Bush opinion cites terminated Kan. reservation

FRIDAY, NOVEMBER 1, 2002

The Bush administration on Thursday rejected an Oklahoma tribe's claim to out-of-state gaming in a legal opinion that attempts to close the door on the controversial case.

In an 18-page decision, Secretary of Interior Gale Norton's top legal aide said the Miami Nation's control over land in Kansas was terminated in the late 1800s. "Congress clearly abrogated the tribe's jurisdiction," Solicitor Bill Myers wrote.

Citing a series of treaties, federal laws and court rulings, Myers concluded that the tribe can't open a casino on its former Kansas reservation. He said recent actions taken to assert sovereignty over a 35-acre plot of land known as the Maria Christiana Reserve were futile.

"The tribe, cannot, through its unilateral actions, override Congressional intent and disturb that which Congress has made clear," he wrote.

The opinion leaves the door open to future legislation to restore the tribe's rights. But opposition from the state of Kansas and its four federally-recognized tribes, all of whom operate casinos, will almost certainly prevent success.

That puts the Miami Nation in the same boat as another tribe that was also forced to move to Oklahoma by the federal government. The Wyandotte Nation is currently locked in a battle with Kansas state officials over its casino plans.

Other tribes, too, have made claims to land often located hundreds of miles away from their current headquarters. The Prairie Band Potawatomi Tribe of Kansas, for instance, has cited the continued existence of a 1,280-acre reservation in Illinois, a claim the Clinton administration in January 2001 said was "credible."

Former assistant secretary Kevin Gover, who worked on the Miami Nation case as an attorney in private practice before joining the Clinton administration in 1997, said the tribe's situation isn't at all unique. As Indian nations were removed and forced out of their aboriginal lands, he explained that their legacy lives on through allotments or reservations located in seemingly odd places.

"There are pockets of Indian land throughout the country," said Gover, citing a potential case in New Jersey.

As for the Maria Christiana Reserve, the Bureau of Indian Affairs appears to be the only sovereign with jurisdiction over the land. The BIA continues to probate the estate for its heirs. Congress in 1983 also authorized the Interior to consolidate the land to prevent fractionation.

The opinion Myers issued is part of a long-running court battle involving the tribe, the Interior and Kansas Gov. Bill Graves (R). It was drafted by the Solicitor's Division of Indian Affairs, which is currently headed by Phil Hogen.

Hogen, however, did not participate in the decision because his nomination as head of the National Indian Gaming Commission is pending in the Senate. Should he be confirmed to that post, he will use the legal opinion to reject the Miami Nation's proposed casino management contract with a Kansas firm.

Relevant Links:
Miami Nation - http://www.miamination.com