Sunday, January 8, 2012

A Call to Action

Happy New Year!

I hope everyone has had a wonderful holiday season. Many of us go back to work this week (those that had any time off at all, that is!), and it is now time for action. I am going to request that each of you, now that you have a fuller understanding of the issues between the Cherokee Nation and the UKB, take the time this week to compose letters of protest to both the Assistant Secretary for the Bureau of Indian Affairs, Larry EchoHawk, as well as the elected officials of the Cherokee Nation, in both the executive and legislative branches.

In the 2000s, the UKB has attempted to place about 76 acres of land that they own as private property, and upon which their headquarters sits, into “trust.” Placing land into trust means that a parcel of property is held by the United States on behalf of a tribe. All Indian reservations are trust properties – legally held by the United States. All Indian casinos are required by federal law to be established only on trust property approved for that purpose, which is why the UKB’s casino is pretty clearly an illegal operation. But federal laws and treaties have also established that tribes have exclusive jurisdictions within their historic boundaries and that other tribes may not place land into trust within a historic tribes territory without the permission of that tribe. So when the UKB makes applications, as they have numerous times since 1987, to have lands placed into trust within the Cherokee Nation’s boundaries, those applications have all been denied by the Bureau of Indian Affairs. And initially, the application for the 76 acres to be placed in trust was also rejected in 2008.

But the following year, in 2009, a new Assistant Secretary for the Bureau of Indian Affairs, Larry EchoHawk, issued a “determination letter” just a few days before he was even sworn into office effectively stating that he accepted all of the UKB’s arguments about being a successor in interest to the “old” Cherokee Nation and having equal territorial and jurisdictional standing with the Cherokee Nation within the historic fourteen county area of northeastern Oklahoma. He asked the Regional Director for the BIA in Muskogee to “reconsider” whether the application satisfied the requirements for a categorical exclusion for land to be transferred from fee to trust under NEPA (National Environmental Policy Act). But there was also a recent Supreme Court decision called Carcieri that had stated that only tribes organized prior to the 1934 Indian Reorganization Act and 1936 OIWA (see earlier installments) had the right to have land placed into trust on their behalf. This potentially monkey-wrenched the Assistant Secretary’s clear desire to provide land for the UKB within Cherokee Nation territory, as the UKB had only been federally established since 1950, when their constitution and bylaws were approved. EchoHawk stated that he needed more time to review the implications of the Carcieri decision.

Under intense pressure from the Cherokee Nation, EchoHawk withdrew some of his statements and denied that his letter had been an administrative “determination.” (If it had been, we would have had grounds to take it to court, so it was an evasion. HUD used just the same tactic this past summer in their intimidation of the Cherokee Nation over the Cherokee Court’s rulings on the freedmen, which circumvented any ability on the part of the Nation to sue them). But he soon came up with an interesting interpretation of the Oklahoma Indian Welfare Act, asserting that it gave him, the Assistant Secretary, the “implicit” authority to acquire land in trust for a tribe, rather than the tribe actually applying for it, effectively trying to evade the Carcieri decision. Another argument has been that the land is being placed into trust for the UKB corporation, not the tribe (as though a corporation that has not functioned much for the past forty years is actually even in existence). In short, at this time, the efforts on the part of the Assistant Secretary to place land into trust for the UKB are based on untested theories and technicalities that fly in the face of the clear intent of the federal courts over the past twenty years.

The Cherokee Nation has submitted its response to this attempt and also a subsequent attempt by the UKB to place into trust the 2 acres of land within Cherokee Nation jurisdiction on which its illegal casino sits. Diane Hammons, our Attorney General, has been on this issue for better than a decade, and her answer brief is strong. But there will not be a decision by the Bureau’s internal review board for many months. My concern is that the actions of the Baker administration thus far have not been nearly as strong in standing up to the intimidation of federal agencies. Should EchoHawk actually place land in trust for the UKB, the next move on the part of the Cherokee Nation should be to file suit against the BIA in federal court. We are on strong ground, with all of the precedents of the past twenty years having gone our way, and federal statutes that say the Cherokee Nation must agree to any land being placed into trust for another tribe within our boundaries. Recently, the Tribal Council of the Cherokee Nation has passed a law giving itself authority in the situation. Under tribal law, the executive branch no longer has the exclusive ability to give consent. Now, consent must be given by a 2/3 majority of the Tribal Council as well.

One of the most prevalent arguments I’ve encountered in favor of allowing the UKB to take land into trust within the Cherokee Nation’s jurisdiction has been that the members of the UKB are also Cherokee, therefore, they are our brothers and sisters, and we should not deny them the same privileges the Cherokee Nation enjoys. The sense seems to be that if the Cherokee Nation will just make some concessions, that the enmity between the two governments can be reduced and we can all be congenial again. I personally think that we already have examples of tribes that are forced to share territory and jurisdiction, and it has never worked well. The Navajo-Hopi land dispute is perhaps the colossal example of competitive tensions within a shared territory resulting in great tragedy, and closer to home, the tensions between the Creek Tribal Towns and the overarching Muscogee Creek Nation are a very visible indication that when two tribes are forced to share a territory, it leads to greatly increased competitive relations. Usually resentments rise and are solidified and persist for many generations under these kinds of imposed “solutions.” We can see the same thing in many other parts of the world as well.

The people of the Cherokee Nation and the UKB are entirely capable of getting along on a personal level and generally do. But the question is about recently-contested governmental authority within a region. And there is no good reason that a longstanding, historic entity such as the Cherokee Nation should relinquish territory and jurisdiction to an organization that had never made any assertions of being a government or in any way separate from the Cherokee Nation until about thirty years ago. This is not so very different from the attempts by the Old Settlers-Treaty Party to enact a permanent division of the Cherokee Nation during the Cherokee Civil War that occurred after the Removal, or the southern Cherokees to do the same thing after the American Civil War. In each of those instances, the federal government also backed the dissident minorities against the duly-elected Cherokee Nation government of the majority of its citizens, and that is what the BIA is also presently doing.

The Cherokee Nation survived the threats of division because the majority of the citizens demanded of both the United States and their own Cherokee officials that the inherent sovereignty of the Cherokee Nation be respected and fought for, and that the Nation remain intact even against the attempts of dissidents to split it. Divide and conquer is the tactic on the part of federal officials, and the division of the Cherokee Nation’s exclusive jurisdiction will not only result in territory taken away by the UKB, but opens the door for other tribes historically within our boundaries and citizenry – the Shawnees and the Delawares – to assert the same privileges. The historic jurisdiction of the Cherokee Nation could easily end up looking like Swiss cheese, divided among four tribes, and be rendered essentially meaningless for purposes of law enforcement, taxation, etc.

It is up to the Cherokee Nation citizens today to once again demand the inherent rights that their great Nation has asserted for centuries. Please contact Assistant Secretary Larry EchoHawk at the Bureau of Indian Affairs and let your thoughts be known to him. Please contact the elected officials of the Cherokee Nation, particularly Principal Chief Bill John Baker and Deputy Chief Joe Crittenden, and insist that they assert the Cherokee Nation’s sovereignty to the utmost degree, in the federal courts, if necessary, should the BIA actually allow land into trust for the UKB. Some of our satellite organizations have inquired about petitions, and I think that is a good idea as well, if one is able to gather the signatures (with addresses and CN registry numbers) of a number of Cherokee citizens. But letters that are written independently carry the most weight with elected officials and I hope you will each take the time to compose your own. They do not need to be elaborate or detailed, just indicating that you are educated as to the history and the issue, and that you strenuously desire the Nation’s jurisdiction to remain undivided. I am attaching some talking points and contact info for each entity, and I very much appreciate your action, now and for the future!


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