Case 4:12-cv GKF-TLVV Document 23 Filed in USDC ND/OK on 12/21/12 Page 1 of 17 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA

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1 Case 4:12-cv GKF-TLVV Document 23 Filed in USDC ND/OK on 12/21/12 Page 1 of 17 CHEROKEE NATION, and CHEROKEE NATION ENTERTAINMENT, LLC, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA Plaintiffs VS. Case No. 12-CV-493 GKF TLW KENNETH L. SALAZAR, in his official capacity as Secretary of the Interior, U.S. Department of the Interior, and MICHAEL S. BLACK, in his official capacity as Acting Assistant Secretary for Indian Affairs, U.S. Department of the Interior. Defendants. THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA'S MOTION FOR LEAVE TO INTERVENE AS DEFENDANT AND OPENING BRIEF IN SUPPORT The United Keetoowah Band of Cherokee Indians in Oklahoma ("Keetoowah Cherokee"), pursuant to Rule 24 of the Federal Rules of Civil Procedure, hereby moves for leave to intervene as a defendant in this action. In support, the Keetoowah Cherokee states as follows: I. Nature of the Present Action. BACKGROUND I. This action arises out of the Keetoowah Cherokee's August 15, 2011 Land into Trust Application, and concerns A 2.03 acre tract of real property located within the boundaries of the historic Cherokee reservation and owned in fee simple by the Keetoowah Cherokee (the "Subject Tract").

2 Case 4:12-cv GKF-TLVV Document 23 Filed in USDC ND/OK on 12/21/12 Page 2 of The Keetoowah Cherokee has continuously operated a gaming facility (the -Gaming Facility") on the Subject Tract since 1986, which currently employs many tribal members and is the primary source of funding for the Keetoowah Cherokee. 3. In April 2006, the Keetoowah Cherokee filed a Land into Trust Application on the Subject Tract ("Application"). The Application requested that the United States, acting through the Bureau of Indian Affairs ("BIA"), accept title to the Subject Tract. No final action was taken with respect to the Original Application. 4. On August 15, 2011, the Keetoowah Cherokee submitted an amended application to the BIA requesting that the United States acquire the Subject Tract in trust either for the Tribe as requested in the 2006 Trust Application or, in the alternative, for the Tribe's federallychartered corporation ("Amended Application"). 5. The Cherokee Nation of Oklahoma ("CNO"), a Plaintiff named in this matter (as Cherokee Nation), filed comments opposing the Amended Application on December 1, The Keetoowah Cherokee filed a response to the CNO's comments on December 20, On July 30, 2012, following an administrative review process participated by the Keetoowah Cherokee, CNO, and Defendants to this action, the Acting Assistant Secretary for Indian Affairs ("Assistant Secretary") issued a decision on the Amended Application, which recommended that the Subject Tract be accepted into trust for the benefit of the Keetoowah Cherokee's federally-chartered corporation ("Trust Determination"). 7. Plaintiffs CNO and Cherokee Nation Entertainment, LLC ("CNE") now challenge the Assistant Secretary's Trust Determination. 2

3 Case 4:12-cv GKF-TLVV Document 23 Filed in USDC ND/OK on 12/21/12 Page 3 of 17 Collateral Proceedings between the Keetoowah Cherokee and the State of Oklahoma. 8. On July 8, 2004 the Keetoowah Cherokee tiled an action in the District Court for Cherokee County, State of Oklahoma against the State of Oklahoma seeking declaratory and injunctive relief regarding the status of the Subject Property as "Indian Country" and not subject to the jurisdiction of the State of Oklahoma. An agreed Temporary Injunction was entered, which enjoined enforcement of the State's laws on the Subject Property. (Cherokee County Case No. CV ) 9. On July 23, 2004, the case was removed to the United States District Court for the Eastern District of Oklahoma [Case No. 04-CV-340] (hereinafter, the "Collateral Proceedings"). Thereafter, the Keetoowah Cherokee filed an Amended Complaint that added the United States, through the Secretary of the Interior, as a defendant based upon the exercise of jurisdiction by the National Indian Gaming Commission ("NIGC") over the gaming facility from 1993 to On January 26, 2006, the trial court entered an order finding that the NIGC had taken final agency action with regard to the status of the Subject Property, and that said final action was arbitrary and capricious. Accordingly, the court reversed the NIGC and remanded to the NIGC for further investigation and explanation. The court also ordered that the temporary injunction previously entered in the state court action remain in effect. 11. In May 2012, the State and the Keetoowah Cherokee entered into a settlement agreement, wherein the State and the Keetoowah Cherokee agreed that, effective July 30, 2012, the temporary injunction should be lifted and the Keetoowah Cherokee should cease all gaming operations on the Subject Property unless and until such time as a favorable land into trust decision was issued on the Keetoowah Cherokee's Amended Application. The State and the Keetoowah Cherokee further agreed that, in the event the Amended Application was granted, but 3

4 Case 4:12-cv GKF-TDA/ Document 23 Filed in USDC ND/OK on 12/21/12 Page 4 of 17 the decision to accept the Subject Property into trust was subsequently withdrawn, reversed on appeal, or if for any reason the Subject Property was not actually held in trust by the United States within one year following the decision to accept the Subject Property into trust, the State would be permitted to take legal action to seek the cessation of gaming at the Gaming Facility. 12. Because the Secretary issued a favorable Trust Determination on July 30, 2012, the Keetoowah Cherokee was not required to cease gaming operations in its Gaming Facility. However, it is now subject to the one year period within which the Subject Property must be taken into trust. III. The Keetoowah Cherokee's Interest in the Present Action. 13. The present action directly impacts the rights of the Keetoowah Cherokee, as this action concerns property owned by the Keetoowah Cherokee, and challenges a decision issued in response to the Amended Application filed by the Keetoowah Cherokee. 14. Furthermore, Plaintiffs' claims for relief rest upon legal arguments that directly impact and concern the legal rights and status of the Keetoowah Cherokee both in this action and in the Collateral Proceedings, and will continue to impact and affect the Keetoowah Cherokee's rights in the foreseeable future. These arguments concern, inter alia: a. the status of the historic Cherokee Reservation as the shared/former reservation of both the Keetoowah Cherokee and the CNO; and b. the Secretary's authority to acquire land in trust for the Keetoowah Cherokee Corporation. 15. The Keetoowah Cherokee has an interest in the Subject Tract, and that interest would be impaired by a determination in the present action concerning the legality of the Trust Determination or the Secretary's authority to accept the Subject Tract into trust. 4

5 Case 4:12-cv GKF-TLW Document 23 Filed in USDC ND/OK on 12/21/12 Page 5 of Moreover, the Keetoowah Cherokee has an interest in continuing to conduct gaming operations at its Gaming Facility. If Plaintiffs succeed herein in overturning the Trust Determination and/or delaying the acceptance of the Subject Tract into trust until after July 30, 2013, the Keetoowah Cherokee's substantive rights and ability to continue gaming operations at the Gaming Facility will be directly affected. 17. The existing Defendants have recognized that the Keetoowah Cherokee's rights may be substantially impacted by this matter and do not oppose the Keetoowah Cherokee's intervention in this case. 18. Notwithstanding that this matter arises out of a legal proceeding initiated by the Keetoowah Cherokee and concerning property owned by the Keetoowah Cherokee, the Plaintiffs have objected to the Keetoowah Cherokee's intervention in this case. 19. The Keetoowah Cherokee's intervention in this case will neither unduly delay these proceedings nor unfairly prejudice any existing party. If intervention is permitted, the Keetoowah Cherokee will comply with any briefing and scheduling order(s) set by this Court. ARGUMENT AND AUTHORITY I. The Keetoowah Cherokee should be permitted to intervene in this case as a matter of right. Rule 24(a)(2) of the Federal Rules of Civil Procedure provides that any applicant who (1) timely files an application to intervene, (2) "claims an interest relating to the property or transaction which is the subject of the action," (3) "is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest," and (4) has interests that are not adequately represented by existing parties, shall be permitted to intervene in a pending action. Fed. R. Civ. P. 24(a)(2). The Keetoowah Cherokee satisfy each of these requirements and, therefore, should be permitted to intervene as a matter of right. 5

6 Case 4:12-cv GKF-TLVV Document 23 Filed in USDC ND/OK on 12/21/12 Page 6 of 17 A. The Keetoowah Cherokee's motion to intervene was timely filed. "The timeliness of a motion to intervene is determined 'in light of all of the circumstances." Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223, 1232 (10th Cir. 2010) (quoting Sanguine, Ltd. v. US. Dep't of Interior, 736 F.2d 1416, 1418 (10 th Cir. 1984)). In determining timeliness, the 10 th Circuit has recognized three factors of particular importance: (1) the length of time since the applicant knew of its interest in the case, (2) prejudice to the parties, and (3) prejudice to the applicant. Tyson Foods, Inc., 619 F.3d 1223, Length of Time Since the Keetoowah Cherokee Knew of its Interest. Courts are reluctant to allow intervention of an applicant that has delayed unduly in seeking to intervene. Tyson Foods, Inc., 619 F.3d at Delay is measured "from when the movant was on notice that its interest may not be protected by a party already in the case." Id. This matter was initiated on August 29, Defendants were served on September 21, 2012, and filed their Answer on November 20, During that time, the Keetoowah Cherokee obtained the consent of its Council to seek intervention, communicated with the existing parties regarding their position on the Keetoowah Cherokee's intervention in this matter, and communicated with the Defendants regarding the status of the compilation of the administrative record, upon which this action will be based. The Keetoowah Cherokee has not unduly delayed in seeking to intervene indeed its request comes less than four months after this action was filed and before the filing of the administrative record. 2. Prejudice to Existing Parties Prejudice to the existing parties in a case is a critical factor in determining a motion to intervene. See Tyson Foods, Inc., 619 F.3d at "[T]he prejudice to other parties must be 6

7 Case 4:12-cv GKF-TLVV Document 23 Filed in USDC ND/OK on 12/21/12 Page 7 of 17 prejudice caused by the movant's delay, not by the mere fact of intervention." Tyson Foods, Inc., 619 F.3d at The intervention of the Keetoowah Cherokee at this early stage of the case would not result in any prejudice to the existing parties. See Utah Ass 'n of Counties v. Clinton, 255 F.3d 1246, 1250 (10 th Cir. 2001). In Clinton, the 10 th Cir. reversed the district court's denial of a motion to intervene, which was filed two and a half years after the initiation of the case. Id. at 1250, The court found that because the case was "far from ready for final disposition; no scheduling order has been issued, no trial date set, and no cut-off date for motions set[,]" there was no prejudice to plaintiffs stemming from the length of time between the initiation of the case and the request to intervene. See Clinton, 255 F.3d at Cf Tyson Foods, Inc., 619 F.3d at 1236 (intervention by Tribe three weeks before scheduled trial would create "prejudice that would not have resulted from an earlier intervention."). No prejudice will be occasioned upon the existing parties as a result of the Keetoowah Cherokee's intervention. Plaintiffs filed this case not quite four months ago. The administrative record has yet to be compiled and filed, no scheduling order has been issued, and no trial date or motions deadlines have been set. Moreover, the Defendants do not object to the requested intervention. Accordingly, intervention in this matter by the Keetoowah Cherokee, at this early stage, will not result in any prejudice to the existing parties, and should be allowed. 3. Prejudice to the Keetoowah Cherokee The Keetoowah Cherokee could suffer great prejudice if it is not allowed to intervene. A judgment in favor of Plaintiffs in the instant case will prevent the Keetoowah Cherokee from putting the Subject Tract into trust despite the Trust Decision issued in the Keetoowah Cherokee's favor in July of this year. As a practical matter, the resolution of this matter is nothing more than an appeal of the land-to-trust application proceedings that have until recently 7

8 Case 4:12-cv GKF-TLW Document 23 Filed in USDC ND/OK on 12/21/12 Page 8 of 17 been the subject of administrative proceedings initiated by the Keetoowah Cherokee. Such a decision would result in the closure of the Keetoowah Cherokee's gaming facility the Tribe's primary source of funding and the employment of many tribal members would be snuffed out. Moreover, if this case were to result in a decision favorable to Plaintiffs, it could have the effect of impairing the Keetoowah Cherokee's interest in the Collateral Proceedings. "We are dealing here with a conjunction of a claim to an interest in the very property and the very transaction which is the subject of the main action. When those coincide, the Court, before whom the potential parties in the second suit must come, must itself take the... realistic view that the first decision will in all likelihood be the second and the third and the last one." Atlantis Dev. Corp. v. United States, 379 F.2d 818, 829 (5th Cir. 1967). In this case, the ultimate determination of the legal questions presented will likely be dispositive of the Keetoowah Cherokee's rights concerning the Subject Parcel and potentially any parcel the Keetoowah Cherokee seek to have placed into trust in the future. Thus, the lone, inescapable conclusion is that the Keetoowah Cherokee will be prejudiced if intervention of right is not permitted. Id. B. The Keetoowah Cherokee claims a significant, protectable interest in the property that is the subject of this action. With respect to the second factor, the Keetoowah Cherokee has a substantial interest in the "property... which is the subject of this action." Fed. R. Civ. P. 24(a)(2). To establish an "interest" that falls within the purview of Rule 24(a)(2), a party must show that its interest in the property or transaction at issue is "direct, substantial, and legally protectable." See Stilwell v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d 1038, 1042 (10th Cir. 1996) (quoting Alameda Water & Sanitation Dist. v. Browner, 9 F.3d 88, 90 (10th Cir. 1993)). Thus, where a would-be intervenor lacks property rights or legal title to the property that is at issue in a dispute, intervention as of right will not be granted under Rule 24(a)(2). E.g. Stilwell, 79 F.3d

9 Case 4:12-cv GKF-TLVV Document 23 Filed in USDC ND/OK on 12/21/12 Page 9 of 17 (denying intervention where the moving party admittedly had no legal title to the distribution system at issue, but had at best a contingent interest by virtue of its financial ties with a party to the lawsuit). By contrast, where an intervening party claims a right of ownership in or legal title to the property at issue, courts are generally willing to hold, as a matter of course, that an interest protected under Rule 24 exists. E.g. Bottoms v. Dresser Indus., Inc., 797 F.2d 869, (10th Cir. 1986) (accepting without analysis that the moving party, who claimed a one-half interest in the patent at issue, "claim[ed] an interest in the property or transaction, as required by 24(a)(2)"). Indeed, "many of the cases in which a sufficient interest has been found under... Rule 24(a)(2) have been cases in which there is a readily identifiable interest in land." Wright, Miller & Kane, Federal Practice & Procedure: Civil 3d ; see also Diaz v. S. Drilling Corp., 427 F.2d 1118, 1124 (5th Cir. 1970) (recognizing that the Government's interest in asserting a tax lien on the res before the court was an interest in property, "the most elementary type of right that Rule 24(a) is designed to protect"). This case falls into the latter category of cases, where a legally protectable interest is readily apparent from the ownership interest of the would-be intervenor: by Plaintiffs' own admissions, this action challenges a decision concerning a parcel of land owned in fee simple by the Keetoowah Cherokee, and to which title would be taken by the United States in trust for the Keetoowah Cherokee Corporation under the challenged Trust Decision. See Dkt. 2, 2, This is precisely the type of interest that will "easily satisfy" the first requirement for intervention as of right. Mille Lacs Band of Chippewa Indians v. State of Minn., 989 F.2d 994, (8th Cir. 1993) (holding that, because both the counties and the landowners claimed title to land in the territory, they had a Rule 24(a)(2) interest in litigation concerning the plaintiff's right to hunt, fish and gather on the land throughout the ceded territory). 9

10 Case 4:12-cv GKF-TL\N Document 23 Filed in USDC ND/OK on 12/21/12 Page 10 of 17 Furthermore, the Keetoowah Cherokee's interest is not limited solely to the physical property that is the subject of this action; the Keetoowah Cherokee has an interest in the Trust Decision concerning that property. Indeed, this case bears substantial similarities to County of Fresno v. Andrus, 622 F.2d 436 (9th Cir. 1980). In that case, the NLP, a collection of small farmers, had previously obtained an order compelling the Secretary of the Interior to initiate public rulemaking governing excess land sales. Id. at 437. While that order was pending appellate review, the County of Fresno filed a separate action to enjoin the Secretary of the Interior from promulgating regulations governing land sales until an environmental impact statement could be prepared. Id. In granting the NLP's motion to intervene as a matter of right, the Court of Appeals noted that the NLP, who had an interest in the subject mater of the lawsuit as a collective of would-be landowners, was not only "responsible for the regulations being promulgated in the first instance," but also that the NLP's interest in the regulations "ha[d] already been given explicit judicial recognition in [the earlier] action." Id. at 438. Like the Fresno intervenors, the Keetoowah Cherokee not only has a protectable interest in the property that is the subject of the present dispute that has been recognized in other administrative and judicial opinions, but the Keetoowah Cherokee is also primarily responsible for the issuance of the administrative ruling that is being challenged in this action. The Keetoowah Cherokee's interest is, therefore, more than sufficient to satisfy the Rule 24(a)(2) "interest" requirement. C. The disposition of this action will, as a practical matter, impair the Keetoowah Cherokee's ability to protect its interests. Like the first and second requirements, the third Rule 24(a)(2) requirement which requires the Keetoowah Cherokee to demonstrate that its interest will be impaired by the disposition of this action is easily satisfied here. As discussed above, a judgment in favor of Plaintiffs in the instant case will have a direct, immediate effect on the Keetoowah Cherokee, 10

11 Case 4:12-cv GKF-TLW Document 23 Filed in USDC ND/OK on 12/21/12 Page 11 of 17 preventing the placement of the Subject Tract into trust. The resolution of this matter is nothing more than an appeal of the land-to-trust application proceedings that have been the subject of administrative proceedings initiated by the Keetoowah Cherokee. The legal questions to be answered in this matter including whether the Assistant Secretary properly determined that the historic Cherokee Reservation is the shared/former reservation of the Keetoowah Cherokee and the CNO were addressed during the administrative proceedings concerning the Keetoowah Cherokee's Amended Application, and latter is likewise at issue in the Collateral Proceedings. Cf Atlantis Dev. Corp., 379 F.2d at 826 ("But in a very real and practical sense is not the trial of this lawsuit the trial of Atlantis' suit as well? Quite apart from the contest of Atlantis' claim of sovereignty... there are at least two basic substantial legal questions directly at issue... which are inescapably present in the claim of Atlantis against the Government."). If this case were to proceed and result in a decision favorable to the Plaintiffs, it could have the effect of impairing the Keetoowah Cherokee's interest in the Collateral Proceedings, prevent the Keetoowah Cherokee from putting the Subject Tract into Trust, and render a favorable Trust Decision already issued in the Keetoowah Cherokee's favor "for all practical purposes... worthless." Id. at 828. Thus, the lone, inescapable conclusion is that the Keetoowah Cherokee's rights will certainly be impaired as a practical matter if intervention of right is not permitted. Id. D. The Keetoowah Cherokee's interests are not adequately represented by existing parties. The fourth and final Rule 24(a)(2) factor is also satisfied in this case, as the Keetoowah Cherokee's interests are not adequately represented by the existing parties to this action. "[T]he requirement of Rule 24(a) is satisfied 'if the applicant shows that the representation of his interest may be inadequate, and the burden of making that showing should be treated as II

12 Case 4:12-cv GKF-TLW Document 23 Filed in USDC ND/OK on 12/21/12 Page 12 of 17 minimal." Nat'l Farm Lines v. ICC, 564 F.2d 381, 383 (10th Cir. 1977) (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). Although the existing Defendants, would be positionally aligned with the Keetoowah Cherokee if intervention is permitted, this alone does not suffice to establish that the Keetoowah Cherokee's interests are adequately represented.' Cf Planned Parenthood, Inc. v. Citizens for Com. Action, 558 F.2d 861, 870 (8th Cir. 1977) ("The District Court concluded that the applicants are adequately represented by defendants, with whom they seek to align themselves. We disagree."). Indeed, several courts have recognized the inadequacy of governmental representation of the interests of private parties. See, e.g., Nat'l Farm Lines, 564 F.2d at 383 (collecting cases). Even where, as here, the governmental defendants and the would-be intervenor both seek to uphold the same Trust Decision, their interests will differ: the instant action exposes the Keetoowah Cherokee to a risk of substantial loss, as a decision favorable to Plaintiffs will deprive the Keetoowah Cherokee of its ability to have the Subject Tract taken into trust, may hinder the Keetoowah Cherokee from having other lands taken into trust, and will impact the Keetoowah Cherokee's ability to continue conducting gaming activities on the Subject Parcel; the Defendants, by contrast, bear no such risk of short- or long-term loss if the Trust Decision is overturned or an injunction is issued. Cf Planned Parenthood, 558 F.2d at 870 (holding that, although applicants and defendants were interested in upholding an ordinance, their interests were nonetheless disparate because defendants sought to avoid personal liability, while applicants' primary concerns centered on property values). Because the Keetoowah Cherokee has a financial interest as well as a governmental/jurisdictional interest in pursuing this litigation There can be no dispute that the Plaintiffs, who seeks to enjoin the enforcement of the Trust Decision obtained by and in favor of the Keetoowah Cherokee, will not represent the Keetoowah Cherokee's interests in this matter. 12

13 Case 4:12-cv GKF-TLVV Document 23 Filed in USDC ND/OK on 12/21/12 Page 13 of 17 that is not shared by the Government Defendants, there is a divergence of interests sufficient to establish that the Government may not adequately represent the Keetoowah Cherokee herein. Even if this Court were to find that the Keetoowah Cherokee's financial and legal interests were fully aligned with the Government Defendants, intervention of right would nonetheless be appropriate for an alternative reason: the Keetoowah Cherokee has an interest in the expeditious resolution of this matter, which is not shared by either the Plaintiffs or the Government Defendants. The favorable Trust Decision started the clock on a one-year timeframe in which the Subject Parcel must be placed in trust in order to avoid negative repercussions in the Collateral Proceedings. If, as a result of this action, the Keetoowah Cherokee is prevented from placing the Subject Parcel into trust by July 30, 2013, the Keetoowah Cherokee's financial and legal interests will be substantially and perhaps permanently affected. The Government Defendants are not party to the Collateral Proceedings, and as such have no interest in ensuring that this matter is resolved by the time the one-year timeframe expires. Cf. Fresno, 622 F.2d at 439 (observing that there was "reason to doubt that the Department will fully protect NLP's interest in the expeditious promulgation of regulations," and concluding that NLP's interests were not adequately represented by the government for purposes of Rule 24(a)(2)). Because the Government Defendants will not fully protect the Keetoowah Cherokee's interest in the expeditious resolution of this action, the fourth and final Rule 24(a)(2) factor has been satisfied. H. In the alternative, this Court should grant the Keetoowah Cherokee permissive intervention in this matter. In the event that this Court denies the Keetoowah Cherokee's motion to intervene as of right, this Court should nonetheless permit the Keetoowah Cherokee to intervene under Rule 24(b)(2), which permits a timely applicant to intervene when "the applicant's claim or defense 13

14 Case 4:12-cv GKF-TLW Document 23 Filed in USDC ND/OK on 12/21/12 Page 14 of 17 and the main action have a question of law or fact in common." So long as these two factors are met and the Court, in its discretion, determines that the intervention will not unduly delay or prejudice the rights of the original parties, permissive intervention may be granted. Id. As discussed in Section I(A), supra, the Keetoowah Cherokee's Motion was filed shortly after the Complaint was served upon Defendants, there has been no scheduling order issued, no motions deadlines set, no trial date set, and the administrative record has not yet been filed; accordingly, this Motion is timely. Moreover, as discussed in Section l(c) and the Keetoowah Cherokee's factual averments, supra, this case is, effectively, an appeal of the Trust Decision obtained by the Keetoowah Cherokee. Accordingly, this action shares questions of both law and fact with the underlying action, such as the status of the historic Cherokee Reservation as the shared/former reservation of both the Keetoowah Cherokee and the CNO, and whether the Secretary has authority to acquire the Subject Tract in trust. Indeed, the Plaintiffs seek to invalidate the Secretary's decision to take land into trust, a decision in which the Keetoowah Cherokee has a cognizable and compelling interest. Moreover, these same questions of law and fact will have an immediate and outcome-determinative impact on the claims and defenses at issue in the Collateral Proceedings. Because the Keetoowah Cherokee's interests in both administrative and collateral judicial proceedings turn upon the very legal issues at issue in this action, permissive intervention is appropriate. Finally, permissive intervention will not unduly delay or prejudice the rights of either the existing parties. The Keetoowah Cherokee's participation in this action will result in little, if any, delay as no scheduling order has issued and no deadlines have been set. Moreover, no additional discovery will be required in the event intervention is permitted, as this is an appeal of 14

15 Case 4:12-cv GKF-TLW Document 23 Filed in USDC ND/OK on 12/21/12 Page 15 of 17 an administrative decision, requiring no discovery other than the production of an administrative record. Finally, the Keetoowah Cherokee has certified that it is willing and able to comply with any briefing and scheduling orders entered by the Court in this matter. Accordingly, the Keetoowah Cherokee's participation in this action will cause no prejudice to any of the existing parties. CONCLUSION Federal courts should allow intervention 'where no one would be hurt and greater justice could be attained." Utah Ass'n of Counties v. Clinton, 255 F.3d 1246, 1250 (10 th Cir. 2001) (quoting Sierra Club v. Espy, 18 F.3d 1202, 1205 (5 th Cir. 1994)(citation omitted)). This case is, in effect, an appeal of an administrative decision initiated by the Keetoowah Cherokee, and concerning property owned by the Keetoowah Cherokee in fee simple. Because the Keetoowah Cherokee has timely intervened in this action, which could substantially impair the Keetoowah Cherokee's interests in the Subject Tract, and because the Keetoowah Cherokee's interest in the timely resolution of this matter are not adequately shared by the existing parties, the Keetoowah Cherokee should be permitted to intervene in this action as of right pursuant to Rule 24(a)(2). Alternatively, the Keetoowah Cherokee requests that, in view of the legal questions shared between this action and collateral administrative and judicial proceedings, and given the absence of any prejudice, this Court grant the Keetoowah Cherokee permission to intervene under Rule 24(b)(2). Pursuant to Rule 24(c), the Keetoowah Cherokee submits its proposed answer herewith as Exhibit "A." 15

16 Case 4:12-cv GKF-TLW Document 23 Filed in USDC ND/OK on 12/21/12 Page 16 of 17 Respectfully submitted, McAfee & Taft, A Professional Corporation s/ James C. McMillin James C. McMillin, OBA # Tenth Floor, Two Leadership Square 211 North Robinson Oklahoma City, Oklahoma Telephone: (405) Facsimile: (405) james.mcmillina,mcafeetaft.com And Christina M. Vaughn, OBA # Jessica John-Bowman, OBA # South Boulder Avenue, Ste. 900 Tulsa, Oklahoma Telephone: (918) Facsimile: (918) christina.vaughn( mcafeetaft.com jessica.iohnbowmana,mcafeetaft.com Attorneys for United Keetoowah Band of Cherokee Indians in Oklahoma And Kennis M. Bellmard II, OBA # A N. May Avenue, Suite 133 Oklahoma City, OK Telephone: (405) Facsimile: (580) kbellmard@bellmardlaw.com Attorney General, United Keetoowah Band of Cherokee Indians in Oklahoma 16

17 Case 4:12-cv GKF-TLVV Document 23 Filed in USDC ND/OK on 12/21/12 Page 17 of 17 CERTIFICATE OF SERVICE I hereby certify that on December 21, 2012, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to all ECF registrants. David McCullough dmccu I lough(&,dsda.com S. Douglas Dodd sddoddickisda.com Jody H. Schwarz.l odv.schwarz tgusdoj.gov Barbara M. R. Marvin Barbara.marvilausdoj.ov David E. Keglovits dkeglovits gablelaw.com Amelia A. Fogleman afogleman 2ablelaw.com s/ Christina M. Vaughn Christina M. Vaughn 17

18 Case 4:12-cv GKF-TLW Document 23-1 Filed in USDC ND/OK on 12/21/12 Page 1 of 25 CHEROKEE NATION, and CHEROKEE NATION ENTERTAINMENT, LLC, UNITED STATES DISTRICT cougt NORTHERN DISTRICT OF OKLAHOMA Plaintiffs VS. Case No. 12-CV-493 GKF TLW KENNETH L. SALAZAR, in his official capacity as Secretary of the Interior, U.S. Department of the Interior, and MICHAEL S. BLACK, in his official capacity as Acting Assistant Secretary for Indian Affairs, U.S. Department of the Interior. Defendants. UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA'S PROPOSED ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS' COMPLAINT Intervenor/Defendant United Keetoowah Band of Cherokee Indians in Oklahoma ("Keetoowah Cherokee" or Defendant) hereby answers the allegations in Plaintiffs' Complaint [Dkt. No. 2.] The Keetoowah Cherokee deny any and all allegations in Plaintiffs' Complaint, whether express or implied, that are not specifically admitted, denied, or qualified herein. The numbered paragraphs of this Answer correspond to the numbered paragraphs and sections of the Complaint. NATURE OF THE ACTION 1. The allegations in paragraph 1 provide Plaintiffs' characterization of this action to which Defendant needs not respond. To the extent a response is deemed required, Defendant denies the allegations. Additionally, the allegations in paragraph 1 include Plaintiffs' description, characterization, summarization or quoting of the Acting Assistant Secretary for Indian Affairs' EXHIBIT

19 Case 4:12-cv GKF-TL1/1/ Document 23-1 Filed in USDC ND/OK on 12/21/12 Page 2 of 25 July 30, 2012, decision ("July 30, 2012, Decision"), which speaks for itself and is the best evidence of its contents. To the extent the allegations are incomplete or inconsistent with the July 30, 2012, Decision, they are denied. Finally, Defendant is without sufficient information or knowledge to admit or deny the ownership status of Plaintiff Cherokee Nation Entertainment, ("CNE"), and Defendant admits that Plaintiff Cherokee Nation ("CN"), referred to herein by its proper name of Cherokee Nation of Oklahoma ("CNO") is listed as a federally recognized Indian Tribe. 2. The allegations in paragraph 2 are conclusions of law to which Defendant needs not respond. To the extent a response is deemed required, Defendant denies the allegations. 3. The allegations in paragraph 3 are conclusions of law to which Defendant needs not respond. To the extent a response is deemed required, Defendant denies the allegations. Additionally, the allegations in paragraph 3 include Plaintiffs' description, characterization, or summarization of the Oklahoma Indian Welfare Act of 1936 ("01WA") and of certain federal regulations, which speak for themselves and are the best evidence of their contents. To the extent the allegations are incomplete or inconsistent with the plain language of either the statute or the regulations, they are denied. 4. The allegations in paragraph 4 are conclusions of law to which Defendant needs not respond. To the extent a response is deemed required, Defendant denies the allegations. Additionally, the allegations in paragraph 4 include Plaintiffs' description, characterization, or summarization of the Indian Reorganization Act of 1934 ("IRA"), 25 U.S.C. 461 et seq., and of Carder! v. Salazar, 555 U.S. 379 (2009), which speak for themselves and are the best evidence of their contents. To the extent the allegations are incomplete or inconsistent with the plain language of the IRA or of Carder! v. Salazar, the allegations are denied _1 2

20 Case 4:12-cv GKF-TLVV Document 23-1 Filed in USDC ND/OK on 12/21/12 Page 3 of The allegations in paragraph 5 are conclusions of law to which Defendant needs not respond. To the extent a response is deemed required, Defendant denies the allegations. 6. The allegations in paragraph 6 are conclusions of law to which Defendant needs not respond. To the extent a response is deemed required, Defendant denies the allegations. Additionally, the second sentence of paragraph 6 sets forth a request for relief as to which no answer is required, but to the extent a response is deemed required, Defendant denies that Plaintiffs are entitled to the requested relief or any relief whatsoever. 7. Defendants admit the allegations of the first sentence of paragraph 7, The allegations of the second sentence of paragraph 7 include Plaintiffs' characterization and quoting of an August 7, 2012, notice, which is published in the Federal Register, and is the best evidence of its contents. To the extent the allegations are incomplete or inconsistent with the plain language of the August 7, 2012, notice, they are denied. With respect to the third sentence of paragraph 7, this sentence sets forth a request for relief as to which no answer is required, but to the extent a response is deemed required, Defendant denies that Plaintiffs are entitled to the requested relief or any relief whatsoever. JURISDICTION AND VENUE 8. The allegations of paragraph 8 are conclusions of law and jurisdictional allegations, and as such require no response. To the extent an answer is deemed required, it is admitted that this Court has jurisdiction of this action only to the extent that specific claims fit under the specific terms of the jurisdictional provision. 9. The allegations of paragraph 9 are conclusions of law and jurisdictional allegations, and as such require no response, but to the extent a response is required, Defendants admit that, as to the allegations contained in the first sentence of paragraph 9, venue lies in this _1 3

21 Case 4:12-cv GKF-TLVV Document 23-1 Filed in USDC ND/OK on 12/21/12 Page 4 of 25 judicial district but aver that venue may lie in another equally or more appropriate district. As to the remaining allegations of paragraph 9, Defendant denies these allegations. 10. The first sentence of paragraph 10 provides Plaintiffs' characterization of treaties with the historic Cherokee Nation, which speak for themselves and are the best evidence of their contents. Defendant denies any allegations contrary to their plain language and meaning. Defendant denies the remaining allegations of paragraph 10. PARTIES 11. Defendant admits that Plaintiff CN is listed as a federally recognized Indian Tribe and is sometimes (and properly) referred to as the "Cherokee Nation of Oklahoma." Defendant admits that the name given Plaintiff in its unapproved 2003 Constitution is Cherokee Nation; however, because the 2003 Constitution was never approved by the Secretary, the Tribe's proper name is the Cherokee Nation of Oklahoma, pursuant to its 1976 Constitution. Further, the "Constitution" speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. The last sentence of paragraph 11 is denied. 12. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 12 and on that basis deny those allegations at this time, 13. Defendant admits the allegations of paragraph Defendant admits that Michael S. Black is the Director of the Bureau of Indian Affairs; that he was Acting Assistant Secretary for Indian Affairs when he authored and signed the July 30, 2012, Decision; and that he is named in his official capacity _1 4

22 Case 4:12-cv GKF-TLW Document 23-1 Filed in USDC ND/OK on 12/21/12 Page 5 of 25 HISTORICAL FACTS 15. The allegations in paragraph 15 are conclusions of law and as such require no response, but to the extent a response is deemed required, that allegations are denied. Additionally, the allegations in paragraph 15 provide Plaintiffs' characterization of the Treaty of New Echota and the 1866 Treaty, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 16. Defendant admits that citizens of the historic Cherokee Nation were removed to Indian Territory in The remaining allegations in paragraph 16 provide Plaintiffs' characterization of the Treaty of New Echota, the 1866 Treaty, and the Act of March 3, 1893, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 17. The allegations in paragraph 17 provide Plaintiffs' characterization of the Treaty of New Echota and the 1866 Treaty, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 18. Defendant admits that the historic Cherokee Nation adopted a written constitution in 1827 and The remaining allegations of paragraph 18 are conclusions of law and as such require no response. Moreover, the allegations provide Plaintiffs' characterization of the Constitutions, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning

23 Case 4:12-cv GKF-TLVV Document 23-1 Filed in USDC ND/OK on 12/21/12 Page 6 of 25 et. 19. The allegations in paragraph 19 provide Plaintiffs' quoting from and characterization of the 1866 Treaty, which speaks for itself and provides the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 20. The allegations in paragraph 20 provide Plaintiffs' quoting from and characterization of the 1866 Treaty, which speaks for itself and provides the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 21. Defendant admits the allegations of the first two sentences of paragraph 21 as to the historic Cherokee Nation and the CNO. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in final sentence of paragraph 21 prior to the last phrase thereof, and on that basis deny those allegations at this time. Defendant denies that many citizens of CN or CNO are also members of the Keetoowah Cherokee. 22. The allegations in paragraph 22 constitute conclusions of law to which no response is required, but to the extent a response is deemed required, the allegations are denied. 21 The first sentence of paragraph 23 constitutes a conclusion of law to which no response is required, but to the extent a response is deemed required, the allegations are denied. With respect to the second sentence of paragraph 23, Defendant admits that the CNO adopted a new constitution in The third sentence of paragraph 23 provides Plaintiffs' quoting from and characterization of the 1976 Constitution, which speaks for itself and provides the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. With respect to the fourth sentence of paragraph I _1 6

24 Case 4:12-cv GKF-TLVV Document 23-1 Filed in USDC ND/OK on 12/21/12 Page 7 of 25 23, Defendant admits that the CNO held a referendum at which a majority of the voters voted in favor of adoption of a new Constitution, but avers that this Constitution was never approved by the Secretary. The remaining allegations of paragraph 23 constitute conclusions of law to which no response is required, but to the extent a response is deemed required, the allegations are denied. 24. The allegations in paragraph 24 provide Plaintiffs' characterization of Hado v. Kleppe, 420 F. Supp (D.D.C. 1976), off'd sub nom, Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978), which speaks for itself and provides the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 25. The allegations in paragraph 25 provide Plaintiffs' quoting from and characterization of the July 30, 2012, Decision and the July 29, 1937, Solicitor Opinion, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 26. The allegations in paragraph 26 provide Plaintiffs' quoting from and characterization of a March 24, 1945, letter from the then-acting Secretary of the Department of the Interior to Chairman Jackson, Committee on Indian Affairs, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 27. The allegations in paragraph 27 provide Plaintiffs' quoting from and characterization of the Act of August 10, 1946, which speaks for itself and is the best evidence of _1 7

25 Case 4:12-cv GKF-TLW Document 23-1 Filed in USDC ND/OK on 12/21/12 Page 8 of 25 its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 28. Defendant admits the allegations of paragraph The allegations in paragraph 29 provide Plaintiffs' quoting from and characterization of the Assistant Secretary for Indian Affairs' April 17, 1987, Decision, which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 30. The allegations in paragraph 30 provide Plaintiffs' characterization of the Acting Regional Director of the Muskogee Regional Office's December 15, 1988, and February 1, 1989, letters, which speak for themselves and provide the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 31. The first sentence of paragraph 31 provides Plaintiffs' characterization of the legal conclusions of unnamed courts. Because Plaintiffs do not provide cites for these decisions, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in the first sentence of paragraph 31 and on that basis deny those allegations at this time. The remaining allegations of paragraph 31 provide Plaintiffs' characterization of and quoting from United Keetoowah Band v. Sec 'y of the Interior, No. 90-C (N.D. Okla. May 31, 1991), which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 32. The allegations in paragraph 32 provide Plaintiffs' characterization of and quoting from Buzzard v. Oklahoma Tax Commission, No. 90-C-848-B (N.D. Okla. Feb. 24, 1992), aff'd, _1 8

26 Case 4:12-cv GKF-TLW Document 23-1 Filed in USDC ND/OK on 12/21/12 Page 9 of F.2d 1073 (10th Cir. 1993), which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 33. The allegations in paragraph 33 provide Plaintiffs' characterization of and quoting from United Keetoowah Band v. Mankiller, No. 92-C-585-B (N.D. Okla. 1993), aff'd, 2 F.3d 1161 (10th Cir. 1993), which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 34. Defendant admits the allegations of the first and second sentence of paragraph 34. The third sentence of paragraph 34 constitutes a legal conclusion to which no response is required, but to the extent a response is deemed required, the allegation is denied. All remaining allegations in paragraph 34 are denied. 35. The allegations in paragraph 35 provide Plaintiffs' characterization of a 1986 purchase contract and warranty deed executed on November 30, 1990, which speak for themselves and are the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 36. Defendant admits that the Subject Tract is located within the last treaty boundaries of the historic Cherokee Nation, but deny the remaining allegations of the first two sentences of paragraph 36. Defendant denies the allegations of the last sentence of paragraph 36 because the definition of "Indian reservation," quoted by Plaintiffs is at 25 C.F.R (t), not 25 C.F.R (f). Defendants further state that 25 C.F.R (f) speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning _1 9

27 Case 4:12-cv GKF-TLVV Document 23-1 Filed in USDC ND/OK on 12/21/12 Page 10 of The allegations in paragraph 37 provide Plaintiffs' quoting from and characterizations of the July 30, 2012, Decision and of a warranty deed dated February 23, 2012, which speak for themselves and are the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning. 38. Defendant admits the allegations of paragraph The allegations in paragraph 39 provide Plaintiffs'.characterization of the Indian Gaming Regulatory Act of 1988 ("IGRA"), 25 U.S.C et seq., which speaks for itself and is the bcst evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 40. The allegations in paragraph 40 provide Plaintiffs' characterization of a letter dated July 21, 2011, from the Chairman of the National Indian Gaming Commission ("NIGC") to George Wickliffe, Chief, United Keetoowah Band of Cherokee Indians in Oklahoma ("July 21, 2011, Letter"), which speaks for itself and is the best evidence of its contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to its plain language and meaning. 41. The allegations in paragraph 41 provide Plaintiffs' characterization of the July 21, 2011, Letter, a July 18, 2011, memorandum from Lawrence Roberts NIGC General Counsel to the NIGC Chairman ("Roberts Memorandum"), and a 2000 legal opinion issued by Kevin Washburn, former NIGC General Counsel, which speak for themselves and are the best evidence of their contents. Defendant denies any allegations that are incomplete, inconsistent with, or contrary to their plain language and meaning _1 10