Two Tribes' Claims As 'Successor In Interest' Lean On Legal Subtleties

Wednesday, June 30th 2021, 3:01 pm

By: Grant D. Crawford , Tahlequah Daily Press


The two Cherokee tribes in Tahlequah – Cherokee Nation and United Keetoowah Band of Cherokee Indians – recently held a Tri-Council meeting with the Eastern Band of Cherokee Indians, and in an unified voice advocated for greater protections for Indigenous women and opposed the recognition of "fabricated" Cherokee tribes.

Despite the two tribes’ willingness to find common ground on several issues, the relationship between them remains contentious. Their disagreements span decades, one of which is the ties each has to land in Oklahoma. The Cherokee Nation – also known as the Cherokee Nation of Oklahoma – disputes the UKB’s claim that it has rights to the Cherokee reservation. Meanwhile, the UKB continues to argue the tribe known as Cherokee Nation today is not

the historical Cherokee Nation of the 1800s, but rather a separate entity entirely.

Much of the discord resurfaced after the U.S. Supreme Court ruled last year that the Muscogee Nation reservation was never disestablished by Congress, returning the authority over criminal matters in its jurisdiction to the tribe. A subsequent ruling in the Oklahoma Court of Criminal appeals affirmed the Cherokee reservation had never been abrogated.

The Cherokee Nation has since spent millions of dollars to expand its criminal justice system and has filed more than 1,000 cases in tribal court that were dismissed in state courts. The UKB is also updating its criminal code and working with the Department of Justice and Bureau of Indian Affairs to construct a new court. But Cherokee Nation says the UKB’s claim to the reservation carries no water.

CN Attorney General Sara Hill said previous federal court case rulings acknowledge CN’s authority over its lands, to the exclusion of the UKB.

“Post-McGirt, state courts have held the same: that the Cherokee Nation Reservation was established, and never disestablished by Congress, including in Oklahoma v. Hogner and Oklahoma v. Spears,” Hill said. “The treaties were made with the Cherokee Nation, which has existed continuously since time immemorial. No other tribe, including the UKB, has a legitimate claim to the Cherokee Nation’s Reservation.”

But UKB officials point to its 76 acres of land put into trust by the federal government. The U.S. Court of Appeals for the 10th Circuit vacated an injunction in September last year that stopped the UKB’s land from being placed in trust. A petition for rehearing filed by CN was then denied, which led the CN to petition the Supreme Court to hear the case. It, too, was denied, allowing the UKB to sign the deed for the 76-acre land placement.

“Why would the government even give us land in trust in this reservation if it was not our reservation?” asked Ernestine Berry, director of the UKB John Hair Cultural Center and Museum and historian. “If it’s not our reservation, we don’t deserve to have any land in trust. Why would they do it if we had no rights to the historic Cherokee Nation land area? We do, and people put too much stock into what the Cherokee Nation has to say.”

The U.S. government has treaties with Cherokee people dating back hundreds of years, even prior to the writing of the U.S. Constitution. CN Principal Chief Chuck Hoskin Jr. said at no time has the UKB held a treaty with the U.S. since it received congressional recognition in 1946, and its constitution ratified in 1950 – and thus it has no jurisdiction over the reservation.

“The UKB has no connection to an historic reservation,” he said. “The placement of a parcel land into trust for UKB by the United States is not inconsistent with its lack of reservation status or its lack of connection to any treaty with the United States. The Cherokee Nation’s reservation belong exclusively to the Cherokee Nation, a tribe that has a treaty relationship with the United States dating back to the country’s founding. No court has ever held otherwise.”

Steadfast in its argument, the UKB claims it is a "successor in interest" to the historical Cherokee Nation, and the Cherokee Nation of today is, as well. The tribe and historian David Cornsilk, a member of both groups, point to an opinion issued by former Bureau of Indian Affairs head Larry Echo Hawk. He had said the historical Cherokee Nation no longer exists as a distinct political entity, because the last of its original members who signed the Dawes Roll died in 2012 at age 107.

Echo Hawk said that when Congress closed the tribal rolls in 1907, it imposed a sunset provision on its relationship with the historical tribe, and that relationship would exist only as long as its enrollees survived.

“So once that woman died, the Cherokee Nation sunset, and the only thing left was an organization that had secretarial approval, which is the Cherokee Nation of Oklahoma, now called the Cherokee Nation, as a cosmetic change,” Cornsilk said.

The use of “Cherokee Nation of Oklahoma” first appears on documents in the 1970s. Cherokee Nation History and Preservation Officer Catherine Foreman-Gray said, in her opinion, the words “of Oklahoma” were used to distinguish the tribe from the Eastern Band in North Carolina. Further, she said, the Five Civilized Tribes Act clearly distinguishes the Cherokee Nation as the historical Cherokee Nation.

“…the tribal existence and present tribal governments of the Choctaw, Chickasaw, Cherokee, [Muscogee] Creek and Seminole tribes or nations are hereby continued in full force and effect for all purposes authorized by law, until otherwise provided by law,” states the Act she cited.

It’s likely the interpretation of law will continue as the driving factor in the two tribes’ differences. For instance, the 2.03 acres of land where UKB had previously had a casino remains tied up in litigation, as CN challenged the decision to take that land into trust.

UKB Chief Joe Bunch said he would prefer to work with the Cherokee Nation outside of the courtroom, but that the tribe won’t stop asserting its right to the reservation.

“All we want is the opportunity to build our own; we don’t necessarily want what they have,” Bunch said. “That’s why we’re going forward with them, or without them.”

This story is part of the Oklahoma Media Center’s Promised Land collaborative effort, which shows how the landmark McGirt v. Oklahoma decision will affect both tribal and non-Indigenous residents in the state.

It is a project of the Local Media Foundation with support from the Inasmuch Foundation, the Walton Family Foundation and the Democracy Fund. The print, digital and broadcast media partners include: CNHI Oklahoma, Cherokee PhoenixCurbside ChronicleThe FrontierGaylord NewsGriffin CommunicationsKFORKGOUKOSUThe Lawton ConstitutionMoore MonthlyMvskoke Media, the Native American Journalists AssociationNonDocThe O’CollyOklahoma City Free PressThe Oklahoma Eagle, Oklahoma GazetteThe OklahomanOklahoma WatchOsage NewsStateImpact OklahomaTulsa WorldTelemundo OklahomaUniversity of Oklahoma Student Media and Verified News Network.

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