CN attorney general says Interior violated APA

BY BRITTNEY BENNETT
Reporter – @cp_bbennett
02/06/2018 04:00 PM
TAHLEQUAH – In a Jan. 16 federal court filing, Cherokee Nation Attorney General Todd Hembree states the U.S. Interior Department, with its decision to seek trust land for the United Keetoowah Band, violated the 1946 Administrative Procedures Act.

In his response to the U.S. Department of Justice, which on behalf of the Interior has appealed a federal court decision blocking trust land for the UKB, Hembree states a 2011 decision by the Bureau of Indian Affairs to grant the UKB 76 acres of trust land “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.

The APA governs the way in which federal administrative agencies propose and establish regulations. It also grants the judiciary oversight over all agency actions.

Hembree’s response claims several APA abuses, including improper interpretation of the Oklahoma Indian Welfare Act to grant the Interior secretary authority to take land into trust for a tribal corporation and improperly ignoring the required CN consent needed for such an act.

The UKB in 2000 purchased 76 acres in Tahlequah and later developed the tract with a community services building, cultural grounds and wellness center. The UKB then sought BIA approval to take the land into trust in 2004. The BIA approved the application in 2011.

In response, the CN filed a lawsuit against the BIA in 2014 in the Northern District Court of Oklahoma in Tulsa. It argued the Interior’s actions violated jurisdictional treaties between the U.S. and CN and that land could not be taken into trust for the UKB without the CN’s consent.

In a May 2017 ruling, Judge Ronald White ruled the Interior’s decision was “not in accordance with the law” and enjoined the Interior secretary from putting the UKB land into trust “without the Cherokee Nation’s written consent and full consideration of the jurisdictional conflicts and the resulting administrative burdens the acquisition would place on the (Interior’s Eastern Oklahoma) Region.”

White’s ruling adds that before taking “any land into trust for the UKB or the UKB Corporation, the Region shall consider the effect of Carcieri (v. Salazar) on such acquisition.”

In 2009, the U.S. Supreme Court ruled in Carcieri v. Salazar that the Interior secretary’s ability to take land into trust through the 1934 Indian Reorganization Act only applies to “persons of Indian descent who are members of any recognized Indian tribe now under federal jurisdiction.”

The UKB Corp. was formally recognized as an Indian band through a congressional statue in 1946 via the OIWA, an extension of the IRA to include Oklahoma tribes. The UKB received a federally approved constitution in 1950.

The Justice Department’s Dec. 1 appeal to White’s ruling argues that the OIWA retroactively grants the UKB Corp. the right to a charter of incorporation that conveys the “rights or privileges secured to an organized Indian tribe under the (IRA),” which includes trust land. As such, it asked the U.S. Court of Appeals for the 10th Circuit Court to overturn White’s decision.

In response, Hembree asserts there is “nothing in the 1946 Act conferring any territorial jurisdiction on the UKB.” Instead, it claims the OIWA only allows the Interior secretary to grant charters and contains no conferred authority to grant trust acquisitions. Rather, trust acquisitions can only be granted under the IRA.

Hembree also states neither the UKB constitution nor the UKB Corp. charter, two distinct entities, claim the right to exercise authority in the CN’s territory.

A point of contention in the case has also been whether CN consent is needed before taking land into trust. The DOJ appeal references a rider of the 1999 Appropriations Act by Congress that states no funds shall be used to take land into trust within the boundaries of the original Cherokee territory in Oklahoma without CN “consultation.”

The CN asserts that the land in question resides within the last treaty boundaries of the CN as defined by both the Treaty of New Echota and 1866 Treaty, and as such requires express consent rather than consultation.

In reference to the DOI’s interpretation of the 1999 Appropriation Act, the CN states it only impacts a “narrow exception for lands purchased with federal funds for ‘Operation of Indian Programs,’” and that no such funds were used by UKB to purchase the 76 acres. “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.”

The CN also requests the 10th Circuit reverse the BIA decision allowing trust land for the UKB. “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.”

Click here to viewthe case file.
About the Author
Brittney Bennett is from Colcord, Oklahoma, and a citizen of the United Keetoowah Band.  She is a 2011 Gates Millennium Scholarship recipient and graduated from the University of Oklahoma in 2015 with a bachelor’s degree in journalism and summa cum laude honors.
 
While in college, Brittney became involved with the Native American Journalists Association and was an inaugural NAJA student fellow in 2014. Continued mentorship from NAJA members and the willingness to give Natives a voice led her to accept a multimedia internship with the Cherokee Phoenix after college.  
 
She left the Cherokee Phoenix in early 2016 before being selected as a Knight-CUNYJ Fellow in New York City later that same year. During the fellowship, she received training from industry professionals with The New York Times and instructors at the City University of New York. As part of the program, she completed a social media internship with USA Today’s editorial department.
 
Now that Brittney has made her way back to the Cherokee Phoenix, she hopes to use the experience gained from her travels to benefit Indian Country and the Cherokee people.
brittney-bennett@cherokee.org • 918-453-5560
Brittney Bennett is from Colcord, Oklahoma, and a citizen of the United Keetoowah Band. She is a 2011 Gates Millennium Scholarship recipient and graduated from the University of Oklahoma in 2015 with a bachelor’s degree in journalism and summa cum laude honors. While in college, Brittney became involved with the Native American Journalists Association and was an inaugural NAJA student fellow in 2014. Continued mentorship from NAJA members and the willingness to give Natives a voice led her to accept a multimedia internship with the Cherokee Phoenix after college. She left the Cherokee Phoenix in early 2016 before being selected as a Knight-CUNYJ Fellow in New York City later that same year. During the fellowship, she received training from industry professionals with The New York Times and instructors at the City University of New York. As part of the program, she completed a social media internship with USA Today’s editorial department. Now that Brittney has made her way back to the Cherokee Phoenix, she hopes to use the experience gained from her travels to benefit Indian Country and the Cherokee people.

News

BY LINDSEY BARK
Reporter
04/25/2018 04:00 PM
TAHELQUAH – At their April 16 meeting, Tribal Councilors amended Title 12 of the Cherokee Nation Code Annotated, revamping some civil procedures. Passing by a 12-3 vote, with Councilors Wanda Hatfield and Bryan Warner absent, legislators approved the right of any CN citizen to bring a civil suit in tribal courts based on any federal statute, common law or laws of any state where the citizen resides. The amendment also gives the CN attorney general power of parens patriae in certain civil matters. For example, the attorney general can sue on behalf of a CN citizen or CN business entity in civil matters in tribal court, U.S. district courts or in any state court having jurisdiction over the defendant to secure monetary or injunctive relief. The amendment also revises some statutes of limitations. It states the statute of limitations for libel, slander, malicious prosecution or false imprisonment is one year, while the statute of limitations is three years for actions upon a contract, express or implied, and not in writing. The amendment also includes changes to protect elders, the disabled and all other CN citizens from unfair and deceptive business practices, unsafe products and unfair competition. The amended act made it to the April 16 meeting only after the Rules Committee struck Section 30 in Chapter 2 titled “Investigations by the Attorney General.” It gave the attorney general authority to “initiate an investigation based upon information that comes to his attention that a violation of provision of the Comprehensive Access to Justice Act may have occurred.” Several legislators disagreed with language that stated: “Provided, no investigative demand for discovery served upon a Tribal Council of the Cherokee Nation shall issue absent a finding of good cause by the District Court of the Cherokee Nation.” Dick Lay was one legislator who expressed concern regarding Section 30. “In my opinion, Section 30 of Title 12, simply put, would be a tremendous overreach and abuse of power and authority of the AG Todd Hembree. It would give the Attorney General Todd Hembree and the AG office the power and authority of the CN court systems while by passing those court systems checks and balances. In this act, with Section 30, AG Todd Hembree would have become the most powerful person in the CN government. AG Todd Hembree seemingly is attempting to create a fourth branch of government within the AG’s office. Section 30 does away with due process and checks and balances. Imagine a political individual who could run an investigation on any Cherokee citizen for any reason without due process or without any checks and balances and never having to go to the CN or federal court house for warrants or due process activities,” he wrote in an email to the Cherokee Phoenix. “With Section 30 on the books any citizen, any employee, any elected official might be at risk. This attorney general control exerted over Cherokee Nation citizens might become political in nature. Assistant AG (John) Young indicated in a Rules Committee meeting that no investigations had ever been run on elected officials since the 2011 elections. He is incorrect. An extreme change attempt in our laws like Section 30 could only happen with approval from not only the AG office but with approval from the administration as well. As a Cherokee citizen, I pray section 30 never sees the light of day.” Lay, along with Councilors Shawn Crittenden and Buel Anglen, voted against the act on April 16.
BY WILL CHAVEZ
Assistant Editor – @cp_wchavez
04/24/2018 04:15 PM
<strong>CORRECTION:</strong> In the April 23 story “CN Supreme Court hears Freedmen ruling case” that we published on www.cherokeephoenix.org, as well as our Facebook and Twitter pages, we erroneously named Tribal Councilor Dick Lay as one of the two Tribal Councilors mentioned as a party to the ongoing Freedmen case, when in fact it was meant to state Tribal Councilor Harley Buzzard. After the error came to our attention, we pulled the story from any and all social media, as well as the Cherokee Phoenix website. We apologize on behalf of the Cherokee Phoenix and the Cherokee Phoenix Editorial Board to all parties affected, especially Tribal Councilor Lay. We regret the error. TAHLEQUAH – The Cherokee Nation’s Supreme Court on April 20 heard arguments regarding Attorney General Todd Hembree’s decision not to appeal the federal case of Cherokee Nation v. Nash and Vann v. Zinke, which allows Freedmen tribal citizenship and rights. CN citizens represented by attorney Stephen Gray objected to Hembree not appealing the Aug. 30, 2017, ruling by Senior U.S. District Judge Thomas Hogan, saying it’s an “attack on the Nation’s sovereignty” comparable to the Five Civilized Tribes Act of 1906, which removed land and assets from the CN. “Citizens’ motions and petition have become necessary because Hembree argues that he has the sole authority to appeal or not appeal the (Washington) D.C. case in his position as attorney general, without consultation with the council and is protected by sovereign immunity from citizens. His argument puts him not only above the law, but now he is the law,” states Gray’s submitted petition. In August, Hogan ruled, “the Cherokee Nation can continue to define itself as it sees fit but must do so equally and evenhandedly with respect to native Cherokees and the descendants of Cherokee Freedmen.” “In accordance with Article 9 of the 1866 Treaty, the Cherokee Freedmen have a present right to citizenship in the Cherokee Nation that is coextensive with the rights of Native Cherokees,” Hogan states. On Aug. 31, Hembree stated he wouldn’t appeal Hogan’s decision. “The issues in this case first arose nearly 40 years ago, and I am grateful to finally have a ruling on the core legal issues that we presented to Judge Hogan in 2014. It was always my goal to present these arguments before the Court and get a final decision that was binding on all parties. I do not intend to file an appeal.” He said the CN “respects the rule of law” and has begun processing Freedmen citizenship applications. Gray’s petition states that without Tribal Council consent Hembree is “negotiating away the Nation’s sovereignty and obligating the Nation to tens of millions of dollars in liability.” Some of that liability, Gray states, would be in the form of tribal services that would be provided to Freedmen, who are descendants of slaves once held by CN citizens. Assistant Attorney General Chrissi Nimmo argued in court that the Council doesn’t have a right to question Hembree’s decision. She said Tribal Councilors Harley Buzzard and David Walkingstick filed the case as citizens but changed their standing to their official capacity as legislators. In the original petition it states they filed as citizens. In an amended petition it states they filed as citizens and Tribal Councilors. She said legislators don’t have the right to sue Hembree to force an appeal of Hogan’s decision. She also told the court that on Dec. 11, 2017, the Tribal Council indefinitely tabled Walkingstick’s legislation to appeal the ruling. Nimmo said that vote, in effect, “killed” the issue of appealing Hogan’s decision. Gray argued legislators have a right to be involved in all “settlements” involving the CN. However, Nimmo said the federal court’s ruling isn’t a settlement. “This is an order of the court after years of litigation that the AG (attorney general) chose not to appeal,” she said. “The Council is not a client of the AG. The Cherokee Nation is his client.” In his petition, Gray asserts a 2007 constitutional amendment requiring CN citizens to have Indian blood and that it binds the principal chief and attorney general to the people’s wishes. Hogan’s ruling addresses the 2007 amendment. “The Cherokee Nation is mistaken to treat freedmen’s right to citizenship as being tethered to the Cherokee Nation Constitution when, in fact, that right is tethered to the rights of native Cherokees. Furthermore, the freedmen’s right to citizenship does not exist solely under the Cherokee Nation Constitution and therefore cannot be extinguished solely by amending that Constitution,” states Hogan’s ruling. Nimmo informed the court that the last day for the CN to appeal Hogan’s ruling was April 23. Supreme Court Chief Justice John Garrett said the court would “expedite” a decision.
BY ROGER GRAHAM
Multimedia Producer – @cp_rgraham
04/24/2018 12:00 PM
CLAREMORE – Donkeys and dribbling were highlighted March 29 at the Rogers County Adult Day Care Center’s Donkey Basketball fundraiser sponsored by the Cherokee Nation. The annual event held at the Claremore High School gymnasium is the center’s biggest fundraiser and crucial to the center providing its services to clients, some of which are CN citizens. RCADC Executive Director Wanda Inman said the night consisted of three games. “The first game will be between Rogers State College and Claremore High School students. The second will be between Claremore Fire Department and Claremore Police Department. The winner of those two games will then play for the championship,” she said. Inman added that CN citizens were part of all four teams. In the end, the Claremore PD won the championship. Inman said the CN and Cherokees play an important part for the RCADC. “We have Cherokee employees as well as Cherokee clients. Cherokee Nation sponsoring this allowed us to stop worrying about paying for the event and get on with turning that into raising more funds through ticket and T-shirt sales, additional sponsorships and concessions,” she said. “I’m Cherokee, and a lot of our clients are Cherokee.” Jacque Koskie, Rogers County Adult Day Care Center accountant, said. Tribal Councilor Keith Austin was contacted by the RCADC to ask for help with its fundraising efforts. “I’ve been friends with this organization for the last three years, and I’ve watched the good work that they do.” Austin said he received a phone call from Inman asking if he would support the RCADC. “When I found out the amount, I called the (principal) chief’s office and told them $3,500 was needed. They said, ‘let’s do the whole thing and help them out.’” According to its website, the RCADC provides intergenerational fun, consisting of socialization and companionship between older and younger adults. It also provides respite for the caregiver while participants are in a safe and caring environment. The center is at 2680 OK-88 in Claremore. For more information, call 918-341-7588 or visit <a href="http://www.rogerscountyadultdaycarecenter.org" target="_blank">rogerscountyadultdaycarecenter.org</a>.
BY BRITTNEY BENNETT
Reporter – @cp_bbennett
04/23/2018 12:00 PM
TAHLEQUAH – The Attorney General’s Office filed an appeal on April 13 asking the Supreme Court to reverse a District Court ruling declaring Deputy Principal Chief S. Joe Crittenden ineligible for re-election in 2019. Deputy Attorney General Chrissi Nimmo submitted the appeal that states District Court Judge Luke Barteaux “erred” in his decision. “The deputy chief has only served one four-year term and should be able to run for re-election in 2019. This court should reverse the District Court’s decision as to Deputy Chief S. Joe Crittenden’s eligibility to run for the same office as he now holds in 2019,” the appeal states. Cherokee Nation officials declined to comment further on the proceedings. Barteaux’s April 6 ruling, which also declared Principal Chief Bill John Baker eligible for re-election, cited the CN Constitution in ruling Crittenden ineligible. He wrote that Crittenden had “assumed the office of Principal Chief pursuant to Article VII, Section 4, in faithful discharge of his duties as Deputy Principal Chief” while Baker had to await the results of an appeal of the 2011 principal chief’s race. Article VII, Section 4 states: “In case of the absence of the Principal Chief from office due to death, resignation, removal or inability to discharge the powers and duties of the office, the same shall devolve upon the Deputy Principal Chief for the remaining portion of the four (4) year term to which the Principal Chief had been elected.” Barteaux ruled that by Crittenden stepping into the role on Aug. 14, 2011, as dictated by the Constitution, he “completed his first four (4) year term of office four (4) years later without any loss of time from his term, and is now in his second consecutive four (4) year term.” The ruling stemmed from a Feb. 19 petition by CN citizen David Cornsilk, who asked the court to overturn Hembree’s opinion that states Baker and Crittenden were eligible for re-election. Hembree’s opinion states both officials were eligible despite winning elections in 2011 and 2015 because the appeal of the principal chief’s election delayed Baker taking office until October. As such, both Baker and Crittenden were denied full four-year terms. Cornsilk said he’s aware of Hembree’s appeal and plans to file an appeal so that the Supreme Court can decide. “I feel like the decision that was made by Judge Barteaux is incorrect, so I’ll leave it up to the Supreme Court to make a final decision,” he said. “I think in the interest of the health of our election process and for the health of our nation, we need our courts to make to make the decision at the final level, that way nobody can say, ‘well, it could have been different if you had just appealed.’ I really think that a final decision by our tribal court, the Supreme Court, is a good thing.”
BY BRITTNEY BENNETT
Reporter – @cp_bbennett
04/23/2018 10:00 AM
TAHLEQUAH – Cherokee Nation citizen Michael Moore has filed a motion asking the District Court to reconsider its April 6 ruling regarding the election eligibility of Principal Chief Bill John Baker and Deputy Chief S. Joe Crittenden, as well as dismiss the petition that led to the ruling. Moore, an attorney from San Diego, filed the April 13 motion asking the court to allow him to “intervene” and for it to “dismiss” a Feb. 19 petition by CN citizen David Cornsilk. Cornsilk’s petition asked the court to overturn Attorney General Todd Hembree’s 2016 opinion declaring Baker and Crittenden eligible for candidacy in 2019 because neither had served a full four-year term after being elected in 2011. Crittenden took office on Aug. 14, 2011, and assumed principal chief duties until Baker was sworn in on Oct. 19, 2011, following a disputed principal chief’s race. Hembree on March 1 motioned to dismiss Cornsilk’s petition, but on March 26 filed a motion in favor of the court handing down a ruling. District Court Judge Luke Barteaux on April 6 ruled that Baker was eligible for re-election but Crittenden was not. Moore’s filing asks Barteaux to reconsider and rule on Hembree’s original dismissal motion while rebuking Hembree’s March 26 motion to withdraw. By withdrawing, Moore states Hembree essentially “attempted to waive sovereign immunity” that he “lacks authority” to do unless given permission by Tribal Council. Moore argues the burden of proof to show the CN waived its sovereign immunity to be sued is on Cornsilk, who “has not shown” any evidence of a waiver. Moore also argues because “there is no issue or controversy,” the case is not “ripe” for a ruling, as “none of the parties in Cornsilk’s petition have filed to run for office.” Moore asks that Cornsilk’s petition be declared “premature” because Hembree and Cornsilk are asking for an “advisory opinion” in regards to an interpretation of election law provisions in advance of an actual election. “They shouldn’t be ruling on matters of speculation,” Moore said. “When it comes to Attorney General Hembree’s pleadings, he withdrew the issue that the court should have been deciding on in order to move his agenda forward, which was to have his opinion deemed legal...It was clever luring by the attorney general, but I hope that the district judge will reconsider the issue of ripeness and recognize that the issue is not ripe and dismiss the case for everyone.” As of publication, neither Baker nor Crittenden had indicated they planned to run in 2019. Moore states Cornsilk’s petition also “lacks subject matter jurisdiction” because it is without a “case or controversy” as required by the Supreme Court. Instead, it recommends Cornsilk should challenge Baker and Crittenden’s eligibility “when they actually file for a third term.” Moore states the CN Constitution provides an “exclusive remedy” for challenging a candidate’s eligibility in Title 26, Section 37(A) or Section 37(B). Section 37(A) allows any CN citizen who is registered to vote “the right to contest the eligibility of any candidate to run for office” at a hearing with the Election Commission, while Section 37(B) gives the right to appeal decisions concerning a candidate’s eligibility to the Supreme Court. “In regards to Mr. Cornsilk’s pleadings, it’s all based on speculation,” Moore said. “There was no controversy at the time that he filed, and so people applauded him for filing it and moving forward and trying to have this resolved, but on this kind of issue when there is no controversy, for a non-lawyer to go in and try to have this matter decided, it creates problems.” Cornsilk said he’s read Moore’s filing. “Basically what it looks like is he reiterated all of the motions to dismiss, the attorney general had filed and withdrew,” he said. “I think his timing is off because if he wanted to join the case he should have done it before the judge ruled or after we appealed. I don’t know why he’s trying to jump into mine, but the more the merrier and I’ll just leave it to the judges to decide whether or not to let him join the case.” Attempts to contact the attorney general’s office were unsuccessful, though it did file an appeal in the Supreme Court on April 13 concerning Crittenden’s eligibility.
BY ASSOCIATED PRESS
04/22/2018 12:00 PM
BISMARCK, N.D. (AP) – A judge has rejected the request by two American Indian tribes to be more involved in a court-ordered environmental review of the Dakota Access oil pipeline. U.S. District Judge James Boasberg last June ordered the Army Corps of Engineers to further review the pipeline’s impact on tribal interests, though he allowed oil to begin flowing. In December, he ordered Texas-based developer Energy Transfer Partners to produce an oil spill response plan for Lake Oahe, the Missouri River reservoir in the Dakotas from which the Standing Rock and Cheyenne River Sioux draw water. Boasberg also ordered a review by an independent engineering company on whether the pipeline complies with federal regulations. The two tribes have said they were being left out of the process and they asked Boasberg to order that they be given more involvement. Corps and company attorneys accused the tribes of being difficult to work with. Boasberg wrote in an order dated Monday that “the parties engage in a lengthy dispute over who is refusing to talk to whom.” “The court does not believe that further inserting itself into the minutiae of this disagreement is either permissible or wise,” he wrote. Boasberg also noted that ETP submitted the spill response plan and the independent review on April 2, making any request for additional tribal involvement in that work moot. The Standing Rock tribe has started raising money for its own spill response program. As for the Corps’ additional review of the pipeline’s impact on tribal interests, Boasberg said the tribes can continue to press their argument that the study is flawed when that work is completed and presented to him. The Corps had anticipated an April 2 completion date, but that has been delayed by what the agency maintains is difficulties obtaining needed information from the tribes. Standing Rock attorney Jan Hasselman in a statement to The Associated Press said the Corps “is missing the opportunity to engage with the Standing Rock tribe meaningfully on its legitimate concerns about the safety of this pipeline, and continuing to accept without question Energy Transfer’s shoddy technical work.” The Standing Rock and Cheyenne River tribes are leading the four-tribe lawsuit against the $3.8 billion pipeline that is moving oil from North Dakota through South Dakota and Iowa to a shipping point in Illinois. They fear environmental and cultural harm. ETP says the pipeline is safe.