Cherokee Nation v. Bernhardt, 17-7042

• Decision Date: 05 September 2019
• Docket Number: 17-7044,No. 17-7042,17-7042
• Citation: 936 F.3d 1142
• Parties: The CHEROKEE NATION, Plaintiff - Appellee, v. David BERNHARDT, in his official capacity as Secretary of the Interior, U.S. Department of the Interior; Tara Katuk Mac Lean Sweeney, in her official capacity as Acting Assistant Secretary for Indian Affairs, U.S. Department of the Interior; Eddie Streater, in his official capacity as Eastern Oklahoma Regional Director, Bureau of Indian Affairs, Defendants, and United Keetoowah Band of Cherokee Indians in Oklahoma; United Keetoowah Band of Cherokee e Indians in Oklahoma Corporation, Intervenors Defendants - Appellants. The Cherokee Nation, Plaintiff - Appellee, v. David Bernhardt, in his official capacity as Secretary of the Interior, U.S. Department of the Interior; Tara Katuk Mac Lean Sweeney, in her official capacity as Acting Assistant Secretary for Indian Affairs, U.S. Department of the Interior; Eddie Streater, in his official capacity as Eastern Oklahoma Regional Director, Bureau of Indian Affairs, Defendants - Appellants, and United Keetoowah Band of Cherokee Indians in Oklahoma; United Keetoowah Band of Cherokee e Indians in Oklahoma Corporation, Intervenors Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

936 F.3d 1142

The CHEROKEE NATION, Plaintiff - Appellee,

v.David BERNHARDT, in his official capacity as Secretary of the Interior, U.S. Department of the Interior; Tara Katuk Mac Lean Sweeney, in her official capacity as Acting Assistant Secretary for Indian Affairs, U.S. Department of the Interior; Eddie Streater, in his official capacity as Eastern Oklahoma Regional Director, Bureau of Indian Affairs, Defendants,andUnited Keetoowah Band of Cherokee Indians in Oklahoma; United Keetoowah Band of Cherokee e Indians in Oklahoma Corporation, Intervenors Defendants - Appellants.

The Cherokee Nation, Plaintiff - Appellee,

v.David Bernhardt, in his official capacity as Secretary of the Interior, U.S. Department of the Interior; Tara Katuk Mac Lean Sweeney, in her official capacity as Acting Assistant Secretary for Indian Affairs, U.S. Department of the Interior; Eddie Streater, in his official capacity as Eastern Oklahoma Regional Director, Bureau of Indian Affairs, Defendants - Appellants,andUnited Keetoowah Band of Cherokee Indians in Oklahoma; United Keetoowah Band of Cherokee e Indians in Oklahoma Corporation, Intervenors Defendants.

No. 17-7042

17-7044

United States Court of Appeals, Tenth Circuit.

FILED September 5, 2019

Avi Kupfer, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C. (Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, William B. Lazarus, Thekla Hansen-Young, and Jody H. Schwarz, Attorneys, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C.; Scott Keep, Matthew Kelly, Office of the Solicitor, U.S. Department of the Interior, Washington, D.C. with him on the briefs), for Federal Appellants.

Klint A. Cowan of Fellers, Snider, Blankenship, Bailey & Tippens, P.C., Oklahoma City, Oklahoma, for Intervenors-Defendants-Appellants.

David McCullough (S. Douglas Dodd with him on the brief), of Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, Oklahoma, for Plaintiffs-Appellees.

Before MATHESON, MCHUGH, and EID, Circuit Judges.

EID, Circuit Judge.

Intervenor-Appellant the United Keetoowah Band of Cherokee Indians in Oklahoma (UKB) is a federally recognized Indian tribe located in eastern Oklahoma. The UKB are descended from the historical Cherokee Indian tribe. In 2000, the UKB purchased an undeveloped 76-acre parcel of land near Tahlequah, Oklahoma, with the intention of developing it into a tribal and cultural center (Subject Tract, or Subject Parcel). The Subject Parcel sits entirely within the boundaries of the former reservation of Appellees the Cherokee Nation of Oklahoma (Nation). In 2004, the UKB submitted an application to the Department of the Interior’s Bureau of Indian Affairs (BIA), requesting the BIA take the Subject Parcel into trust, thereby formally establishing a UKB tribal land base. The Nation opposed the application. After seven years of review, the BIA approved the UKB’s application.

The Nation sued Department of the Interior and BIA officials, with the UKB intervening as defendants, challenging the BIA’s decision on several fronts. The district court found in favor of the Nation, determining that the BIA’s decision to take the Subject Parcel into trust was "arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law." Op. at 19. Among other holdings, the district court concluded that: (1) the BIA must obtain Nation consent before taking the Subject Parcel into trust; (2) the BIA’s analysis of two of its regulations as applied to the UKB application was arbitrary and capricious; and (3) the BIA must consider whether the UKB meets the Indian Reorganization Act (IRA)’s definition of "Indian" in light of the Supreme Court case Carcieri v. Salazar , 555 U.S. 379, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009). Op. at 19. Accordingly, the district court enjoined the Secretary of the Interior from accepting the Subject Parcel into trust.

Because the district court’s order was a final decision, we have jurisdiction over this appeal, pursuant to 28 U.S.C. § 1291. We hold that the Secretary of the Interior has authority to take the Subject Parcel into trust under section 3 of the Oklahoma Indian Welfare Act of 1936 (OIWA), 25 U.S.C. § 5203.¹ The BIA was therefore not required to consider whether the UKB meets the IRA’s definition of "Indian." Nor was the BIA required to obtain the Nation’s consent before taking the land into trust. We also hold that the BIA’s application of its regulations was not arbitrary and capricious. Accordingly, we reverse the district court and vacate the injunction preventing the Secretary from taking the Subject Parcel into trust.

I.

A.

The subject of this litigation is the UKB’s 2004 application to the BIA, Eastern Oklahoma Region (Region) to acquire the Subject Tract into trust.² The application’s road to eventual acceptance featured many twists and turns, which we outline here. First, the Region denied the application in April 2006. Aplt. App. 159. The UKB appealed that decision to the Interior Board of Indian Appeals (IBIA). On April 5, 2008 the Assistant Secretary for Indian Affairs (Assistant Secretary) directed the Region to request a remand from the IBIA to reconsider the application in light of findings made by the Assistant Secretary (2008 Directive). Aplt. App. 171. The Region requested the remand and the IBIA complied, vacating the Region’s 2006 denial of the application.

After reconsideration, the Region denied the application a second time on August 6, 2008. Aplt. App. 310. Again, the UKB appealed the decision to the IBIA. At this juncture, the Assistant Secretary assumed jurisdiction over the appeal pursuant to 25 C.F.R. § 2.20(c). The Assistant Secretary issued three decisions, dated June 24, 2009 (June 2009 Decision), July 30, 2009 (July 2009 Decision), and September 10, 2010 (2010 Decision), explaining why he found the Region’s reasoning to be flawed. Aplt. App. 214, 229, and 270. The effect of the three decisions was to vacate the Region’s denial of the application and remand to the Region for reconsideration consistent with the Assistant Secretary’s findings.

In the 2010 Decision, the Assistant Secretary determined that the UKB should be allowed to amend its application to invoke alternative authority for the acquisition of the Subject Parcel into trust. Aplt. App. 272. Accordingly, the UKB amended its application to request that the Subject Parcel be taken into trust: (1) for the UKB Corporation, rather than the UKB tribe; and (2) pursuant to section 3 of OIWA, 25 U.S.C. § 5203, rather than section 5 of the IRA, 25 U.S.C. § 5108.³ Aplt. App. 291. The Assistant Secretary sent a letter dated January 21, 2011 to the UKB clarifying additional matters pertaining to the application (2011 Letter). Aplt. App. 289.

B.

On May 21, 2011, the Region issued its decision granting the UKB’s amended application (2011 Decision). Aplt. App. 291. The 2011 Decision incorporated by reference the Assistant Secretary’s 2008 Directive, June 2009 Decision, July 2009 Decision, 2010 Decision, and 2011 Letter. Aplt. App. 292. The BIA’s relevant findings were as follows.⁴

The BIA found that statutory and regulatory authority permitted the Secretary to take land into trust for the UKB. 25 C.F.R. § 151.3(a) permits the Secretary to take land into trust if the application satisfies one of three listed criteria.⁵ The BIA determined that section 151.3(a)(2) applied because the UKB owned the Subject Tract in fee; and section 151.3(a)(3) applied because the Assistant Secretary found that the UKB had a need for the Subject Tract to be taken into trust so that the UKB may exercise jurisdiction over it, thus facilitating tribal self-determination. Aplt. App. 292. Additionally, the BIA found that "Section 3 of the OIWA ... implicitly authorizes the Secretary to take land into trust for the UKB Corporation." Id. The BIA found this implicit authority in the following language of OIWA: "Such charter [of incorporation] may convey to the incorporated group, in addition to any powers which may properly be vested in a body corporate under the laws of the State of Oklahoma, the right ... to enjoy any other rights or privileges secured to an organized Indian tribe under the [IRA] ." 25 U.S.C. § 5203 (emphasis added). Because section 5 of the IRA authorizes the Secretary of the Interior to take land into trust "for the purpose of providing land for Indians," 25 U.S.C. § 5108, OIWA’s reference to the IRA implicitly grants the Secretary authority to take land into trust for incorporated Oklahoma tribal groups (like the UKB).

Next, the BIA determined that consultation with, rather than the consent of, the Nation is required before the Secretary may take land into trust for the UKB Corporation. BIA regulations stipulate that an Indian tribe "may acquire land in trust status on a reservation other than its own only when the governing body of the tribe having jurisdiction over such reservation consents in writing to the acquisition ...." 25 C.F.R. § 151.8 (emphasis added). It is undisputed that the Subject Tract is entirely within the former reservation of the Nation. But the BIA concluded that Congress overrode the consent requirement of section 151.8 with respect to lands within the boundaries of the former Cherokee reservation when it passed the Interior and Related Agencies Appropriations Act of 1999⁶ (1999 Appropriations Act). The 1999 Appropriations Act provides: "until such time as legislation is enacted to the contrary, no funds shall be used to take land into trust within the boundaries of the original Cherokee territory in Oklahoma without consultation with the Cherokee Nation." 112 Stat. 2681-246 (emphasis added). The BIA determined that the 1999 Appropriations Act replaced the consent requirement with a consultation requirement in these circumstances, and the consultation requirement was satisfied when it solicited comments from the Nation in 2005...