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Another Oklahoma tribe denied out-of-state land
Thursday, May 5, 2005

An Oklahoma tribe's effort to reclaim ancestral land in another state was dealt a devastating blow by a federal appeals court on Tuesday.

Ever since gaining federal recognition more than four years ago, the Shawnee Tribe has been trying to recover 9,000 acres in Kansas. The land, once part of the tribe's reservation but later owned by the U.S. government, was declared surplus by the U.S. Army.

Under federal regulations, that meant the land was eligible to be returned to the tribe by the General Services Administration. But the 10th Circuit Court of Appeals, in a unanimous decision, ruled that it couldn't do anything about the situation because the same Congress that granted the tribe recognition in 2000 passed a law in 2004 that paved the way for the transfer of the former reservation to a private developer.

"In other words, we can no longer order the GSA to transfer the property to the Shawnee or declare that the Shawnee are entitled to a transfer," Judge David M. Ebel wrote.

However, the court left open "an important legal question" that could help the tribe with a money damages lawsuit or other type of claim. The Kansas reservation might still exist, an issue to be considered "for another day," the judges said.

The decision marks yet another instance of an Oklahoma tribe losing a bid for land in another state. In the past three years alone, the courts and federal agencies have rejected the Wyandotte Nation twice, the Delaware Nation once, the Miami Nation once and the Cheyenne-Arapaho Tribes once. The Seneca-Cayuga Tribe's claim has been put on hold in light of a recent U.S. Supreme Court decision.

In a practice that is growing nationwide, these tribes turned to other states in hopes of establishing gaming establishments or other forms of economic development. Although voters recently allowed some forms of Class III gaming in Oklahoma, some tribes believe they have better chances of success elsewhere.

The Shawnees, however, didn't want gaming on the land in Kansas. Since they were legally a part of the Cherokee Nation for more than 100 years, they don't have their own land base and are restricted by federal law in what they can do in Oklahoma.

Yet the trend derided as "reservation shopping" by critics has generated significant controversy in recent years. Just last week, the House Resources Committee held a hearing on a bill that could block tribes from opening casinos across state lines.

Since the passage of the Indian Gaming Regulatory Act in 1988, no federal agency has allowed a tribe to acquire land in another state, prompting tribal leaders to decry the negative attention focused on the issue.

"I say that it is a perceived problem since in 17 years, it has never occurred," testified William Blind, the vice chairman of the Cheyenne-Arapaho Tribes, who are seeking land in Colorado for a casino. "There has never been a single case of land being taken into trust under this rule."

Blind and other tribal leaders with out-of-state claims urged Rep. Richard Pombo (R-California), the chairman of the committee, not to interfere. "Indian gaming is not out of control," said Charles D. Enyart, the chief of the Eastern Shawnee Tribe of Oklahoma, which is eyeing up to nine casino sites in Ohio.

In the case of the Shawnees, Congressional intervention derailed their Kansas bid. A rider in the 2005 defense appropriations act, passed in October 2004, took the land transfer away from the GSA's authority and put it back into the hands of the Army, which plans to give the former reservation to a private developer by the end of the month.

The Sunflower Redevelopment group plans to use the land for business and residential purposes. At one point, a Wizard of Oz theme park was proposed but later tabled.

An act of Congress helped the Shawnees gain independence from the Cherokee Nation back in December 2000. The tribe was recognized as a separate sovereign entity but the Cherokees have veto authority over the tribe's actions in Oklahoma. A reservation in Kansas would give the tribe more freedom.

Get the Decision:
Shawnee Tribe v. US (May 3, 2005)

Federal Recognition Act:
The Omnibus Indian Advancement Act (H.R.5528)