BIA head's letter raises questions on rights
BY CLIFTON ADCOCK World Staff Writer
Friday, June 26, 2009
6/26/09 at 3:26 AM
A decision by the new head of the Bureau of Indian Affairs puts the Tahlequah-based United Keetoowah Band of Cherokee Indians on equal jurisdictional footing with the Cherokee Nation and states that neither is the historical Cherokee tribe.
"The historical Cherokee Nation no longer exists as a distinct political entity," Larry EchoHawk wrote.
The decision has other implications, as well.
Unlike the Cherokee Nation, the UKB does not have any land in trust, although it has been fighting for that status. The decision by EchoHawk, obtained by the Tulsa World on Thursday, says the Keetoowahs and the Cherokee Nation have equal rights on land-trust issues.
EchoHawk's decision raises questions as to whether a recent U.S. Supreme Court decision prevents either tribe — and many other tribes — from putting land into trust status with the federal government.
EchoHawk's decision arises from a 2004 attempt by the UKB to put 76 acres of land with a community services building on it into trust.
The application was denied by the Bureau of Indian Affairs' regional director, who cited jurisdictional conflicts with the Cherokee Nation.
The decision was appealed by the tribe and bounced back and forth between Washington and the regional director until the decision was reached by EchoHawk, who was confirmed as head of the BIA in May and is scheduled to be sworn in Friday morning.
"There is no reason, on the face of the (1946 Oklahoma Indian Welfare Act), that the Keetoowah Band would have less authority than any other band or tribe," EchoHawk wrote.
The opinion also states that neither the UKB nor the current Cherokee Nation, which EchoHawk referred to as the Cherokee Nation of Oklahoma, is the historical Cherokee Nation and that both the UKB and Cherokee Nation of Oklahoma are "successors in interest" to the original tribe.
In his footnotes, EchoHawk wrote that although the Cherokee Nation of Oklahoma states there is no difference between it and the historical Cherokee Nation, when Congress closed the tribal rolls in 1907, it effectively imposed a sunset provision on its relationship with the historical tribe.
The federal relationship would exist so long as its enrollees survived, an argument the UKB and dissidents within the Cherokee Nation have often made.
"The historical Cherokee Nation as it existed in 1934 no longer exists as a distinct political entity," EchoHawk wrote.
More than 100 years after the tribal rolls closed, "few, in any, o(f) its original members are still alive."
"The CNO is a new political organization, therefore, because the historical (Cherokee Nation) no longer exists and the CNO government is a new government," he wrote.
EchoHawk's classification of not only the UKB but also the Cherokee Nation of Oklahoma as "new governments" and "successors in interest" to the original tribe raises questions as to whether the Cherokee Nation, which already has land in trust, can put any more land in trust.
Such status is necessary for the tribe's gambling operations as well as other sovereign tribal functions.
In February, the U.S. Supreme Court ruled in Carcieri v. Salazar, a Rhode Island case, that land cannot be put into trust for any tribe that is not recognized by the Indian Reorganization Act of 1934.
However, EchoHawk wrote that there are questions as to whether tribes that are successors in interest, such as the UKB, recognized in 1950, and the Cherokee Nation of Oklahoma, recognized in 1975, can stand in the place of their predecessor that was recognized by the Indian Reorganization Act.
The "successor in interest" issue and the Carcieri ruling, however, have far wider implications than the Keetoowahs and the Cherokees, and the UKB's appeal "raises issues with national implications which the Department needs to study further," EchoHawk wrote.
"It implicates many tribes," he wrote. "The Department is in the process of analyzing this and other issues raised by Carcieri."
Meanwhile, the Keetoowahs' trust application was remanded back to the regional director to complete necessary paperwork and will be held until the BIA can decide exactly what the secretary's powers are to put land into trust. EchoHawk also wrote that the Cherokee Nation's consent is not needed for the UKB to place land in trust.
Because the tribe has no land in trust, "the UKB has a need for this land to be taken in trust," EchoHawk wrote.
The two tribes, both based in Tahlequah, have battled for years over jurisdiction, with the Cherokee Nation often winning out over the smaller tribe.
UKB Chief George Wickliffe said in a statement Thursday night that it was a monumental day for the tribe.
"It's a very historical moment for the United Keetoowah Band of Cherokee Indians," Wickliffe stated. "This decision shows great support for the tribe."
Cherokee Nation spokesman Mike Miller said the ruling does nothing to overturn the Cherokee Nation's status as the historical Cherokee Nation and that federal courts have repeatedly stated that the current tribe is the original entity — not a successor in interest.
Miller said the letter does not hold the weight of law and that the decision's arguments have been struck down previously by the courts.
"It's important to have a little perspective when you read this letter, because it is preposterous for anyone to think that the footnote of an administrative letter overturns federal case law and centuries of recorded history," Miller said.
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