Shawnee Tribe v. United States

405 F.3d 1121, 35 Envtl. L. Rep. (Envtl. Law Inst.) 20092, 2005 U.S. App. LEXIS 7613, 2005 WL 1023392
CourtCourt of Appeals for the Tenth Circuit
DecidedMay 3, 2005
Docket04-3256
StatusPublished
Cited by9 cases

This text of 405 F.3d 1121 (Shawnee Tribe v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shawnee Tribe v. United States, 405 F.3d 1121, 35 Envtl. L. Rep. (Envtl. Law Inst.) 20092, 2005 U.S. App. LEXIS 7613, 2005 WL 1023392 (10th Cir. 2005).

Opinions

EBEL, Circuit Judge.

The Sunflower Army Ammunition Plant (“Sunflower Property” or “Plant”) is a 9,065-acre military installation located in rural Kansas between Lawrence and Kansas City. In the 1990s, the Army determined it no longer needed the Sunflower Property and requested that the General Services Administration (“GSA”) dispose of it as “excess property.” Federal law requires the GSA to transfer, without consideration, excess real property located [1124]*1124within the reservation of any federally recognized Indian tribe to the Secretary of Interior, to be held in trust for the benefit and use of the tribe. 40 U.S.C. § 523.

The Sunflower Property is located within the original reservation boundaries of the Shawnee Tribe. However, the GSA determined that this area no longer lies within present-day boundaries of the Shawnee’s reservation and, therefore, that the Shawnee were not entitled to a transfer of the Sunflower Property under § 523. The Shawnee Tribe sought judicial review of this administrative decision, but the district court agreed with the GSA, concluding that the Shawnee Reservation was terminated in an 1854 Treaty between the Shawnee and the United States. This appeal followed.

While this appeal was pending, Congress passed legislation giving the Secretary of the Army specific discretion to convey the Sunflower Property to any entity selected by the Board of Commissioners of Johnson County, Kansas. We have been advised by both sides that the Secretary of the Army has exercised this discretion, and a sale of the Sunflower Property is now in the process of being consummated. Because the Secretary of the Army has this authority and is exercising it, we are unable to give the Shawnee Tribe the relief they seek in the instant action— namely, a consideration-free transfer by the GSA pursuant to § 523. Therefore, we conclude our appeal is moot. This case is remanded to the district court with instructions to dismiss Plaintiffs’ complaint and to vacate its order and judgment of March 31, 2004, leaving the issue of the status of the Shawnee’s reservation open for another day.

BACKGROUND

I. Shawnee History and Treaties

In the mid-Nineteenth Century, the Shawnee Tribe held 1.6 million acres of land in Kansas pursuant to 1825 and 1831 treaties with the United States. The Kansas Indians, 72 U.S. (5 Wall.) 737, 738-39, 18 L.Ed. 667 (1866). It is undisputed that the entire Sunflower Army Ammunition Plant lies within this original Shawnee reservation.

However, the Shawnee’s Kansas reservation was affected by the encroachment of this country’s western expansion and a rapidly increasing non-Indian population in the area. Thus, Congress decided in 1853 it was “advisable to lessen [the Shawnee’s] territorial limits,” and the President ordered negotiations with the Shawnee. Id. at 753; see also Absentee Shawnee Tribe of Oklahoma v. United States, No. 344, 6 Ind.Cl.Comm’n Dec. 377, 379 (June 19, 1958). Although initial efforts to get the Shawnee to relinquish their lands were unsuccessful, the Shawnee did sign a pivotal treaty with the United States on May 10, 1854. The Kansas Indians, 72 U.S. at 753; Absentee Shawnee Tribe v. Kansas, 862 F.2d 1415, 1417 n. 2 (10th Cir.1988). This 1854 Treaty provides, in pertinent part:

Article 1. The Shawnee tribe of Indians hereby cede and convey to the United States, all the tract of country [the entire 1.6 million acre reservation] lying west of the State of Missouri, which was designated and set apart for the Shawnees....
Article 2. The United States hereby cede to the Shawnee Indians two hundred thousand acres of land, to be selected between the Missouri State line, and a line parallel thereto, and west of the same, thirty miles distant: which parallel line shall be drawn from the Kansas River, to the southern boundary-line of the country herein ceded....
Article 3. In consideration of the cession and sale herein made, the United States agree to pay to the Shawnee peo-[1125]*1125pie the sum of eight hundred and twenty-nine thousand dollars1....

Treaty with the Shawnees, May 10, 1854, U.S.-Shawnee, 10 Stat. 1053.

The Sunflower Property is within the area, described in Article II of this Treaty, that was left open for re-cession to the Shawnees. However, the Shawnee did not take this entire area collectively. Instead, pursuant to the treaty, individual Shawnee tribal members were entitled to select 200-acre tracts, primarily for individual ownership, from within this entire area as described by Article II. The Kansas Indians, 72 U.S. at 753. As the Supreme Court explained in 1866:

[The 1854 Treaty] did not contemplate that the Indians should enjoy the whole tract, as the quantity for each individual was limited to two hundred acres. The unselected lands were to be sold by the government, and the proceeds appropriated to the uses of the Indians. It also recognized that part of the lands selected by the Indians could be held in common, and part in severalty. If held in common, they were to be assigned in a compact body; if in severalty, the privilege was conceded of selecting anywhere in the tract outside of the common lands. The Indians who held separate estates were to have patents issued to them, with such guards and restrictions as Congress should deem advisable for their protection. Congress afterwards directed the lands to be patented, subject to such restrictions as the Secretary of Interior might impose; and these lands are now held by these Indians, under patents, without power of alienation, except by consent of the Secretary of Interior. This treaty was silent about the guarantees of the treaty of 1831 [as to perpetual protection by the United States for the Indians]; but the Shawnees expressly acknowledged their dependence on the government of the United States, as formerly they had done, and invoked its protection and care.2

Id. at 753; see also Absentee Shawnee, 862 F.2d at 1422 (describing process by which, after five years, the United States agreed to sell the unallotted parcels and hold the proceeds for an additional five years before distributing them for the benefit of the Shawnees so that if any absentee Shawnee members appeared within the ten-year period they were entitled to the value of their promised allotment).3

[1126]*1126The record is unclear as to what exactly happened immediately after the 1854 Treaty. However, in 1869, the Shawnee negotiated an agreement with the Cherokee Nation in Oklahoma. Agreement Between Shawnees and Cherokees, June 7, 1869, Approved by the President June 9, 1869. Pursuant to this formal agreement, the Shawnees committed to be “incorporated into and ever remain a part of the Cherokee Nation,” and further agreed “that the said Shawnees shall abandon their tribal organization” and turn over to the Cherokee at least some portion of the annuities (including from the 1854 Treaty) owed the Shawnee by the United States. Id.

II. Sunflower Property Dispute

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Shawnee Tribe v. United States
405 F.3d 1121 (Tenth Circuit, 2005)

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Bluebook (online)
405 F.3d 1121, 35 Envtl. L. Rep. (Envtl. Law Inst.) 20092, 2005 U.S. App. LEXIS 7613, 2005 WL 1023392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shawnee-tribe-v-united-states-ca10-2005.