 22 is therefore contrary to law and must be overturned. B. The 2011 Decision Violates Treaties Protecting the Nation s Governmental Authority within its Treaty Territory. The 2011 Decision s position that the Cherokee Nation s consent to the UKB trust acquisition is not necessary and that UKB can exercise territorial jurisdiction over the Tract if placed into trust for the UKB Corporation, violates Cherokee Nation treaties that recognize the Nation s exclusive sovereign authority over trust lands within its Treaty Territory and that grant the Nation veto power over the entry of other tribes upon such 21 The United States Constitution (Article 1, Section 9, Clause 7) states that No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. In approving the Fiscal Year 1999 Appropriations Budget, Congress stated that the following sums are appropriated, out of any money in the Treasury not otherwise appropriated, for the several departments, agencies, corporations and other organizational units of the Government for the fiscal year 1999, and for other purposes. 112 Stat Congress went on to state in the 1999 Act that it was an act Making appropriations for the Department of the Interior and related agencies for the fiscal year ending September 30, Stat Finally, in addressing the Operations of Indian Programs budget (which contains the language relied upon by the DOI), the section begins: For expenses necessary for the operation of Indian programs, as authorized by law Stat The Regional Director never concluded that consent of the Cherokee Nation was not required. On April 5, 2008, the ASIA sent a letter to the Regional Director directing the Regional Director to reconsider her decision to not take the Subject Tract into trust for the UKB. See AR In the letter the ASIA stated: I am advised by the Associate Solicitor that the 1999 appropriations rider controls and that the Department must consult with the [Cherokee Nation] before acquiring land in trust, it is not required to get the consent of the [Cherokee Nation]. Id. In response to the directive, the Regional Director recognized the Regional Office s consistent position that Cherokee Nation consent was required under Section but stated in 2011 Decision that The Assistant Secretary s Decisions and determinations in connection with this application are binding on the Region. AR Aple. App. #25

28 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 26 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 28 lands. 23 Article 15 of the 1866 Treaty specifically recognizes the need for the Cherokee Nation s agreement prior to settling within its boundaries any civilized Indians, friendly with the Cherokees... on such terms as may be agreed upon by any such tribe and the Cherokees. Additionally, article 26 of the 1866 Treaty protects the Cherokee Nation s right to the quiet and peaceful possession of their country and protection... against hostilities of other tribes. Although the UKB s members consist of those Cherokees by blood who have enrolled as UKB members, the UKB falls within the intent of treaty protections of the Cherokee Nation from hostilities of other tribes threatening the quiet and peaceful possession of the Nation s Treaty Territory. The UKB has expressed its intent to exercise sole jurisdiction over the land rather than allow the Cherokee Nation to continue its jurisdiction over Indian lands within the Nation s Treaty Territory. AR1344. This relationship is certainly a hostile one. If the Department believes that the Cherokee Indians who signed the Treaty in 1866 would not have understood the language of article 26 to protect them from such hostilities of other tribes, the burden is on the Department to show some different contemporaneous understanding of the treaty language than its plain meaning then, and today. 23 As previously discussed, article 5 of the 1835 Treaty expressly protected the Cherokee Nation s right to self-government within its treaty territory. The 1866 Treaty, article 31, reaffirmed the promises made by the United States to the Cherokee Nation in all prior treaties, including that promise. 18 Aple. App. #26

29 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 27 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 29 II. THE 2011 DECISION THAT THE DEPARTMENT POSSESSES STATUTORY AUTHORITY TO PLACE THE SUBJECT TRACT INTO TRUST ON BEHALF OF THE UKB CORPORATION IS CONTRARY TO LAW AND THE DEPARTMENT S OWN POLICIES AND REGULATIONS. A. The Department Relied on the OIWA as Statutory Authority for a Trust Acquisition for the UKB Corporation in an Attempt to Circumvent the Supreme Court s Ruling in Carcieri v. Salazar. After the Regional Director issued his 2011 Decision, the Department issued a 2012 decision to take another tract of land into trust for the UKB Corporation. In the course of making that determination, the Department circulated a briefing paper that identified Noteworthy Issues associated with the trust acquisition: This decision and the one already made on the 76-acres [Subject Tract] 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 Cherokee Nation et al. v. S.M.R. Jewell, et al., case number 12-cv-493 (N.D.OK), (Doc. 62, p. 2) (emphasis added) ( Briefing Paper ). 24 (Attached hereto as Exhibit 1) Clearly, even DOI recognized its decision that section 3 of the OIWA authorizes a trust acquisition for the UKB 24 A similar briefing paper was apparently drafted for the Subject Tract. See Privilege Log dated June 18, 2015 (Doc. 66, p. 2) (March 10, chain forwarding briefing memo and revisions to it which DOI claims is privilege because Description of Deputy Solicitor s edits to briefing paper. ) Part of the chain, without the briefing paper, is in the administrative record. See AR3682 ( We have tried to use the opening of the footnote 6 in Carcieri and the rather unique language of the OIWA with regard to OIWA corporations to fashion a unique decision. We think it works. ) Footnote 6 to Carcieri states: The regulations that govern the tribal recognition process, 25 CFR 83 et seq. (2008), were promulgated pursuant to the President's general mandate established in the early 1830's to manage all Indian affairs and... all matters arising out of Indian relations, 25 U.S.C. 2, and to prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs, 9. Thus, contrary to the argument pressed by the Governor of Rhode Island before this Court, see Reply Brief for Petitioner Carcieri 9, the requirement that a tribe be federally recognized before it is eligible for trust land does not stem from the IRA. The OIWA section regarding OIWA corporations is discussed in Sections II.B. and C., infra. As is evident from that discussion, the ASIA s unique decision definitely does not work and is in conflict with federal law. 19 Aple. App. #27

30 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 28 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 30 Corporation deviates from established federal law, court decisions and its own policies and regulations. This decision is so implausible that it 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., 463 U.S. 29, 43 (1983). The Department developed this theory to circumvent the Supreme Court s Carcieri ruling which was decided while the Subject Tract trust application was pending. In Carcieri, the Court held that DOI cannot accept land into trust under section 5 of the IRA for any Indian tribe that was not under federal jurisdiction in S.Ct. at The 2011 Decision, which is the subject of this litigation, contains not one reference or citation to the Carcieri decision. The 2011 Decision stated the UKB was organized in 1950, but did not address Carcieri 25 because The Assistant Secretary s 2010 Decision, as clarified by the Assistant Secretary s January 21, 2011 Letter to the UKB, concluded that Section 3 of the OIWA, 25 U.S.C. 503, implicitly authorizes the Secretary to take land into trust for the UKB Corporation. The Assistant Secretary s Decision and Letter are binding on the Region and preclude further consideration of this issue by the Region. 26 AR 3072 (emphasis added). In his June 2009 Decision, the ASIA said he had authority to take land into trust 25 There is not one mention of Carcieri in the 2011 Decision. It is not surprising that 2011 Decision deferred to the ASIA on this issue because on March 24, 2009, the Regional Director had concluded the United Keetoowah Band of Cherokee Indians was not under federal jurisdiction... [and] [t]herefore, based upon the decision issued by the United States Supreme Court in Carcieri v. Salazar, the statutory authority to accept property in Trust for the UKB does not exist. AR There is, therefore, no reason for the Regional Director to question his authority to take the [Subject Tract] into trust for the [UKB] s corporation. He has that authority under Section 3 of the OIWA. Carcieri does not apply to this acquisition. January 21, 2011 Letter from ASIA to UKB Chief, AR Aple. App. #28

31 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 29 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 31 pursuant to section 5 of the IRA. 27 AR3072. However, the ASIA deferred final decision on his authority to take land into trust for the UKB until the Department has developed a more comprehensive understanding of Carcieri, and invited the parties to address the Carcieri issue. AR1556. Notwithstanding that invitation, the ASIA acknowledged in the 2010 Decision that the UKB was organized in 1950 under authorization of the 1946 Act (implying that Carcieri would preclude approval of the trust applications under authority of section 5 of the IRA) and presented the UKB with three options designed to circumvent the Carcieri decision: 1) continue to invoke my authority under Section 5 of the Indian Reorganization Act but seek to have the land taken in trust for one or more half-blood members who could later transfer their interest to the UKB; 28 2) invoke my authority under Section 3 of the Oklahoma Indian Welfare Act (OIWA) and seek to have the land held in trust for the UKB Corporation; 29 or, 27 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). 28 This first option was not viable because the UKB had used federal funds to construct a child care facility on the property, as evidenced by a Notice of Federal Interest. (February 23, 2011 Letter from Regional Director to UKB) AR The Federal Interest Notice provides, consistent with federal law and regulations, that the property may not be sold or otherwise transferred to another party without the prior written consent of federal agency. AR The transfer of the property to individuals would have resulted in the UKB having to return some of the federal monies to the U.S. government. Interestingly, DOI redacted this information from the administrative record, but did not claim a privilege. See AR However, the redacted portion is available to the public at the Department Health and Human Services on-line website and it references the federal regulations applicable to the sale of the land. 29 Only this second option was a potentially useful rationale for purposes of the Subject Tract trust application. See 2011 Decision, AR3072. ( The Assistant Secretary s 2010 Decision... concluded that Section 3 of the OIWA, 25 U.S.C. 503, implicitly authorizes the Secretary to take land into trust for the UKB Corporation. ). 21 Aple. App. #29

32 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 30 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 32 AR ) invoke my authority under Section 1 of the OIWA and supplement the record with evidence to show that the parcel satisfies the conditions. 30 According to the ASIA s January 21, 2011 Decision, clarifying the 2010 Decision, Carcieri did not apply to trust acquisitions for a tribal corporation under section 3 of the OIWA. AR3007. As the Briefing Paper 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. 31 See Briefing Paper (Exhibit 1, p. 2). Thus, the second option, which offered to avoid the requirements of Carcieri (utilizing section 3 of the OIWA), was ultimately relied upon for the Subject Tract trust application. AR3072. B. Section 3 of the OIWA and the Land Acquisition Regulations Do Not Permit Tribal Corporations Such as the UKB Corporation to Acquire Trust Land, Except Under Limited Circumstances, Not Applicable in this Case. Section 3 of the OIWA states in part: 30 This third option was not viable for the Subject Tract trust application. Section 1 of the OIWA authorizes the Secretary to acquire land into trust provided such lands shall be agricultural and grazing lands. The Subject Tract trust application states the property houses the majority of the Band s social services programs and the UKB s Tribal Council chambers. AR0004. The UKB is obviously not seeking to have the land placed into trust for agricultural purposes. However, the UKB did not did not see this as an impediment. While the [UKB] admittedly do not presently intend to use these lands as agricultural or grazing lands, that is not the pertinent question. Rather the property could be used as agricultural or grazing lands, and therefore meets the directive of Congress in 1 of the OIWA. AR1547 (emphasis in original). This appears to be a creative reading of 1 which states such lands shall be agricultural and grazing lands. (emphasis added). 31 This begs the question: If Carcieri did not apply, then why did the ASIA not take the land into trust for the UKB instead of requiring that the land be taken into trust for the UKB Corporation? The simple truth is that after Carcieri was decided, the ASIA opted not to take the land into trust for the UKB. Thus, the decision under review in this case is the ASIA s arbitrary and erroneous finding that section 3 of the OIWA authorized the Department to take land into trust for the UKB Corporation. 22 Aple. App. #30

33 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 31 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 33 Any recognized tribe or band of Indians residing in Oklahoma shall have the right to organize for its common welfare and to adopt a constitution and bylaws, under such rules and regulations as the Secretary of the Interior may prescribe. The Secretary of the Interior may issue to any such organized group a charter of incorporation, which shall become operative when ratified by a majority vote of the adult members of the organization voting:... Such charter may convey to the incorporated group, in addition to any powers which may properly be vested in a body corporate under the laws of the State of Oklahoma, the right to participate in the revolving credit fund and to enjoy any other rights or privileges secured to an organized Indian tribe under the Act of June 18, 1934 (48 Stat. 984) [25 U.S.C. 461 et seq.]. The only power conferred upon the Secretary under Section 3 is to issue the corporate charter requested by the organized group. The charter must then be ratified by the organized group before becoming effective. Section 3 provides that charters issued by the Secretary of the Interior may convey to the incorporated group... any other rights or privileges secured to an organized Indian tribe under the IRA. 25 U.S.C The Regional Director erred as a matter of law in the 2011 Decision by relying on section 3 as statutory authority for the acquisition, based on his finding that this provision implicitly authorizes the Secretary to take land into trust for the UKB Corporation. AR3072 (emphasis added). Section 3 does nothing more than authorize the Secretary to issue the charter. Any right or privileges in the charter are conveyed through the IRA not through any action of the Secretary. Rather than explaining where this implicit authority can be found in the Section 3, the Regional Director simply cited the ASIA s 2010 Decision, stating the Assistant Secretary s Decision and Letter are binding on the Region and preclude further consideration of this issue by the Region. Id. In the 2010 Decision, the ASIA noted that section 3(r) of the 1950 UKB Charter authorizes the UKB Corporation to acquire property of every description, real and personal. But section 3(r) of the Corporate Charter states that The United Keetoowah Band of Cherokee Indians in Oklahoma, subject 23 Aple. App. #31

34 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 32 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 34 to any restrictions contained in the Constitution and laws of the United States or in the Constitution and Bylaws of the Band, and subject to the limitations of sections 4 and 5 of this Charter, shall have the following powers as provided by section 3 of the Oklahoma Indian Welfare Act of June 26, AR0026. Nowhere in Section 3(r) of the UKB Corporation s Corporate Charter does it state that the Secretary has authority to take land into trust for the Corporation. In reaching the conclusion that he had that authority, the ASIA improperly relied on the theory that trust acquisitions are rights or privileges secured to an organized Indian tribe under [the IRA]. AR2559. However, the OIWA 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 section 5 of the IRA, section 3 of the OIWA does not and cannot create such a right for the benefit of the UKB Corporation. In reaching the conclusion that land may be placed in trust for the benefit of the UKB Corporation, the Regional Director and the ASIA failed to apply DOI s own trust acquisition regulations, which expressly acknowledge limitations on trust acquisitions for federal chartered tribal corporations. 32 These limitations are contained in the following 32 The 2011 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 The 2011 Decision states: The request was evaluated in accordance with the regulations contained in Title 25, Code of Federal Regulations, Part 151 Land Acquisitions, and in accordance with the Assistant Secretary s June 24, 2009, July 30, 2009, and 24 Aple. App. #32

35 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 33 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 35 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. 503). 25 C.F.R (b) (emphasis added). 33 The failure of an agency to follow its own regulations is challengeable under the APA. City of Colo. Springs, 589 F.3d at 1129 (quoting Thomas Brooks Chartered v. Burnett, 920 F.2d 634, 642 (10th Cir. 1990)). These specific limitations on the ASIA s authority to acquire land in trust for a chartered tribal corporation establish DOI s recognition that a federal chartered tribal corporation may acquire trust property only when expressly authorized by law. Section 5 of the IRA expressly authorizes trust acquisitions only for tribes not for tribal corporations. Section 3 of the OIWA contains no authorization for any trust acquisitions and only references section 5 of the IRA. The Department s recognition that the IRA and the OIWA do not provide statutory authority for trust acquisitions for tribal corporations is addressed succinctly in the 1980 comment accompanying the final regulatory definition of tribe in 25 C.F.R (b) as follows: 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. 489). In view of this, the definition has been changed to include corporations for limited purposes. September 10, 2010 Decisions, as well as his January 21, 2011 Letter. AR3072 (emphasis added). 33 The two statutes cited as providing express statutory authority for federal chartered tribal corporations involve land acquired with a Farmers Home Administration (FHA) Direct Loan Account loan under the terms specified in 25 U.S.C Aple. App. #33

36 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 34 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: Fed. Reg (Sept. 18, 1980). 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. 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. Okla. ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303, 1312 (10th Cir. 2012) (citing Ariz. v. United States, U.S., 132 S.Ct. 2492, 2520 (2012)). The Regional Director s and ASIA s finding that section 3 of the OIWA implicitly authorizes a trust acquisition for a federally 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 (10th Cir. 1999) (quoting Motor Vehicle Mfrs. Ass n v. State Farm, 264 U.S. 29, 42 (1983)). There is no reasoned analysis here. The regulation, 25 C.F.R (b), authorizes the Secretary to take land into trust for a chartered corporation only if a statute specifically authorizes such action. The 2011 Decision only cites implicit statutory authority under section 3 of the OIWA to take land into trust for the UKB Corporation. As such, the 2011 Decision is contrary to his authority under the law and regulations. Put simply, the DOI 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 26 Aple. App. #34

37 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 35 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 37 permit the DOI to take land into trust for the UKB Corporation. C. The ASIA Did Not Follow the Department s Own Regulations and Policies in Approving the UKB s Application to Place the Subject Tract in Trust for the UKB Corporation, Which Is a Separate Entity. The UKB, not the UKB Corporation, submitted the trust application for the Subject Tract. The UKB submitted a resolution in support of the amended Subject Tract trust application, asking that the Secretary of the Department of the Interior acquire the [Subject Tract] in trust for the benefit of the Federal Corporation held by the United Keetoowah Band of Cherokee Indians in Oklahoma and authorizes the Chief of the Band to submit any such applications and materials to the Secretary of the Department of the Interior on behalf of the Band that may be necessary in the assisting the Secretary in acquiring such lands in trust. AR2564. The Regional Director chose to approve the UKB application on behalf of the UKB Corporation as trust beneficiary, contrary to the Department s own policies and procedures. 34 The UKB and the UKB Corporation are separate and distinct legal entities. Indian tribes were authorized to organize as governmental entities under section 16 of the IRA, 25 U.S.C. 476, and as business entities under section 17 of the IRA, 25 U.S.C These entities organized under the IRA are considered to be separate and distinct. 35 Section 3 of the OIWA authorized Oklahoma tribes to adopt a constitution and bylaws and authorized 34 The entity requesting that the land be placed in trust is not the UKB Corporation, it is the UKB Decision, AR3074 (emphasis added). 35 See Gaines v. Ski Apache, 8 F.3d 726, 729 (10th Cir. 1993) (tribe s constitutional and corporate entities [are] separate and distinct ); Ramey Constr. Co. v. Apache Tribe of the Mescalero Reservation, 673 F.2d 315, 320 (10th Cir. 1982) (noting the distinctness of a tribe from a tribal corporation); Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 491 F. Supp. 2d 1056, 1059 (N.D. Okla. 2007) ( The constitutional entity created pursuant to 476 and the corporate entity created pursuant to 477 are considered separate and distinct entities. ). 27 Aple. App. #35

38 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 36 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 38 the Secretary to issue to any such organized group a charter of incorporation. 25 U.S.C These entities organized under the OIWA are also considered to be separate and distinct. 36 The DOI recognized this distinction in the 2010 Decision: Within the UKB tribal structure are the tribal government and the tribal corporation. They are separate entities. Solicitor s Opinion, 65 I.D. 483 (1958), 2 Op. Sol. on Indian Affairs 1846, (U.S.D.I. 1979). The UKB Government represents the UKB in its governmental affairs. And the UKB Corporation represents the UKB in its business affairs. AR2559, fn. 1 (emphasis added). The land acquisition regulations require that a Tribe desiring to acquire land in trust status shall file a written request for approval of such acquisition with the Secretary. 25 C.F.R DOI s fee-to-trust handbook 37 requires that when the Regional Director receives a written request to have land taken into trust, it must check if the written request includes the following: [1] The identity of the person (individual or tribe) submitting the written request and [2] The bases for qualifying as an applicant. AR The Regional Director clearly understood that the trust application was submitted by 36 See Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 918 (6th Cir. 2009) (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. ); Okla. ex rel. Okla. Tax Comm' n v. Thlopthlocco Tribal Town, 839 P.2d 180, (Okla. 1992) ( Congress authorized the tribes to organize two separate entities: a political governing body to exercise preexisting powers of self-government pursuant to section 16 of the Act, and a new tribal corporation to engage in business transactions pursuant to section 17. ). 37 The Department s Fee to Trust Handbook can be found at AR Cherokee Nation will include in the Appendix only the specific pages of the Handbook cited in this brief. 38 This provision is taken directly from the regulatory requirement that the applicant in a fee-totrust application must be the same legal entity as the proposed trust beneficiary. 25 C.F.R Here, the UKB was the applicant, but the UKB Corporation is the beneficiary, a conflation of legally separate and distinct parties not permitted by the regulations. 28 Aple. App. #36

39 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 37 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 39 the UKB. As stated in the 2011 Decision: AR3074. By correspondence dated June 9, 2004, the UKB submitted a written request and accompanying documentation for the acquisition of the [Subject Tract] to be held in trust by the United States Government for its benefit. On October 5, 2010, the UKB submitted an amended fee-to-trust application requesting the property be taken in trust for the UKB under Section 3 of the OIWA. The assistant Secretary determined in his 2009 Decision that the UKB satisfied this requirement by submitting a written request and supporting materials on June 9, 2004, to have the parcel placed in trust. Additionally, the Region finds that the amended fee-totrust application dated October 5, 2010, by the UKB requesting the property be placed in trust for the UKB Corporation satisfied this requirement. Because the UKB and UKB Corporation are separate and distinct legal entities, the Regional Director should have required that the UKB Corporation submit the Subject Tract trust application. The Regional Director abused his discretion in processing the UKB application in a manner not in conformity with his own regulations and rules as set forth in 25 C.F.R. Part 151 and the Fee-to-Trust Handbook. D. The 2011 Decision Is Arbitrary and Capricious. The 2011 Decision is implausible in light of the Department s repeated recognition that the UKB never had a reservation and its findings that the Cherokee Nation possesses jurisdiction exclusive of any other tribe over Indian country within its Treaty Territory See AR (1987 ASIA decision finding that the 1946 Act did not create a reservation for the UKB or purport to give the UKB any authority to assert jurisdiction, that the UKB has never had a reservation in Oklahoma, that the Band has never exercised independent governing authority over any of the Cherokee Nation's reservation lands, and that the UKB could not take land into trust without Cherokee Nation consent); AR (1988 and 1989 letters from Regional Director reiterating that conclusion); AR421 (2002 Regional Director letter stating that the UKB is not the Cherokee Nation nor does the UKB have any claim as a successor or have interest as an entity of the Cherokee Nation ); AR , , (2002 and 2003 letters from Department declining to approve UKB proposal to enter into a PL 638 contract for law enforcement, realty, and tribal court programs, and including statements that the UKB lacks a jurisdictional land base over which it can exercise territorial jurisdiction; [AR433] and that the 29 Aple. App. #37

40 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 38 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 40 In his 2008 Decision, the Regional Director stated: The UKB does not have a former reservation of its own... There are no treaties, statutes or Executive Orders that set aside lands for the UKB. AR1339. The 2011 Decision provided no explanation at all as to how it can be harmonized with the 2008 Decisions and all the other decisions cited. Further, there is no explanation how the 2011 Decision can be harmonized with the position the Department took in the litigation with the UKB wherein it stated: As stated by statute, [t]he Cherokee Nation, a federally recognized Indian tribe with its present tribal headquarters south of Tahlequah, Oklahoma, having adopted its most recent constitution on June 26, 1976, and having entered into various treaties with United States,... has maintained a continuous government-to-government relationship with the United States since the earliest years of the Union. 25 U.S.C. 1779(3) (emphasis added). The use of the name Cherokee Tribe of Oklahoma (instead of Cherokee Nation ) in the deeds does not confer any rights on [UKB] or create any ambiguities. Congress has long recognized the Cherokee Nation and the Cherokee Tribe as one and the same. [citations omitted]... The Cherokee Nation possesses an inherent right of limited sovereignty that has never been extinguished. (citations omitted). UKB v. U.S., 08-CV-1087, pp But there is one plausible explanation for the sudden about-face. Before the Subject Tract trust application was filed with DOI, the UKB had a pending claims suit against the United States under the Cherokee, Choctaw, and Chickasaw Nations Claims Settlement Act, 25 U.S.C g. See United Keetoowah Band of Cherokee Indians of Okla. v. United States, CaseNo L,U.S.Fed.Cl.,Doc.117.( UKBClaimsCourt ) The Secretary has consistently opined that the Cherokee Nation exercise exclusive jurisdiction over trust and restricted lands within the former Cherokee treaty boundaries [AR428]). See also Sept. 21, 1993 Indian Lands Opinion for Cherokee Nation by Sharon Blackwell, Tulsa Field Solicitor at ( With little exception, the exterior boundaries of the present Cherokee Nation were agreed to by the terms of the [1835] Treaty of New Echota....Historically, the Cherokee Nation has exercised governmental authority over the fourteen county area. ). All the citations in this footnote are found in The Cherokee Nation s comments, with attachments, on the UKB s fee-to-trust application. AR Only the portions cited in this footnote are included in the Appendix. 30 Aple. App. #38

41 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 39 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 41 UKB complaint was filed on July 10, On December 16, 2003 the following was circulated in the DOI solicitor s office with the subject matter described as UKB MEETING IS NOT ON WEDNESDAY : AR4186. I will get copies of the settlement proposal made for you and Angela...The main issue that appears to be implicated is law enforcement and other jurisdiction (for land owned by UKB within Cherokee lands that we would take in trust under proposal). An generated earlier that day from the Tulsa solicitor s office to DOI stated: I would like to talk about this settlement sometime I have some concerns. AR Approximately six months later, the UKB filed the original Subject Tract trust application. Of course, a trust application had to be filed for DOI to take land into trust, even as part of a settlement agreement. The next eight years were focused on resolving the UKB Arkansas River bed litigation by a settlement which reversed more than 150 years of recognition of Cherokee Nation sovereignty by giving the UKB trust land within the Cherokee Nation Treaty Territory A series of scheduling reports were compiled thereafter that reflect ongoing settlement discussions. 40 See UKB Claims Court, Amended Joint Status Reports, Doc. 119, 5-8, Doc. 121, Doc. 123, Doc. 125, Doc. 130, Doc. 139, Doc. 145, p See also AR ( chain with attached proposed scheduling order and notation that We need to file the attached amended joint status report by Monday cob. It references February 8, 2010 as the date by which the ASIA will make his decision. Are you okay with that? ). Clearly, approval of the trust application and settlement of the Riverbed litigation were extrinsically tied together. This is further evidenced in a March 4, exchange between Scott Keep and Pilar Thomas in the solicitor s office when discussing the briefing paper that conclude[s] that the Secretary can take land in trust for the UKB corporation. AR3682. Note that UKB must file its motion for summary judgment in the Arkansas River bed case on April 5 so if the acquisition of land in trust is to help us or the Band avoid unnecessary briefing in CFC, we need to move this alon[g] [sic] smartly. Id. Finally, in discussing a proposed scheduling notice filed after the September 2010 Decision Scott Keep again contacts Pilar Thomas stating: Note that the proposed status reports [sic] states: action under the September 10, 2010 Decision is expected to be taken on an 31 Aple. App. #39

42 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 40 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 42 DOI was not just reviewing a trust application. It was settling litigation. See Sokaogon Chippewa Cmty. Mole Lake Band of Lake Superior Chippewa v. Babbitt, 929F. Supp. 1165, 1176 (W.D. Wis. 1996) (the Department s review of an application to take land in trust is subject to the due process clause and must be unbiased). The unbiased review took place at the office of the Regional Director. It is beyond challenge that, if left to his own accord, the Regional Director would have denied the Subject Tract trust application as he had each time in the past. On numerous occasions in his 2011 Decision, the Regional Director set forth facts which would have precluded the taking of land into trust for the UKB Corporation but he was forced to approve the trust application because he was directed to do so by ASIA directive. AR3072 (151.3 ASIA decision binding on Region and preclude further consideration by Region. ); AR3073 ( Assistant Secretary concluded authority exists to take land in trust for the UKB Corporation under Section 3 of the OIWA. Therefore the Bureau finds that this section of the regulations is not applicable to this request ); AR3073 (151.8 ASIA concludes Cherokee Nation consent is not required and determinations in connection with this application are binding on Region. ); AR3075 (151.10(b) ASIA Decision is binding on the Region. ); AR (151.10(f) ASIA concluded that the perceived jurisdictional conflicts between the UKB and the CN are not so significant that I should deny the UKB s application and the ASIA s findings and conclusions on this issue are binding on the Region. ); AR3078 expedited basis; Counsel for the UKB has already expressed some concern after an initial contact the tribe had with the Region. He was concerned that the Region seemed to think that everything had to be done over again when I believe the only thing necessary for the amended application is to bring the environmental work up to date.. The ASIA responded to those concerns in his January 21, 2011 Letter. AR Aple. App. #40

43 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 41 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 43 (151.10(g) The Region expressed its concern but ASIA has previously rejected this concern as unsubstantiated and insignificant. ) 41 DOI s interest in this trust application was not unbiased. Its interest and intent was direct to settle separate UKB litigation against the United States. For these reasons, the findings and conclusions in the 2011 Decision were arbitrary and capricious. III. THE 2011 DECISION CONCERNING JURISDICTIONAL CONFLICTS IS ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW. A. The ASIA Failed to Give Sufficient Weight to Evidence Regarding Jurisdictional Conflicts that Will Occur If the Tract is Placed in Trust. Departmental regulations require that jurisdictional problems and potential conflicts of land use which may arise be considered for any proposed trust acquisition whether it be for on-reservation or off-reservation land. 25 C.F.R (f). 42 Here, the potential for conflict is very real as the Regional Director stated in the 2011 Decision. 41 After instructing the Regional Director to approve the trust application in spite of his reservations, the ASIA released a statement to DOI staff the morning the 2011 Decision was issued referring all inquiries to the Regional Director so that he could defend the indefensible: Today the Acting Regional Director... announced his intention to acquire land into trust for the United Keetoowah Band of Cherokee Indians (UKB) [note that it did not refer to the UKB Corporation]...The Director s decision complies with his authority to review an applicant tribe s requests according to the regulations at 25 CFR Part 151 Also under the regulations, any decision must rely on proper statutory authority to place land into trust. Here the Acting Regional Director determined that the [OIWA] Section 503 provides proper statutory authority. The BIA Eastern Oklahoma Regional office can address any questions or comments... AR The 2011 Decision expressly applied 25 C.F.R , which establishes requirements for on-reservation trust acquisitions for both individual Indians and for tribes and 25 C.F.R for off-reservation trust acquisitions. AR The Nation discusses the requirements of (a), (b), (f) and (g) in this brief not because it views this as an on-reservation application (which it does not), but because those subsections are incorporated by reference in 25 C.F.R Aple. App. #41

44 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 42 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 44 AR3077. The [Eastern Oklahoma] Region twice previously concluded that the potential for jurisdictional problems between the Cherokee Nation and the UKB is of utmost concern and weighed heavily against approval of the acquisition. However, the Regional Director, under the constraints imposed by the ASIA s June 2009 Decision, recommended approval of the trust application for the Subject Tract in spite of his detailed description of potential jurisdictional conflicts. 43 In doing so, the Regional Director stated that the June 2009 Decision had concluded that the UKB, like [the Nation], possesses the authority to exercise territorial jurisdiction over its tribal lands (AR3077) and the Assistant Secretary s findings and conclusions on this issue [jurisdictional conflicts] are binding on the Region. Doc. AR The Regional Director found that jurisdictional issues were likely and stated, as the Bureau office closest to tribal affairs in northeastern Oklahoma, the Bureau remains concerned that jurisdictional conflicts will arise between the UKB and the [Nation] if property is placed into trust for the UKB within the former reservation boundaries of the [Nation]. AR3077. Two of the many jurisdictional problems likely to arise involve taxing and law enforcement regulation. The federal courts have previously determined that Indian country within the Nation s boundaries, albeit owned by UKB members, is properly under the taxing and regulatory control of the Cherokee Nation Tax Commission. See United 43 This description was consistent with earlier findings regarding jurisdictional conflicts. See AR (2006 Decision denying the Subject Tract application, finding that the Cherokee Nation exercises exclusive jurisdiction over trust lands within its treaty territory and that jurisdictional problems and significant land use issues exist ); AR1344 (2008 Regional Director decision denying Subject Tract application, stating that the Region finds that the potential for jurisdictional problems is of utmost concern and weighs heavily against approval of this acquisition at this time. ). 34 Aple. App. #42

45 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 43 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 45 Keetoowah Band v. Mankiller, 1993 WL , at *2, 4 (10 th Cir. 1993). Another pivotal jurisdictional conflict involves law enforcement services. As specifically noted by the Regional Director in 2008, but not addressed in the 2011 Decision because of the ASIA s binding June 2009 Decision, the UKB, which does not provide law enforcement services and has only a security force that works with the Cherokee County law enforcement officials, plans to exercise sole jurisdiction if its lands are placed in trust. AR1344. Also as noted by the Regional Director in the 2008 Decision but not in 2011, the Cherokee Nation Marshal Service performs law enforcement responsibilities on trust lands in its Treaty Territory and would undertake those responsibilities with respect to the Subject Tract if placed in trust. AR1347. The Nation has a cross-deputization 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. 44 If the Subject Tract is placed in trust and becomes Indian Country, law enforcement conflicts are certain to occur. 45 Nothing in the Regional Director s 2011 Decision or elsewhere in the record finds that there are adequate means to address the jurisdictional conflicts. While the 2011 Decision expresses the same concerns presented in the 2008 Decision it concludes: 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. However, the Assistant Secretary concluded in his June 2009 Decision that the perceived jurisdictional conflicts between the UKB and the CN are not so significant that I 44 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. 45 As the Regional Director noted: the UKB did not deny the potential for jurisdictional conflicts. AR Aple. App. #43

46 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 44 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 46 should deny the UKB s application. The Assistant Secretary s findings and conclusions on this issue are binding on the Region. AR This conclusion of potential jurisdictional problems in the 2011 Decision wholly fails to follow the dictates of 25 C.F.R (f), as incorporated into 25 C.F.R This is particularly obvious when compared to the level of consideration upheld in South Dakota v. Department of Interior, 401F.Supp.2d1000(D.S.D.2005). There,the Director reviewed intergovernmental agreements entered into by the tribe involved and local officials to address such needs as law enforcement and fire protection, and considered land use and zoning issues. The Director responded in detail to concerns of every local government that voiced objections to the trust determination. The determination here is devoid of any such considerations and is arbitrary and capricious. An Assistant Secretary s directive to the Regional Director that he is not to consider evidence bearing on the issue before it constitutes arbitrary agency action within the meaning of the APA, 5 U.S.C See, e.g., Motor Vehicle Mfrs. Ass n v. State Farm Mut. Ins. Co, 463 U.S. 29, 43 (1983); Comcast Corp. v. FCC, 579 F.3d 1, 8 (D.C. Cir. 2009). B. The ASIA s Interpretation of IRA 476(g) Is Contrary to Law. The Regional Director also avoided consideration of jurisdictional conflicts in the 2011 Decision by relying upon the June 2009 and 2010 Decisions misinterpreting a 1994 amendment of the IRA, 25 U.S.C Citing the June 2009 Decision, the Regional Director found that section 476(g) of the IRA prohibits the Department from finding that the UKB lacks territorial jurisdiction while other tribes have territorial jurisdiction, and that the UKB, like [the Nation], possesses the authority to exercise territorial jurisdiction over its tribal lands. AR3077. This ASIA determination and the Regional Director s 36 Aple. App. #44

47 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 45 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 47 reliance on the 1994 amendment is contrary to the plain wording of the amendment, which added new subsections (f) and (g) to section 476 of the IRA. Subsection (f) prohibits the issuance of certain types of discriminatory regulations and decisions after the effective date of the amendment. Subsection (g) applies to exactly the same types of discriminatory regulations and decisions that were already in effect at the time of the amendment, as follows: (g) Privileges and immunities of Indian tribes; existing regulations Any regulation or administrative decision or determination of a department or agency of the United States that is in existence or effect on May 31, 1994, and that classifies, enhances, or diminishes the privileges and immunities available to a federally recognized Indian tribe relative to the privileges and immunities available to other federally recognized tribes by virtue of their status as Indian tribes shall have no force or effect. 25 U.S.C. 476(f) (emphasis added). The 1994 amendment of 476 simply articulates a principle of administrative equality and non-discrimination that extends to all federally recognized tribes. As one cosponsor of the amendment explained, the amendment is intended to prohibit the Secretary or any other Federal official from distinguishing between Indian tribes or classifying them based not only on the IRA but also based on any other Federal law. See, 140 Cong. Rec. 11,235 (1994) (statement of Sen. McCain). The ASIA s interpretation of sub-section (g) as authorizing a tribe to acquire trust lands within the territory of another tribe is much more expansive than its plain wording. Although the Cherokee Nation does not dispute that any federally recognized tribe, including the UKB, should have an equal opportunity to acquire trust lands, this does not mean that any federally recognized tribe should be allowed to acquire trust lands in another tribe s jurisdictional area. Such an extreme interpretation could negatively impact tribes nationwide, because it means that any tribe could acquire 37 Aple. App. #45

48 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 46 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 48 trust land in the jurisdictional area of any other tribe, wherever that land might be located. IV. THE 2012 DECISION FAILED TO PROPERLY CONSIDER WHETHER THE BIA IS SUFFICIENTLY EQUIPPED TO DISCHARGE THE ADDITIONAL RESPONSIBILITIES THAT WOULD RESULT FROM THE TRUST ACQUISITION AND IS ARBITRARY AND CAPRICIOUS. In examining the administrative record, the court must determine whether the decision was based on a consideration of the relevant factors. South Dakota v. U.S. Dep t of Interior, 487 F.3d 548, 551 (8th Cir. 2007) (quoting 5 U.S.C. 706(2)(A)). The Regional Director abused his discretion in failing to adequately consider all relevant factors with regard to 25 C.F.R (g), which requires consideration of whether the Bureau of Indian Affairs is equipped to discharge the additional responsibilities resulting from the acquisition of land in trust status. In fact, the Regional Director s conclusion is not supported in the administrative record at all, as reflected in his findings that (1) the proposed UKB Subject Tract trust acquisition is within the Nation s Treaty Territory and that the lands within the former treaty boundaries of the Cherokee Nation are the Cherokee Nation s service area for purposes of administering [BIA] programs; (2) the Cherokee Nation, through a self-governance compact, administers the program functions associated with the management of trust lands that were previously provided by the BIA; (3) all funds previously spent by the BIA to provide these services have been transferred to the Cherokee Nation Compact and as a consequence the Tahlequah BIA Regional Office (which previously administered such programs) has been closed; and (4) [t]here are no remaining direct service funds in the Region that have not been previously provided to the Cherokee Nation in its Self-Governing Compact. AR3078. In the 2011 Decision, the Regional Director express[ed] its concern that additional 38 Aple. App. #46

49 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 47 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 49 duties associated with the newly acquired trust land may increase the workload of the BIA, and that the Region will not have the necessary funds to discharge the duties that will arise as a result of this [Subject Tract] acquisition. AR3078. However, the Regional Director concluded that: the Assistant Secretary has previously rejected this concern as unsubstantiated and insignificant. In this 2009 Decision, the Assistant Secretary stated: Because the [former] Assistant Secretary found [in his 2008 Decision that] the BIA could discharge the duties associated with this trust acquisition and because the Regional Director has not substantiated her decision, the [former] Assistant Secretary s finding stands. Therefore, consistent with the Assistant Secretary s 2008 Directive and 2009 Decision, the BIA can discharge its duties in connection with this acquisition. AR3078 (all brackets in original) (emphasis added in bold) Despite all his concerns arising from his day-to-day interactions with the Nation and the UKB, the Regional Director had no choice but to acquiesce to the ASIA s determination that the BIA can discharge all its duties in relation to this acquisition. The Regional Director and the ASIA also failed to consider whether federal funds obtained by UKB would diminish the funds currently provided to the Cherokee Nation, thereby degrading the Nation s ability to provide services within its Treaty Territory. DOI s failure to consider the impact of the proposed trust acquisition on the Nation and on its continued ability to receive funds and provide services to Indians within the Nation s Treaty Territory under its self-governance compact pursuant to the ISDEA, 25 U.S.C. 458aa-458hh, was arbitrary and capricious, an abuse of discretion and contrary to law. CONCLUSION The Cherokee Nation respectfully requests that the Court enter judgment reversing the 2011 Decision and finding that it was arbitrary and capricious and in violation of the law, including a declaratory judgment that: (1) federal law and regulations do not 39 Aple. App. #47

50 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 48 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 50 authorize to accept the Subject Tract into trust for the UKB Corporation, and Carcieri precluded the approval of the Tract because the UKB was organized in 1950, after the effective dates of the IRA and the OIWA; (2) the Subject Tract cannot be placed into trust absent the Cherokee Nation s consent, which has not been granted; (3) the acceptance of the Subject Tract into trust would diminish the Nation s Treaty Territory in violation of federal laws, treaties and regulations; (4) the jurisdictional conflicts between the Cherokee Nation and UKB preclude taking the land into trust; and (5) the 1994 amendment of section 476 of the IRA does not prohibit DOI from complying with regulations requiring consideration of jurisdictional conflicts. Administrative deference is properly granted to agency action that is lawful, measured, and consistent with best practices. The Regional Director s 2011 Decision and the actions of DOI in the numerous decisions cited by the Regional Director were none of those, and deserve no deference. The Cherokee Nation respectfully requests that this Court so hold, granting the relief above, and any other relief to which the Nation may be entitled. Respectfully submitted, s/todd Hembree Todd Hembree, OBA No Attorney General Cherokee Nation P.O. Box 948 Tahlequah, OK Telephone: (918) Facsimile: (918) todd-hembree@cherokee.org 40 Aple. App. #48

51 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 49 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 51 s/william David McCullough Wm. 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: (918) Facsimile: (918) Aple. App. #49

52 6:14-cv RAW Document 67 Filed in ED/OK on 08/14/15 Page 50 of 50 Appellate Case: Document: Date Filed: 01/16/2018 Page: 52 CERTIFICATE OF SERVICE I hereby certify that on August 14, 2015, I electronically transmitted the foregoing document to the Clerk of the U.S. District Court for the Eastern District of Oklahoma using the ECF System for filing and transmittal of a Notice of Electronic Filing to all ECF registrants. s/william David McCullough William David McCullough v1 42 Aple. App. #50

53 6:14-cv RAW Document 67-1 Filed in ED/OK on 08/14/15 Page 1 of 2 Appellate Case: Document: Date Filed: 01/16/2018 Page: 53 Zxv kd_j[z a[[jeemw^ XWdZ e\ Y^[hea[[ _dz_wdi jhkij WYgk_i_j_ed The Assistant Secretary Indian Affairs has approved the United Keetoowah Band's (Band) application to have approximately 2.03 acres of land acquired in trust on its behalf for gaming purposes. In 2011, the Assistant Secretary determined that he. had authority under the Oklahoma Indian Welfare Act (OIWA) to acquire 76-acre Community Services Parcel for the UKB Corporation independent of the limitations in Section 5 of the IRA as found by the Supreme Court in Carcieri. The Assistant Secretary determined that needed to consult with the Cherokee Nation (CN) on the acquisition, which it did, but that special legislation superseded the regulatory requirement for CN consent. The Assistant Secretary also dismissed CN concerns over the potential conflicts in jurisdiction. CN has appealed the decision on the 76-acres to IBIA where the issue is still being briefed. The current decision on the 2.03-acre gaming site follows the reasoning on the 76-acre Community Service Parcel. Xtv~zw In 1937 the Solicitor found that the United Keetoowah Society of Cherokee Indians was not a "band" within the meaning of the OIWA and therefore not eligible to reorganize and adopt a constitution and corporate charter under that Act. In 1946 Congress passed an act recognizing the Society as a band within the meaning of OIWA and the Band subsequently adopted a constitution and charter approved by the Assistant Secretary in The Band has its headquarters in Tahlequah, Cherokee County, Oklahoma, which is within the 14 counties that comprise the former reservation of the historic Cherokee Nation. The Band has about 14,000 members. The Band does not have any lands held in trust by the United States The Band submitted its initial fee-to-trust application for the gaming site in March 10, 2008 and submitted an amended application on August 15, The Band has operated a bingo casino on the land since The casino is not, however, on trust or restricted land so it is not on "Indian lands" within the meaning of IGRA. After several years of litigation, the state has committed to closing the casino if the Band can't demonstrate by July 30 that the land will be taken in trust. The casino employs over 200 people and the revenue it generates funds tribal programs that employ about 225 more people. The Indian Gaming Regulatory Act (IGRA) generally prohibits gaming on lands acquired in trust after its enactment in IGRA provides an exception to the general prohibition for lands acquired in Oklahoma within the boundaries of a tribe's former reservation. Aple. App. #51 EXHIBIT 1

54 6:14-cv RAW Document 67-1 Filed in ED/OK on 08/14/15 Page 2 of 2 Appellate Case: Document: Date Filed: 01/16/2018 Page: 54 The Solicitor's Office has drafted an opinion concluding that the UKB can claim the historic Cherokee Reservation as their "former reservation" within the meaning of the IGRA. Overview of Analysis The decision follows the reasoning of the Assistant Secretary's June 2009 and September 2010 decisions on his authority to acquire the 76-acre Community Services Parcel. In those decisions, 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. The Assistant Secretary rejected the claim of CN that it had exclusive jurisdiction within the 14 counties of its former reservation and that CN's consent to the acquisition was required. In determining that the CN's former reservation was also the former reservation of the UKB, the Associate Solicitor recognized the unique history of the UKB as a reorganization of Cherokee members under the express authority of Congress and that the IGRA expressly authorized the Secretary to make the determinations as to what constituted the former reservations of tribes. Noteworthy Issues 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 OIWA. These decisions marks the first trust acquisitions approved for a tribal corporation of a tribe first recognized after This decision is the first time the Department has recognized two tribes as having the same former reservation for purposes of qualifying for the exception in IGRA for acquiring land in trust after Aple. App. #52

55 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 1 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 55 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF OKLAHOMA THE CHEROKEE NATION, ) ) Plaintiff, ) ) v. ) No. 14-cv-428-RAW ) ) S.M.R. JEWELL, et al., ) ) Defendants, ) ) and ) ) UNITED KEETOOWAH BAND OF ) CHEROKEE INDIANS IN OKLAHOMA, et al., ) ) Defendant-Intervenors. ) FEDERAL DEFENDANTS RESPONSE MERITS BRIEF JOHN C. CRUDEN Assistant Attorney General Jody H. Schwarz United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, DC Phone: (202) Fax: (202) jody.schwarz@usdoj.gov Of Counsel: Scott Keep Bethany C. Sullivan United States Department of the Interior Office of the Solicitor, Division of Indian Affairs Aple. App. #53

56 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 2 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 56 TABLE OF CONTENTS I. INTRODUCTION... 1 II. BACKGROUND... 2 A. Statutes Pertaining to the Organization of Indian Tribes in Oklahoma: The IRA, the OIWA, and the 1946 Act... 2 B. Factual Background The UKB The 2011 Decision Plaintiff s Complaint III. STANDARD OF REVIEW IV. ARGUMENT A. Interior reasonably determined that it had statutory and regulatory authority to acquire the Property in trust for the UKB Corporation The Trust Acquisition is authorized by Section 3 of the OIWA The trust acquisition is consistent with Interior s regulations Interior properly determined that Plaintiff s consent was not required The 2011 Decision does not violate the Cherokee Treaty of B. The 2011 Decision is not arbitrary and capricious Interior adequately considered the jurisdictional conflicts and explained its rationale for departing from previous decisions The Assistant Secretary s interpretation of IRA section 476(g) is not contrary to law Interior properly considered whether BIA is sufficiently equipped to discharge its responsibilities relating to the trust acquisition C. Plaintiffs Request for Declaratory Relief and for a Permanent Injunction should be denied V. CONCLUSION i Aple. App. #54

57 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 3 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 57 Cases TABLE OF AUTHORITIES Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) Auer v. Robbins, 519 U.S. 452 (1997)... 12, 19 Buzzard v. Oklahoma Tax Commission, No. 90-C-848-B (N.D. Okla. Feb. 24, 1992)... 8, 31 Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007) Carcieri v. Salazar, 555 U.S. 379 (2009)... 3, 14, 17, 38 Cherokee Nation v. Acting E. Okla. Reg l Dir., 58 IBIA 153, 2014 WL (2014) Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402 (1971) City of Arlington v. Fed. Commc ns Comm n, 133 S. Ct (2013)... 12, 15 City of Chicago v. U.S. Dep t of Treasury, 423 F.3d 777 (7th Cir. 2005) Colo. Wild v. U.S. Forest Serv., 435 F.3d 1204 (10th Cir. 2006) Cty. of Charles Mix v. U.S. Dep t of Interior, 799 F. Supp. 2d 1027 (D.S.D. 2011), aff d, 674 F.3d 898 (8th Cir. 2012)... 21, 34 ebay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) Fed. Election Comm n v. Akins, 524 U.S. 11 (1998) Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng rs, 702 F.3d 1156 (10th Cir. 2012) James v. Dep t of Health & Human Servs., 824 F.2d 1132 (D.C. Cir. 1987) Klein v. Republic Steel Corp., 435 F.2d 762 (3d Cir. 1970)... 16, 27 Marsh v. Or. Nat l Res. Council, 490 U.S. 360 (1989) Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct (2012).. 2 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) Motor Vehicle Mfrs. Ass n of U.S., Ind. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). 30 N. Cal. River Watch v. Wilcox, 633 F.3d 766 (9th Cir. 2011) ii Aple. App. #55

58 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 4 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 58 Robertson v. Seattle Audubon Soc y, 503 U.S. 429 (1992) RUI One Corp. v. City of Berkeley, 371 F.3d 1137 (9th Cir. 2004) South Dakota v. U.S. Dep t of Interior, 314 F. Supp. 2d 935 (D.S.D. 2004) South Dakota v. U.S. Dep t of Interior, 401 F. Supp. 2d 1000 (D.S.D. 2005) South Dakota v. U.S. Dep t of Interior, 423 F.3d 790 (8th Cir. 2005)... 30, 36 The Cape Hatteras Access Pres. Alliance v. U.S. Dep t of Interior, 667 F. Supp. 2d 111 (D.C. Cir. 2009) United Keetoowah Band of Cherokee Indians in Oklahoma v. United States, No L (Fed. Cl. filed June 10, 2003) United Keetoowah Band of Cherokee Indians in Oklahoma v. United States, No L (Fed. Cl. filed Dec. 29, 2006) United Keetoowah Band of Cherokee Indians in Oklahoma v. United States, No. 1:08-cv TFH (D.D.C. filed June 24, 2008) United Keetoowah Band v. Mankiller, 2 F.3d 1161 (10th Cir. 1993)... 8, 31 United Keetoowah Band v. Secretary, No. 90-C-608-B (N.D. Okla. filed May 31, 1991)... 8, 31 United States v. Cotto, 347 F.3d 441 (2d Cir. 2003) United States v. Mazurie, 419 U.S. 544 (1975) United Tribe of Shawnee Indians v. United States, 253 F.3d 543 (10th Cir. 2001) Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) Statutes 25 U.S.C. 1300b-14(a) U.S.C. 1300f U.S.C U.S.C U.S.C , 14, 15, U.S.C U.S.C. 2, iii Aple. App. #56

59 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 5 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: U.S.C , 3, 16, U.S.C U.S.C , Stat. 799 (July 19, 1866)... 24, 28, Stat passim Act of Jan. 8, 1983 (96 Stat. 2269) Act of Sept. 8, 1988 (102 Stat. 1577) Pub. L. No , 105 Stat. 990 (1991)... 24, 25, 26, 35 Pub. L. No , 112 Stat (1998)... passim Other Authorities 2 Op. Solic. on Indian Affairs 1846, (U.S.D.I. 1979) Black s Law Dictionary (10th ed. 2014) H. R. Rep. No (1945)... 4 H.R. Rep. No , 1991 WL (June 19, 1991) H.R. Rep. No (Oct. 17, 1991) H.R. Rep. No (Oct. 19, 1998) H.R. Rep. No , 17 Instructions for reorganizing under the OIWA, OIWA-regulations.pdf July 29, 1937 Solicitor s Opinion... 5 Solic. Op., 65 Interior Dec. 483 (1958) Solicitor s Opinion, M (November 7, 1934) Treaty of New Echota, 7 Stat. 478 (Dec. 29, 1835) Treatises Felix S. Cohen, Cohen s Handbook of Federal Indian Law, 1.05, at 81 (2012 ed.)... 2, 5 iv Aple. App. #57

60 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 6 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 60 Regulations 25 C.F.R (g) C.F.R (f) C.F.R C.F.R C.F.R. Part , 9, 29, 32 v Aple. App. #58

61 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 7 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 61 I. INTRODUCTION In 2011, the Bureau of Indian Affairs Acting Regional Director for the Eastern Oklahoma Region ( Regional Director ) approved the United Keetoowah Band of Cherokee Indian in Oklahoma s ( UKB ) amended fee to trust application to acquire 76 acres in trust for its federally-chartered corporation, the UKB Corporation. This decision was made after approximately seven years of consideration and review. In making this decision, the administrative record shows that many factors were analyzed, including the authority for taking the land into trust, trust eligibility requirements, Supreme Court precedent, and the history between the UKB, the Cherokee Nation, and the land at issue. After thorough and careful consideration, the Department of the Interior determined that it possessed the authority under the Oklahoma Indian Welfare Act to acquire the land in trust for the benefit of the UKB Corporation. The 2011 Decision was not arbitrary, capricious, an abuse of discretion, nor otherwise violative of any laws as reviewed under the APA. The Regional Director explicitly considered Interior s regulatory factors for acquiring land in trust and offered a reasoned explanation for the finding that the trust application satisfied these regulations. The 2011 Decision involved policy and factual determinations for which the Department of the Interior is uniquely qualified to make. The Court should uphold the deference owed to the Departmental consideration of its regulations for acquiring land in trust. Additionally, to the extent the Regional Director departed from positions previously held, the Department of the Interior is entitled to change its position as long as it offers a sufficient explanation for doing so. Here, the Regional Director, relying on determinations made by the Assistant Secretary, satisfied this standard by analyzing the prior position and providing explanation for the 2011 Decision. The 2011 Decision was made after 1 Aple. App. #59

62 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 8 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 62 consideration of all the relevant factors and is entitled to substantial deference. The Court should uphold the decision. II. BACKGROUND A. Statutes Pertaining to the Organization of Indian Tribes in Oklahoma: The IRA, the OIWA, and the 1946 Act. Three statutes pertaining to the organization of Indian tribes are relevant to this case: the Indian Reorganization Act of 1934, the Oklahoma Indian Welfare Act of 1936, and the 1946 Keetoowah Recognition Act. Each is discussed below. The Indian Reorganization Act of 1934: In 1934, Congress passed the Indian Reorganization Act ( IRA ), Act of June 18, 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. 461 et seq.). The IRA was designed to improve the economic status of Indians by ending the alienation of tribal land and facilitating tribes acquisition of additional acreage and repurchase of former tribal domains. Felix S. Cohen, Cohen s Handbook of Federal Indian Law, 1.05, at 81 (2012 ed.). It authorized the acquisition of land for Indians, promulgated conservation regulations, and declared newly acquired lands to be Indian reservations or added to existing reservations. Id. at 82. The Act provided for tribal self-government pursuant to tribally adopted constitutions. 25 U.S.C And it permitted Indian tribes to organize for economic purposes pursuant to corporate charters, which could convey to the incorporated tribe the power to acquire or otherwise hold property of every description. Id The capstone of the IRA is section 465, which authorized the Secretary of the Interior to acquire... any interest in lands... for the purpose of providing land for Indians. Id. 465; Match-E-Be-Nash- She-Wish Band of Pottawatomi Indians v. Patchak ( Patchak ), 132 S. Ct. 2199, 2211 (2012) (recognizing that [l]and forms the basis of [tribal] economic life, providing the foundation for tourism, manufacturing, mining, logging,... and gaming ) (internal quotation marks and 2 Aple. App. #60

63 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 9 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 63 citations omitted). The IRA, however, excluded named Oklahoma tribes, their members, and affiliates including the Cherokee from various provisions, including the opportunity to organize and set up a corporation under section U.S.C Plaintiff places the IRA s definition of the term Indian at issue here. The statute defines Indian to include, in part, all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction. Id Until recently, Interior had long interpreted this definition to apply to Indians that are under federal jurisdiction at the time when a relevant provision of the IRA is invoked. In 2009, however, the Supreme Court interpreted the definition of Indian in the IRA to be limited to members of tribes under Federal jurisdiction when the IRA was enacted in Carcieri v. Salazar, 555 U.S. 379, (2009). Thus, while prior to Carcieri, Interior generally invoked section 465 as authority for acquiring land in trust for a federally recognized tribe, after Carcieri, Interior may invoke the first definition of Indian contained in section 465 only after it determines that a recognized tribe was under federal jurisdiction in Alternatively, Interior may identify other authority for acquiring land in trust for the tribe. The Oklahoma Indian Welfare Act of 1936: In 1936, two years after the enactment of the IRA, Congress enacted the Oklahoma Indian Welfare Act ( OIWA ), ch. 831, 49 Stat (codified at 25 U.S.C (1982)), to extend similar benefits of the IRA to the Oklahoma tribes. It applied to all tribes within the state, and unlike the IRA, there was no opportunity to reject it. While the IRA applied to reservations, see 25 U.S.C. 476, 479, Pertinent here is section 3 of the OIWA, which authorizes [a]ny recognized tribe or band of Indians residing in Oklahoma to organize by adopting a constitution; and to obtain from the Secretary a corporate charter conveying, inter alia, the right... to enjoy any other rights or privileges secured to an 3 Aple. App. #61

64 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 10 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 64 organized Indian tribe under the IRA. 25 U.S.C The 1946 Keetoowah Recognition Act: On August 6, 1946, Congress authorized the Keetoowah Indians of the Cherokee Nation of Oklahoma to reorganize as a band of Indians residing in Oklahoma within the meaning of 3 of the OIWA. 60 Stat. 976 (1946). The legislation was intended to secure any benefits, which, under the Oklahoma Indian Welfare Act, are available to other Indian bands or tribes. H. R. Rep. No , at 2 (1945) (statement of Abe Fortas, Acting Secretary of the Interior). B. Factual Background. 1. The UKB. The UKB is a federally-recognized Indian tribe. At present, the Federal Government does not hold any land in trust for its benefit Decision at 2, AR Members of the UKB are descendants of the Cherokee people who originally occupied the southeast United States. H.R. Rep. No at 1. The Cherokee Indians identifying themselves as Keetoowahs represented the most traditional portion of the Cherokee Indians and existed as an organization of Cherokee Indians since the 1800s. In 1859, the leading members of the Keetoowahs adopted a constitution and formed the Keetoowah Society, a group within the Cherokee Nation, whose objectives included opposition to slavery. The society s membership was initially limited to fullblood Cherokees. Its overall intent was to keep alive Cherokee institutions and tribal identity. H.R. Rep. No at 2. Through a series of treaties with the United States spanning the period from approximately 1817 to 1906, the Cherokee Indians, including the Keetoowah members, were 1 Federal Defendants are coordinating with the other parties to provide the Court with a joint appendix as discussed during the December 9, 2014, status and scheduling conference. ECF No Aple. App. #62

65 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 11 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 65 granted lands including lands in what is now the state of Oklahoma and were relocated to those lands. Id. The Five Civilized Tribes, including the Cherokees, were given fee title to their land within the Indian Territory and were treated differently from other tribes in other respects. See Felix S. Cohen, Handbook of Federal Indian Law, 4.07[1][a]-[c] (2012 ed.). At the end of the 19th Century, Congress moved to break up the Indian reservations by allotting land to individual Indians. The Keetoowahs unsuccessfully opposed allotment of the Cherokee lands, as well as efforts to dissolve the governments of the Five Civilized Tribes, including the Cherokee. H.R. Rep. No at 2. In 1905, when the deadline for dissolution was drawing close, the Keetoowahs applied for and received a charter of incorporation through the United States district court. The intention in... all courses followed by the Keetoowah group, was that of keeping alive Cherokee institutions and the tribal entity. H.R. Rep. No at 2. In 1906, Congress passed the Five Tribes Act, which addressed allotment and other matters comprehensively for the tribes. Cohen, 4.07[1][a], at 290. After passage of the IRA and then the OIWA, the Keetoowahs sought in the 1930s to reorganize as a separate band of Cherokee Indians under the OIWA. H.R. Rep. No at 2; July 29, 1937 Solicitor s Opinion, AR4378. In the 1937 opinion, the Solicitor found that the Keetoowahs were a society of full-blood Cherokee Indians organized nearly a century earlier for the preservation of Indian culture and traditions. AR4378. He found, however, that the Keetoowahs did not constitute a band of Cherokee Indians within the meaning of the OIWA and therefore, were not eligible to reorganize under it. Id. In response, Congress clarified the Keetoowahs eligibility to reorganize as a band by passing the 1946 Act. The UKB then had almost 3,700 members, representing nearly half of the Cherokees with one-half or more Indian blood residing within the former Cherokee reservation. See H.R. Rep. No , at 2. In 5 Aple. App. #63

66 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 12 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: , Interior approved the UKB s constitution and corporate charter pursuant to the 1946 Act and the OIWA. Constitution and By-Laws of the United Keetoowah Band of Cherokee Indians Oklahoma, AR Under authority of these documents, the UKB s tribal structure consists of a governing body (UKB), possessed with full governmental powers under the OIWA, and a corporate entity (UKB Corporation), which is empowered to act as the UKB s corporate arm. 2. The 2011 Decision. On May 24, 2011, the Regional Director approved the UKB s amended application to accept 76 acres of land (the Property ) in trust for the benefit of the UKB Corporation. The decision was made in exercise of discretionary authority that is vested in the Secretary and delegated to the Regional Director Decision at 2, AR The 2011 Decision relied upon and incorporated a series of earlier decisions issued by the Assistant Secretary Indian Affairs ( Assistant Secretary ), as discussed below. In 2004, the UKB requested that the Bureau of Indian Affairs ( BIA ) acquire the Property in trust pursuant to section 5 of the IRA. AR1-18. The Regional Director denied the request on April 7, 2006, based on concerns of potential jurisdictional disputes, the ability of BIA to discharge its responsibilities, and that a categorical exclusion did not apply under the National Environmental Policy Act ( NEPA ). AR The UKB appealed this decision to the Indian Board of Indian Appeals ( IBIA ), an appellate review body that exercises the delegated authority of the Secretary to issue final decisions for Interior in appeals involving Indian matters. AR While this appeal was pending, the Assistant Secretary instructed the Regional Director to request a remand, and the IBIA granted the remand and vacated the decision. AR On remand in 2008, the Regional Director denied the application on principally the same grounds as before. AR When the UKB appealed that decision to 6 Aple. App. #64

67 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 13 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 67 the IBIA, the Assistant Secretary assumed jurisdiction of the appeal under 25 C.F.R. 2.20(c). AR On June 24, 2009, the Assistant Secretary issued his first decision on the application. ( 2009 Decision ) AR The 2009 Decision, as clarified by a July 30, 2009, Decision, AR ( July 2009 Decision ) 2, reversed the Regional Director s August 8, 2008, decision denying the UKB s application to have the Property taken in trust and remanded the UKB s application to the Regional Director to apply the NEPA categorical exclusion checklist, directing that if the Regional Director found that the application satisfied the checklist, she should hold the application pending resolution of the Assistant Secretary s determination of authority to take the land in trust under section 5 of the IRA. Id. In discussing the analysis under 25 C.F.R. Part 151, the Assistant Secretary considered the jurisdictional problems and potential conflicts of land use that may arise and explained in detail his position Decision at 6-8, AR The Assistant Secretary found that the Regional Director s conclusion that there would be problematic conflicts of jurisdiction between the Cherokee Nation and the UKB was premised on the conclusion that the Cherokee Nation has exclusive jurisdiction over its former reservation, which in turn was premised on a narrow reading that the 1946 Act authorizing the Keetoowahs to reorganize withheld from the tribe any territorial jurisdiction. The Assistant Secretary held that such a narrow reading was incorrect. The Assistant Secretary then considered the statutory directive found in section 476(f) of the IRA. The Assistant Secretary explained his view that this section prohibited him from 2 In the July 2009 Decision, the Assistant Secretary stated that the 2009 Decision was a partial ruling that did not... render a final ruling on my authority to take the land into trust generally. AR1686. The Assistant Secretary then requested additional briefing from the parties on the import, if any, of the Carcieri decision. Id. 3 The Part 151 regulations implement the various trust land acquisition authorities given to the Secretary. 7 Aple. App. #65

68 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 14 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 68 finding that the UKB lacks territorial jurisdiction while other tribes had it. Id. The UKB, like the Cherokee Nation, possesses the authority to exercise territorial jurisdiction over its tribal lands Decision at 6, AR1558. Similarly, the Assistant Secretary explained and refuted prior positions of departmental subordinates on the exclusivity of the Cherokee Nation within the former Cherokee treaty boundaries. Id. The Assistant Secretary determined that three letters from the Office of Law Enforcement Services and a Regional Director were not binding and had not provided any analysis for their position. Id. The Assistant Secretary likewise found that previous federal court decisions, Order, United Keetoowah Band v. Secretary, No. 90-C-608-B (N.D. Okla. filed May 31, 1991), and Order & Judgment, United Keetoowah Band v. Mankiller, 2 F.3d 1161 (10th Cir. 1993) (No. 92-C-585 B) (unpublished decision), were not binding on the issue of exclusive jurisdiction. Id. The Assistant Secretary also found that his latest determination was consistent with a 1999 appropriations act, which provided that no appropriated funds shall be used to acquire land into trust within the former Cherokee reservation without consulting with the Cherokee Nation. Id. at 7, AR1559. The Assistant Secretary found that the fact that the UKB s charter authorizing the UKB to hold land for tribal purposes weighed heavily in favor of finding that the UKB Corporation can have land taken into trust. Id. The Assistant Secretary found that in stating that the charter did not override the department s previous position or court rulings, the Regional Director had misperceived the relative significance of the charter approval and the more recent statements by acting and subordinate officials. Id. In the 2009 Decision, the Assistant Secretary held that even though both the UKB and the Cherokee Nation intended to assert jurisdiction over UKB s trust land, Interior could still take 8 Aple. App. #66

69 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 15 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 69 the land in trust for the UKB. The UKB would have exclusive jurisdiction over land that the United States holds in trust for the UKB. Id. But even if the UKB had to share jurisdiction with the Cherokee Nation, such shared jurisdiction did not preclude Interior from taking the land into trust because there are situations in which tribes share jurisdiction. Id. In the 2009 Decision, the Assistant Secretary left open the question of his authority to acquire the Property in trust pending further consideration of Carcieri s impact. Id. at 2, AR1554. On September 10, 2010 ( 2010 Decision ), the Assistant Secretary issued his third decision concluding that he did not have to address the impact of Carcieri and listed three options for the UKB to submit an amended application Decision at 1, AR2557. Relevant to this litigation, the Assistant Secretary instructed that the Regional Director to allow the UKB to amend its application to invoke the Assistant Secretary s authority under Section 3 of the OIWA and seek to have the land held in trust for the UKB Corporation Decision at 2, AR2558. On October 5, 2010, the UKB amended its application requesting that the Property be taken into trust for the UKB Corporation under section 3 of the OIWA. UKB Tribal Resolution No. 10-UKB-47, Sept. 29, 2010, at 2-3, AR On January 21, 2011, the Assistant Secretary clarified in a letter to the UKB that the Regional Director has authority under section 3 of the OIWA to take the Property in trust for the UKB Corporation and the amended application did not invoke Interior s authority under section 5 of the IRA. AR In the 2011 Decision, the Regional Director, in addition to recognizing the Assistant Secretary s previous decisions, addressed the regulatory criteria for acquiring land into trust in 25 C.F.R. Part 151. After noting that the 2009 Decision found that the UKB s original application satisfied section ( Requests for approval of acquisitions ), the Regional 9 Aple. App. #67

70 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 16 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 70 Director found that UKB s amended application on behalf of the UKB Corporation also satisfied that requirement Decision at 4, AR2179. In analyzing section ( Land acquisition policy ), which requires that there be statutory authority in order to take land in trust for a tribe, and section (a) (existence of statutory authority and any limitations contained in such authority), the Regional Director stated that 2010 Decision, as clarified by the 2011 Letter, concluded that section 3 of the OIWA provides implicit statutory authority for the Secretary to take land into trust for the UKB Corporation, and that both the 2010 Decision and the 2011 Letter are binding on the Region and preclude further consideration of this issue Decision at 2, AR2177. The Regional Director concluded, after summarizing the Assistant Secretary s decisions, that there is statutory and regulatory authority to take the [Property] into trust for the UKB Corporation. Id. Next addressing section ( Tribal consent for nonmember acquisitions ), the Regional Director found that the Assistant Secretary s 2009 Decision determined that the Cherokee Nation s consent to the acquisition was not required, and that the Department only needed to consult with the Cherokee Nation pursuant to the 1999 Act. Id. at 3, AR2178. The Regional Director further found that the July 2009 Decision and the 2011 Letter conclusively determined that the requirement for consultation was met when the Regional Director solicited comments from the Cherokee Nation in 2005 on UKB s initial application. Id. at 4, AR2179. The Regional Director considered section (b) (the need of the tribe for additional land), and found that the Assistant Secretary s 2009 Decision, which concluded that the UKB has no land in trust and that the tribe has a need for the Property to be taken into trust, is binding on the Region. Id. at 5, AR2180. Although the Regional Director expressed concern, in analyzing sections (f) and 10 Aple. App. #68

71 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 17 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 71 (g) that jurisdictional conflicts would arise between UKB and the Cherokee Nation, and that the Regional Office would not have the necessary funds to discharge the duties that would arise as a result of the acquisition the Regional Director concluded that, based on the 2009 Decision, those concerns did not provide a sufficient basis to deny the application. Id. at 7-8, AR Plaintiff s Complaint. Plaintiff initially sought review of the 2011 Decision before the IBIA. On January 6, 2014, the IBIA issued its order dismissing Plaintiff s appeal for lack of jurisdiction and on the ground of abstention. Cherokee Nation v. Acting E. Okla. Reg l Dir., 58 IBIA 153, 2014 WL (2014). Following Departmental regulations, Interior initiated final steps to complete the acquisition. On January 13, 2014, Plaintiff filed its suit for declaratory and injunctive relief seeking to enjoin the 2011 Decision. ECF No. 1. On January 22, 2014, Plaintiff filed its injunction motion seeking to enjoin transfer of the Property into trust until the Court scheduled a hearing on its preliminary injunction request. ECF Nos On the same day, the Court granted Plaintiff s request to enjoin Interior from taking the Property in trust until a February 3, 2014, hearing on Plaintiff s request for a preliminary injunction. Prior to the February hearing, Federal Defendants agreed that they would take no action to acquire the Property into trust pending the Court s decision on the merits. ECF No. 18. III. STANDARD OF REVIEW In determining whether agency action was arbitrary and capricious, the Court must apply the highly deferential standard of review applicable to agency action under the Administrative Procedure Act of 1946, 5 U.S.C , ( APA ). The Court must sustain Interior s decision to take land into trust for the UKB Corporation unless the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. 11 Aple. App. #69

72 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 18 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: (2)(A). That standard is narrow and the reviewing court must not substitute [its] judgment for that of the agency. Colo. Wild v. U.S. Forest Serv., 435 F.3d 1204, 1213 (10th Cir. 2006) (citation omitted); Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977). Rather, the Court reviews the decision to ensure that it was based on the relevant factors and was not a clear error of judgment. Id. A presumption of validity attaches to the agency action and the burden of proof rests with the parties who challenge such action. Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng rs, 702 F.3d 1156, 1165 (10th Cir. 2012) (quotation omitted). There is a strong presumption in favor of upholding decisions where agencies have acted within their scope of expertise. Marsh v. Or. Nat l Res. Council, 490 U.S. 360, 376, 378 (1989). Courts will grant considerable leeway to an agency s interpretation of statutes it is charged with administering and to its implementation of its own regulations. See City of Arlington v. Fed. Commc ns Comm n, 133 S. Ct (2013); Auer v. Robbins, 519 U.S. 452, 461 (1997) (Secretary s interpretation of own regulations are controlling unless plainly erroneous or inconsistent with the regulation. ) (citation omitted). For tribal matters, Interior has special expertise to which courts give substantial deference. See, e.g., United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 551 (10th Cir. 2001) (Determinations about tribal matters should be made in the first instance by [Interior] since Congress has specifically authorized the Executive Branch to prescribe regulations concerning Indian affairs and relations. (citing 25 U.S.C. 2, 9)). Congress has assigned the management of all Indian affairs and of all matters arising out of Indian relations, to Interior, 25 U.S.C. 2, and tasked Interior with promulgating regulations to effect statutory provisions relating to Indian Affairs, see 25 U.S.C. 9. See James v. Dep t of Health & Human Servs., 824 F.2d 1132, 1138 (D.C. Cir. 1987). 12 Aple. App. #70

73 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 19 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 73 IV. ARGUMENT Interior reasonably determined that it has the statutory authority to take land into trust for the UKB Corporation and complied with all regulatory and statutory requirements in determining to acquire land in trust for the UKB Corporation. Interior s decision was based on a consideration of the relevant factors and there was no clear error of judgment. Plaintiff raises two main challenges to the 2011 Decision. Plaintiff s first broad challenge is that Interior lacked statutory and regulatory authority for the trust acquisition. Plaintiff specifically alleges that: (1) the OIWA cannot provide the necessary statutory authority; (2) Interior cannot acquire land in trust for a tribal corporation; (3) the Assistant Secretary failed to follow Interior regulations by acquiring land in trust for an entity that is not the applicant; (4) Plaintiff s consent is required; and (5) the acquisition violates Plaintiff s 1886 treaty with the United States. Plaintiff s second challenge is that the 2011 Decision is itself arbitrary and capricious because (1) Interior failed to reconcile it with past decisions denying UKB requests to acquire land in trust; (2) Interior failed to adequately consider jurisdictional conflicts; (3) Interior s interpretation of IRA section 476(g) is contrary to law; and (4) Interior failed to adequately consider whether the BIA is equipped to discharge its duties if the land is acquired in trust. Plaintiff s assertions are without merit. Interior extensively considered and reasonably concluded that the OIWA provided the necessary statutory authority to acquire the Property in trust and that it was not required to obtain Plaintiff s consent. The 2011 Decision does not violate Plaintiff s treaty. Finally, the 2011 Decision is not arbitrary and capricious because Interior adequately analyzed the Part 151 factors and its previous determinations, concluding that they did not present a reason to deny UKB s application. Plaintiff fails to overcome the presumption of validity afforded to Interior s action, and does not overcome the substantial 13 Aple. App. #71

74 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 20 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 74 deference afforded to Interior s interpretation of statutory and regulatory provisions in its exercise of discretion over Indian matters. A. Interior reasonably determined that it had statutory and regulatory authority to acquire the Property in trust for the UKB Corporation. Interior, considering the record before it and the applicable statutes and regulations, reasonably determined that it had the statutory and regulatory authority to take land into trust for the UKB Corporation. Plaintiff s arguments to the contrary are unavailing. 1. The Trust Acquisition is authorized by Section 3 of the OIWA. Interior reasonably determined that the trust acquisition for the UKB Corporation is authorized by section 3 of the OIWA, 25 U.S.C As Interior explained in the 2009 Decision, in the 1946 Act, Congress recognized the UKB as a band of Indians within the meaning of the OIWA, to secure any benefits which, under the Oklahoma Indian Welfare Act, are available to other Indian bands or tribes. 60 Stat. 976; H.R. Rep. No , at 2. 4 The OIWA, in turn, authorizes Interior to issue a charter of incorporation to the recognized band of Indians, which may convey to the incorporated group the right to enjoy any other rights or privileges secured to an organized Indian tribe under the IRA. 25 U.S.C One of the rights conferred in the bundle of Federal benefits provided by the IRA is the ability to petition the Secretary to take land into trust for the Tribe s benefit. Carcieri, 555 U.S. at (Stevens, J., dissenting). As Interior recognized, because a tribe incorporated under the OIWA has the right to petition for land to be held in trust, it necessarily follows that the Secretary has the corresponding authority to take the land in trust for an incorporated tribe. 4 Similar to the 1946 Act, Congress has authorized parts of other tribes to reorganize as a separate tribal entity. See Act of Sept. 8, 1988 (102 Stat. 1577) (authorizing the Lac Vieux Desert Band to reorganize as a distinct entity from the Keweenaw Bay Indian Community); see also Act of Jan. 8, 1983 (96 Stat. 2269) (authorizing the Texas Band of Kickapoos to reorganize separate from the Kickapoo Tribe of Oklahoma). 14 Aple. App. #72

75 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 21 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 75 Thus, Interior reasonably determined that it had statutory authority to take land into trust for the UKB Corporation, a determination to which deference is due. See City of Arlington, 133 S. Ct (court defers to agency interpretation of statutory ambiguity concerning agency s jurisdiction). Plaintiff argues that Interior s decision is an attempt to circumvent the holding in Carcieri, that the UKB has no right to have land taken into trust under the IRA, and that the OIWA could not create greater rights in the UKB Corporation than those held by the tribe. Plaintiff s Merits Brief ( Pl. s Br. ) at 19-27, ECF No. 67. This assertion is incorrect and is based on a misreading of the OIWA s statutory language and unfounded assumptions about the impact of Carcieri on the UKB. Congress itself described the OIWA as permit[ting] the Indians of Oklahoma to exercise substantially the same rights and privileges as those granted to Indians outside of Oklahoma by the [IRA], H.R. Rep. No , at 3 (1936), without suggesting that those rights pertained only to Oklahoma Indians who were members of Indian tribes under federal jurisdiction in Rather, the OIWA confers rights or privileges secured to an organized Indian tribe under the IRA. 25 U.S.C The OIWA thus confers to tribes incorporated under the OIWA the IRA rights generally; it does not differentiate between tribes organized before or after 1934, which would make little sense in a 1936 statute authorizing tribes to reorganize. Indeed, as the UKB had no right to organize under the IRA in which Oklahoma tribes were specifically excluded from those sections it is only by virtue of the OIWA that these rights and privileges available under the IRA are made applicable to Oklahoma tribes including the UKB. Plaintiff s assertion is untenable. Plaintiff s argument also fails because it has the effect of importing the IRA s statutory definition of Indian into the OIWA, which is clearly wrong. The IRA s definition of Indian 15 Aple. App. #73

76 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 22 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 76 is necessary in the IRA because the substantive provisions of the IRA apply to Indians without qualification. For example, the IRA authorizes the Secretary to acquire land for the purpose of providing land for Indians, 25 U.S.C. 465, provides [a]ny Indian tribe the right to organize, id. 476(a), and authorizes the Secretary to issue a charter of incorporation to an Indian tribe, id The IRA limits these provisions by defining Indian, in part, to include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction. Id Section 3 of the OIWA, in contrast, itself specifically defines to whom it applies: [a]ny recognized tribe or band of Indians residing in Oklahoma. 25 U.S.C Importing the IRA definition into section 3 of the OIWA would redundantly limit the statute s scope to a recognized tribe, which is unnecessary, and would limit the rights and privileges authorized in the 1936 OIWA to tribes under federal jurisdiction in 1934, which is inexplicable. That limitation is even more unavailing when applied to the 1946 Act, which expressly authorized the reorganization of the Cherokee Indians of the UKB as a band of Indians residing in Oklahoma within the meaning of the OIWA. 60 Stat If Congress had wanted to limit the OIWA to tribes under federal jurisdiction in 1934, it would have said so. Where the words of a later statute differ from those of a previous one on the same or related subject, Congress must have intended them to have a different meaning. Klein v. Republic Steel Corp., 435 F.2d 762, (3d Cir. 1970). The legislative history of the two statutes demonstrates that the concerns that Congress had about an overly broad application of the IRA did not exist with respect to the OIWA. In considering the IRA, Congress was concerned about extending the benefits of the statute to all self-identified Indians. See Carcieri v. Kempthorne, 497 F.3d 15, 28 (1st Cir. 2007) (en banc), rev d on other grounds Carcieri v. Salazar, 555 U.S. 379 (2009). With respect to the OIWA, however, Congress understood 16 Aple. App. #74

77 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 23 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 77 specifically to whom the statute would apply, noting that it would affect the welfare of approximately 125,000 Indians representing about 30 different tribes. H.R. Rep. No , at 3 (1936). Congress s reference to the IRA in section 3 of the OIWA was necessary only to incorporate the benefits and rights generally afforded to tribes by the IRA into the OIWA. The IRA, as amended throughout the years, supports tribal determination and self-governance policies, and Congress subsequently has incorporated the benefits of the IRA by reference in numerous tribal recognition statutes enacted decades after the IRA. See, e.g., 25 U.S.C. 1300f (1978); 25 U.S.C. 762 (1980); 25 U.S.C. 1300b-14(a) (1983). Carcieri itself recognizes that Congress has repeatedly enacted statutes extending the benefits of the IRA to Indian tribes not necessarily encompassed within the definitions of Indian set forth in the IRA. 555 U.S. at 392. Congress, in recognizing the UKB under the OIWA which made portions of the IRA applicable to recognized tribes thereunder extended such benefits to the UKB. Finally, Carcieri does not pose an obstacle to having and taking land in trust for tribes federally recognized after Pl. s Br at While the first definition of Indian in the IRA places a time constraint based on when a tribe was under federal jurisdiction, the statute imposes no time limit upon recognition. Carcieri, 555 U.S. at 398 (Breyer, J., concurring) (emphasis added). Nor is the time when a tribe was organized pertinent to the scope of the IRA; indeed it was the IRA itself that first allowed tribes to formally organize. Rather, 5 Federal Defendants note that Plaintiff sometimes confuses the holding of Carcieri to prohibit trust acquisitions for a tribe that was federally recognized after 1934, Pl. s Br. at 2, with the actual holding, which requires that a tribe be under federal jurisdiction as of the date the IRA was passed. These two terms are not synonymous and it is possible that a tribe may not have been federally recognized in 1934 but may have been under federal jurisdiction. See Office of the Solicitor, M-37029, The Meaning of Under Federal Jurisdiction for Purposes of Indian Reorganization Act (Mar. 12, 2014), at Aple. App. #75

78 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 24 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 78 determining whether a tribe was under federal jurisdiction in 1934 requires an often complex analysis, one that Interior has not yet undertaken with respect to the UKB. 6 Rather, as it did for a number of tribes that had trust applications pending when Carcieri was decided, Interior determined to examine whether other statutory authority existed allowing it to acquire land in trust for the UKB without determining whether the tribe satisfied the time constraints of the IRA. Based on this examination, Interior identified several other possible statutory bases for trust acquisition for the UKB, including section 3 of the OIWA, which, as demonstrated here, authorized the trust acquisition by conferring on the UKB Corporation the rights secured to tribes under the IRA. 2. The trust acquisition is consistent with Interior s regulations. Interior properly applied its regulations to the acquisition, which provide that Interior may acquire land in trust status when authorized by Congress for an individual Indian or a tribe. 25 C.F.R The regulations, in turn, define tribe to mean a corporation chartered under the IRA or OIWA where statutory authority... specifically authorizes trust acquisitions for such corporations. Id (b). Section 3 of the OIWA provides such specific authority by conferring on tribal corporations any rights or privileges secured to an organized tribe under the IRA. As established above, the right to petition for land to be held in 6 Plaintiff cites to the Regional Director s two sentence brief stating that UKB was not under federal jurisdiction as of June 18, 1934, for support that the 2011 Decision is arbitrary because Interior could not possess the authority to take land into trust for the Tribe under the IRA. Pl. s Br. at 20 n.25. The brief offers no such support. Interior has not undertaken an analysis to determine whether the UKB was under federal jurisdiction at the time of the IRA s passage. Without undertaking such an analysis, Interior cannot take a position on whether the UKB was under federal jurisdiction at the time of the IRA s passage. See M at 19 (Interior must conduct a two-part inquiry to consider whether a tribe was under federal jurisdiction). Interior would need to conduct a Carcieri analysis if the decision was remanded and Interior invoked its authority under the first definition of Indian in the IRA as it pertains to acquiring land in trust. For the reasons explained herein, such a determination is not necessary under section 3 of the OIWA. 18 Aple. App. #76

79 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 25 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 79 trust is one of the specific, essential rights in the IRA; thus Interior reasonably concluded that the Secretary must possess the actual authority to take the land in trust for the UKB s tribal corporation chartered under the OIWA Decision at 3, AR2559 (emphasis added). Plaintiff argues that the OIWA does not expressly authorize the acquisition and thus cannot provide the requisite specific authorization. Pl. s Br. at 20, 23. But the fact that authority is implicit does not mean it is not specific; to the contrary, it is well established that something may be both specific and implicit. See, e.g., RUI One Corp. v. City of Berkeley, 371 F.3d 1137, 1151 (9th Cir. 2004) (Contract Clause analysis subject[s] only state statutes that impair a specific (explicit or implicit) contractual provision to constitutional scrutiny ) (emphasis added); United States v. Cotto, 347 F.3d 441, 447 (2d Cir. 2003) (declining to reach question whether defendant could demonstrate coercion even in the absence of a specific explicit or implicit threat ) (emphasis added). Here, while the authority to take land in trust is implicit in that it is not expressly stated it is implied from the very specific and express grants of the rights and privileges available under the IRA. Thus, Interior correctly concluded that the OIWA implicitly but specifically authorizes the Secretary to take land in trust for corporations chartered under OIWA section 503. A court must defer to an agency s interpretation of its own regulation unless it is plainly erroneous or inconsistent with the regulation. Auer, 519 U.S. at 462. Here, as demonstrated above, Interior s interpretation is not inconsistent with the statutory language. Moreover, in the unique context of the OIWA, Interior s interpretation is eminently reasonable. The OIWA departed from the IRA by providing the rights and privileges of an organized tribe under the IRA to an incorporated group under the OIWA. The OIWA provides tribal corporations with the governmental powers set forth in the IRA. Thus, for example, while IRA section 476, 19 Aple. App. #77

80 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 26 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 80 providing for organization of Indian tribes, requires tribal constitutions to vest the tribe with the power to employ legal counsel, prevent the disposition of tribal assets without the tribe s consent, and negotiate with federal, state, and local governments, these and virtually all other powers that the UKB may exercise are set forth not in the UKB s constitution, but in its corporate charter. 7 Section 1(b) of UKB s charter identifies the acquisition of land as one of the corporation s purposes. 8 The Assistant Secretary found that in stating that the charter did not override the Department s previous position or court rulings, the Regional Director had misperceived the relative significance of the charter approval and the more recent statements by acting and subordinate officials Decision at 6, AR1558. The Assistant Secretary noted that the approval signed by the Assistant Secretary on May 8, 1950, states in pertinent part: Upon ratification of this Charter all rules and regulations heretofore promulgated by the Interior Department or by the Bureau of Indian Affairs, so far as they may be incompatible with any of the provisions of the said Charter and the Constitution and Bylaws will be inapplicable to this Band from and after the date of their ratification thereof [October 3, 1950]. All officers and employees of the Interior Department are ordered to abide by the provisions of the said Constitution and Bylaws, and the Charter. Id. As Interior approved the UKB s constitution and charter in 1950, Interior at the time plainly understood that the IRA rights and benefits secured to the UKB by the 1946 Act and section 3 of 7 Plaintiff implies that it is significant that the UKB s constitution does not contain a claim of its territorial designation. Pl. s Br. at 9. It is not. The OIWA does not require that a tribe list a geographical area in its constitution. In contrast, section 16 of the IRA as originally enacted (Pub. L. 383, 48 Stat. 984) required a reservation in order for a tribe to reorganize under its authority and adopt a constitution. IRA constitutions, therefore, typically include a description of the tribe s territory in their early articles. 8 Governing documents under the OIWA differ in structure from those commonly adopted under the IRA in that most of the enumerations of powers were contained in the OIWA corporate charter. See Instructions for reorganizing under the OIWA, OIWA-regulations.pdf 20 Aple. App. #78

81 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 27 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 81 the OIWA were to be exercised through the vehicle of the UKB Corporation. Accordingly, Interior reasonably concluded that the OIWA specifically authorized it to take land into trust for the UKB Corporation. It also does not matter that the UKB and the UKB Corporation are separate entities for purposes of considering UKB s application pursuant to the Part 151 regulations. See Pl. s Br. at Plaintiff argues that Interior s decision was arbitrary and capricious because Interior violated its regulations in considering an application submitted by the UKB to take land into trust for the benefit of the UKB Corporation. Plaintiff argues that Interior could only consider an application submitted by the group seeking to have land taken into trust for its own behalf, not for another entity. Id. The regulations have no such requirement. Section 151.9, the regulation concerning requests for approval of trust applications, states that a trust application need not be in any special form but shall set out the identity of the parties, a description of the land to be acquired, and other information which would show that the acquisition comes within the terms of this part. 25 C.F.R The regulation makes no mention of any requirement that prohibits a tribe from submitting an application on its behalf and for its tribal corporation, or, as discussed below, whether a tribe and its tribal corporation may submit an application for an acquisition for either. See Cty. of Charles Mix v. U.S. Dep t of Interior, 799 F. Supp. 2d 1027, 1041 (D.S.D. 2011), aff d, 674 F.3d 898 (8th Cir. 2012) (court found that a resolution submitted by a tribe s Business and Claims Committee requesting that the BIA take land into trust for the tribe did not violate Interior s regulations because there was no requirement that the tribe be the entity requesting that land be taken into trust). Nor does the Department s Fee-to-Trust Handbook ( Handbook ) have any such requirement. See Pl. s Br. at 28. The Handbook is an internal guidance document issued to all 21 Aple. App. #79

82 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 28 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 82 BIA Regional Directors to assist in preparing acquisition packages and includes a checklist of those documents that must be transmitted to decision-making officials regarding fee-to-trust decisions and provides step-by-step procedures for considering trust acquisitions. See Handbook, AR The Handbook has no binding effect upon the Department; it is informal guidance material that lacks the force of law. See N. Cal. River Watch v. Wilcox, 633 F.3d 766, 779 (9th Cir. 2011) (citations omitted) (FWS handbook on permit processing was guidance material and not binding). The Handbook imposes no discernible rights or obligations. It does not constrain the Secretary s discretion. It is not published in the Federal Register or Code of Federal Regulations. Nevertheless, Plaintiff argues that the Handbook requires that the Secretary should have required the UKB Corporation to submit its own application because it uses the word applicant in discussing the procedure for considering an application. Pl. s Br. at 28 n.38. But nothing in the Handbook suggests that this direction reflects an interpretation of any regulation, nor has Plaintiff identified anything that would suggest as much. The Handbook s reference to an applicant is non-binding; it does not constrain the Department from considering the application submitted by the UKB and the UKB Corporation. Additionally, the fact that UKB and UKB Corporation are separate entities is a distinction without a difference. Interior recognized that the UKB s tribal government and tribal corporation are separate entities Decision at 3 n.1 (citing Solic. Op., 65 Interior Dec. 483 (1958), 2 Op. Solic. on Indian Affairs 1846, (U.S.D.I. 1979)) AR2559. It went on to note that the UKB government represents the UKB in its governmental affairs and that the UKB Corporation represents the UKB in its business affairs. Id. Interior discussed a Internal Revenue Service s ( IRS ) ruling directly pertinent to the matter, noting that the IRS recognized the tribal character of the corporation in holding that tribal corporations, as a form of the tribe, are not taxable 22 Aple. App. #80

83 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 29 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 83 entities: the question of tax immunity cannot be made to turn on the particular form in which the tribe chooses to conduct its business. Id. (quoting Rev. Rul ; C.B. 15; 1981 IRB LEXIS 95). As Interior noted, [t]he UKB Corporation is merely the tribe organized as a corporation. Id. Its property is tribal property. Tribal property is subject to the governing authority of the UKB government. Interior concluded that thus, any land placed into trust for the UKB Corporation would necessarily be under the governmental jurisdiction of the UKB government. Id. See also AR003588, n.1 ( The UKB Corporation is merely the tribe organized as a corporation. ) Interior properly determined that Plaintiff s consent was not required. Interior properly found that Plaintiff s consent was not necessary and was consistent with a 1999 appropriations act providing that no appropriated funds may be used to acquire land into trust within the former Cherokee reservation without consulting with the Cherokee Nation subsequent, superseding legislation that amended the original 1992 appropriations act that, in contrast, required the Cherokee Nation s consent to such trust acquisitions Decision at 3, AR2178. In making this determination, the 2011 Decision analyzed the issue under the Part 151 Regulations and its considerations. Id. at 3, AR2178. The Regional Director considered the issue under the Part 151 factors, specifically 9 In the amended resolution submitted in support of the application, the tribe notes that Article V, Section 1 of its Constitution provides that the supreme governing body of the Band shall be the Council of the UKB, which also manages the tribal corporation. AR2562; see also UKB Corporate Charter, Section 2. Through the resolution, the Council requests that the Secretary acquire the Parcel in trust for the benefit of the tribal corporation held by the UKB and authorizes the Chief of the UKB to submit any such applications and materials to the Secretary as may be necessary. AR On a preliminary note, Plaintiff s interpretation that the 1999 Act requiring Cherokee Nation consent only for trust lands purchased with appropriated funds is unduly narrow. The appropriation provision applies more broadly to funds... used to take land into trust, which includes the Department s administrative costs for reviewing and approving a trust application. 23 Aple. App. #81

84 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 30 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 84 section 151.8, which addresses when tribal consent may be necessary for non-member acquisitions of land. Under section 151.8, a 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. Id. (citing 25 C.F.R (f)). Interior consistently has found the former treaty lands of the Five Civilized Tribes, including the Cherokee Nation, to be former reservations. Id. The Property is located within the last treaty boundaries of the Cherokee Nation as defined by the terms of the Treaty of New Echota, 7 Stat. 478 (Dec. 29, 1835) and the 1866 treaty between the Cherokee Nation and the United States, 14 Stat. 799 (July 19, 1866). Id. The 2011 Decision then noted that the Assistant Secretary had considered this issue in the 2009 Decision and concluded that Congress overrode section with respect to lands within the boundaries of the former Cherokee reservation when it passed subsequent, superseding legislation, the Interior and Related Agencies Appropriations Act of 1999 ( 1999 Act ). Id.; see 2009 Decision at 4, AR1556. The Assistant Secretary s conclusion was informed by Interior s Associate Solicitor s analysis of the regulation and statute Memo at 2, AR790. The predecessor of the 1999 Act, Department of the Interior and Related Agencies Appropriations Act of 1992 ( 1992 Act ), Pub. L. No , 105 Stat. 990 (1991), provided in part: 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.... Id. at The 1992 Act, however, was the final language accepted after a series of amendments concerning the former reservation of the Cherokee Nation and the UKB. H.R. Rep. 24 Aple. App. #82

85 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 31 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 85 No , 1991 WL (June 19, 1991), which accompanied the original House Report 2686, stated: There is also a decrease of $100,000 for the [UKB]. While a 1946 Act of Congress may have permitted the [UKB] to organize as a band of Cherokees within the Cherokee Nation, the Congress never intended to create a duplicative or competing Cherokee tribal government, or to supplant the Cherokee Nation s governance. Therefore, the Committee believes it is inappropriate for the Federal Government to appropriate funds for the [UKB] as long as the Cherokee Nation continues to provide services to the members within its jurisdiction. Id. at 58. The accompanying Senate Report, however, stated: With respect to the [UKB], the Committee understands that the authorizing committees intend to address the 1946 act. Until the Congress has taken action toward clarifying this issue, the Committee expects the Bureau to hold the proposed funds in reserve. Bill language is included to authorize the Bureau to fulfill this direction. S. Rep , at 56 (July 25, 1991). After the Committee on Appropriations noted the technical disagreement, the House concurred in the Senate s amendment with the following amendment, which became the 1992 Act: In lieu of the matter inserted by said amendment, insert the following: Provided further, 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. H.R. Rep. No , at 44, Amend. No. 86 (Oct. 17, 1991) (Conf. Rep.). The Senate concurred in the House amendment, stating: The managers have agreed to delete funding for the [UKB], and have included language providing that until such time as Congress enacts contrary legislation, Federal funds should not be provided to any group other than the Cherokee Nation, within the jurisdictional area of the Cherokee Nation. Id. Congress, at the time it enacted the 1992 Act, was aware of the jurisdictional issues between the UKB and Plaintiff and intended to address them. Congress specifically provided that it could 25 Aple. App. #83

86 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 32 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 86 later pass legislation that would allow funds to be used for taking land into trust on the former Cherokee reservation for another group of Indians residing within the jurisdictional area of the Cherokee Nation, like the UKB. With the passage of the 1999 Act, Congress superseded the 1992 Act and the Part 151 regulations as applied to land within the former Cherokee reservation boundaries. The 1999 Act states in relevant part: That 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.... Pub. L. No , 112 Stat (1998). This language is more than a word change from consent to consult. It entirely amended the 1992 Act. It was an acknowledgement that the UKB could seek to have trust land acquired for it within the boundaries of the former Cherokee reservation and that it was no longer constrained by having to seek Plaintiff s consent. This acknowledgment is confirmed by the Conference Report accompanying H.R. 4328, which became the 1999 Act, explaining the change: The Committees have included language that allows the Bureau of Indian Affairs to deal with the [UKB] and the Delaware Band of Indians on issues of funding, but prevents these tribes from establishing trust holdings within the Cherokee s original boundaries without Cherokee consultation. H.R. Rep. No , at 1209 (Oct. 19, 1998). Plaintiff argues that Congress change in the 1999 Act cannot effect a change in the law because it would be a de facto repeal of section by an appropriations act. Pl. s Br. at 15. But Congress can supersede legislation by means of an appropriations act. A court cannot ignore clear expressions of Congressional intent, regardless of whether the end product is an appropriations rider or a statute that has proceeded through the more typical avenues of deliberation. City of Chicago v. U.S. Dep t of Treasury, 423 F.3d 777, 782 (7th Cir. 2005) (finding that Congress intended to use amendment to appropriations act to 26 Aple. App. #84

87 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 33 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 87 preclude city action); see Robertson v. Seattle Audubon Soc y, 503 U.S. 429, 440 (1992) ( Congress... may amend substantive law in an appropriations statute, as long as it does so clearly. ); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 578 n.29, (1990) ( Appropriations Acts, like any other laws, are binding because they are passe[d][by] both Houses... and signed by the President. (citations omitted)), vacated on other grounds by Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Here, Congress made its intent clear. It is contrary to common sense to read the language of the second act as incorporating the precise limitations of the earlier act. Klein v. Republic Steel Corp., 435 F.2d 762, (3d Cir. 1970) (Where the words of a later statute differ from those of a previous one on the same or related subject, Congress must have intended them to have a different meaning). Although it previously required Cherokee Nation s consent before Interior could take lands into trust, it passed the 1999 Act to supersede the consent requirement of its previous act and the Part 151 regulations by requiring that Interior only consult with Plaintiff, which it has done The 2011 Decision does not violate the Cherokee Treaty of Interior s decision to take the Property into trust does not violate the Cherokee Nation s treaty. See Pl. s Br. at First, Plaintiff ignores the 1999 Act, which provides that no appropriated funds shall be used to acquire land in trust within the former Cherokee reservation without consulting the Cherokee Nation. See 2009 Decision at 7, AR1559. If Congress believed taking land into trust for a different tribe violated Cherokee Nation s sovereignty and only the Cherokee Nation could assert sovereignty over land within the boundaries of the former reservation, it would not have left open the possibility of Interior acquiring land in trust for a 11 Although Plaintiff argues that it was not consulted, the record provides otherwise. See 2011 Decision at 3, AR2178 ( The Department satisfied this requirement when it solicited comments from the CN. ); 2009 Decision at 5 n.3, AR1557 (citing Feb. 28, 2005, letter, AR234-35). 27 Aple. App. #85

88 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 34 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 88 tribe, not Cherokee, within the former reservation s boundaries. See id. Further, Plaintiff misreads the 1866 Treaty provisions. Article 15 of the treaty provides: The United States may settle any civilized Indians, friendly with the Cherokees and adjacent tribes, within the Cherokee country, on unoccupied lands east of 96, on such terms as may be agreed upon by any such tribe and the Cherokees, subject to the approval of the President of the United States, which shall be consistent with the following provisions... * * * But no Indians who have no tribal organizations, or who shall determine to abandon their tribal organizations, shall be permitted to settle east of the 96 of longitude without the consent of the Cherokee national council, or of a delegation duly appointed by it, being first obtained. And no Indians who have and determine to preserve their tribal organizations shall be permitted to settle, as herein provided, east of the 96 of longitude without such consent being first obtained, unless the President of the United States, after a full hearing of the objections offered by said council or delegation to such settlement, shall determine that the objections are insufficient, in which case he may authorize the settlement of such tribe east of the 96 of longitude Treaty, Art. 15, 14 Stat. at This provision is simply inapplicable in this situation and the plain language does not support Plaintiff s assertion. The United States has not settled any Indians on unoccupied lands. The Property at issue is owned by the UKB in fee Decision at 2, AR2177. The plain language of Article 26 of the 1866 Treaty does not support Plaintiff s assertions either. Article 26 provides: The United States guarantee to the people of the Cherokee Nation the quiet and peaceable possession of their country and protection against domestic feuds and insurrections, and against hostilities of other tribes. They shall also be protected against inter[r]uptions or intrusion from all unauthorized citizens of the United States who may attempt to settle on their lands or reside in their territory. In case of hostilities among the Indian tribes, the United States agree that the party or parties commencing the same shall, so far as practicable, make reparation for the damages done Treaty, Art. 26, 14 Stat. at 806. The current situation is not one in which unauthorized 28 Aple. App. #86

89 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 35 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 89 citizens are seeking to settle or reside. The UKB owns the Property in fee. Nor is this a situation of hostilities from another tribe. Black s Law Dictionary defines hostility as [a] state of enmity between individuals or countries, or an act or series of acts displaying antagonism, acts of war. Black s Law Dictionary (10th ed. 2014). The action of which Plaintiff complains, the UKB seeking to have its fee land taken into trust, simply is not a series of acts displaying antagonism that amount to an act of war. See act of hostility... An event that may be considered an adequate cause for war. Id. The 2011 Decision to acquire land in trust does not violate the 1866 Treaty provisions that Plaintiff cites. B. The 2011 Decision is not arbitrary and capricious. The 2011 Decision is not arbitrary and capricious. Interior adequately reviewed the Part 151 factors and determined that any potential jurisdictional conflicts did not preclude the trust acquisition and that BIA was equipped to discharge its duties. Further, Interior provided an adequate explanation for its departure from previous determinations. The 2011 Decision was not an attempt to settle litigation, which continued after the decision was made, as Plaintiff was aware. Nor is Interior s interpretation of section 476(g) contrary to law. Plaintiff, therefore, fails to establish that the 2011 Decision is arbitrary and capricious. 1. Interior adequately considered the jurisdictional conflicts and explained its rationale for departing from previous decisions. In discussing the analysis under 25 C.F.R. Part 151, Interior considered the jurisdictional problems and potential conflicts of land use that may arise and explained in detail its position Decision at 6-9, AR ; June 2009 Decision at 6-8, AR Section (f) only requires Interior to consider potential jurisdictional and land use conflicts; it does not mandate an outcome minimizing jurisdictional problems. South Dakota v. U.S. Dep t of Interior, 401 F. Supp. 2d 1000, 1009 (D.S.D. 2005) (citing South Dakota v. U.S. Dep t of Interior, 314 F. 29 Aple. App. #87

90 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 36 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 90 Supp. 2d 935, 945 (D.S.D. 2004)). The Court considers whether Interior considered the Part 151 factors and drew a rational connection between the facts found and the choice made. Motor Vehicle Mfrs. Ass n of U.S., Ind. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, (1983). Plaintiff has the burden to prove that Interior acted arbitrarily and must present evidence that Interior did not consider a particular factor. South Dakota v. U.S. Dep t of Interior, 423 F.3d 790, 800 (8th Cir. 2005) (citation omitted). [I]t may not simply point to the end result and argue generally that it is incorrect. Id. Here, Interior properly considered the jurisdictional concerns Plaintiff raised and rationally evaluated such concerns in light of the facts found. Interior found that a previous conclusion that there would be problematic conflicts of jurisdiction between the Cherokee Nation and the UKB was premised on a narrow reading of the 1946 Act. Interior found that the narrow reading, which withheld from UKB any territorial jurisdiction, was incorrect. Id. Interior found that the 1946 Act was silent as to the authorities that the UKB would have. On its face, the 1946 Act imposes no limitations on the UKB s authority. It merely recognizes the UKB s sovereign authority, which extends over both [its] members and [its] territory. June 2009 Decision at 6 (quoting United States v. Mazurie, 419 U.S. 544, 557 (1975)), AR1558. Interior stated that there was no reason, on the face of the 1946 Act, that the UKB would have less authority than any other band or tribe. Id. Interior also found that even though both the UKB and the Cherokee Nation intended to assert jurisdiction over UKB s trust land, Interior could still take the land in trust for the UKB Decision at 7, AR2182; 2009 Decision at 7, AR1559. The UKB would have exclusive jurisdiction over land that the United States holds in trust for the UKB. Id. But even if the UKB had to share jurisdiction with the Cherokee Nation, such shared jurisdiction did not preclude Interior from taking the land into trust. Shared jurisdiction is unusual; but it is not unheard of. 30 Aple. App. #88

91 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 37 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 91 Id. In fact, Interior anticipated that there would be situations in which two tribes would share jurisdiction, Solicitor s Opinion, M (November 7, 1934); 1 Op. Solic. on Indian Affairs 478 (U.S.D.I. 1979), and in an April 12, 2009, memorandum, the Regional Director reported that several tribes within the Eastern Oklahoma Region share jurisdiction over parcels held in trust Decision at 7-8, AR Interior found that in a situation directly analogous to the UKB, the Thlopthlocco Creek Tribal Town has 19 parcels of trust land within the former Creek reservation. Id. Interior noted that [t]he UKB and the Cherokee Nation should be able, as these other tribes have done, to find a workable solution to shared jurisdiction. Id.; 2011 Decision at 7, AR2182. Similarly, Interior fully addressed prior departmental positions and court holdings on the exclusivity of the Cherokee Nation within the former Cherokee treaty boundaries. June 2009 Decision at 6, AR1558. The prior court holdings, UKB v. Secretary of the Interior, No 90-C- 608-B (N.D. Okla. May 31, 1991); Buzzard v. Oklahoma Tax Commission, No. 90-C-848-B (N.D. Okla. Feb. 24, 1992); and UKB v. Mankiller, No. 92-C-585-B (N.D. Okla. Jan. 27, 1993), aff d, 2 F.3d 1161 (10th Cir. 1993) (unpublished disposition), are not inconsistent with Interior s decision and, in any event, Interior did consider these decisions and readily distinguished them. The 1991 UKB decision held that the Cherokee Nation was an indispensable party to the UKB s claims to a statutory right to certain Indian lands within the historic reservation to which the Cherokee Nation held title, and that holding is irrelevant to the Property here, which is owned by the UKB. Buzzard held that the prohibition against alienation in UKB s charter did not make the UKB s land Indian Country an analysis with which Interior agrees and that necessitates the UKB s land-into-trust application here. Mankiller simply relied on the analysis in the Buzzard decision before the appeal and was dismissed on sovereign immunity grounds. 31 Aple. App. #89

92 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 38 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 92 Interior s determination of the case law was guided by previous department analysis and consideration. Specifically, in a February 14, 2008, memorandum to the Assistant Secretary, the Associate Solicitor for Indian Affairs analyzed the Regional Director s 2006 denial. AR As part of her 2006 decision, the Regional Director stated that it was the position of the Secretary and the courts that the Cherokee Nation possessed exclusive jurisdiction over the former Cherokee reservation. The Associate Solicitor found that this position was not well-established. Id. at 2, AR789. The Associate Solicitor noted that the consistent opinion of the Secretary was in fact only two statements from the Regional Director and one statement from an Acting Assistant Secretary. These statements were not accompanied or supported by any analysis. Id. Moreover, the Associate Solicitor found that the statements were based on a questionable legal assumption that the 1946 Act precluded the UKB from acquiring land in trust because the Act did not provide any land for the UKB. Id. Further, the Associate Solicitor found that the federal court opinions did not in fact determine authoritatively that the Cherokee Nation had exclusive jurisdiction and had not addressed the merits of whether the Cherokee Nation has exclusive jurisdiction over the former Cherokee reservation, and the issue remained unsettled. Id. In the June 2009 Decision, Interior further found that the conclusion that the Cherokee Nation does not enjoy exclusive jurisdiction over the former Cherokee reservation is consistent with the 1999 Act. Id. at 7, AR1559. Interior noted that if the Cherokee Nation had exclusive jurisdiction over the former Cherokee reservation, Congress would have required consent of the Cherokee Nation, as the Department s land acquisition regulations, 25 C.F.R. Part 151, provide. Id. Plaintiff, despite Interior s detailed explanation and justification, attempts to paint the 2011 Decision as arbitrary and capricious because Plaintiff now alleges that the decision was 32 Aple. App. #90

93 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 39 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 93 made to effectuate a settlement of a United States Court of Federal Claims lawsuit filed by the UKB, United Keetoowah Band of Cherokee Indians in Oklahoma v. United States, No L (Fed. Cl. filed June 10, 2003) ( UKB Litigation ). 12 Pl. s Br. at Plaintiff is wrong. The United States and the UKB did not settle that litigation, and certainly did not use the 2011 Decision as a means to do so. UKB filed the lawsuit in 2003 alleging that it claimed right, title, and interest in the Arkansas Riverbed. Although, as the administrative record shows, Interior discussed possible ways to settle the litigation, the parties did not settle that case. After issuance of the 2011 Decision, the Court stayed the UKB Litigation while the United States and the UKB engaged in settlement talks. The parties, however did not reach resolution and requested that the Court reinstate litigation, which it did. UKB Litigation, Jt. Status Rpt. (Oct. 31, 2014), ECF No. 159; Scheduling Order (Dec. 19, 2013), ECF No The parties again attempted to settle the UKB Litigation along with other cases filed by the UKB; United Keetoowah Band of Cherokee Indians in Oklahoma v. United States, No. 1:08-cv TFH (D.D.C. filed June 24, 2008) and United Keetoowah Band of Cherokee Indians in Oklahoma v. United States, No L (Fed. Cl. filed Dec. 29, 2006). The parties were unable to agree upon a viable resolution without the need for further litigation, and the Court reinstated litigation, setting a briefing schedule for summary judgment motions. UKB Litigation, Scheduling Order (Nov. 3, 2014) ECF No Plaintiff was well aware that the litigation had not been settled by the 2011 Decision because it sought to 12 Plaintiff also argues that the 2011 Decision is arbitrary and capricious because a draft briefing paper, not part of the record, noted it was the first such decision. Pl. s Br. at 19 n.24 (Ex. 1). Federal Defendants object to Plaintiff s use of a document not in the record and request that the Court disregard it. Plaintiff had the opportunity seek to include this document in the record; indeed, Plaintiff filed a motion to supplement. ECF No. 53. Plaintiff did not include this document and the Court should not consider it now. See The Cape Hatteras Access Pres. Alliance v. U.S. Dep t of Interior, 667 F. Supp. 2d 111, (D.C. Cir. 2009) (denying use of extra-record documents because only done in highly exceptional circumstances). 33 Aple. App. #91

94 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 40 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 94 participate as an amicus curiae in the UKB Litigation. See Id. Notice of Intent of Cherokee Nation to Participate in Summ. J. Proceedings as Amicus Curiae (Nov. 21, 2014), ECF No The parties stipulated to dismissal of the case in December 2014, without having reached any settlement. Id., Stipulation of Dismissal, ECF No In the 2011 Decision Interior provided its explanation and justified the reasons for departing from previous conclusions. That is all that is required. As the Supreme Court has recognized, all that Interior must do in discussing a departure from a previous decision is supply a reasoned explanation for agency action and that explanation must display awareness that it is changing position and provide an adequate explanation for its departure from its established precedent. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). But, it need not demonstrate to a court s satisfaction that the reasons for the new policy are better than the reasons for the old one. Id. Instead, it suffices if the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better. Id. Interior adequately considered Plaintiff s jurisdictional concerns and rationally evaluated them, and explained its departure from previous decisions. See Cty. Of Charles Mix, 799 F. Supp. at 1046 ( [DOI] fulfills its obligation under section (f) as long as it undertake[s] an evaluation of the potential problems ) (quoting South Dakota, 314 F. Supp. 2d at 945). 2. The Assistant Secretary s interpretation of IRA section 476(g) is not contrary to law. Plaintiff further argues that Interior s interpretation of 25 U.S.C. 476(g) is unduly expansive and that it allows any federally recognized tribe to acquire trust lands in another tribe s jurisdictional area. See Pl. s Br. at 37 (emphasis in original). Plaintiff misstates Interior s interpretation. Interior did not find that section 476(g) allows or requires Interior to recognize any federally recognized tribe s attempt to acquire land in another s jurisdictional area. 34 Aple. App. #92

95 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 41 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 95 Rather, Interior examined the history of the UKB and the Cherokee Nation and found that they both had ties to the historic Cherokee territory Decision at 6-7, AR Second, Interior re-considered the language of the 1946 Act and found that it placed no limitations on UKB s authority; the 1946 Act merely recognized the UKB s sovereign authority. Id. Based on these findings, Interior determined that the UKB possesses the authority to exercise territorial jurisdiction, just as other tribes do Decision at 6, AR1558. This consideration is far from an interpretation that section 476(g) allows any tribe to acquire trust property and exercise jurisdiction in any other tribe s jurisdictional area regardless of specific history and ties to the land. Instead, it merely recognizes that two tribes may share a jurisdictional area. See 2009 Decision at 7-8, AR ( Indeed, the Department recognized that there would be situations in which two tribes must share jurisdiction. ). Interior further noted that the conclusion that the Cherokee Nation does not have exclusive jurisdiction over the former reservation was consistent with the 1999 Act providing that no appropriated funds may be used to acquire land into trust within the former Cherokee reservation without consulting with the Cherokee Nation a provision that superseded the 1992 Act, which, in contrast, required the Cherokee Nation s consent to such trust acquisitions. Id. Interior explained that opinions of certain Interior officials, which were issued prior to the 1994 IRA amendment or issued by subordinate officials, were not binding and could not be given weight over Interior s 1950 approval of the UKB Corporation s charter, which expressly identifies the acquisition of land as one of its purposes. Id. 3. Interior properly considered whether BIA is sufficiently equipped to discharge its responsibilities relating to the trust acquisition. Interior reasonably considered and found that the BIA is sufficiently equipped to discharge its duties relating to the trust acquisition for the UKB Corporation. Although Plaintiff 35 Aple. App. #93

96 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 42 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 96 argues that Interior did not reasonably consider whether BIA could discharge its responsibilities, the record reflects otherwise. See Pl. s Br. at 38. Plaintiff fails to meet its burden of proof that Interior s analysis of this factor was arbitrary and capricious. South Dakota, 423 F.3d at 800. Interior s deliberations regarding the implications for the agency if the Property were taken into trust considered the relevant factors C.F.R. section (g) requires that the Secretary consider that [i]f the land to be acquired is in fee status, whether the [BIA] is equipped to discharge the additional responsibilities resulting from the acquisition of the land in trust status. 25 C.F.R (g). The Regional Director noted the issues facing BIA in the 2011 Decision, specifically that the UKB would likely reject the authority of Cherokee Nation employees and insist that the Region provide Bureau direct services as it has done in the past with respect to other Bureau Services Decision at 8, AR2183. The Regional Director noted that Tahlequah Bureau Agency was closed and the funds used to operate that office along with Regional Office funds utilized for direct services to the Cherokee Nation were transferred to the Cherokee Nation through its compact. Id. The 2011 Decision noted that there may be a need for funds in its budget to discharge its duties that may arise as a result of the acquisition. Id. But, the 2011 Decision also noted that the Assistant Secretary had found that the duties associated with this trust acquisition would not be significant. Id. In his April 5, 2008, Memorandum ( 2008 Memo ) directing the Regional Director to reconsider her determination that BIA lacked sufficient resources to supervise the trust acquisition, the Assistant Secretary found that the proposed trust acquisition was a small parcel of land with a community program 13 Plaintiff indicates its disagreement that the acquisition was analyzed, in part, as an onreservation acquisition. See Pl. s Br. at 33 n.42. Although Interior considered the requirements of 25 C.F.R (regulations applicable to off-reservation acquisitions) and 25 C.F.R (regulations applicable to on-reservation acquisitions) in the 2011 Decision, the Assistant Secretary stated that it was not necessary to decide whether the application was for an on- or offreservation acquisition because the result would be the same under both analyses. 36 Aple. App. #94

97 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 43 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 97 building and a dance ground Memo at 2, AR790. The Assistant Secretary noted that it did not appear that supervision needs to be extensive, and that the UKB, Cherokee County, and the Cherokee Nation already provide law enforcement services within the proposed area. Id. The Assistant Secretary requested that the Region submit any evidence to the contrary. Id. The Region did not. Therefore, in his 2009 Decision, the Assistant Secretary again considered the issue and, based on the totality of the record, concluded that there was not a reason why the BIA could not effectively administer the Property or why any duties could not be contracted to the UKB Decision at 8, AR1560. The Assistant Secretary was entitled to use his discretion to examine the matter and assess the purposes for which the Property would be acquired into trust. The Assistant Secretary is aware of what resources the Department has (in terms of BIA personnel and funds) and which resources have to be allocated for providing any services posttransfer. Therefore, the Regional Director reasonably found, on the basis of the Assistant Secretary s determinations, that BIA could discharge its duties in connection with this acquisition Decision at 8, AR1560. C. Plaintiffs Request for Declaratory Relief and for a Permanent Injunction should be denied. The Court should deny Plaintiff s sweeping request for declaratory relief and should decline to permanently enjoin Interior from acquiring the land into trust for the benefit of the UKB Corporation. Specifically, Plaintiff seeks a declaration that (1) federal law and regulations do not provide authorization for acquiring the Property in trust for the UKB Corporation and that Carcieri precludes approval of any trust application because the UKB was organized in 1950 after the effective dates of the IRA and OIWA; (2) that Interior cannot acquire the Property in trust absent Plaintiff s consent; (3) the trust acquisition diminishes Plaintiff s Treaty Territory in violation of federal laws, treaties, and regulations; (4) the jurisdictional conflicts between 37 Aple. App. #95

98 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 44 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 98 Plaintiff and the UKB preclude acquiring the land in trust; and (5) the 1994 amendment of IRA section 476 does not prohibit Interior from complying with regulations requiring consideration of jurisdictional conflicts. Pl. s Br. at Plaintiff s request, however, is overbroad and unsupported by the law and facts as already shown. Furthermore, in regard to Interior s statutory authority, Plaintiff s request is based on an erroneous reading of the Supreme Court s decision, Carcieri, 555 U.S In Carcieri, the Supreme Court was asked to interpret the statutory phrase now under Federal jurisdiction in the first definition of Indian (members of any recognized Indian tribe now under Federal jurisdiction) contained in section 479 of the IRA. 555 U.S. at 382. The Supreme Court held that [section] 479 limits the Secretary s authority to taking land into trust for the purpose of providing land to members of a tribe that was under federal jurisdiction when the IRA was enacted in June Id. In its decision, the Supreme Court noted that section 479 has three discrete definitions of the term Indian. Id. at The Supreme Court s Carcieri decision clarified the temporal requirement in the first definition that the Secretary may only acquire lands into trust for the benefit of Indians who are members of tribes that were under Federal jurisdiction in The decision left open what it means to have been under Federal jurisdiction in The Carcieri opinion provided no analysis of the OIWA. As Justice Breyer explained in his concurrence discussing the relationship between the two terms Federal recognition and under Federal jurisdiction, the word now in the IRA modifies under Federal jurisdiction not recognition, and therefore Justice Breyer concluded that the IRA imposes no time limit upon recognition. Id. at (Breyer, J., concurring). Moreover, Justice Breyer noted that a tribe may have been under Federal jurisdiction in 1934 even though the Federal Government did not believe so at the time. Id. at 397. Plaintiff merely 38 Aple. App. #96

99 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 45 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 99 alleges that the Assistant Secretary impl[ied] that Carcieri would preclude approval of the trust applications under authority of section 5 of the IRA. Pl. s Br. at 21. This attribution of implication is not a finding. The Assistant Secretary, in fact, did not ultimately decide the issue, instead finding that section 3 of the OIWA permitted Interior to acquire land in trust for the UKB Corporation. Because of that finding, the Assistant Secretary did not engage in an analysis of the implications of Carcieri. Plaintiff cannot now seek a declaration on a matter that was not considered by Interior. Further, Plaintiff fails to meet its burden to show entitlement to the drastic and extraordinary remedy of permanent injunctive relief. As the Supreme Court has repeatedly held, an injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 142 (2010); Weinberger v. Romero-Barcelo, 456 U.S. 305, (1982). Plaintiffs seeking a permanent injunction are required to demonstrate: that they ve suffered an irreparable injury, that available remedies at law are inadequate, that the balance of hardships weighs in their favor, and that a permanent injunction is in the public s interest. ebay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); Monsanto, 561 U.S. at 141. The proper inquiry is not to ask whether there is a good reason why an injunction should not issue; rather, a court must determine that an injunction should issue under the traditional four-factor test. Monsanto, 561 U.S. at 158. Indeed, where, as here, the Court s jurisdiction is based on the APA, vacatur is the presumptive remedy. See 5 U.S.C. 706(2)(C) ( The reviewing court shall... hold unlawful and set aside agency... action found to be... in excess of statutory jurisdiction, authority, or limitations, or short of statutory right ); Fed. Election Comm n v. Akins, 524 U.S. 11, 25 (1998) ( If a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency s action and remand the case. ). 39 Aple. App. #97

100 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 46 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 100 Here, should the Court find that the 2011 Decision was arbitrary and capricious, the proper remedy would be to set aside the decision and remand the case to Interior. Plaintiff wholly fails to demonstrate the necessity of a permanent injunction. V. CONCLUSION The 2011 Decision involved no legal convolutions, logical contortions or conjecture as Plaintiff alleges. The 2011 Decision is the result of Interior s careful and thorough analysis of its statutory and regulatory authority to take the land into trust. Interior considered its authority to acquire land into trust for the benefit of the UKB Corporation and after careful consideration, determined that it possessed the authority under section 3 of the OIWA, that it was not necessary to secure the consent of the Cherokee Nation, that any potential jurisdictional conflicts did not weigh in favor of denying the application, and that the BIA is equipped to handle any additional duties as a result of the acquisition. Further, Federal Defendants have also shown that the 2011 Decision does not violate the 1866 Treaty with the Cherokee Nation, is not prevented by the Carcieri decision, nor is it contrary to any law. The Department has special expertise and its decision is presumed to be valid; Plaintiff has shown no reason for the Court to deviate from this presumption. Rather, the Court should uphold the 2011 Decision and find that it was not arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law, and was based upon consideration of the relevant factors and is entitled to due deference. The Court should deny Plaintiff s declaratory request and immediately dissolve the preliminary injunction. Federal Defendants further request any other relief as may be just. Dated: October 26, Aple. App. #98

101 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 47 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 101 Respectfully submitted, JOHN C. CRUDEN Acting Assistant Attorney General /s/ Jody H. Schwarz Jody H. Schwarz United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, DC Phone: (202) Fax: (202) Of Counsel: Scott Keep Bethany C. Sullivan United States Department of the Interior Office of the Solicitor, Division of Indian Affairs Attorneys for Federal Defendants 41 Aple. App. #99

102 6:14-cv RAW Document 76 Filed in ED/OK on 10/26/15 Page 48 of 48 Appellate Case: Document: Date Filed: 01/16/2018 Page: 102 CERTIFICATE OF SERVICE I hereby certify that on the 26th day of October, 2015, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filings to the parties entitled to receive notice. s/ Jody H. Schwarz 42 Aple. App. #100

103 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 7 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 103 United States Department of the Interior BUREAU OFINJJlAN~AIRS Eastern o~:regit>nal Office P.O~ Boi Muskogee. OK7440U002 Real-Estate Services A~6;2oos CERTIFIED MAIL- RETQRN RECEIPT REQl.JpSTED :-:.,~., 8onora;ble George Wickliffe Qhief, United Keetoowah Band of Cherokee Indians ll.0. B.QX ~~Oklahoma 7~ Uear Cltief Wickliffe: ) f l~te in S~tion~. Towilsh,ip i61;<fcutb,.. 22 in Ci:helfo~eeft.ounty, Oidaho~a. F~r... tlje reaspns discussed below.the-trust acq.uisitibji'reqq stis ag~ deniecl c,:,. 'J. ' ',... :-'.,.. '!he determi~tio~fo ~ quire pnipel'liy in tiwt i mad in, the exer ise+af disqr tiqllru"y aµthori(t n is yesttxl in the,secretacy. oftllejnteri;ort~~9tetacy)c~d deleg~j9.this ~e,. The request ev~uated in accordaiice with: the r,gul~ons :~Qnhri11ed ib Ti~e 2sr1colie of. Fede@} t~gulations, Part 151 (25 CFR 151) Land ~cquisit1ons. The Region's evaluation of tlle rimanded request is as follows:, Land acquisition policy t.and ~ay be acqyired in trust -by the Unitecf~tatef Govermneiit for ;/Indi~ Tribes o~.. $~J;:.. ~s=z:t:~1t:$epit ~()0lt~c.i=\ft!f~1a:t1:i::~t 1 ~i02 <>f'the lndian}land Consolidation Act(IL~t\), (~6 Stat 251 "(; P.L ),tnakes.Section ~:ofthe:act of June. 18, 1934, applicable to all Tribes, ;. ZS CFR 151 J(a) states that land may be acguire;d in~ for atribe when (lfihej~d ifloca~ ~thin lhe exterior\boundaries.of tb.e Tnbe's r~~a,i~n or adja~nt 't{;lereto;'..or Withint~ triljl CQnSOli~tion area~ or (2) when the Tribe already owns an interest in the Ian:cl; or (3) when tqe CSP-AR Aple. App. #104

104 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 8 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: Secretary detennin~s that the acquisition of. the land is necessary to facilitate tribal self-. tennination,.ecogomic development, or Indian housing. ' ' ' The Buieau finds tljat regulatory and statutory authori*y exists.to ~f prope.rty in trust for th~ UKB uiider25 CFJt-t51~3'-(a)(2) and (a)o)oosect on the 'Tti:Be' owfirig a fee interest m tqe. property; and the.proposed acquisition aceqrdjng to the.l)lffij is to faci1tate Tribal selt:- <f~jennii)atiol}... 2t 15 la -Acquisjti~~ intrust.of I:.ands Owned in f e by an Indian The propo~d. acqtjj~iti<>il ~.for Trib.µly-ownecf::prop~rty; Th~ Burea~ifinds that this section rs n~t appltcabl(\' to thtj ~µest Jt l5t;s 1~ iquisiti~nsin Old~oma Qn~ S~!ien s. o~thelr~, irrt:it... fil:.~l ~- i~:l:;;t:~diribec )l#b'tqa:u tm&',this a:uth0 - is ' appjicabieao '. tjreipfo..,..'.. ' on:asiitwas su6mitt&j.. fiir~>l1~rt =t ~ '';;~iitf4,j\~, T....t s,i tstt 1 - of rrac~na,t inte~ 1,, ft ~ t l;be is the s~fe owner oft.he pj;operty pro,pos~to, be acquited iittrust/ Accordingly, tne ':.~~}rndslhat,:~ti~n is ~ot applicable ~,;~s ~ St ft JS:l1;8 -.fi:iballi;q11seoj,for no1.}rmemher aequi~itio.fs, /,, -, ~-..,i. ~ re1uiaasn prq'.t6~:; ~t aqjndian Tribe «n\ay i~d s~ OJ} a reservatiok +er i~ owri~~y wllen ~e governing ~y ~ aie T,:ibe pvi~juri~cµon ov:~r su h ~+n ~nsen~in writing to,theacqui~1ti~nl.. " ~~'re~ati~n". ~Qkl~~nl! is d~»ned tp :: ~! C~ 151.2(1} ~"~at 8N8 ofijand constitll~ ~,pner res~a of ~~ttr,1.be as,defin~,..._.[.: ',:.:1~~ij=\~~~:~:un::sz1a~~-1~~i~~;.,. :-... ii.:tr:.:; ;r~ r.::,'..:i..... ~.~:... f.. :1. ~ t/ 0... erori~ O~nntr;iP~:. ~herokee Cnllfity i.. thfu':,tbe-~.... < ~u~i:t"tari~\of ~\.. ~. :t <, Obero~ Nanon,;;is,4eiiaed w terms of~th.reaiy. ~f tt(}w "- hot4f.eii~ed :1iito dh ',.i.. ~iea. ' ;:ztto2t 1 :j.{~~t~.~~l8. $i~w;,:µ:.i~t ~un~es o.f this';i 't'ormer, fe$e,\wation have, ~bt Clwgoo~ ;tw,)µle 1Je As$;stanl Secyetary i- A~dian ~: ba4i~iqusly de~ed that~ uiil:,~y,ot a.'tqurf laud~.t,rµst wmtln.flie, Cllerokee Nation?stformer; historic reservation,witb:0.ut the:consen6of thdi CherokeeNation :;.<"'.. :..;, "' , ~ , Aple. App. #105 CSP-AR

105 . _.'i 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 9 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 105..,? 3 to ISi.St appropriations language eluicted \;Y:the modified tbi,$ ~CJ#. 11ij: 199,9 apj,@~ons hut~ iu<;fuded in tjte ~or anj ~Agenci~ AppropriatiOQS ~c:t,.pjl } Sec. lol(e)mqdified the,eq~ent im ffillo\y$: ~til such time as l:t~~~=::.:::;:-:i=io~~w;,:;c Q}t rokece N~on/\ en this,provision, CQQSW tn.~. ~ th Cherokee Nati vili~ t e 13~ ;~~i;ited it$ ~ntmel\ts durit!g ~5 ~ \;51~~~ p~ o(the.. ~ ~ugjt tlusz:acttqtl. the Bt1f,eaUrffit$ met the ~em of consultation With lite Clierok~ NtU.i asma~'tei:j, '7.r t519..,. R q~ for approv~.ofaequisitjons." :»ti~~cejjat,~llllle 9ji~.thetJQ~su&~hd 4'-~~ acco~yinf -,';::,,.lf;.,f1~~»~~ahdfts1li1f~*j "*-... ~~ ~f~~~t~*==~'j ~(.., 1,,~=~~$ta1;:Buf :e; "~~'larl(ij fdt':the... the~teda "flhat;"the ~ropose<l ~uisitio:11 sh~d be (ienied 1:for 1r85ons appljcabl~ to. ~th dn and off ; :~t;vatio~ acquisiti<>ils.' Tb.efollowmg criteria must be ~nside,ed in ev~luatin~fboth on and off /tesejwatiop acq_~sitiofl by Indian Tribes: \., ---_.- : _ <_:.. - ' C : --~.:.., "."._.,. -.. :...>.' ,,_, ' ' ";. (al 'fhe exis~ce of statuto!)' aµthority fo~ the,~'(risi~q!} ~d ant limi~o~con~edc{ ini,uchailthq~ /t j ~, ;t (.; ' * ~d~y be~u.iredin tnls,t by the U~Sta~,forP~y ~gnii d ~bes-whejl is sfatutqpt authmity to so.. A~~ty w'!~\lje.~~ ai}uisition. i~ co~ed in~tjojl 5 ofjhe ActofJuae l:8. l934(4f{;stat:~; 2 lts~e. Jl65)whicll''aUthoqzes tm;~. ms di~ti.>acquite-~~1~,-+iy ii#erestin l1tl,ids. or -~tho(. e~ reserva$)n;~ for the purpo~ of providnig Itd fo{-indians. The Aple. App. #106 CSP-AR000133

106 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 10 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 106 lnmt111 Land Consolidation Act (96 Stal 251?f 25 U.S.C. 2202) makes Section 5 of the Act of Jme 18, 1934 applicable to all Tribes, subject to.. any other provision offederal!3w that autjto~ prohibits, or restricts the quisition of land for llldians with respect to any specific tribe, reservation. or state(s ). " ~~ritjr;r-:j~~.;::,:sfu~~~~==tj: ~o~r:~~ ~tb,orjzes the UKB. to hold land and is s~j,ent 01itne -status ofsai<.jland {(«:Qr trust.).. - (b) Tlie need ofthe Trib~ for cidditional land. 'file Region finds that there is. ~tatutory authorit :to w;q~land:~in ~Jor:tbe UJU3 asil. lbe PKB o~ several tracts of property;ln f~jncl\jdfug.the prw,erty,tjiatis the subject ~~,~~}:[;~ti ~ ~ ~;ontwe,igl;le<l by thep,o~nti~ forj~$'.li~~ probl~~ #nflicts ofland axicf -~ ~4itio~. bufdens _~;W:quld be pljfod uj<)n theiregjon ~- it>to take.ill in~; ~ajras~-'scussedindet8;i}~low.. ;.. 'l j. -~.( }. Th~,p~~ for wbicl;t_"t1i~itand will~,~-? t; rf ' ; ::i,.f tiil~ilt~~ ni~mbe~in i~ present. fee state. 1., l ' ";,..... ii,,' (~!Theamo1't oftrust lljjlqowned by anµidi~~i Indian $d ~ need!for assista,~mj ~dliri~rhis affairs.... '. l ' ;_ ~-propese<i-~acquisitiqn is. for Tribal land.i A~:r;dingly, -tlui~b~u fin& this section is< nq~ applica1,ie~.?..,, ( (~)t If the land! to be acq~ is in unrest1i~ ~i*~ frntict on~ pqliticalsubdivision-~sultingfromtherem(ival of~e la,nd ftqjil th~ tax «1Us. a;t,d. its '. m~filiffltii i Cli~kee ColJWY Comnµssio1,1eJS, Cherok~-Colil4ty Treast:treiw>an4he C~l(ee Naffon~ if. ''..... :...,:,."~" } -~....c;,. r./ CSP-AR00013L Aple. App. #107

107 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 11 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 107.,5 Real property in Oklahoma is subject to state valorem tµes,,,..whicb is collected by the tes~tive counties to fund a variety of counfifwide.~ es. The l3r;gestshare soes.to the local school districts. The subject pro~it;y is curr'iiltly ~ed, on,'the C_lierok~ County Assessor's rolls as taxable. There arec:11e> special ~e~enis:or outstanding fi.x -''1lssessments; Property truces are not the sole"' source of e<>unty support. Based on ~e information submitted with the request dated.tune 9, the',ad valorem truces for,e 'ProPE?1Y identified in the proposed acquisitio,for 2003 totaleg$5,0&j.98. Police, fire, wat~and sanitation services. for the property at. currently provjed by; Ch~okee County, J)klp.lioma..No negative impacts from the los~;ofthepromfl}' revepue Were igentifitd ',by the aforementioned officials. ')... ;:. ' :: J (f) Jurisdi~onal.problems and potential:i:co~cts afl~d.qse wiich may arise. --, i.-.,.,.1. -, _:~~ ~... : ~: :. >~ ;r Jf the subj~ property is taken in trust, it ~,l bec<>qie I.ndiati co~. The.Supretje. i~:j:~are~,~e:~r~r:~cte=~t:~'{n~tg7_i~~~~e:;:s;::.' J~p~ ~ found that lands held in trusthy tljt:fede~..l Q!Qverjhnent for tpe bel)~fit of a jv. C4izen.J1am:1Potawatomz, 498 U.S. $Q5, s 9'}*1J;seii-alsf)$f,:Ctlntte<l:St{lles v?il-0be.,.. Jl~~: f~.34 1,t2~,}l~l (l~th C:ir 1999), ~~jt:.,.,:tt; :~fr# j/j.ifi4 Sr,#:esj''.~29 Q:i$ U\8'i<. y(2d6ft.);. ~'1:Tnbe's territorial soveret~ty e,1,qs :,t,o: th!~ ~ ~Qfllzed '''witijjµ th~' Tribe's Indian. country..at~::},. :Jiaii~ J{iJlqge {i>f J?'eneti'e Tril,ii.. :,kjo~tnmeftt, s22 u~s. 520,527 n. 1 (1'98.fn ~en~yf spe~ng,prlmaty jurisdic~n,~~ve~lalld tbat.is mdian. countty rests.~'tli tni.':ofed~ ~vermnertt.. aitd the Indian trif>e t'iinhajsitingji, and not with the States." Ji,J; " ' : \f. i " '. Sa!-a1t 'S~f,WP {Cherokeei,Iation.. The subject property isl... t,~ ; Cll~ke.eCoqnty, QJe:IahoiJ)a.'wiih!n the treaty boundaries of the Cherqkee,ation as'deineiff,y thei'tel'ii!s oftlie T~ i:ofnew ~bo~ eiltered.into on Deceniberi9~ 1815 (7i 1 Stt f478.} Tb~ l835t~ \t==~1i=~~~==~:=1rth!~~f1~4;~;: {~~;~ /(14 $tat 799), all land in Kansas and 6 ltac~if-~ '0klal}Qlll{l we~ sold{ S1~ce the:":~ess1~ iof 1866, the Cherokee Nati<:>n boundaries set ijy the 18}.5 lf rea"', wlrieli c(impri~ all or, a ','.portion of' 14 counties in eastern Okif,aho. have not c~ged.~- Tlie B~ b}ls }consistently recognized this area as the ''foj.lil~r r~ervation';"'.of ~ Cberokee/Natimt. 'ithe mtere~ of the Cherokee Nation in its (oimel resel'!vatioit is V{f;lll establiihed. '.~ 1 UnitedK~tQ<JWah JJand l'. Secretary, No 9~(8f608~Il (N.p. ~a. ili,,der,may 31, 1991), }i~ ~llfti~t~ ''the S~cretary of the ~ri~&~pjc has: ~~~n~1that ~e "" b~&t taiids. f th. Id Cli k, '. de' tfie. sii -... fth.!!\, ~ati~~n:t ~e upl~;, eeln Pf!:f ;;J/fZ,if ~l;!n~j,. e~f.. ;848.. J3, Q>f,;p. Okla. Feb. 24, 1992), a.lfjf 994ji,2d 1013, l075f"" 5 ft}} Ctr.1~3), c(!,t:t. Jrkn 'rl sµlj - nom United ~~etoowah clj.aruj)jl Cheto/dt~ Jf!Uians 'iy,. f?kl~ 1fex JCam,nissi(>n, 510 U.S. 994 (1993), the:courrilld trnj.t the,u~ had ~Jail~d to s)low-ifpy. i~treaty or ~ngressional act establishiqg irilferi~ef ri~t or ~!aim.to,, <iland' within the boundaries of the old, Cherokee.Indian. --~- _; Reservation.",.-. In, - United.-.r Aple. App. #108 CSP-AROOO 1341

108 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 12 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 108 KeettJIJwah Band v. Mankilkr, No 92~ ~d'!- F3cU 161 (tot" Cir. 1993), the co,rt '"Uus cotut prevjq'1sly deci:<led tjii ~e <Jherokee Nation is the only tribal en.ti~ with juri~ctr~. authority in Indian ~untry wit;l,iin the Cherokee Nation......: ~]3. (N.I). 0~.~er,ianuary 27, l99~i. lje~ewfce,9n"~on~s Jtily6,200S. Co~enr:~~r~e<I# -~. '. 9 <~r.. ' -~ _ ( ~~its ~Qve~l)er 5, 2 5, ~epjy to the c}i~ro ~,'GOII!ll.J nt~letf' cm~. ~68--~). the.!: (JIB di)lnot ny the:'potentiatfor jurisdictiqnal~t~:nfliets.,. 1,as d-.nined >bat t1ie 1; I if11!til.. ~ke.e N~on are the Cherokee Nation',:;. elf~. fo~ PUIJW~es!~n Iy. ~~Zv:;1:e~;,:~~~ ~;~~::.,~ ~;~i~:f:v~'i. ~ent~~ the Seeretary, *e Cherok~N:.. ::~~ woufitut4~:the.l law enfereemehtrespo:nsibilities pursuaritttt'l8.... c. JH5l.t.. } :{..' ;. '.-/\ /y--:<--, -:...-:, {, t ()~~ Qf:tfte lllal!ly issuesarisi?g fi'om bei~g:;finft~ hl.~ -~~~,; ~bei~ qt#lfu~jthe mt»titude of isstjes in this area'i;alo~ tliatvi~t1lqtcit. th~~o Tri.bes, but also for the Bureau in extcu~dts responsjb1 ;...--,. i:: Aple. App. #109 CSP-AROOO 134

109 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 13 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 109 '' and tliej~ctional confl:icts which will arise from such a requ.est to ~e-~atid into in another 'Fed~ly recoggized Tri,~s loqg~recogirlzed ~oric_j~sdi~~ 1\e Regi~ no issue with the UKB's orpohtte C~nall g T.TJ1>al'a.~llto,JjZijU~a for the UKB to acquire lall., however, the Tribalfgov~g (lociijnent mt ovemde :~ longstanc,iuj,g position of'lhe.bµreau or $ccr~ co91ftifmg"s;}ni'-iiifs Tt$PQw!~<;e thafaff~t tltis-req~ -m~lati~ii to thehistori~iformefboµridariesx;ftlje QieroJ(eeN.~oa :',~ -~_:._._,.....,,, \{Jf -' -,;,.. ~t ".y ~~- _.. :_:_;;_._Blt~E~S_;,:_:_~_:_ _9. _ c_f.n.~t_!_.. t Jr:.".. :,\ - -/ir - :,:_n _ -d~ pq~~' ~'s cja:fm,. rt:\~.secretllry/; of;;1vie I~teri@~ -ha$. -~etennined. Jb)t i the land$ \ witlli~-- the; original -~Ch~.t,~ lndian: Aple. App. #110 CSP-AROOO 1343

110 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 14 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 110.,:' In other cases as United Keetoowah Band v.mankiller,.no. 92-C-585-B (N.D. Okla. J 993), the.quzzard decision_ was reaflirj:l,led ~. the UKB ~gairfchalleaged the Cherok~ Nation's authority to enforce the Natiqn's tpbl:lccq tax and ncensipg requirexnent (in individuahllotments the UKB was utihzing for.additional smokesho~. In Mankiller, tl,ie -pistrict Court held tliaf It had.. previously d~ided tmt'the- C~okee:Nati,oo is tfte-0nb'- )rlbal entity withjurisqictio~ ~ority/n ~ffll1 C~AA~ ~ei~h~ee,atio~~ rt 993 WL J07937-_.(10.i. Circuit Oki~} The-r.Mankiller lec1~n 1.S{illOt'depet!(Jent tn - -Jluz.zard and was a:tlhme<:t by: the Court~f Appehls, 2 F.3cft tijijf (1 om :Circuit 19~)~ after '1:hat court ruled on Buzzard , :The UKB does notprovide law enforce~ent~ceson the prqperty;jawenforcementus,provjded by Cherokee c~iml)', a IocalJ~-J>~ ~ntity{ UKB~f se~ty fo~ ; porf}on: o{,14 00-tm;t(es J.~ea,-slem Oldall ma ~Ye not charmed._ / :,_.- -' Ji ~-,;,.,,. : The..RegjJn finqs thattp~potenti~fgflj:url~~tio l:pr+letl\s is oft!~pst concem.imd ; weighs h:~vily ag~st l!pp!pval of'tbii~on atthisttimef J (g)_-_ ~r~l.iang ~---.be'~wedis in is~~ whetheritlte. Jiureau;1<>fJndian,~~~ is- - u} pe<:{t.jri ~~the,aditipnal, -_-. ""Jiliti. t dltin tro the =.' _ '"-~, 'ftb Aple. App. #111 CSP-AROOO 1344

111 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 15 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 111 formerly previded by the.bureau's Tahlequah Agency anel~ Oklahoma Region# Office through a Self Governance Compact pursuant to 25 U.$.C. 4S,8aa, et seq; The* programs in.elude, but are not limited to, real ~te services and;tribal court services, as. ~ell as the l;;lw enforeement services discussectin subparagraph (f) above..as a result ijf.,~ the BureatrScSelf 6ov~ce Compact with;'tl)e Chetok~ Naµon, tlie 'Bureau-agc,rlcy. whic!j: ~Jµrisdicti9n over.)3-µreau pro~-~thin tb,e tooundat'ies,af th~ fonncr,t,cher9jcee}t~tio~e'f~eqnah.agencj-~,elo~an4thefµndsl ed)oo~~t ~~<;Y~ at9jg; wit~f Regi~ Office. ftll),~ uii11i.ed frif_~ct '~!ces to\the dlieroklf Nation and)lll?in<fians within that area(regan:a,ess of 'f:n~ afti1at.1on}; were '.to th" Cherokee N~911,CoIDpact. The~ are:119 ~ttiainiitg service funds' m tt(e- Regiqn thai have not been previously provided to the Chen>kee ~atfon in i;ts Self GQve~ee )C,onwact AltJio.\igh the C~~kee;N~on has nume.wus ijll tjl;ne enwloye~,tiom>i mulµrude9f ~ibey~nd oversigfjt of&~:trust;~rtyto sucli are{is as ti-esp35$ {s,sues:10 ~ulturalissuestoj~ldlifem,ijpage~ rit to. leas~1,co~lian~. Areas 4J'wliic-& fµnds have qeen provided.to-the Cherokee Nau<>n from Regional programs'jor iriclusio; in the Cherokee Nation s selfgovernance:;pomp~~.,4ccorqingly~; the Region fin<:is that it i&\not ' e!l eqµi.p~ t0, ijiscmn.;ge ~e ad<:f}tion~l ~spo~ibhfties thatwouldifes#lt for the a.~uisijon of,thelij,.d ~trust statttiif + "f,, -, ' -, -. - <, ~)- The extentto which the ~pplieant ~-pto~~ irif~~on'that al!&m;ithe S_~~ tp comply,'\:vitb SI 6 DM (>,.,Appendix 4:~ Na~:nal. Erivirdnm~iital Pdlicy Act aevi~ ~plemen~ P~ures, and 602 DM2, Land Acqtiisitfons: - Hazardous Subs'tan~ ~terqrlnations~. ' ~,e!t Aple. App. #112 CSP-AROOO 1345

112 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 16 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 112. ~:, 10 A trust acquisition can be denied on the basis ofless than ah oftlie factors if the Bureau~s analysis shows that factor. or factors 'Weigh~ heavily ag~t the\trusf acq#isitio~. Johnnie Louis McAlpine V. Muskogee A.rea Director, 19' IBI~ 2 (1990~) There is rio req~ment that the Bureau reach a particular conc1usion as' to each factor and tiib regulation CS not state howthe agency shoula balance the factors in any particular ~ or what wejght to assign to each factor. County of Sau);, Wisconsin V. ;Midwest Regional Director, 45 IBIA201 (2Q07.) "The ability of the BIA todi~arg ~en.ece~ ~ functions 011 newly acquired trusfproperty is importantcongderatf91i m, de~init(g whether or:not a trust acquisition shoitld be approved/' KfcAljne, 1 ~Ip~ ai,: J,3oardbas h~ld that the 13IA i~ uniquely quatifiad to know what:allditio~ ~ponsibiliti'. jj will have,to as~e in relation to land. acqu1ioo in trust Stdte.of [i:jwi:t/:qrid ~tird 6f Supervisor~'.of PotJawattamie County, Iowa v. '.Great Plain$ Rejonal Diri/bor, 38 IBIA 42, 55(200~:). c?. Jbe prop<>~ fee to.trust,eqµisition does not q11alify {or a~ate{otical ~elusion h.ecause. qte U({B~tod:~el<ij]mtst1hJect~f :Jhe OKil~iell i~ed-~ r&. t:-rt~~~j:ct,ftaci, tt:j plans tor ~velopment on~tm site for a Civil Cei.1.ter, 1~ a -~ R:eso~ Genter and lvl~~ the ESA also referenced lllvirolllllent~l~sm.....,. d a.tin~.. at1trleiii1+1t~ '(I:: \}.\ A;,; ', ",, Iii response~ 1he B~u re<reicyed copies 0 ()f tneh.tkb's.en\jro~enta1jit~ Asses1men4. ~SAs) prepared. in com_pl{ance with proyisioijs of tl}e C~pihensiy'e ~jviroijl]ilentaj ~espol'lse, Compen~tion and; Liability Act to evaluate the t\l{e plaqnecf.'facili~es fof n,(leas~ of mlzardq:us submances. The docum~ts sabi'pitted ~ det,jrtiip'ed n~ to NEPA.doc~ents and were l)lot tqe doctµnents' requ~ l;)y ~ Burtt~ ~ sqp~rt thi re,quest for the acqui~ition.. The UKB stated i~a ttansmittclj lettlr to l:l~ui#,r the ESAs that th~ two planned facilities "have. alrea[iy beenjthe tsubj~ of t~ja~fu!d ~: F~dings of No Sign,ificant Inipact by HUD" and references th~ sub~itte4 doc~entsf l:he doewnents subiijitted.were inconclusive (oj," the Regie>n to,~agred';wit:j.t the likb~s assertions. F'.ill1her, conta.$ed in the ES!\s for the two facilities ~~si~}naps[of the UKB's CoAUllunity Servi~s Master Phu;t, wqich show pfannej:,t ~i;fopgient toj' th~ e~tire 76-.acre site. Under the Bureau's 'resp<>bse to comro.entspin ~I {Fe<j~ ~f 845,. Finaf; t'fotice of. R~sed Proc~uresJ Nati()~ ~vfo~ ~()li~i. Act-l:. -lippl~n~ Broeedures(.S.li,DM 6, Appendi~'4), W tb<# a~d~x~ce~y.be): #egoricallx{:e~clude_d is ~, matter. of jri~en! by _t4~. BUf~u;~ffici~f +llslj~ toi _ ~PA compt1ance asto how ~ell. the pl~ is established.. 1t 1$'{a:lso tit~ B~a 9tfic1aI; ~nsible f~r NEPA conipl~~ce who niust ~cide Wbetner p{~ fofde~blop~nt o~ p~ysieal alfeftttion are established to the>point whei"e NEJ?A Jeview,of f!t:e Pl'<WO~ a,~vity sµop:ld be done 'iii conjunction:.:with}the l~ Mt. qeaij pl~ fo~ d~velopmenlof the property by the UKB are sufficie~tly established l()' require 1fflP At..., '.f'.~ ~: - ' ':<- Aple. App. #113 CSP-AR

113 .,r ( ' ~: f,{" Ii;.". I!,. fr 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 17 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 113 review. Again, the trust acquisition of the 76-acre property does not (l93jify for ffie f) proposed excelusion, categqry as held by the UKB. The Bureau finds that the docmnenfs f submitted not satisfy th~ N:PPA requir~en~ for the fee'-to-trtjst acquist~~n. k. r- - -eifif&lf.ff&s" T'~ fi!ctorsof25 CFR'Partl5l. 1:hep~perty is lqc,atedin Cher<>keeCo~ty, Ol<il~~.e (ormer,;historic r~,va#op of ~ ~lterok:~e N~on a.jd.is sought.for #::state4p :~is ~t,. ijegal or in conflict with existing land use. There would be a minimal and,<ip~ueniial'ktss.. qftax ~ven~ wctten>k(:e Co~ty if ffiis lan<fwere taken into trust. Howeve.r; these ~8$ ~o. - - ~n th~property.~'tlcom'j.icts ~v~:tne o~!jon.. ofbureau progrqtns ~Y the'(lui:er:~....,.jfll... ~f ~- Ad,lilio... ~ a;~qf a.e c mpact of Selfl~ be('1[@1ile :~Qt N.CYt...?.:....,v~a,2220!j,1I).. ;the. Btjard oh~appeals ~~t~~rtify that ~pies have been sent tosthese ~- \.'..,,,~.,, ' ' ;,.,.~ '- :. " ;.'., ',.x -!f no!ppeai is ti~e!y filed. thi$.d~cision will becom,efinal for tbe ~~~ent Eifthe {ntenqiat ~ exipiration of,iheappea1 ~riod~ No exten,sion 0:ftime may be ~too ipr filing, a)tteti~of A 1 P~-. g,,, '\ J i~,.~~~~*=1~tit4~t~. J Aple. App. #114 CSP-AR

114 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 18 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: ,;... '- ;. Uni tea States Department of the Interior OFFICE OF Tim Sf.CRETAKY WASHIJ,;,;1 o:,.;, n C:.!!<'1~. A~ (/1qt1 CERTJFlf:0--keTURN l<eceip1. Rt;QUESTEU Mr. John Hair Chi~t. Unit~d Keetoowah Band o[ Cherokee Indians ln Oklah~M~ P;O. Box lll9 T hlequah. Oklaho a 7 64 Dear Kr. Hair: we h ve reviewed your Januacy ll a~peal of the Ac~ing Nu&koge~ Area Direc~or s decision or Dece~ber 19. l98s. declining to approve a request by the Unit"ect-'Keetoowah~ana of Cherokee Indians in Oklaho~a to cquire P~roxi ately S.755 acres in trust until the Cherokee Nation of Oklaboaa concurs with this request. The following constit.utt-a. our background an.-ily:$is and decision on the,aa t ter. Background: Tbe united Keetoowah Band of Cherokee Indian& vas,eco9nized ac a band o! lndians residing in Oklahoaa by the Act. ot August 1n,. ~U 31!.1. The liand \la& sub cequenl IV incorporated unde.r section 3 of the Oklaho111a lr,dian W4a:l are 1.ct of June >3(. (46 St.at ). The Band s..,,tribal. Constitution and By-hvG a nd Corporate Charter v~re a1 proved on Octot,(:r l The Bernd has requested the secretary of th~ Jntecioc tot.at~ a 5.7~5 acce parc~l in trust pursuant to Sections oc the Indian Reorvanizat.ion Act of 19H (25 u.s.c. HS. 48 Stat. 98t). The parcel is located approxi&ately 1 1/2 ~ile& west ol Fort S~ith. Arkansas. in Sequoyah Co~nty, Oklahoma. Th~ Band ~urrently has no land in trust. &tat.us. 'the Acting Muckoge~ Area Dir~ctor refused to con idec the request unless the B~nd obt~ined the concurrehce ~f t.he Cherokee Nat.ion. Discussion: The United Keetoovah Band stateg that th~y are a &~parate and distinct fed~rally recogqiz~d tribal entity organized under Section J of tt,e Oklaho11a lndian t-lelcan: Act; t.hus. they have all of the rights and ~riviteges &ecured to organi~~d triheg under Section 5 of the Indian Reorganiz.tion Act._ In addition. the Band su99este in their preliainary r~que6t that they have -no land base what6oev(:r. except what._cetra j,tint_y be claiaed ot the land base of the Cherokee Nation of Oklahoma i! a juat claia could_be mdde at c1ll. l'his particular <"'lai,a is repeate-d in an enclosed ~ ot the request. which delinedtes tbe foraer Cherokee Neserv tion as the.. Ori.9.inal,1_µ.rl&di..ctio_r, H~p ot tt,e United Keetoowah Band o! Cherokee Iridians ifi Oklaho~a. --.!:.::..i:; ,w:.,_ :: Aple. App. #115 CSP-AR

115 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 19 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 115 a :..., Th ActlD9 Ar Director decision not to approve the a.ad' req~e t for trust ctatua is based on thuic f ilure to co ply vlth th land acquisition re9ul tiona. apecicically 2~ CPR 1s1.e. v6lcb reads in part: - An individual Indian or tribe aay acquit~ land in trust tatus on a reservation othor than its own only wh~n the 9overnin9 body of the trlbe having jurisdiction over &uch reservation consents in writing to the acqui&tion. - The first issue to be a.ddre&sed ii vhethp.t" the Unit.ed Keetoowati Band baa a reservation as that terir. is u:ied in the land acquisition regulations. We be ieve it ls eac th not. The requlations define the tcr~ nd1an reservallon. In the tate ot Oklahoaa. as that area of land con&titutlnq thd former reservation of the tribe as defined by the Secretary. 25 CFk 1Sl.2(f). the United keetoowab Bind has never had a reaervation ln Oklaboaa'. and the Band e xecci ndependent govecning authority over any ot the Che~o~ee Nation~ reservatld,n ~n~. Unlile the Creek Tribal Tovns. historically. the. 1 reiloovaha were considered to be erely a society &ince thcy never ~xerciaed 1ny gov3rnmental authority. 1 Op. Sol. on Indian Affatr 774 (U.S.D S). Because.the lacked attr butec of a ~olitical body. the leqisl tion referenced a ove vas requ red. see senate Report No While the leqialation reco9ni&ed tbe society aa I Band tor tho purposes of oc9anizin9 under tne. Okl homa Indian Welf.tre J'-ct. it did not cre te or set. aaide reaorv tioa for the Band. Neither did it purport to give the newly ctnowled9ed Band ny uthority ~~~~d_!cti~n over any l nds belonging to the Cherokee Nation The l nd Vhicb the Band vishes the Secretary to acquire in trust fall vithin the boundariea of the Cherokee Nation's former reservation. Moreover. it ls clqnificant. tb t. for land acquisition purpose. an tndl n reserv tion in O~lahoaa ir. defined. not aa the area over which a.tribe ls recognized ac having 9overncental jurisdiction. but rather. a& that tea of land vhich constitutes the toraer reservation of a tribe. Thus. we believe that 25 CFR l~l.8 can fai~ly be read as r~quiring the con~ent of the Cherokee Nation when nother tribe or band requests that land lyinq within tbe Nation's focaer resocvation be acqu{red ln trust on it1 behalf. Conclusi on: We do not dispute the fact that the United Keetoowab Band ls a viable ~nd distinct federally recognized tribal body which has a co ewhat undeter ined relationship vith the Cherokee Nation o( Oklahoma. Further. we agree that the Band has the authoiity-ro CSP-AR Aple. App. #116

116 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 20 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: ; 'I r.. r que t the Secretary to pla~e lands In trual on its beh lf. However. the 194& Act. while recognizing the united Keetoovahs b n~ of lndi ns within the aeanlng of the Oklaboaa lndi :J Nelt r Act. can ln no v~y be read as authocizinq the Band to exetci concurrent )uriodic/ion ovec Cherokee lands vlthja t. foraer Cherokee Recervatlon. Furthermore. because the aubject land1 fall within tbe Cherokee Nation's!oraec reaecvation. their consent is required under 25 CFR 1Sl.8. Therefore. ve aust fflra the Acting Acea Director's decision of December 19. 1,as. and requlro the concuctence oc the Cherokee N~tion of Oklahoma belore the Band's reque~t foe trust l nd can properly be evaluated by the Hur;kogee Area OCficc. This decision ls final tor the Depactfflnnt. Enclosure Sincerely. //7 '// /_... -:f!7 ~J,{ t./ Ao&istant Secretary ln~ian l. ljaa_,-,.. AC fain _... Aple. App. #117 CSP-AR

117 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 21 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 117 i.tj_olo f ljjjou. sap J.f as oa, 2op 8U143lk873 l,.. 2. U'7/U,./ZUU& J..r......,.,,,.,v.,,~...,...,. I!1.J. _,..._ l'a.t,.,ka. ZU:l:0: ;.... ' ' United States Department of the Interior BUUAU 01' INDL\N APl'AlllB Eaderne)idabolna... OIJb P. 0. BOK IOOl Ma,kopc. Ok J I I I r l ( i ' I adel'dalfas Proator Uaitect ICeetoowab Band otaa«ok1'0 Iod1as P.O.Dox189 Patld3dJ, Oklahoma RECE/Vf!D SEP!4nat t I i Bo:.FY 2004 P.L 93..s31 Ll.w Iobial Coatnct 'Propoaal of(be Uaited Xeetoowab.l:lml of~ mdiam Uononblc Chlof Proctor. lbla lsinteq,omo to JOl2r GCHm8Gt ptopoml ms thcl.&lv ieoelved by the : Dun:au oo h1y For tbo.n:asoas belc1w, )'Olll"prq,oaalnmst h dediaed. I A8JU1know. &Bun!tlu'al.a:w~prog,an -~ in-jndlao ( cmjolt.7. N~ tho BURalJ IIQ("llia havolffl oafb~jurisdldfoa omald4t of'iadlalt. COQtd[J. As 1Jlt-u wo are aware;, tflo UniteclKccCoowahBml (t!le-band" or ":Ql(B'") Jaob the f mhoril.yto exi'll'dae tenitom1 jdrlsdictioa <Wf4' l.1jj' area ol&diatt ~- l1cse are ao Janda heu la tnist fbr'tliie.dini'l,1bfxo u. au, dopeadeal l'ndim~ tbai~'boeo. ll!lt ifide i>r ~u,oofthebaud Uildel"Cb~oftf,eftdcl'II ~and~ areoo, hllliyidatqr ownocl ratdcted Jamlt OWC"wblch me Baud ue:mse..~. 11aa l3alcl ~ propoal P!iSl=rsto a lt&to oomt fll1lag 'fjlltdl ddlied CCll'tllia JltOPfidl ia Tabltqush.. OttafaoJ1a. a dq,oqclamldcum w11a1hlit.,. Tbo &tat.e IXIUltarderco wt.kb JQIRf«'DVU aend i Iw ID thp Mm,:ofthpJl'nM ~1134 of<!arokof 'Pflilmiu QlrJnbrnm CCle No. CJ-Z 'l'bo Uolted Swea WU DOC pq lo tbat.-oollrt c:aae aacl Is aot! bouad IJr 1111 aid«~ lbetwlla..s Mamirw«. iti die Bureau ~ t!jdllbadecwoa «t11o lbde aaut..,... in em,r, d!at the laads at il8ije ue S10t Iadlaa Couauy. lftd 1battM State ot 1 OklahoJaaha,..,., kw ~ju,wktkm ov«1holo.h laid,. ne bllsj, fqr our 0 oploloa. fa duregard la,ct ibrfh bdlcrw-. r J You -1 ncau. that the Brad attached tbo Deputy Commlsaloatir"a letter ot, t 'tadttima to di& t1do4 a--. Dlfthil"tbc-., rl~ Clcrobo~llQt Tablequal1"19 _. pa1lel to dui cma. at,, at CSP-AROOO Aple. App. #118

118 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 22 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 118 Aple. App. #119

119 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 23 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: Aple. App. #120

120 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 24 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 120 9J843l1S73 fil.ou I V,OZ1 ' p.5 ) CSP-AR Aple. App. #121

121 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 25 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 121. ~ r If 03 06a2lp unt~ed keetoow hbend a~.... v u:,t,~ij}f~j... ljv!j, FJL.. zozu DJl1N WJU', I., I i l 1 i 4. I I I I I i I I! t C J ' f Aple. App. #122 CSP-AR

122 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 26 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 122 United States Department of the Interior BUREAU OF INDIAN AFFAIRS Eutera Oklahoma Repoaal Office P.O. Box 8002 Mu,ko,ee, OK Self Determination SEP Honorable Dallas Proctor Chie( United Keetoowah Band of Cherokee Indians P.O. Box 746 Tahlequah. Oklahoma ) Dear Chief Proctor: ''<,>::~:;<;;:};; Tile Bureau of bidian Affairs, Eastern Oklahoma Regio~ received the United Keetoowali Band Cherokee Indians (UKB) Initial Contract Proposals (ICP) for the Real Estate Services and Tnoal Courts progmns for FISCal Year 2004 on July 1, Pur~ to 25 C.F.R., , the UKB is b.aeby advised of the Secretary's oqectioos as it relates to the declinations of the UKB Real Estate am Tribal Courts-I<Ps. The objections are addressed in this correspondence. The Annual Funding Agreements requem for Social Services. Aid to Tn"bal Government, and Indian Child Welfare programs are being reviewed and will be addressed under separate cover. The review of the remaioing Law Enforcement and~ F.dooa1ion oootracfproposals are the responsibilities of other offices and as such. have been referred to that appropriate office for direct response to the Tooo. Tbe Real Estate Services and Tnoal Courts liave been reviewed in accordance with the regulations of2s C.F.R., Part 900, Subparts D and B. For reasons given below, tbe proposals must be declined pursuant to 25 C.FJL, {d) and (e). In the Ag>Jication for F'mancial.Asastance, Standard Fonn 424, the UKB proposes to contract and operate a. Real Estate program within the el erior boundaries of the."old Cherokee Nation'' COOlpClsug of 14 counties in northeast Oklahoma. The proposal includes a desaiption of the wodc that c~ends to providing realty semces to the UKB members who require such semces and fur UKB's pro~cs.. The U~ States bolds no lmds in fnuj!; fur the benefit of the UKB. There are no dependent Indian. communities that-have been set aside fur the use of the UKB under the superintendence of the Federal Government. There are also no individuajly owned restricted lands over which the UKB exercise. ~oo.. While it is probab1y true that some UKB mcmbeo own undivided int«ests in Cherokee adotments. the ~eat mets ace that the.allotments were ftom the Cherokee treaty era and the a11otmeots were made only to m.embcn of the Cherokee Nation as set forth on the Dawes Commission)ol)s. The Cherokee Chit signed 1he adotmoot and the Cherokee NJ,tlon retains Tnoal jwisdiction 0v«the allotments today. The.fact$ suggest that members oftbe UKB and the CSP-AR Aple. App. #123

123 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 27 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: Cherokee Nation in some cases own undivided interests in the sune restricted allotments. A review of the Constitution and By-Laws and Corporate Charter of the United Keetoowah Band of Cherokee Indians in Oklalioma reveals no provisions therein establishing a UKB land base. Because the Secretary is precluded from contracting with more than one Tribe to perform the same functions, the Bureau oflndian Affairs (BIA) cannot approve a contract for the UKB to operate the Real Estate program without a corresponding decision to reduce the Che'lokee Nation service area. Any COAtrading action would result in overlapping of servfoe areas. a duplication of services, and a duplication of Federal funding. au of which is unlawful.' The BIA has historically contraded its OlerokeeReal Estate program to the Cherokee Nation on a sccvice area basis. Decisions regarding a Tribe"s servke area/service population and regarding fund division have been determined to be within the dism:tion of the Bureau. 2 The Secretary has consistently opined qiat the Cherokee Nation exercises eidusive jurisdiction over trust and restricted lands within the former Cherokee treaty ~es. On sevend occasions. the Federal courts have confiimed that view.' The Secretary has likewise detennioed that the lands within the form«treaty boundaries of the Cherokee Nation arc the Cherokee Nation s service area. The BIA can find no rational basis in law or in &ct for unilak.rady diminishing the Cherokee Nation's service area in order to establish. a service area foc a UKB Real Estate progmn. Accordingly, because there are no lands over which the UKB exercises juridictioo. the real estate proposal is decioed. For these r~ the.real Estate contract proposal is dedinecl as the proposal includes activities that cannot lawfully be carried out by the UKB. 2S CFR (e). Additiooally, the BIA specifically declines to speculate w.: ~ state and Federal oowts might address the issue of fractionated ownecship in response to. or in light o( a ~-etarial detamination that ccctain. Cllerokee aqouneots were no longer within the jurisdictional or savice area of the Cherokee Nation. 8= eewullya.ctof August 4, 1947, 61 Stat Also, the BIA does not opecate a Real Estate program for the UKB. -Theccfore, there is no fboding in the Region s budget or the Tribe s TPAfor a Real Estate program for the UKB. The provi$ion of funds for a contract is "subject to~ availability of appropriations." 25 U.S.C. 450j-l(b ). '29Pdg 7wtia MRintim T, Jmvam Area Phr49, 30 IBIA (1~ KawNm Y. Aoe4mtizArq Direcmc; 24 IBIA 21 (1993X C!ff'm. Potuif11tti Hmon:,: Nggtpp F.ld 993'(10" Cir. ~I). 'Boe Upjtpl K,c,ctoqwphBml I Scqetgry oflntqigr: No. 90-C-o08-B (N.D May ). Bnrnml y. Qkloborne Iu fcqgrijlni NJ. ~-(N'.D. Otta.. Feb ~ d:11992 F. 2d 1073 (IO" Cir. 1993). cqt. dm'd S10 U.S s.a. SSS; 11:6 LBtid 4S6: J1irilrd Krm:enfi Bmd J MmMkz: No_ 92-C-ffl..B (N.D. 00a. Jan. 28, 1993). aff'd No. n.5064 (10" Cir Ang ) _.. -. Aple. App. #124 CSP-AROOO 13 57

124 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 28 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: Therefore, therealf.statecontractmust also be declined pursuant to25 C.F.R (d). because "the amount of timds proposed undtt the contract is in excess of the applicable funding level for the contract, as determined under section J06(a) of the Act.» With regard to the Tribal Cow-t contract proposal. the UKB lacks a jwisdictional land base over which it can exercise territorial jurisdiction. 2S C.F.R I 02, {establishing the jurisdiction of the Cowt of Indian Offenses in reference to the "Indian country" or "Territorial jurisdiction" of the court). Any court established would be without territorial jurisdiction. Aooordiogly, the Tribal Courts contract proposal must be declined as unlawful pursuant to 25 C.F.R., (e). Significantly, Tlibal courts are not necessarily required in order to detecmine internal Tnbal disputes and ICW A matters. - Additionally, the BIA does not operate a Tribal Courts or a Cowt of Indian Offenses program for the UKB. Tbererore, there is no funding in the Region's budget O the Tribe's TP A foe a Tn'bal Courts program for the UKB. The provision of funds for a contract is "sooject to the availability of appropriations.,, 25 U.S.C. 450j-l(b). The Tnoal Courts contract must also be declined pursuant to 25 C.F.R, {d), because "the amount of funds proposed under the contract is in excess of the applicable funding level for the contract," as determined under section I 06{a) of the Act." '- ) - Be advised that pursuant to 25 C.F.R you are eolitled to an appeal on the objections raisoo by the Secntary of the Interior with an agency hearing on the record and the right to engage in full discovuyrelevant to any issue raised in the matter. 1:he procedures for appeals are in Subpart L of 2S C.F.R. Part 900. Altematively, at your option, you have the right to sue in Federal District(''JUrt to cballeoge the SecretaJy's decision. ' Wrthin 30 days of the receipt of this decision. you may request an inform.al conference under 25 C.F~ 900.1S4 {copy endosed) or appeal the decision undec 25 C.F.ll., ( copy enclosed) to 1be Iomioc Board of Indian Appeals (IBIA). Should you d~e to appeal this decisi~ you may request a hearing oo 1he RlCOld. An appeal to the mia under 25 C.F.IL, shall be filed with the IBIA by certified rel;ufn receipt requ~ or by band delivery at the following address: Board of Indian Appeals. U.S. Depactmemt of the Interior, 801 N. Quincy Street, MS 300-QC. ArlingtOJJ, VA You shall service copies of your Notice of Appeal on the Secretary and on 1he official whose decision is being appealed. You shall certify to 1he mia that you have served these copies.. Respectfully, Regional Director CSP-AR Aple. App. #125

125 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 29 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 125. TO : F I E L D SO L. 0,- F. - TU L S A Self Determination United States Department of the In BtJRBAU OF INDIAN Al'FAIRS &a.t.r. OldeholM... omc. P.0.~8001 M.uko1co, Ok ~r0nollt(7-tq FAX TRANSMITTAL Olief Dallas Proctor United Kcetoowab band of Cherokoo Indians P.O.Box 189 Parkhill. OJ{ 744Sl,., Ro: FY 2003 P. L & Contnet proposals of the Unit.eel Keetoowah Band of Cherokee Indians Honorable Chief Proctor. -~ Thia is in~ to yourc:ontract_rroposals originally received 1n this office on June 18,'2002, as nviscd byyoor submission received 8q,tembcr 17, You bavo agreed tom cxtemiou tljroup Oclobcr 31, 2002 for this offico to approve or decline those contncts. The Bureau oflndian Aft'ain (BIA) approves contnctsforthe Unitecll:eotoowah Bandof Cherokco Indians ("'UKD")fortboAid to Tribal Oovc:mment pjugiud. Sccial Services program and Indian Child Welfare. However. for the ieaaons discussed bcjow, the contract proposals for Real Estate and Tn'bal Courts must bo declined plldunl to 24 C.F.R (a), (b),(c),(d). and (c). AID 10 TIUBAL OOVBRNMBNT You have a ~)'ear conttact for the Aid to Tn"bal Oovcmment program. Youc BWlul funding agrccmeot is approved in tho IJllOUllt ofsl34)00.00 for FY Indirect Costs will be made available at the lawful rate wbon they are ~vecl by the Bureau. RBALESTATE You have proposed to operate the Real Batate program OD ''tcs1ricted Indian lands of the Tribe and Tribal manbcn." A.ccoldJn1 to tho infonnatlon available to tbis_offiec. tho Unitod States holds no landa in t.tuat ibr the benefit of the UKB. While it ia probably true that somo UKB membcn own Ulldividod interests bl Cherokee abotm~ the salieot fads uo Chat tho allotments were mnn the Clierokee treaty area and the allotments were made only to members of tho Ctcrokoe Nation as set 11/01/02 FRI 08:16 (TI/RI NO 8770} CSP-AR Aple. App. #126

126 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 30 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: V\,1.Jl,lVVl 0'.f'.Jt'M NU. 143~ P. 1 forth on tho Dawes CommiJ1ion R.oU,. 'Iha Olbrobe Chief aiped ajlotincnt patonta and the Cherokee Natiaa retaiol tnoal jurisdlc;1ion oy«tho allotmoim today. 'Ihe taots,uagat that mmiben of Cho UI03 and the Cbaoke.o Nation in aome c.ue, own undivided int.ere,t, in the nmo reclricted allotmmta. A m'lcw or the Constisution and By-Lawt and Corponto Charter of tho UaitodlC.eetoowahBandof~e.rolccolodiaminOklabomamvwsnoprovirion,theroitaestablkbing a UKB land base.. Because the Sccntary ja precluded.fiom contracting with mon, than ono tn'be to perform the same ftuiccion,, tho BIA c:armot approvo acont:rktforthe UICB to operate tho Ri:al Estate program for my of theso allotments unless we preclude tbochm>be Nation from opoiating the Real Bstatc program Oil tbo,anc allotnuuts. 1 Tho BIA bu bbtorically contracted its Oicrobo Real Batato program to the Cherokee Nation on a service area basis. Decmons regarding a trlbc'a &.crvicc area/service populadon and tcpiding fund division bavo been dotormined to bo within the discrotion 9f the Bureau. 2 The Soc:mary bas consistcintly opined that tho Chorok.ec Nation ~on,isee Cll'Clusive jtuudietionoveruuatandicstridcdlandswiehinthoformercheroteetreatyboundario,. Onaoveral occajions. tho fodcra1 COUl'tB ba.vo coralhmcd that view.' The Secrotary bu likcwiaodotcnnined that tho lands wi1bin the fonner treaty boundariol of tho Oic:rokco Nation uo tho <lletobo Nation' scm~ orca. The BJA c:an find no rationaj basis in Jaw or in fact for u.nilaterally diminiabing the Cbcrokco Nation service aroa in order t.o oatablish a semco aroa for a tjicb Real Batatc proaram. According1y, the, Real Estate oontcact must be declined because 1hc BIA has not been usured that the services the UKB would P,tQVidc under its GODtract will not duplic:ato tho services provided by tho Cherokee Nation u.: ita c:ompact, 2' U.S.C.f4S0j-1(b). and the pro,ram cannot be properly complc:tccs or maintainc,d by the proposed contract and tho program ~ot \le lawfully camcd out by.the UICB. 25 C.P.lL (c) and(~). Additionally, due to che fiactionabl ownership of tho allotments at isfuc, tho BIA is concemed that a split of the Real Bstate progralll al~g Tnoit political aft1liation 1inea WOlJld jeopardize die tniat managemontoftbcrcatrlctedasscts ofindividual Indians. ThcrefOJC, the ltcaj S...topn>po5al is also dcc;jincd because the services to Indian benefiauics would not be,atisfactory and adequate protection of trust rosowcca i, not asauted.. 2S C.PJ (a) and (b). Although~ BlA ib abo 1 Dl99fNoc?9o Tribal Tqp v. Babhiu, Caso No P(B.I). <>Sela. 2002; 2S c.f.il f 900.l(d)(l), 111d Oa)l; 2S u.s.c. f 4~1C )(JXAJ. 4$0J-l(b), SOJ(aXI); 2S c.p.il f 271.U(a); Uaito4 Jndiw,tAII Trllza lww!rdoji r,. A01ing P!ntJdY Atd$DC SfCR1atY Jam,p,am <9Jmtj9111}, 11 IBIA 276 (l,p);.}fdyt Ampricam flu:()lggpqnity AssJgp v, Ptelttlte#mf ltsn!m-lnim «\&ia{opontipp>, u IBIA 21 (1913): NmJoTtilpey. QmaniNientcoflmtiu Altb, loibl\ 11(1,u). 2S U.S.C. f 121$ (AIMb trihal); United 8*' Oeaenl Accouadas Offlc;o. l'dn,:ipaji of Pedad Law, Vol. 1. Cb. 4, Put B(l)(c} (2d ed. 1991) (dcac:dnas Cbc NICCIArl' Blq,eme I>ocCriDo. dd putloulady, 1lie diird tat tbereo( lxpemo OCmrwiu l'jovicw POI'); aul U.S.C. f ljol(a). ilopdu Jndjg Aqgclatiop. y. Jypoap 6m PMPr, 30 ISL\ 41 (1"6):_~ Natiog Y. AO darjra Ara J>iteo1v. 24 mia 21 (tffl>: Qfm tr!els9dp Natiop,, Ngrtgn. 243 P.2d 993 c1 ar. 2001). 1.BaUnltpd.Jcagcpqw Bm4Y. atcodlly,nnmw, No. 9Q.C.608-B(N.D. ot1a., MayJ1, 19'1); flt,mmf Y, Ofdtbomt Ia Cmrmfeim No. to.e-141,;,ji (N.l>. Okla.. Peb. 24, 1992). uc4 992 F. 2d 1073 (JO- Cir. 1993). grt.1k@'d SlO U.S. "4, 114 SA S$S; l2' L.Bd.ld.f'6; Jbmed K,qpMh Bagd, Mppkfl'tr, No. 92-C S15-B (ND. Okla.1an. l8, 1993), aff'd No (tcj Cir., AUi- 12, 1993). 11/01/0Z FRI 08:16 (TX/RX NO 8770) CSP-AR000136( Aple. App. #127

127 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 31 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: 127 NU. 14::1~ I'. ] conccroed about potedtiaj advcnc impacts on the restricted nature of tho allotmcll1tl, the BJA specifically declines to apoculato bow atato and federal courts mipt eddnas that iuuo id responso to, orin light of, a ICICNIW'ial determination that certain Ch«okoo.UOtmaita weto no longer within the jurisdictiotlal or service area of tho Chaobc Nation..Ju UDeraJIY N;t of Augusc 4, 1947, 61 Stat Fimllly, tho BIA doea oot oporato I Real Batate propm for tho UKB. TbeRd'ore, there ia no fimding m tm bgion's budget 01 the Tribe' TP A. f0t 11 bat Estate program for CM UICB, Tho ptovid.on of tunda tor & CODlraot it ",ubjca to the availability of appropriatiuns U.S.C. f 450j-l{b). TberDfore. the lleal Bst:atoconfract nmst also be declined punuanuo 2S C.F.R (d). because 'lbc unountof funds proposed undql'1ho (:Ollfract is in excosa oftbc applicablo tuuding level for tho contract, as detemlincd under section 106(a) of tho At;t." It may be that additi0jl81 tcc.hniw aasistmce inaluding negotiation between 1hc Sec:retuy. tho Choiobo Nation, and the UK.B, caza resolve these-iasuea. Howcw«. because they w, not 1C80lvc,d at this time. the Real Bstato contract propoiaj must be dcdincd. 11UBAL COURTS ) 1ba lade of a UKB Janel base also poses problems for the Tnoc's Tubal Courts contract proposal. The UKB Jada a jurisdictional JIIICI base over' which it can oxmtlso territorial jurisdiction. k2 25 'c.f.il , (eetabliabingtbcjwisdiotioaofthecourtoflndumoffcnses innfaaieo to the "Jnclian cowmy"' or '4Territorialjmisdic.tiOA.. of the ClOUlt). /t.ityeollrt established would be without tonitorial jurisdictio.n.. Accordingly, the To'bal proposal must be _declined aa 'Ulllawtid pursuant to 2S C.P.R.--J (c). Signitlcantly. tribal courts ir not nccc,suily nquircd in older to detennine iotemal tribal disputes and ICW A matters. AddidonaJ. tho Bureau doe, not operate a Tribal Cowtl or a Coort of Indian Oftcasos program for tho UKB. 'I1ierefam. lb.ere ia no tbndiog in the Jt.eaion s budget or the Tribe", TPA for a Tribal Couits program for the UICB. The proviaioa of funds for a contract Is.._,Jcct to the availability of appropriations." 2SU.S.C. 4SOj-l{b). lhctnl>aj Courts c:omractffl'ult alsobo deelid.edpunuant to 2S C.F.lt. f (cl), becauae amount offund& proposocl under the &.Ol1Cract is in OXCOil of the applicablo funding lovol for the coatract, u determined under section 106(a) of the' Act" SOCIAL SBR.VICBS 'Ihb tjicb s contract tor a Social Scrviccs program ia dlndcd It Sll8~0S9.00 fur the adminiatrmvo portion, requested by the Tribe. The emount requested for die Wolfaro AssistancCJ Oranta program is JIOt included within tho c:ontract u this program ii a non-base prognun under the budget c:atcgoiy, Tribal Priority Allocations. The Tdbe may apply for f\mdingljluw this pn,gpm as other Federally rccognizcdtn"bos an anationwido bail punuantto tbatcatablilhed criteriaforlundingon mammal basis to olip,lo recipient&. The R.ea{on will inc:ludc Cho Tnl,e s iequested needs undcr1ho Wdfaro Auiatuicc <hanta program whan it mbmits its rcpot1(s) to Bc:adquartor1. lndian CHIU> WBLFAIW 11/01/02 PRI 08:15 [TX/KI NO CSP-AR Aple. App. #128

128 6:14-cv RAW Document 67-3 Filed in ED/OK on 08/14/15 Page 32 of 178 Appellate Case: Document: Date Filed: 01/16/2018 Page: vu. JI (.UV' Ue J.,/ltrl NU. l 4j'.) r. 4 Tbe UJCB' conttaot for a Indian Child Welim (ICW) propam is funded at $75,000. This amount is punuam to tho amount& psoriclcd to Pcclenlly m;ogni%cld Tribca as outlinod in the Feural ra,tsur, VoLS9.. No.Sl.paga14311,tbatestabUahcdtbcfommlationforallocationoflCWfun& to fodc:rally rccopbod Tnlx:s for the progra&jl CONCLUSION. Bo advised that pursuantto 2S c.f.r , :you an, ontidcd to an appeal on the objections raised by the Secretary 1'i1b an agonoy haring on tho n:c:ord. and tho right to engage in ibll di,coveiy fflo\l8qt to ey issue nir.d in the mauer. The procecluft,s fi>r are in Subpart Lo!lS C.F'.ll. Put 900. Altanativdy,,t your opfiou. you have tho risfit to sue in Fcdoral District Court to chajjeago the Secretarys dc:cuion. r Within 30 days of the receipt of.tlua decision. )'OU mayrcquat an informal confel'et)co under 2S C.F.IL S4 (copy c:acloaed). or appeal t1ic dcc.iaioa undcr25 CJl.R (wpy mcloscd) to tho Interior Board of Indian Appeals (IBIA). Should you cleoide to appeal this decision, )IOU Ul8)' rcquc,t a boating on the ICQ01d. An eppoa1 to the mia under 2S c.f.r. f900.1s8 shall be fflod wit tho JBIA by certified mail or by band deliv«y at 1he following address: Board of Indian Appea)a, U.S. Deputment of tho lntcdor. 801 N. Quincy St.. MS 300-QC. kjid&too, VA You shall serve copies of your Notice of Appeal on the Secictaly and on the official whose decision is being appealed. You shall certify to the JBIA 1b.at you have aerved tbeso copies.. ' 11/01/0Z FRI 08:15 [TX/RI NO Aple. App. #129 CSP-AR

129 Appellate Case: Document: Date Filed: 01/16/2018 Page: 129 n u 1NION I.., CONSTITUTION of THE CHEROKEE NATION The Eastern and Western Cherokees having again reunited. and become. one body politic,. un_der the style and title of the Cherokee nation; Therefore, We, the people of the Cherokee nation, in National Conventioq assembled, in order to establish justice, insure tranquility. promote the common ""-'elfare,. and to secure to ourselves and our posterity the blessings of freedom-acknowledging. with h~lity and gratitude, the goodness of the So'!'ereign Ruler of the Universe in permitting us so to do, and imploring His aid and guidance in its accomplishment-do ordain and establish this Cons_titution for the government of the Cherokee Nation. ] ] ] on: Cherus this y; Tur- :spect- Article I. Sec. 1. The boundary of the Cherokee Nation shall be that described in the treaty of 1833 between the. United States and Western Cherokees subject to such_ extension as may be made in the adjustment of the unfinished business with the United States. Sec. "2. The lands of the Cherokee nation shall remain common property; but the improvements made thereon, and in the.possession of the citizens of the Nation, are the exclusive and indefeasible property of the citizens respectively who made, or may rightfully b:e in possession of them: Provided,. That the citizens.of the Nation possessing exclusive and i_ndefeasible right to their improve-. men~. as expressed in this article, shall possess. no right or power to dispose of their. improvements, in any manner. whatever, to the United Sta~. individual States, or to individual citizens thereof; ~d that, whenever any citizen shall rell:love. with his effects out of the limits of this Nation, and become a citizen of any other Government, all his rights and privileges as a citizen of this Nation shall cease: Provided, nevertheless, That the Nation~ Council shall have power to re-admit, by law, to _all the rights of citizenship, any such person or persons who may, at any time~ desire to teturn to the Nation, on memorializing the National Council for such readmission. Moreover, the National Council shall have power to adopt such laws and regul~tions as its wisdom may deem expedient and proper to prevent citizens from monopolizing improvements with the view of speculation. Article II. Sec. l: The power of this Government shall be divided into three distinct departmen~the Legislative, the Executive, and the Judicial. 3 CSP-AROOOl 773 Aple. App. #130

130 Appellate Case: Document: Date Filed: 01/16/2018 Page: 130. constitution OF ts shall l cept in Sec. 5. No person shall be eligible to a in the National Council bu! a.free Cherokee male citizen who shall have attained to the age Qf twenty-five years... 1he descendants of Cherok~ men by all free women ~pt the African race. whose parents may have been living together as man.and wife, according to the. customs and laws of this nation, as well as the posterity of Cherokee women by all_ fr~e men. No person who is of negro or mulatto parentage, either by the father or mo~r's side, shall be eligible io hold any office of profit, honor, or trust under this GovernmenL :_:~ i ] I ' l ].1 les--a. -Be it 1go~ Id be each :t. to 1; the imes :0 be.ated take all tive teld of be.me SUBSEQUENT HISTORY Suj)ClSCdcd- by Article IX 2 and Article V 3, 1975 Co~tutio '. Sec. 6. The electors and members of the National Council shall in all cases, except those of treason, felony, or breach of the peace, be privileged from arrest during their attendanc_e at elections, and at the national Council, -in going to and returning: Sec. 7. In all elections by the people, the electors shall vote viva voce. All free male citize~ who,shall have attained to the age of eighteen years shall be equally entitled to vote at all public elections: Supcncded by SUBSEQUENT IDSI'ORY IX 1 and 3, 197S Constitution.. Sec. 8. Each branch of the National Council-shall judge of the quaiifications and returns of its own members;_ and determine the rules of its proceed~ ings; punish a member for disorderly behavior, and, with the concurrence of two thirds, ~I a member;.but not a second time for the same offence. Superseded by Article V 2, 197S Constitution. SUBSEQUENT BISI'ORY Sec. 9. Each branch of the National Council, when ass_em,bled, shall choose its own officers; a majority of each shall constitute a quorum to do business, but-a smaller number may adjourn from day to day and.compel the attendance of absent members in such manner and under such penalty as each. branch may prescribe. Superseded by Article V 4, 1975 Constitntion. SUBSEQUENT msrory Sec... io. lhe members of the National Council, shall each receive from the public Treasury a compensation for their services which shall E,e three dollars per clay during their attendance at the national Council; and the members of the Council s~ each. receive three dollars per day for their services -during their attendance at the National Council, provided that the same m_ay be increased or diminished by law, but no alteration shall take effect during the 5 CSP-AROOO 177 Aple. App. #131

131 Appellate Case: Document: Date Filed: 01/16/2018 Page: ~., t I l 1 l CONSTITUTION OF 1839 period of. servi~ of the members of the National Council by whom such alteration may have been made.. sec: 11. The National Council s~l regulate by ~w by whom and in what manner, writs- of.election shall be issued to fill the vacandes which may hap~n in either branch thereof. Supcrscdcd by Article IX 1., 197S Constitu!ioo. SUBSEQUENT HISI'ORY Sec. 12. Each member of the national Council, before he takes his seat, shall take the following oath, or affirmation: I, A. B. do solemnly swear (or affirm, as the case may ~.). that I have not obtained my election by bribery, treats, or any-undue and unlawful means used by myself or others by my desire or approbation for that purpose; that I co~ider myself constibrtionally qualified as a member of - and that on all questions and measures which may come before me I will so give my vote and so conduct myself as in my judgment shall appear most conducive to the interest and prosperity of this Nation, and that I will bear true faith and.allegiance to the same, and to the utmost of my ability and power observe, conform to, support and defend the Constitution thereof. Superseded by Article V 10, 1975 Consti~tion. SUBSEQUEN'l'. IUSTORY.. Sec. 13. No person who may be convicted of felony shall be eligible to any office or appoin~ent of honor, profit or trust within this Nation. Superseded by Attidc IX 2, 1975 CoJJStitution. SUBSEQUENT IDSTORY Sec. 14. The National Council shall have power to make all laws and regulations which they shall deem necessary and proper for the good of the Nation, which shall _not be contrary to this Consti~tion. constituj supcacdcd bj Attic Sec. 18. 'I and collecting 1 Sec. 19. J Committee, but other bills may tion of the othe Sec. 20. A ~d the NationE tion of all treat Sec. 21. T peachments slu purpose the me: convicted witho Superseded by Aitid Sec.22. Tb shall be liable tc cases shall not c hold any office Superseded by Article The party, indictment, trial : I! Su))Cl~cd by Article V 7, 197S Coustitlltion. SVBSEQUENT lllstory Sec. 15. It shall be the duty of the National Council to pass such laws as may be necessary and proper to decide differences by arbitration, to be appointed by the parties, who may choose that summary mode of adjustment. Sec- 16. No power of suspending the laws of this Nati~n shall be exer-. eised. unless by the National Council or its authority. Sec No ~spective -law, nor any law impairing the obligation of contracts, shall be passed. 6 Sec. l. The Principal Chief, The PrinciJ shall be elected where they shal returns of the elf president of the presence of the number of votes highest in votes, the Council The by law. CSP-AROUOl 7 Aple. App. #132

132 Appellate Case: Document: Date Filed: 01/16/2018 Page: 132 _ ''}IISTITUTION OF 1839 iipei:scdai:<i by V 8, 1975 Constitution. ~UF.N'J' msiory l... l _ :.= '. I -:::.:.. f < :-._ : = : :..:-&c '.fhe National Council shall have power to make laws for laying ~~llecting taxes, for the purpos~ of raising a.revenue.. -, t I l ] :..;;. Sec. 19. All bills making appropriations shall originate in the National t '.}~minittee, but the 'Council may ptopose alj!en~ents or ~ject the same; 3!1- i ~\.qther bills may originate in either branch, subject to the concurrence or rejec-. f):fion- of the other... l ':',;,,... 1 )/is : Sec. 20. All.acknowledged treaties-shall be the supreme law of the lanq, :.,:and the National Council shall have the sole power of deciding mi the constn.ic-. I: :_: don of all treaty stipulations.. - -::._.. v-v-:.: -'Sec. 21. The ~uncil shan' have the sole powef. of impeaching. All im-.. r--~. f _'o; ~en~ shall be ~ed by tlie National. Commi~ -Wh~n sitting for that :.... }...-.'1 : ~~(} the i:n~ber shall be UPQfroath or affirmation; and no person shall be. - -t. ;.. -~:}!i9pviirted. ~~out. the concurrenc.e.of two-thirds of the members pr~pt. < i : ::..,.... ~-:, I. ~SEQUFNI' IUSTORY, ii,.s~ by XI 2, 1975 C.Onstitution. Sec. ii. The -Principal Chi~( assistant Principal Chief, and all civil officers shall.be liable to impeachment for misdemeanor in office; but judgmenf in such l ~,shall not ext~nd,mrther. than remov:al from oflice and _disqu~c:ation to i :l\~l4, any office ot honor, or profit "QDder ~e Government of this Nation:.. i. j I. i' I f! :. '. SlJBSEQUENT HISl'ORY Su~ by Article_ XI 1. l97s Constitution. _. The p~ whether convicted or ~itted, shall. nevertheless, be li3cble to indictment, trial. judgment, and pu~hment according to law. Article :rv. I.! Sec. 1~ Tlie Supreme Exe~tive Power of this.nation shall be vested in'a. j -Principal' Chie who.shall be- styled the Principal Chief Qf the Cherokee Natioq.. ' --,..-.-.,.-. The Principal Chief shall hol& his office- for the ternt oho-µr years; and _-.- _: _-. - ;-. :shall be. el~ted by the ~alified electors on the same day and at the places :... :._, where they shall respectively' vote for members to the national Counc,:il.The. I returns of the election for Principal Chief shall be sealed up and directed to the I president of-the national Coml!llttee, who shall open. and publish them in the! presen~ ~f the n~tiorud. Council- ~mbled. The' J)CI'S(?ll having the highest. n~ber: of votes shall be Princ::ipal Chief, otit ifrwo or more shall- be equal and - ~ghest in votes; on~ o(thelifsruill he chosen by joint vote 9fbotl:i hranches of tjie Goiincil. Tlie manner of deteriniiling contested elections shall be directed by law. I i t if :! i- = 1.._. : ,_ ;_ ;:_:~:/:_,..=_'.:,_::_:\\)'!_.-.-.-_,.. ~.,l,<,_;.>\~:,:._:_:,. :. --r _ :;_--;: ~-:..-;.-:- -- -=~ ::-:: ~:' Aple. App. #133 CSP-AROOOl 776

133 Appellate Case: Document: Date Filed: 01/16/2018 Page: 133. i~ 1! I CONSTITUTION OF 1839 CON! I Superseded by Anick-VI 1, 1975 Constitution. SUBSEQUENT IUSTORY "l. r :- Sec. 2. No person except a natural born citizen shall be eligible to the office of principal Chief; neither shall any person be eligible to that office who not have attained to the age of thirty.:five year. superseded by Aniclc VI 2, 1975 Constitution. SUBSEQUEl'lf msrory Sec. 3. There shall also be chosen at the -same time by the qualified electors in the same maruier for four years an assistant Principal Chief: who shall have attained to the age of thirty-five y~. St at the! supersede Se tion of such ID(. ; r l I! \ SupeJSCdcd by VI 3, 1975 Constitution. SUBSEQUENT HISTORY Sec;,( In case of the' removal ~f the Principal Chief from ~Hice, or of. his death or resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the assistant Principal Chief until the disability be removed or the vacancy filled by the National Council. Superseded by Arudc VI 4, 1975 Constitution. SUBSEQUENT msrory Sec. 5. The National Council may be law provide for the case of removal, death; resignation, or disability of both the. Principal" and assistant Principal Chief, declaring what officer shall then act as Jnncipal Chief until the disability be removed or a Principal Chief_ shall be elected. - Superseded by Article VI 5, 1975 ~nstitution. SUBSEQUENT IDSl'OllY Sec. 6. The Principal Chief and assistant Principal Chief shall. at stated times, receive for their services a compensation which sl:µill neither be i~creased nor diminished during the period for which they shall have been elected; and they shall not receive within t!jat period any other emolument from the Cherokee Nation or any other Government. Supc=dcd by Article VI 6, 1975 Constitution. SUBSEQUENI' mstory Sec. 7. Before the Principal Chief enters on the execution of his office, -he shall take the following oath or affirmation: "I do solemnly swear. or affirm, that I will faithfully execute the duties of.principal Chief of the. Cherokee Nation, and will, to the best of!ily ability, preseive, protect, and defend, the Constitu~on of the Cherokee Nation.". 8 Sec Sec two year Sec. advise th during hi Supccseded. Sec. vested in rocess of the end o Sec. shall, befc prove, he branch in on their j, two-thirds with the o ered, and_i bill shall : excepted): like mannc CSP-AROUOl 7 Aple. App. #134

134 Appellate Case: Document: Date Filed: 01/16/2018 Page: 134 r OF gible to the t office who :r"":;; 'll'._.. \~STITUTION OF :.. :~~byartidc.yi I 7, 1975.Coosnlutioo. ~QlJENT BISrORY Sec. 8. He may, on extraordinary occasions, convene the natio~ Council. at the seat of GovernmenL ~J ilified elec- : who shall. ;... SUBSEQUENT HISTORY Superseded by Article VI. S Constitution. Sec. 9. He shall, from time to time, give to the National Council information of the state of the Governme~t. and recomm~d to their consideration such measures as he.may deem expedient. 1 :!.--. by Article VI I 9, 1975 Constitution..SVBSEQUENT HISl'ORY t ' l J I 1 e, or of his of the said e disability tf removal, : P.rincipal disability at stated ler be in.- tave been molument office, he )r affinn.- -okee Nafend, the Sec. 10. He shall take care that the laws by faithfully executed. Supctscded by Article VI 10, 197S Constitution. SUBSEQUENT IUSfORY Sec. 11. It shall be his duty to visit the different districts at least once in two years, to inform himself of the general condition of tpe _country. Sec. 12. 'fhe ~istant Principal Chief shall, by virtue of his office, aid and advise the Principal Chief in the administration of the government, at all 1imes during his continuan~ in office. ~puseded by Article \.1.11,.1975 Constitution. SUBSEQUENT IDSlORY ' S~. 13. Vacancies that may occur in offices, the ap~intment of which is y~ted in the national Council shall be filled by the Principal Chief~ during the. recess of the national Council, by granting commissions which shall expire at. the erid of the next session the~of. Sec. 14. Every bill which shall pass both branches of the national Council shall, before it becomes a law, be presented to the Principal Chief; if he approve, he shall sign it, but if not, he shall return it, with his objections to that. branch in which it may have ~riginated, who shall enter the objections at large on their-journals, and proceed to ~ider it; if, after such reconsideration, two-thirds of that branch shall agree to pass the bill. it shall be. sent, together with the objections, the other branch, by which it shall likewise-be reconsidered, and if approved by two-thirds of that branch, it shall become a law. If any hill shall ~ot be returned -by the J>J:fucipal Chief within five days (Sundays excepted). after the same has been pres_ented t9. him, it shall become a biw,. in like manner as if he had signed it. unless the National Council. by _their ad-. 9 CSP-AROOO 1778 Aple. App. #135

135 CSP-AROOO 17 Appellate Case: Document: Date Filed: 01/16/2018 Page: 135 CONSTITUTION OF 1839 journment. prevent its return, in which case it shall be a law, unless sent back within three days after their next meeting. Supcllicdcd by-alddi: V 11,-1975 Coostiturion. SUBSEQUENT mstory Sec. 15. Members of the National Council. and all officers, Executive and Judicial, shall be bound by oath to support the Constitution of this Nation, and to perform. the duties of their respective offices with fidelity. Supascdcd by Articli: V 10, 1975 Constitution. SUBSEQUENT msro~y Sec. 16. In case of disagreement between the two b~ches of the National Council, with respect to the time of adjournment, the Principal Chief shall have power. to adjourn the. same to such a time as he may deem proper; provided, it be not to a period beyond the next constitutional meeti~g thereof. Supcacdcd by Article V I, 1975 Constitution. SOBSEQtJENT msrory ] ] l ; ' Sec. 17. The Principal Chief shall, during the session of the National Council, attend at the seat of Government. Superseded by Anidi: VI 9, 1975 ConstitutioIL SUBSEQTJF.NT HISTORY Sec. 18. There shall be a council composed of five persons t(? be appointed by the National Council, whom the Principal Chief shall have full power at his discretion to assemble; he, together with the assistant Principal Chief, and the counsellors, or a majority of them, may, from time. to time, hold and keep a. Council for ordering and directing the. affairs of the Nation according to law; provi~ed the National. Co~cil shall have power to reduce the number, if deemed expedient, after the first term of service. to a number.r:io.t less than three. <'. Supcneded by Arti~ VI 12, 1975 Constitution. SUBSEQUENT IDSTORY Sec. 19. The members of the Executive Council shall be chosen for the term of two years. Superseded by Article VIII, 197S Constitution. SUBSEQUENT ldsfory Sec. 20. The resolutions and advice of the Council shall be recorded in a register, and signed by the members agreeing thereto, which may be called for 10 Aple. App. #136

136 Appellate Case: Document: Date Filed: 01/16/2018 Page: 136 ''-. ; , _ - i. i.;. - = I I I.! '. i i i i --: j ~f ton$1.'itution OF by eitlier bran~ of the. National Council. and.any counsellqr may enter his dissent to the majority. Sec. 21. nie Treasurer of-the Cherokee Nation shall-be chosen by a joint vote of both branches of the national Council for the.term pf foµr years......:., -Su~ by Article vm. 1_975 Coostitution. -. :-. Sec The Ireasorer sliall~ before entering on the duties of his office, give bond to the nation with sureties to the satisfaction of the National Council, for the faithful discharg~ of his trust....- :J f l I l j., i l -;} '.. I )I..._.}! " ' : '.! :.I ~,. :...., 1 I I. -I I.. \./ -I l ':<1.,..i ; I I : ~ed by.article XI 1\, 1975 ~tulion. SUBSEQUENT HISroRY ~~".,'sec.' i3: No nioney shall. be.dm~ from the Treaswy but by ~t froin th~ P-rincipal Chief, and in consequence of appropri~tions wade by law.... : -.. ~~.msroav '.~-by Article X 9; ~975_ ~~lion.. :~~i-;kf:\ ~:: tt(i?~-: 24.. ~t sliall the. duty _of th': Treasurer to receive all public ~oneys,. aijiflif\nake a'regular statem~t and account of'the receipts and expen~tures -~:f~'tu6j.ic moneys, ~t;, ~e ann:iial session of tht? Na~onal ~uncil...t/:~~t... _ Article v.~_ :~,. :f~".'s&:"t'. The JudicW powers shall be ves~d m a Supreme Court, and such it;j.t and Inf~or courts as the Natio~ Council may,.from time to ti~e. :,.q~, ~d establish.... _...?flii:/i/~.: ;;:~::1~~~,2~ Th~ 1udges _of.t~e Supreme_ and Circuit courts shaµ. hold their ~,"' 1 ',.,.'::_~ ~2ns:for.the.~ of four years. hu~_any of tb,em may be removed from -i~.. S,,9-n apdr~ of twp-~ of each branch of the national C~>Uncil to the Priii~~al-Chief; for that purpos~. _. :... -~ >..... SUBSEQUENT IDSl'ORY by Anicle VII Comtitution.,...,~. 3. The Judges of the. Supreme and Circuit ~ourts shall, at stated.;:,.. r ~ive a comi!ens,ation which -shall not be diminished during their. con- :'\~ 'i,r(office; bijt they.shall ~ve no fees or perquisites of offic:;e. nor. bther offi~ of prolit. or trust under the Government of this Nation or.._jli~p Power. ; ~ ; ~ _ == : ,_. CSP-AROOOl 78( Aple. App. #137

137 Appellate Case: Document: Date Filed: 01/16/2018 Page: ' CONSTITUTION OF Sec. 4. No person shall be appointed a Ju.dge of any of the courts until he shall have attainea. to the age of thirty years. by Article VII Constitution. SUBSEQUENT IDSTORY. S.ec. 5. The Judges of the Supreme and Circuit courts shall be elected by the National Council, and there shall be appointed in each district as many justices of the peace as it may be deemed expedient for the public good, whose powers, duties, and duration in office, shall be clearly designated by law. CONSTITUTION OF Supciscdcd by Artidc U Con Sec. 13. All persons capital offences, where the Superseded by Artidc JI, 1975 Co,., f: i I J 1 SUpeneded by Article VU Comtitudon. SUBSEQUENT HISfORY Sec. 6. The_ Judges of the Supreme court and of the Circuit courts shall have complete criminal j~ction in such cases and in such manner as may be pointed out by law. Sec. 1. No Judge shall sit on trial of any cause when the parties are connected by affinity or cons<ll!guinity. except by consent of the parties. In case all the Judges of the Supreme court shall be interested in the issue of any cause, or.related to all or either ',>f the parties, the National Council may provide by law for the selection of a suitable number of persons of good char- ~~er and knowledge for the determination thereof. and who shall be specially COJlll!llSSioned for the adjudication of such case by the Principal Chief. Sec. 9. All writs and other process shall run "in the name of the Cherokee Nation," and bear test. and be signed by the respective clerks. Sec The Supreme court shall. after the present year. hold its session annually. at the seat of Government. to be convened on the first Monday of October, in each year. Sec n all crimin.il prosecutions, the accused shall have the right of being heard; of demanding the nature and cause of the accusation; of ~eeting the witnesses face to face; of having comp~sory process for obtaining witnesses in his or their favor; and in prosecutions by indictment or information, a speedy public trial. by an impartial jury of the vicinage~ nor shall the accused be compelled to give evidence against himself. SU~ by Article 11, 1975 Constitution. SUBSEQUENT HIS'I'ORY Sec. 12. The people shall be secure in their persons. houses, papers, and possessions from um-easonable seizures and searches. and no warrant to search any 1>lace. or to seize any person or things. shall issue without describing them as nearly as may be, nor without good cause supported by oath or affirmation. 12 Sec. 1. No person V reward and punishment. Nation.. Superseded by Article II, Sec. 2. The free ext distinction shall, forever. that this liberty of consc licentiousness. or justify Nation. Supciseded by Article II, 1975 C Sec. 3. When the t> pointing delegates, or ot ness with the Governme1 mend. and. by the advic commission such deleg interest. touching the ri the attention of the Uni up a friendly correspon< proper officers. Sec. 4. All commis Cherokee Nation:" and Principal Chief. The Pr National seal shall be I Sec. 5. A Sheriff s thereof, who shall hold vacancy occur. subseq Chief, as in other case until the next regular Aple. App. #138 CSP-AROOOl 781

138 Appellate Case: Document: Date Filed: 01/16/2018 Page: 138 t 1 tj ) i :t j ] 'I :1 )F 1839 :s until he :1ected by_ -as many id, whose law..u1:s shall r as may.rties are es. the issue.ncil may,od charsp~y :f. Cherokee session >nday of right ofmeeting ing wit- :m.atfon, accused :!rs, and > search 1g them mation. },OONSTITUTION OF supctscdcd by _Altic.le JI, 1!715 Constitution.. SUBSEQUENT BIS10RY Sec. 13. All persons shall be bailable by sufficient securities, unless for ~pital offences, where the proof is evident, or presumption ~t. Supciscded by Article II Constitution. SUBSEQUENT HISroRY Article VI. Sec. 1. No person who denies the being of a God, or a future state of reward and punishment, shall hold any office in the civil department in this..n"ation. Supmede.d by Article II O>nstitution. SUBSEQUENT IJISl'ORY Sec. 2. The free.exercise of religious worsh.ipi and serving God without distinction shall. forever, be enjoyed within the limits of this Nation: provided, that this liberty of conscience shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this Nation. Supcacdcd by Article II Constitution. SUBSEQUENI' fflstory.. Sec. 3. When the National Council s~ determin,;:: the ~ency of appointing delegates, or other public agents, for the purpose of transacting busi- ness.with the Gqvernment of the _United States, the Principal Chief shall recommend. and, by the advice and consent of the National ~mmittee, appoint and commission such. delegates or public agents accordingly. On all matters of injerest. tom;hing the rights of the citizens of this Nation, which may require the attention of the United States Government, the Principal Chief shall keep up a friendly correspondence with that Government through.-the medium of its proper officers. Sec. 4. All commissioqs sh~ be uin the name, and by the authority of the Cherokee Nation;" and be sealed with the.seal of the nation, a.nd signed by the Principal Chief. The Principal Chief shall make use of his private seal until a National seal shall be provide. Sec. 5. A Sheriff shall be elected in each district, by the qualified etectors thereof, who shall hold his office two years, unless sooner removea Should a vacancy occur,_ subsequent to an election, it shall be filled by the Principal Chief. as in other cases; and the person so appointed, shall continue in office until the next regqlar election. 13 CSP-AROOO 1782 Aple. App. #139

139 Appellate Case: Document: Date Filed: 01/16/2018 Page: 139. '..., I..... ' : f. I i i i i :.j.; i - : l.-. : : - -~ J -: -... : ~- ~~:JJ. :!i?..f- : ~ItoNsTITUTlON -OF \jvalter Scott Adair _. "Young Elders, }ps X mark, <Will Shorey Coodey : Uiomas Foreman :ruchard Tuyior lhomas Fo?( Tuylor. ~kan~sto-tah Logan. his X mark, "]~es Spear.;, his x mark, JolinS~, Steph~ Foreman : SaJ:-Ja-tee-skee Watts, his X mark, Young his X mark,..toon~y Price l'obaa:o Will, his x mark, M3jgr.Pulluin, his xi~. - Washington Gunter. ~'!Cb: Logan, his x mark. John Fletcher Boot. his x mark. Crying Buffalo,.his x mark, Bark Flu~ bis x mark. Oo-Ja-yo-a, his mark. Soft-spell Turtle, his X mark,. Edward Gunter. Daniel Colston, his x mark. Lewis Ross. ~rgehicks. Turtle Fidds, his x mark. Elijah Hieb, Tuh-lah-see-nee, his x mark. James Brown, Charles Coodey,. Riley Keys,.Daniel McCoy, Lewis Melton,.. I -;.... I I I I.. :::... i ~..! -<.. ~-f I I! 15 -~.._'... --~' : _ : :...:;:.. _.... -??.. ;; CSP-AROOOl 78: Aple. App. #140

140 Appellate Case: Document: Date Filed: 01/16/2018 Page: :.. ~ :_...-:. '... t l ;i,! 1 '! l I I 1-1 \..i I j l '.j. i.j! --,, I I THE.. EASTE.RN ACT OF UNJON BETWEEN WESTERN CHEROKEES Whereas our. Rlthers have existed, as a separate and distinct Nation, in the possession and exercise of the essential and appropriate attributes of sovereignty, from a perio<l' extending into antiquity. beyond the reco_rds and ~emory of maii: AND WHEREAS 'these attributes, with the rights and fram:hises whieh they involve, remaip. still in full.fotce and virtue, as do also ~e national and social relations.of the Cherokee people to each otlier and to the body poli_tic, excepting in those particulars which have grown out of the provisions of the treaties of 18i7 and betw~ the Uni~ States and-the Cherokee nation, under which a portio~ of our peoj>le removed to.this country and became a separate community: But the force of circumstances having recently compelled the body. of the Eastern Cherokees to remove to this country, thus bringing together again the two branches of th1c ancient Cherokee family, it bas become essential to the general w elfare -1iat a union should be formed, and a system of government matured, adapted to their present.condition, and _providing equally for ~e protecti9n of each individual in the enjoyme~t of all hfs rights: Therefore we, the people composing the Eastern and Western Cherokee. Nation, in National Convention assembled, by virtue-of our original and inalienable rights, do hereby solemnly ;and mutually agree to form ourselves- into one body politic, under the style and title of the Cherokee Nation. In view of the union now formed, and for the purpose of making satisfactory -adjustments of all WJSettled business which may have arisen before the consummation of this union, we agree that such business shall be settled according to ~e provisions of the respective laws under v.:hich it originated, and the courts of the Cherokee nation shall be governed in their decisions accord-. ingly. Also, that the delegation authorized by the Eastern Cherokees to make arrangements with Major General Scott for their removal to this counrj shall continue in charge of that business, wi~ their present powers, until it sh~ be finally closed. And also that all rights and title to public Cherokee lands on the east or west of the river Mississippi, ~th all other public interc$ts which may have vested in either branch of the Cherokee family. whether inherited from our Fathers or derived from any other source, shall henceforward vest entire and unimpaired in the Cherokee Nation, as constituted by this union. Given under our hands, at Illinois Camp-ground, this 12th day of July,!D~. By order of the National Convention: GEORGE LOWREY; President of the Eastern Cherokees. =. : :. CSP-AR Aple. App. #141

141 Appellate Case: Document: Date Filed: 01/16/2018 Page: 141 :1.., - --~--:T..-:.. :-! 1 ' i : /. I. I. I I -1 I I! i.....i.. :..:- _).._...: _.j l -~,. i. j..., i I 1 I I i i I :I. r!.:l.; i j EASTERN CHEROKEES R. TAYLOR. V.P., JAMES BROWN, V.P., TE-KB-CHP.IASKHB; V.F.; GEORGE HICKS, JOHN BENGE;. THOMAS FOREMAN, ARCHIBALD CAMPBELL, JESSE BUSHYHEAD, LEWIS. Ross. EDWARD GU~ TE ~AH-LA WESTAH, STEPHEN FOREMAN; DANIEL McCOY. : : By order. of: the National Convention; JNO. _. ROSS, Principal_ <;hi~ Eastern.Cherokees. GOING _SN...µIB, SJ>f!.~ker of Council.. ACT OF UNION GEORGE GUF.SS, bis x man, ~clellt or du Wulem Clicnltces..' 1t\'.ESTERN CHERO~ES TOBACCO WILL, V.P., DA~ MEIION, v.p., JOHN D~ V.P.; GEORGE BRE.WpR. TIIOMAS CANDY; MOSES PARRIS, JMIES CAMPBELL, LOONEY RILEY, CHARLES GOARD, LE.WIS MELTON; YOUNG WOLF.. CHARLES COODEY, AH-STO-I.A-TA, JACK -SPEARS, LOONEY. PRICE. By order of the.. N~t i Conv;nti~ru August 23, JOHN LOONEY, his,c mark, Acting Principal Chief Western Cherokees. The foregoing jnstrument was read, considered, and approved by us this 23d day of August, 1839: Aaron Price, Majo~ P.ullum, Young Elders, Deer-track, Young Puppy. Turtle Fields, July. 111e Eagle, The Crying Buffalo, and a great number of respectable old settlers and late emi~..ints, too numerous to be copied..._, 2 '... :. CSP-AR000208: Aple. App. #142

142 Appellate Case: Document: Date Filed: 01/16/2018 Page: 142 OOC ST.AMI'S $ \\ #1' TMILfQUAHAIISTRACTC!.OSINCJScll.VICH Prope,ty Ad<liess: A I' l\llc il OF I.AND IN SECJ-Tl 6N;Rl1E, C'.Hllll.OKEE COUNTY. OK.,.- M1lling Add,cn:.p, 0,,&Jc 74(, /OJJJ.'f...,uM Of;?/<./{.:,!:) INDI\fIDUAL JVARRANTY DEED That GEORGE wurrrmore,jr.. TRUSTEE OF THE GEORGE WHIT'fMORE JR. t.l'lo DORA WHI'ITMORE REVOCABLE l.iving TRUST, Pa1ty of the first part, ii consideration of the sum of TEN AND l IO/IOOS.:-- DOLLARS-ru,d other valuable consideratioos, in hand paid, the receipt of which is hereby acknowledged, does hereby grant, bargain, sell and convey unto UNITED KEETOOWAll BAND OF CHEROKEE INDIANS I~ OKI,AHOMA, party ofthesecood part, the following described real property and premises situate in CHEROKEE County, State of Oklahoma, to-wit:. The S1. oftbe N1. of the SIU and!be N2 ofches2.ofthe 8E4 ofseclion 8, Township 16 North,Range. 22 East of the Iudian Blllle & Meridian, 11ecort1l11g lo the Goverurneat Survey thereof. Cherokee County, Oklahoma. together with all the improvements thereon and the appurtenances thereunto belonging, and warrant the title to the same. TO HA VE AND TO HOLD said described premises unto the said party of the second part, their heirs and assign5 forever, free, clear and discharged. of and from all former granls, charges, tnkes, judgments, mortgages lll\d oilier Hens and incumbrances of whatsoever nature. EXCEPT covenants, conditions, easement;;, restrictions and mineral conveyances of record. Signed and delivered this J 8tli day of February, ~~~ GEORGE 'UllTMOru:, JR., TRUSTEE ,----- INDEX _:_ STATE OF OKLAHOMA, County oc:muskogee, SS. Before me, a Notary Public, in an,f for said County and State, on this 18th day' of I<'ebruary, 2000, pen.01ially appeared GEORGE WHITTMORE, JR., TRUSTEE OF THE GEORGE WIII'ITMORE, JR. AND DORA WlllTIMORK REVOCABLE LIVING TRUS1', to me known to be the identical persqn who executed the wiihin and foregoing instrument, and acknowledged to me tflat he executed the samo as his free and voluntary act and deed forthe purposes therein set forth. Given under my hand and seal tlie day and year last above written. My commissio!n!:e~x~ires~:'---:-~:;:-;::.-:-;-~, OKLAHOMA NOTARY PUBUC TAMMY WEBB MUSKOGC--f ca.jnty c:::;bo,fu..~ {.L2.2~~J., TAMMY WEBB l'iry Put,J;c Aple. App. #143 CSP-AR

143 Appellate Case: Document: Date Filed: 01/16/2018 Page: 143 AKIN GUMP STRAUSS HAUER & FELDLLP Attorneys at Law MICHAEL G. ROSSETTI / November 15, 2010 VIA UPS Vicki Fonest, Acting Director Eastern Oklahoma Regional Office Bureau oflndian Affairs 3100 West Peak Blvd. Muskogee, OK Dear Ms. Forrest: The United Keetoowah Band of Cherokee Indians in Oklahoma ("Tribe") is in receipt of your October 18, 2010 request for additional materials to facilitate the Bureau's review of the Tribe's amended fee-to-trust application for the 76 Acre Community Services Parcel. As requested by the Tribe, we have addressed the three enumerated items requested in your letter as follows: 1. As requested in Paragraph Number 1 of your October 18, 2010 letter, Title Insurance Commitment Number T , issued by Old Republic National Title Insurance Company that names the United States of America in Trust for the United Keetoowah Band of Cherokee Indians in Oklahoma as the proposed insured (see Attachment 1 ). 2. As requested in Paragraph Number 2 of your October 18, 2010 letter, a new Phase I Environmental Site Assessment (ESA) dated November 8, 2010 was transmitted under separate cover of November 10, 2010 (see Attachment 2). The November 8, 2010 Phase I ESA updates the site information photographs, database searches and interviews in the May 7, 2008 ESA. Per your October 18, 2010 letter, the Phase I ESA is prepared in accordance with ASTM , includes the Environmental Professional 's certification statement and opinion, provides documentation of the Environmental Professional's qualifications, and includes interview dates in the body of the report and interview documentation in the appendix. 3. Finally, as requested in Paragraph Number 3 ( a-g) of your October 18, 2010 letter, we provide the following documents: a. Original, No Lien Affidavit, executed by George G. Wickliffe on November 12, 2010 (see Attachment 3-a); Robert S. Strauss Building I 1333 New Hampshire Avenue, N.W. I Washington, D.C I I fax: I Aple. App. #144 CSP-AR

144 Appellate Case: Document: Date Filed: 01/16/2018 Page: 144 AKIN GUMP STRAUSS HAUER & FELDLLP Attorneys at Law Vicki F arrest, Acting Director November 15, 2010 Page2 b. Original, Statement of Knowledge of Existing Rights-of-Way/Easements, executed by George G. Wickliffe on November 12, 2010 (see Attachment 3-b); c. Copy, Cherokee County Treasurer receipt showing payment of 2009 real estate taxes in the amount of $5,282 (See also Notes 8, Attorney's Title Opinion, Hopkins & Luna, L.L.P., showing no unpaid special assessments) (see Attachment 3-c); d. Original, Statement of Mineral Production Non-Interference, executed by George G. Wickliffe on November 12, 2010 (see Attachment 3-d); e. Copy, Warranty Deed, dated and filed on February 18, 2000 in Book 653, Page 288 of the records of Cherokee County, Oklahoma, evidences Documentary Stamps in the amount of$180, which (at $1.50 per $1000) confirms that One Hundred Twenty Thousand Dollars ($120,000) was the consideration paid for the parcel by the United Keetoowah Band of Cherokee Indians in Oklahoma (see Attachment 3-e ); f. Original, Warranty Deed, executed by George G. Wickliffe on November 12, 2010 (see Attachment 3-f); and, g. Original, Flood Zoning Acknowledgement and Indemnification Agreement, executed by George G. Wickliffe on November 12, 2010 (see Attachment 3-g). Sincerely, Michael G. Rossetti Robert S. Strauss Building/ 1333 New Hampshire Avenue, NW. / Washington, D.C / / fax: / akingump.com Aple. App. #145 CSP-AR

145 Appellate Case: Document: Date Filed: 01/16/2018 Page: 145 STATE OF OKLAHOMA ) ) COUNTY OF CHEROKEE ) NO LIEN AFFIDAVIT I, George G. Wickliffe, Chief of the United Keetoowah Band of Cherokee Indians in Oklahoma, being first duly sworn on oath, or affirmed, depose and state that the United Keetoowah Band of Cherokee Indians in Oklahoma is the owner of record of the follovring described property situated in Cherokee County, State of Oklahoma, to-vrit: The S1/z of the Nl/z of the SEV4 and the NYz of the SYz of the SEV4 of Section 8, Township 16 North, Range 22 East, Cherokee County, Oklahoma. LESS AND EXCEPT: A tract of land being a part of the SYz of the NEV4 of SEV4 of Section 8, Township 16 North, Range 22 East, Cherokee County, Oklahoma, more particularly described as follows, to-vrit: Commencing at the SE/Corner of said Section 8; thence N00 03'00"E, along the East line of said Section 8, to the NE/Comer of the SE% of the NE% of the SE% of said Section 8, a distance of feet; thence N89 55'56"W, along the North line of said SYz of the NE% of the SE%, a distance of feet to the Point of Beginning; thence S22 16'14"W, a distance of feet; thence in a Northwesterly direction around a curve to the left having a radius of feet an arc distance of52.41 feet and having a chord bearing ofn40 07'46"Wa chord distance of feet; thence in a Northwesterly direction around a curve to the left having a radius of feet an arc distance of feet and having a chord bearing of N85 44'51 "W a chord distance of feet; thence in a Southwesterly direction around a curve to the right having a radius of feet an arc distance of feet and having a chord bearing of S74 30'16"W a chord distance of feet; thence N00 05'27"E to a point on the North line of said S1/z of the NE% of the SE%, a distance of feet; thence S89 55'56"E, along the North line of said SY2 of the NE% of the SEYz, a distance of feet to the Point of Beginning. That this property is being conveyed by the affiant to the United States of America in trust for the United Keetoowah Band of Cherokee Indians in Oklahoma and that there are no unpaid bills of any kind, for labor and materials that could constitute a lien against the above described property. November 12, 2010 i., fui16.\vi~ Subscribed and sworn to before me this 12th day of November, My Commission Expires: 11 / I 6 / I 3 My Commission Number:~~lti 3 United Keetoowah Band of Cherokee Indians in Oklahoma 2.liCiff? Aple. App. #146 CSP-AR

146 Appellate Case: Document: Date Filed: 01/16/2018 Page: 146 FLOOD ZONING ACKNOWLEDGMENT AND INDEMNIFICATION AGREEMENT Tract Name: 76 Acre Community Services Parcel The property is described as follows: The S'h of the N'h of the SE114 and the NY2 of the S1h of the SE1!4. of Section 8, Township 16 North, Range 22 East, Cherokee County, Oklahoma. LESS AND EXCEPT: A tract of land being a part of the S'h of the NEV,i of SEV,i of Section 8, Township 16 North, Range 22 East, Cherokee County, Oklahoma, more particularly described as follows, to-wit: Commencing at the SE/Corner of said Section 8; thence N00 03'00"E, along the East line of said Section 8, to the NE/Comer of the SE1/4 of the NE1/4 of the SE 1!4 of smd Section 8, a distance of feet; thence N89 55'56"W, along the North line of said S'h of the NE1/4 of the SE1/4, a distance of feet to the Point of Beginning; thence S22 16'14"W, a distance of feet; thence in a Northwesterly direction around a curve to the left having a radius of feet an arc distance of feet and having a chord bearing of N40 07'46"W a chord distance of feet; thence in a Northwesterly direction around a curve to the left having a radius of feet an arc distance of feet and having a chord bearing of N85 44'51 "W a chord distance of feet; thence in a Southwesterly direction around a curve to the right having a radius of feet an arc distance of feet and having a chord bearing of S74 30'16"W a chord distance of feet; thence N00 05'27"E to a point on the North line of said SYz of the Nm,~ of the SE1/4, a distance of feet; thence S89 55'56"E, along the North line of said SY2 of the NE1/4 of the SEYz, a distance of feet to the Point of Beginning. 1. The United Keetoowah Band of Cherokee Indians in Oklahoma hereby acknowledges receipt of a Flood Certification showing that the current Federal Emergency Management Agency's Flood Insurance Rate Map (Community-panel number 400 of 425 dated December 3, 2009) indicates the property area lies in Zone X, outside the limits of any recognized flood plmn. (or other language appropriate for the Zone) 2. The United Keetoowah Band of Cherokee Indians in Oklahoma hereby acknowledges that the United States has recommended that the United Keetoowah Band of Cherokee Indians in Oklahoma purchase and keep in force a policy of flood insurance on the above described property and any improvements thereon. 3. Should the United States take above described property in trust, the United Keetoowah Band of Cherokee Indians in Oklahoma acknowledges that the United States will be under no obligation to repair or replace the property or any improvements thereon in the event of a flood, except and pursuant to the terms of a policy of flood insurance should the United Keetoowah Band of Cherokee Indians in Oklahoma elect to purchase and keep in effect such a policy of flood insurance. The United Keetoowah Band of Cherokee Aple. App. #147 CSP-AR

147 Appellate Case: Document: Date Filed: 01/16/2018 Page: 147 Indians in Oklahoma further acknowledges that the United States has advised that there is no guarantee that flood insurance will continue to be available for this property. 4. Should the United States take the above described property into trust for the United Keetoowah Band of Cherokee Indians in Oklahoma, the United Keetoowah Band of Cherokee Indians in Oklahoma hereby agrees to indemnify and hold the United States harmless from any suits or claims arising out of damages or injuries to persons or property caused directly by or attributable to flooding on the above described property, including court costs and attorney fees assessed or assessable in connection therewith. November 12, 2010 George~ Wick!iffe,Chie d Officer United Keetoowah Band of Cherokee Indians in Oklahoma Subscribed and sworn to before me this 12th day of November, My Commission Expires: \ l J lo/ {3 My Commission Number: Qi)Qcff8~3 2 Aple. App. #148 CSP-AR

148 Appellate Case: Document: Date Filed: 01/16/2018 Page: 148 KNOW ALL MEN BY THESE PRESENTS: WARRANTY DEED That the United Keetoowah Band of Cherokee Indians in Oklahoma, P. 0. Box 746, Tahlequah, Oklahoma 74465, of Cherokee County, State of Oklahoma, party of the first part, in consideration of the trust responsibilities to be performed by the United States does hereby grant, bargain, sell, and convey unto the UNITED STATES OF AMERICA in Trust for the United Keetoowah Band of Cherokee Indians in Oklahoma, party of the second part, the following described real property and premises situated in Cherokee County, State of Oklahoma, to-wit: The SVz of the NVz of the SEl/4 and the Nl/2 of the Sliz of the SE1,.i of Section 8, Township 16 North, Range 22 East, Cherokee County, Oklahoma. LESS AND EXCEPT: A tract of land being a part of the SVz of the NE1/.i of SE1/.i of Section 8, Township 16 North, Range 22 East, Cherokee County, Oklahoma, more particularly described as follows, to-wit: Commencing at the SE/Corner of said Section 8; thence N00 03 'OO"E, along the East line of said Section 8, to the NE/Comer of the SE 1 4 of the NE1/.i of the SE 1 4 of said Section 8, a distance of feet; thence N89 55'56"W, along the North line of said SVz of the NE1/.i of the SE1/.i, a distance of feet to the Point of Beginning; thence S22 16'14"W, a distance of feet; thence in a Northwesterly direction around a curve to the left having a radius of feet an arc distance of feet and having a chord bearing of N40 07' 46"W a chord distance of feet; thence in a Northwesterly direction around a curve to the left having a radius of feet an arc distance of feet and having a chord bearing of N85 44'5l"W a chord distance of feet; thence in a Southwesterly direction around a curve to the right having a radius of feet an arc distance of feet and having a chord bearing of S74 30'16"W a chord distance of feet; thence N00 05'27"E to a point on the North line of said SVz of the NE1/.i of the SE1/.i, a distance of feet; thence S89 55' 56"E, along the North line of said SVz of the NE1/.i of the SEVz, a distance of feet to the Point of Beginning. Together with all improvements thereon and appurtenances thereunto belonging, and warranty title to the same, subject to any valid, existing lease, or right-of-way thereof. It being understood that the hereinabove described lands are purchased pursuant to the provisions of Section 3 of the Act of June 26, 1936 (49 Stat. 1967), and said lands are non-taxable to the extent therein provided. To have and to hold said described premises unto the said party of the second part, successors and assigns, forever free, clear and discharged of and from all former grants, charges, taxes, judgments, mortgages, and other liens and encumbrances of whatsoever nature. Signed and delivered this 12th day ofnove or e G. Wickliffe, hief United Keetoowah Band of Cherokee Indians in Oklahoma Aple. App. #149 CSP-AR

149 Appellate Case: Document: Date Filed: 01/16/2018 Page: 149 STATE OF OKLAHOMA ) ) COUNTY OF CHEROKEE ) ACKNOWLEDGMENT Before me, the undersigned, a Notary Public in and for said County and State, on this 12th day of November, 2010, personally appeared George G. Wickliffe, the duly elected Chief of the United Keetoowah Band of Cherokee Indians, a federally-recognized and sovereign Indian Tribe, to me known to be the identical person who executed the within and foregoing instrument on behalf of said Tribe and acknowledged to me that he executed the same as his free and voluntary act and deed and as the free and voluntary act and deed of said Tribe for the uses and purposes therein set forth. Given under my hand and seal the day and year last above written. ~ -~ Notary Public My Comtlillssion Expires: \ [ f My Commtss10n Number: 6 3 & 3 The within deed is hereby accepted and approved pursuant to the provisions of the Act of Congress, June 26, 1936 (49 Stat. 1967), and authority delegated by 209 DM 8,230 DM 1, and 3 IAM4. DATE REGIONAL DIRECTOR EASTERN OKLAHOMA REGION BUREAU OF INDIAN AFFAIRS MUSKOGEE, OKLAHOMA Aple. App. #150 CSP-AR

150 Appellate Case: Document: Date Filed: 01/16/2018 Page: 150 STATE OF OKLAHOMA ) ) COUNTY OF CHEROKEE ) STATEMENT OF MINERAL PRODUCTION NON-INTERFERENCE I, George G. Wickliffe, Chief and Officer of the United Keetoowah Band of Cherokee Indians in Oklahoma, being first duly sworn on oath, or affirmed, depose and state that neither the development nor production of minerals will interfere with the intended use of the following described property situated in Cherokee County, State of Oklahoma, to-wit The SYz of the NYz of the SEV4 and the NYz of the SY2 of the SEV4 of Section 8, Township 16 North, Range 22 East, Cherokee County, Oklahoma. LESS AND EXCEPT: A tract of land being a part of the SYz of the NE1/4 of SEV4 of Section 8, Township 16 North, Range 22 East, Cherokee County, Oklahoma, more particularly described as follows, to-wit: Commencing at the SE/Corner of said Section 8; thence N00 03'00"E, along the East line of said Section 8, to the NE/Comer of the SEY4 of the NEY4 of the SEV4 of said Section 8, a distance of feet; thence N89 55'56"W, along the North line of said SYz of the NEVi of the SEV4, a distance of feet to the Point of Beginning; thence S22 16'14"W, a distance of feet; thence in a Northwesterly direction around a curve to the left having a radius of feet an arc distance of feet and having a chord bearing of N40 07'46"W a chord distance of feet; thence in a Northwesterly direction around a curve to the left having a radius of feet an arc distance of feet and having a chord bearing of N85 44'5l"W a chord distance of feet; thence in a Southwesterly direction around a curve to the right having a radius of feet an arc distance of feet and having a chord bearing of S74 30'16"W a chord distance of feet; thence N00 05'27"E to a point on the North line of said SYz of the NE1/.i of the SEV4, a distance of feet; thence S89 55'56"E, along the North line of said SYz of the NEV4of the SEYz, a distance of feet to the Point of Beginning. November 12, 2010 United Keetoowah Band of Cherokee Indians in Oklahoma Subscribed and sworn to before me this 12th day of November, My Commission Expires: \ l / / b J I 3 My Commission Number:~ ~E-~ Notary Public Aple. App. #151 CSP-AR

151 Appellate Case: Document: Date Filed: 01/16/2018 Page: 151 STATE OF OKLAHOMA ) ) COUNTY OF CHEROKEE ) STATEMENT ACKNOWLEDGING EXISTING RIGHTS-OF-WAY/EASEMENTS I, George G. Wickliffe, Chief of the United Keetoowah Band of Cherokee Indians in Oklahoma, being first duly sworn on oath, or affirmed, depose and state that the United Keetoowah Band of Cherokee Indians in Oklahoma is the owner of record of the following described property situated in Cherokee County, State of Oklahoma, to-wit: The Slh of the Nlh of the SEV,i and the NYz of the Sl/2 of the SEY<i of Section 8, Township 16 North, Range 22 East, Cherokee County, Oklahoma. LESS AND EXCEPT: A tract of land being a part of the Slh of the NEV,i of SEV,i of Section 8, Township 16 North, Range 22 East, Cherokee Cowty, Oklahoma, more particularly described as follows, to-wit: Commencing at the SE/Corner of said Section 8; thence N00 03'00"E, along the East line of said Section 8, to the NE/Comer of the SEV4 of the NEV4 of the SEV,i of said Section 8, a distance of feet; thence N89 55'56"W, along the North line of said SYz of the NEV,i of the SEV,i, a distance of feet to the Point of Beginning; thence S22 16'14"W, a distance of feet; thence in a Northwesterly direction around a curve to the left having a radius of feet an arc distance of feet and having a chord bearing of N40 07'46"W a chord distance of feet; thence in a Northwesterly direction around a curve to the left having a radius of feet an arc distance of feet and having a chord bearing of N85 44'51 "W a chord distance of feet; thence in a Southwesterly direction around a curve to the right having a radius of feet an arc distance of feet and having a chord bearing of S74 30'16"W a chord distance of feet; thence N00 05'27"E to a point on the North line of said Slh of the NEV,i of the SE 1!4, a distance of feet; thence S89 55'56"E, along the North line of said SYz of the NEV,i of the SE1/z, a distance of feet to the Point of Beginning. That the affiant does hereby acknowledge the existence of certain rights-of-way/easements over, under, through and across the above described property set out as follows and that such will not interfere with the intended use of the property: A Waterline Easement in favor of Sequoyah Orphan Training School and the City of Tahlequah Light & Water Department, filed in Book 84; Page 6; A Right of Way Easement in favor of Southwestern Electric Power Company, filed in Book 606, Pages 11-12; A Drainage and Utility Easement in favor of the City of Tahlequah, filed in Book 731, Page 471; Aple. App. #152 CSP-AR

152 Appellate Case: Document: Date Filed: 01/16/2018 Page: 152 A Street, Drainage and Utility Easement in favor of the City of Tahlequah, filed in Book 731, Page 4 72; A Utility Easement in favor of the City of Tahlequah, filed in Book 731, Page 473; A Utility Easement in favor of the City of Tahlequah, filed in Book 731, Page 474; A Utility Easement in favor of the City of Tahlequah, filed in Book 731, Page 475; and, A Utility Easement in favor of the City of Tahlequah, filed in Book 731, Pages November 12, Ge~gG.Wickli~f United Keetoowah Band of Cherokee Indians in Oklahoma Subscribed and sworn to before me this 12th day of November, My Commission Expires: \ \ / [ 61 I 3 My Commission Number:~ 3 lt.3 2 Aple. App. #153 CSP-AR

153 Appellate Case: Document: Date Filed: 01/16/2018 Page: 153 From the Office of: INEZ PEACE CHEROKEE COUNTY TREASURER 213 WEST DELAWARE--RM 207 TAHLEQUAH, OKLAHOMA Tax Information Real Estate School Dist Tax Year 1-35R 2009 Land Value Improvements Gross Assessed Exemptions Net Assesssed Total Tax Total Tax Payments Taxroll Item # ,912 55,622 57, ,534 5, , L --1 Owner Name and Address = 70 = 04 -,------, Situs/Legal Description: None Due $0.00 UNITED KEETOOWAH BAND OF CHER l INDIANS IN OKLA --1 PO BOX 746 TAHLEQUAH OK Mortgage Holde, XXX W KEETOOWAH CR TAH (75.74 Acn T16N R22E S08 S/2 N/2 SE & N/2 S/2 SE LESS 4.26AC TO OAK TIMBERS CHEROKEE COUNTY LP $ RS Book- 653 Page- 288 Payment Information Date Receipt How Tax Amt Penalty Mail Lien Adv Other For Paid By 12116/ CHECK 5, Taxes UNITED KEETOOWAH BAND OF CHEROKEE INDIANS Check# 218 Aple. App. #154 CSP-AR

154 Appellate Case: Document: Date Filed: 01/16/2018 Page: 154 From: To: Cc: Subject: Date: Keep. Scott Thomas Pilar Viswanathan. Ariana; Smith, Jane Re : UKB Thursday, March 11, :04:39 AM Got it. Jane promptly incorporated your comments and gave me revised draft. I gave her some very brief minor comments back and she checked with DOJ on timing. UKBs motion for SJ is currently due April 5 but DOJ schedule won't permit them to respond on that schedule so DOJ and UKB were going to work out a new schedule. Delivered by SOL Blackberry Services From: Thomas, Pilar To: Keep, Scott Cc: Viswanathan, Ariana; Smith, Jane Sent: Wed Mar 10 20:00: Subject: RE: UKB Scott, I provided my written comments and had a short discussion with Jane about a couple of things today. From: Keep, Scott Sent: Thursday, March 04, :55 PM To: Thomas, Pilar Cc: Viswanathan, Ariana; Smith, Jane Subject: UKB Attached for your consideration are drafts of a briefing paper for the AS-IA and a final decision on the merits that conclude that the Secretary can take land in trust for the UKB corporation. We have tried to use the opening of the footnote 6 in Carcieri and the rather unique language of the OIWA with regard to OIWA corporations to fashion a unique decision. We think it works. Note that UKB must file its motion for summary judgment in the Arkansas River bed case on April 5 so if the acquisition of land in trust is to help us or the Band avoid unnecessary briefing in CFC, we need to move this alon smartly. CSP-AR Aple. App. #155

155 Appellate Case: Document: Date Filed: 01/16/2018 Page: LJ1'.t'AKTM1'NT ur l n.r..l.l'l l.r.kior JULY 21, J9J; Au This would be a new departure in tribal activities but, if it is in line with Indian Office policy, no legal objection will be raised in this office. Acting Solicitor. KEET0WAH-0 RGANlZATI0N AS BAND Memorandum for the Commissioner of Indian Affairs: July 29, A question has been raised by the Oklahoma Regional Coordinator in charge of organization as to whether the Keetoowah Society of Ok.lahma Cherokees can be considered a band for the purposes of organization under the Oklahoma Indian Welfare Act. The Keetoowah Society is an organization of full-blood Indians which originated almost a century ago or the preservation of Indian culture and traditions. A secret society representing the most conservative portion of the Cherokee Indians, it has had several specific objectives, principally opposition to slavery and subsequently, opposition to allotment. Facts concerning its origin, organization and purpose are set forth in a report compiled by Mr. Charles Wisdom, anthropologist. He states that while the name is derived from an ancient Keetoowah town or band of Cherokee Indians in what is now North Carolina, there is no historical connection between the society and the band; there exists only a cultural and mystical re lationship with the early group. Due to differences in philosophy the society is now divided into six factions. Most of these factions have a membership extending over various districts and one or two have a strong network of organization over the Cherokee region. In my opinion neither the Keetoowah Society nor any of its factions can be considered a band, much less a "recognized band" under section 3 of the Oklahoma Indian Welfare Act. The primary distinction between a band and a society is that a band is a political body. In other words, a band has functions and powers of government. It is generally the historic unit of government in those tribes where bands exist. Because of Federal intervention aimed to destroy tribal orgaization many recognized bands have lost most if not all of their governmental functions. But their identity as a political organization must remain if the group of Indians can be considered a band or tribe. This character of a band as an existing or historical unit of Indian government seems to be recognized in sectians 16 and 19 of the Indian Reorganization Act which refer to "powers vested any tribe or tribal council by existing law" define tribe to include an "organized band". 1 the administration of the act, organizations tribes or bands have included such limited powai of government as remain and are considered app~ priate. It is this feature which distinguishes or~ nization under section 3 of the Oklahoma Act frllll organization of voluntary associations under tion 4. A band must likewise possess a common leadtt. ship, concerted action and a well defined member. ship. It may share these characteristics with a io ciety, but often though not necessarily, the mei. bership of a band is perpetuated primarily birth, marriage and adoption rather than by aflilt ation of persons of like opinion. While the Im guage of some of the cases quoted in my mem orandum of July 15 on the Creek Tribal T0\1'111 describe a band simply as a group having a coit mon leadership and concert of action, the band ij1 each of these cases was shown by the finding ol facts to be an independent unit capable of politiol action, and particularly, the initiation of h<>1tilt proceedings. The Creek Tribal Towm, in so far as they lm't retained a recognized existence, were detennintd to be capable of consideration as bands btcallll they possessed the indispensable political charactcr of such bodies. Not only were they the functi~ political suhdivisions of the Creek Confederacy«Nation hut they were the original independent units of government of the Creek Indians. Thi! essential character is not possessed by the Keto toowah Society nor any of its factions. It is neither historically nor actually a govet"ning unit Cherokee Nation, but a society of citizens wilbm the Nation with common beliefs and aspiratioos. While I have come to the conclusion thar. tht Keetoowah Society of Cherokee Indians amiot be considered a band for organization groups of its members might form a. cooperative associations under section 4 Oklahoma act However, this may not sa groups' wishes as any such association coul limited to members of the society, since formed undet" that section must be o Indians residing within the district in. association is formed. Another solutl mij!ht be considered as an administra is the possibility of a society or org~i or group borrowing as a unit from a tn ative or credit organization for such prise as it could successfully carry on. I objection to such an arrangement. Mer. of l: T. or ti furtl ortli1 paid cnac, cons! subjf and foun, Th 0 th, tion i$ sta revie1 not p Th upon viewe, in th«counc positic intcre coruer provid given Aple. App. #156 CSP-AR