Wednesday, December 28, 2011

UKB and Cherokee Nation Today

Hello, everyone –

I hope you all had a wonderful Christmas and didn’t overdo too much. It was a foodfest in my neighborhood and it was really fun! In this installment we will bring the story of the UKB and the Cherokee Nation to the present. As the Cherokee Nation began to recover its sovereign powers in the 1970s, after having being squelched for most of the twentieth century by the “bureaucratic imperialism” of the BIA as the judge in the Harjo case described it, the UKB was dwindling. As the Cherokee Nation elected its first Chief since statehood, developed a superseding Constitution, reinstated its citizens, reconstituted its Tribal Council (also a result of the Harjo case), established Cherokee Nation Industries and investigated other economic development enterprises, the UKB receded and was basically defunct by the end of the 1970s.

But in 1979, there was a particularly nasty runoff in the Principal Chief’s race between incumbent Ross Swimmer and his opponent, Jim Gordon. Swimmer defeated Gordon, and Gordon reacted by resurrecting the UKB in the 1980s. My colleague on the Tribal Council, Jack Baker, has shared with me that a good friend of his (who was a relative of Gordon’s) told him many times that Gordon had jump started the UKB specifically to compete with the Cherokee Nation. Whether that is just hearsay or not, who knows? But certainly that was the way things played out in the 1980s as Jim Gordon became chief of the UKB and began to assert for the first time that the UKB was not a corporate entity within the Cherokee Nation, but was a separate government that held the same territory and jurisdiction as the Cherokee Nation within what had been the Cherokee Nation’s historic boundaries as established by treaty in 1828. Unfortunately, the personal enmity of Gordon for Swimmer seems to have been the basis for the emerging competition in that decade between the UKB and the Cherokee Nation, but that is certainly open to interpretation.

Less open to interpretation, however, is the status of the UKB as it began to be tested in federal courts by the early 1990s. Once again, my caveat: although the UKB and its supporters will offer a different interpretation than the one I am presenting here, ultimately no one’s interpretation matters except that of the federal courts. And the interpretation I will offer on the legal points is that of the federal courts. In 1990, a case called Ross v. Neff had been decided by the federal court. The upshot of the case was that the tribes in Oklahoma had jurisdiction for law enforcement purposes over anything within their historic boundaries that comprised “Indian Country.” Under contemporary definitions, “Indian Country” is defined as (1) tribal trust properties (such as reservations or other lands that the United States holds in trust for a tribe), (2) individual trust properties, such as allotments, and (3) dependent Indian communities such as pueblos in New Mexico. The state has no jurisdiction in these instances, and this case led to the establishment of the Cherokee Nation Marshal Service to provide law enforcement protection to Cherokee Nation citizens on such properties. But it also became evident that the ruling likely meant the Cherokee Nation had jurisdiction in other areas as well.

At that time, the Director of Justice for the Cherokee Nation, attorney Chad Smith (later Principal Chief from 1999-2011), suspected that the Cherokee Nation could assert jurisdiction for taxation purposes within its historic boundaries. He began to develop tax codes and the Cherokee Nation, under then-Chief Wilma Mankiller’s leadership, negotiated compacts with the state for tobacco sales by smoke shops owned by individuals on trust properties within the Cherokee Nation’s boundaries who were licensed by the Cherokee Nation (hence the licensing and some taxation revenue to the Nation). Although many people did not understand the implications of compacting with the state and saw it as a reduction of sovereignty, it was, in fact, one of the earliest acknowledgments by the state of sovereign authority held by the Cherokee Nation.

In 1992, the UKB decided that it would follow the Cherokee Nation’s lead and also issue licenses to UKB members so they could open smoke shops. Understanding that this was a full tilt challenge by the UKB to the Cherokee Nation’s exclusive jurisdiction within its historic boundaries, the Cherokee Nation Marshal Service, as directed by the Cherokee Nation Tax Commission, raided UKB smoke shops and shut them down. The UKB took several cases into court attempting to establish their right to also acquire land for the purpose of establishing smoke shops, and to license and sell tobacco, but in every instance, the federal court agreed with Director of Justice Chad Smith’s legal analysis of the situation and the action of the Cherokee Nation. (This is the source of the extreme ill-will the UKB bears toward Smith to this day).

The language of some of the cases includes:

1991 – UKB v. Secretary of the Interior, “…the 1946 Act, while recognizing the United Keetoowahs as a band of Indians within the meaning of the Oklahoma Indian Welfare Act, can in no way be read as authorizing the Band to exercise concurrent jurisdiction over Cherokee lands within the jurisdiction of the former Cherokee Reservation. Furthermore, because the subject lands fall within the Cherokee Nation’s former reservation their consent is required…Therefore, we must affirm the Acting Area Director’s decision of December 19, 1985 and require the concurrence of the Cherokee Nation of Oklahoma before the Band’s request for trust land can properly be evaluated by the Muskogee Area Office.”

(So the UKB may not place land into trust within the Cherokee Nation’s jurisdiction, which to date the Cherokee Nation has never given, despite several land-into-trust applications filed by the UKB during the twelve years of the Smith administration.)

1993 – Buzzard v. Oklahoma Tax Commission, “ …If the restriction against alienation were sufficient to make any land purchased by the UKB Indian Country, the UKB could remove land from state jurisdiction and force the federal government to exert jurisdiction over that and without either sovereign having any voice in the matter. Nothing in…the cases concerning land trust land indicates that the Supreme Court intended for Indian tribes to have such unilateral power to create Indian country.”

(The UKB cannot assert that its land is “Indian Country” according to the legal definition simply because it is owned by an Indian tribe, and therefore cannot assert jurisdiction different from that of the state).

1992-93 – UKB v. Mankiller, “…The court has previously determined in prior cases that the Cherokee Nation’s sovereignty is preeminent to that of the UKB in Cherokee Nation Indian Country.”

(The case was dismissed due to the sovereign immunity of the Cherokee Nation from suit. The court, however, acknowledged at several places in its ruling the precedents determining that the Cherokee Nation has exclusive territorial jurisdiction within its boundaries.)

2005 – Arkansas Riverbed Settlement, the UKB attempted to claim a portion of the Cherokee Nation’s share of the $40 million settlement over its ownership of the Arkansas Riverbed. The judge in the case noted that the UKB based its claims to the Arkansas riverbed "on the same statutes and treaties" that gives the Cherokee Nation sole ownership interest in the Arkansas riverbed and banks within its borders, and that the Cherokee Nation that owned the Arkansas riverbed and banks at the time of allotment is the same Cherokee Nation that exists today. The judge also stated that, "The Cherokee Nation also correctly notes that in the Settlement Act, Congress recognized the Cherokee Nation as a ‘federally recognized Indian tribe... [that] has maintained a continuous government-to-government relationship with the United States since the earliest years of the Union.’"

Thus the Cherokee Nation believes the matter has been settled for twenty years: according to the federal courts, the UKB has no right to place land into trust within the Cherokee Nation’s jurisdiction, and does not have jurisdiction of any kind within the fourteen county area of northeastern Oklahoma, the Cherokee Nation’s historic territory. This means that the casino the UKB operates in Tahlequah, which is not on trust land as is required of every other Indian tribe in the United State, is illegal under Oklahoma state law. The National Indian Gaming Commission has no jurisdiction over the issue, since it is not on trust land. Therefore it would be up to the county and the state to close it. Instead, a former District Attorney in Cherokee County, Dianne Barker-Harrold, refused to take action against the tribe. After eight years as DA, in 1999, she was hired by the UKB as their Attorney General. Likewise, county district judge John Garrett issued an injunction against closing the UKB casino in the early 2000s, which was challenged by the Oklahoma Attorney General. Garrett was later appointed as the Chief Justice of the UKB’s Supreme Court. (In a recent ugly twist, the Tribal Council of the Cherokee Nation just confirmed Chief Baker’s appointment of John Garrett to the Cherokee Nation Gaming Commission. I voted against his appointment, along with five other councilors, but the good ol’ boy system is strong around here, and Garrett was confirmed.)

Likewise, the UKB, which has no taxation jurisdiction within the Cherokee Nation’s boundaries, issues car tags as well, which is a taxation function. This is also illegal on the face of it, but I have heard Chief Smith state that he didn’t pursue it since the relationship between the two entities was already so bad.

Throughout the Smith administration, the Cherokee Nation was aggressive in defending itself against UKB encroachment, and the Cherokee Nation prevailed in every single case, without exception. But in the tenth year of his tenure, a new Assistant Secretary of the Bureau of Indian Affairs, Larry EchoHawk, brought a different sentiment to the situation than the federal courts and his predecessors had had. That story, and the talking points for your action, will be the next, and final installment to date of this story.


(Dr. Julia Coates is an At-Large councilor on the Cherokee Nation Council)