Indian land questions can be complicated
By: Betty Smith, Press Staff Writer January 24, 2003 

The regulations vary, depending whether it's restricted or trust.
 
A holdup in the opening of the Tahlequah Public Schools Performing Arts Center has led some local residents to question what constitutes Indian land, and what regulations apply to it.

But it's also been a source of speculation for those who are curious about just how "Indian smoke shops" came into existence.

The $4.3 million performing arts center has been complete for nearly three months, but has not been used because a new sewer line needs to be completed. The line requires an easement to run across restricted Indian land, and a lengthy process is needed to approve such easements.

The matter is before the Bureau of Indian Affairs right now, and Assistant Superintendent Denver Spears said school officials expect to hear from the BIA "any day now."

There are two categories of Indian land: Restricted land, and land held in trust, said Linda Donelson, a staff attorney for the Cherokee Nation of Oklahoma.

When the Cherokees were relocated to Oklahoma during the Trail of Tears era, the tribe owned the land in common. This was true until just after the turn of the 20th century, when the Dawes Commission supervised the allotment of Cherokee and other Five Civilized Tribes land to individual tribal members.

"This land was allotted out to individual Cherokees who passed it down to their descendants," Donelson said.
In order for land to be restricted, the owner must be at least half Indian blood.

"If it goes below half degree, it drops out of restricted allotment automatically," she said.

There is legislation before Congress now that would amend the 1947 act governing restricted land. It would allow Cherokees of less than one-half degree of blood to continue to hold restricted land, or half-blood Cherokees to pass on restricted land to their children who are less than half-blood.

"There still is a lot of that land here, because a lot of Indians have married other Indians," Donelson said.

Indian land can be declared held in trust if the BIA authorizes it. Some land is held in trust by the Cherokee Nation, while other parcels have been allotted by the Cherokee Nation to individual tribal members.

Sale or uses of both types of land can require review by federal officials, and it may take a long time for permission to be granted.

In the case of the performing arts center sewer line, the land in question is owned in common by several heirs of the owner of the original allotment.

When an easement is desired across such land, the person desiring the easement must apply to the Cherokee Nation realty department. The department contacts the landowners and informs them of the request. An environmental review is performed to see if the proposed project might have any harmful effects on the land and its value.

"Even the one wanting the easement needs to know if it's going to be good to go across the land," Donelson said.
There also is an appraisal to ensure the property owner receives just compensation.

After those steps are complete, the proposed easement is sent to the BIA office in Muskogee for approval, back to the Cherokee Nation for negotiations with the property owner, and then back to the BIA for final approval. Finally, the easement can be signed and construction can begin.

In the case of trust land, when it is sold, the owner has to petition to court to do so.

"Even if a Cherokee wants to sell to another Cherokee, the BIA gets involved," Donelson said. "They want to see that the landowner is getting good value for the property."

The owner can deed restricted land to a relative "for love and affection" if the relative is at least one-half Cherokee. 
"The Cherokee Nation is in favor of people keeping the land in restriction because that is part of the Cherokee Nation land base," Donelson said.

If the land is restricted or in trust, it is definitely considered Indian land. In the past, there have been questions about whether law enforcement agencies, such as police and sheriff's departments, have jurisdiction on Indian land, or whether a member of the Cherokee Nation Marshals Service must be included in activities on such land.

In recent years, the Cherokee Nation has been cross-deputizing marshals and officers from other law enforcement agencies to avoid such problems. Recently the Oklahoma Scenic Rivers Commission River Rangers were cross-deputized, and Wednesday afternoon, the Oklahoma Bureau of Narcotics and Dangerous Drugs signed a cross-deputization agreement with the Cherokee Nation.

When a property owner dies, inheritance of restricted land is handled through probate in the state district court. In the case of trust land, inheritance requires administrative procedures before an administrative judge.

Donelson said gaming operations and smoke shops can be placed on restricted and trust lands.
"A lot of the smoke shops are put on restricted lands, and that's no problem," she said.

The owner of restricted or trust lands who wants to open a smoke shop needs to apply for permission through the Cherokee Nation Tax Commission. Individuals also could operate mini-casinos, if they received approval from the tax commission and the Cherokee Nation Gaming Commission. Currently there are no such operations.

"All the casinos and smoke shops the Cherokee Nation owns are on trust land," Donelson said.
She said the BIA is examining residential and commercial use of Indian land.

"You can basically use it for just about anything," she said. "If you're going to put certain things on it, there are certain restrictions."

In the case of the $4.3 million performing arts center, the BIA received the report for final review from the Cherokee Nation. Jimmy Gibson, branch chief for the Environment and Natural Resources office at the BIA in Muskogee, said such reviews usually don't take long.

The contractor for the performing arts center didn't submit the easement request until the building was about halfway constructed, because plans changed. The change was made to provide improved sewer service to the area, and the Cherokee Nation received the initial request last Aug. 12.

Superintendent Paul Hurst said last week that the performing arts center could open five days after the approval was received.


©Tahlequah Daily Press 2003