from the United States District Court for the Eastern
District of Oklahoma (D.C. No. 6:14-CV-00428-RAW)
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.
A. Cowan of Fellers, Snider, Blankenship, Bailey &
Tippens, P.C., Oklahoma City, Oklahoma, for
McCullough (S. Douglas Dodd with him on the brief), of
Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa,
Oklahoma, for Plaintiffs-Appellees.
MATHESON, MCHUGH, and EID, Circuit Judges.
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.
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 (2009). Op. at 19.
Accordingly, the district court enjoined the Secretary of the
Interior from accepting the Subject Parcel into trust.
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. 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.
subject of this litigation is the UKB's 2004 application
to the BIA, Eastern Oklahoma Region (Region) to acquire the
Subject Tract into trust. 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.
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
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. 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.
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
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. 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).
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 1999 (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 in connection with the
UKB's initial application. Aplt. App. 293.
next evaluated whether the application satisfied the criteria
established by 25 C.F.R. § 151.10. At issue in this
appeal are the BIA's findings regarding subsections (f)
and (g). Subsection (f) concerns whether jurisdictional
problems may arise if the application were granted. The
Region concluded that "it is clear that both the UKB and
the [Nation] would assert jurisdiction over the subject
property if it were taken in trust." Aplt. App. at 297.
The Region noted that it had "twice previously concluded
that the potential for jurisdictional problems between the
Cherokee Nation and the UKB is of utmost concern and weighed
heavily against approval of the acquisition."
Id. In contrast, the Assistant Secretary had
determined that: (1) the Nation did not have exclusive
jurisdiction over the Subject Tract; (2) the UKB had a right
to assert jurisdiction over its tribal lands; and (3) that
"the perceived jurisdictional conflicts between the UKB
and the [Nation] are not so significant that I should deny
the UKB's application." Id. at 297-98. The
Region remained concerned, but acknowledged that the
Assistant Secretary's decisions were binding.
Id. at 298.
(g) concerns whether the BIA is equipped to discharge
additional responsibilities resulting from a land-into-trust
acquisition. The Region noted that the Nation currently
administers programs for the Subject Parcel, such as real
estate, tribal court, and law enforcement services.
Id. The Region was concerned that if the Subject
Tract were placed into trust for the UKB, the UKB would
likely reject the authority of the Nation and insist that the
Region provide direct services. Id. Despite the
Region's worries that it did not have the funds necessary
to provide those services, the Assistant Secretary
"rejected this concern as unsubstantiated and
insignificant." Id. Again, the Assistant
Secretary's findings were binding on the Region.
the BIA approved the UKB's land-into-trust application.
Id. at 300. The Nation appealed the 2011 Decision to
the IBIA, which dismissed the appeal for lack of jurisdiction
and on the grounds of abstention. Cherokee Nation v.
Acting E. Okla. Reg'l Dir., 58 IBIA 153, 2014 WL
Nation sued the BIA in federal district court challenging the
2011 Decision. The UKB and the UKB Corporation intervened as
defendants. The Nation argued that the BIA could not acquire
the Subject Parcel under section 3 of OIWA and, even if it
could, the IRA's definition of the term
"Indian" excludes the UKB. The Nation also
contended that the BIA failed to comply with the regulatory
requirement that it obtain Nation consent for the
land-into-trust acquisition. And the Nation argued that the
BIA's analysis of the 25 C.F.R. § 151.10 regulatory
criteria-specifically the administrative-burden and
jurisdictional-conflicts criteria-was arbitrary and
capricious. The Nation asked for injunctive and declaratory
2017, the district court entered a decision enjoining the BIA
from acquiring the Subject Tract. The court determined that
the BIA may generally acquire the Subject Parcel under
Section 3 of OIWA, but the BIA must consider how the Supreme
Court's decision in Carcieri affects the
BIA's right to acquire the parcel for the UKB in
particular. Op. at 12, 14. In Carcieri, the Supreme
Court held that the phrase "now under Federal
jurisdiction" in the IRA's definition of
"Indian" refers to "a tribe that was under
federal jurisdiction at the time of the statute's
enactment." 555 U.S. at 382. The Court reasoned that
this definition "limits the Secretary's authority to
taking land into trust for the purpose of providing land to
members of a tribe that was under federal jurisdiction when
the IRA was enacted in June 1934." Id. The UKB
achieved federal recognition in 1946. See Act of
August 10, 1946, ch. 947, 60 Stat. 976. The Assistant
Secretary believed that Carcieri was not implicated
in the 2011 Decision because the UKB amended its application
to request land-into-trust pursuant to OIWA, not the IRA.
Aplt. App. at 272. The district court disagreed that
Carcieri was not implicated and held that before the
BIA could take any land into trust for the UKB, the BIA must
consider the IRA's definition of "Indian" in
light of Carcieri. Op. at 19.
district court also held that the Nation must consent to the
acquisition for two reasons: (1) an 1866 treaty between the
United States and the Nation guarantees protection for the
Nation against "domestic feuds and insurrections"
and "hostilities of other tribes, " which could
describe the current dispute with the UKB; and (2) the 1999
Appropriations Act does not override the regulatory consent
requirement of 25 C.F.R. § 151.8. Op. at 16-17. And the
court held that the BIA's analysis of jurisdictional
conflicts and the administrative burden under 25 C.F.R.
§ 151.10 was arbitrary and capricious. Id. at
court "remand[ed] this action to the Region."
Id. at 19. It enjoined the BIA from taking the land
into trust without: (1) obtaining the Nation's consent;
(2) reconsidering the section 151.10 criteria; and (3)
considering the effect of Carcieri on the
acquisition. Id. Department of Interior officials
and the UKB brought this appeal.
initial matter, we must determine whether we have
jurisdiction over this appeal. See W. Energy All. v.
Salazar, 709 F.3d 1040, 1046 (10th Cir. 2013)
("'[J]urisdiction is a threshold question which an
appellate court must resolve before addressing the merits of
the matter before it.'" (quoting Timpanogos
Tribe v. Conway, 286 F.3d 1195, 1201 (10th Cir. 2002))).
court has jurisdiction "over all final decisions of
federal district courts under 28 U.S.C. § 1291."
Miami Tribe of Oklahoma v. United States, 656 F.3d
1129, 1137 (10th Cir. 2011). But "it is well settled law
that the remand by a district court to an administrative
agency for further proceedings is ordinarily not appealable
because it is not a final decision." W. Energy
All., 709 F.3d at 1047 (quotation and brackets omitted).
"This general principle has been called the
'administrative-remand rule.'" Id.
"In determining whether the district court's order
was a final decision," this court considers
"'the nature of the agency action as well as the
nature of the district court's order.'"
Id. (quoting New Mexico ex rel. Richardson v.
BLM, 565 F.3d 683, 697 (10th Cir. 2009)).
"Generally, to be final and appealable, the district
court's judgment must end the litigation and leave
nothing to be done except execute the judgment."
Bender v. Clark, 744 F.2d 1424, 1426 (10th Cir.
1984) (quotation and brackets omitted). A district
court's order is more likely an administrative remand
when it "square[s] with the traditional notion of a
'remand,' wherein the reviewing court returns an
action to a lower court for further proceedings."
New Mexico, 565 F.3d at 698. "[A] district
court's label for its own action carries little weight in
determining the nature of that action on appeal[.]"
district court characterized its holding as a remand to the
agency. It held:
[T]he court finds in favor of the Cherokee Nation and remands
this action to the Region. Furthermore, in accordance with
the court's findings herein, the Secretary is enjoined
from taking the Subject Tract 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 Region. Before
taking any land into trust for the UKB or the UKB
Corporation, the Region shall consider the effect of
Carcieri on such acquisition.
Op. at 19 (italics and underlining in original). The language
of the court's order appears to call for an
administrative remand because it instructs the Secretary to
reconsider the application in light of its holdings regarding
Nation consent, the section 151.10 factors, and the
applicability of Carcieri.
the district court's order "practically rather than
technically," Bender, 744 F.2d at 1427, though,
we conclude that the order was final, and therefore
appealable. The district court's injunction preventing
the Secretary from taking the Subject Parcel into trust
without the Nation's consent essentially ends the
proceedings in this case. No further action can be taken on
the UKB's application without Nation consent, and the
Nation has steadfastly withheld that consent throughout the
fourteen years of the application's pendency.
Accordingly, the district court's judgment "end[ed]
the litigation" and "leave[s] nothing to be done
except execute the judgment." Id. at 1426.
"the nature of the district court's order . . . does
not square with the traditional notion of a 'remand,'
wherein the reviewing court returns an action to a lower
court for further proceedings." New Mexico, 565
F.3d at 698. In New Mexico, the district court
enjoined the Bureau of Land Management from approving
development leases without conducting more stringent
environmental analyses. Id. We noted that
"[t]he [district] court's order did not require BLM
to recommence a proceeding, or indeed to take any action at
all-it simply enjoined BLM from further [environmental]
violations." Id. Similarly, the other holdings
by the district court-that the BIA's analysis of the
section 151.10 factors was arbitrary, and that its
consideration of Carcieri was insufficient-do not
mandate further proceedings. Because the UKB's
application will not move forward until Nation consent is
granted, there will be no occasion for the BIA to reconsider
the application in light of the court's holdings.
we conclude that the district court's order was not an
administrative remand, but rather a final order that we have
jurisdiction to review under section 1291.
reaching its decision, the district court interpreted federal
statutes-the IRA, the OIWA, and the 1999 Appropriations
Act-and the 1866 Treaty. This court reviews those
interpretations de novo. Par. Oil Co. v. Dillon Cos.,
Inc., 523 F.3d 1244, 1248 (10th Cir. 2008) (statutes);
O Centro Espirita Beneficiente Uniao Do Vegetal v.
Ashcroft, 389 F.3d 973, 988 (10th Cir. 2004) (treaties).
action shall be set aside if the action was "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law." Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 414
(1971) (quotation omitted). An action is arbitrary and
the agency (1) entirely failed to consider an important
aspect of the problem, (2) offered an explanation for its
decision that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise, (3)
failed to base its decision on consideration of the relevant
factors, or (4) made a clear error of judgment.
Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps
of Engineers, 702 F.3d 1156, 1165 (10th Cir. 2012)
(quoting New Mexico, 565 F.3d at 704).
court will "uphold the agency's action if it has
articulated a rational basis for the decision and has
considered relevant factors." Wolfe v.
Barnhart, 446 F.3d 1096, ...