Absentee Shawnee Tribe of Indians of Oklahoma v. State of Kan.

• Decision Date: 02 December 1988
• Docket Number: No. 86-2600,86-2600
• Citation: 862 F.2d 1415
• Parties: The ABSENTEE SHAWNEE TRIBE OF INDIANS OF OKLAHOMA, Daniel Little Axe, Governor, Plaintiff-Appellant, v. The STATE OF KANSAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1415

862 F.2d 1415

The ABSENTEE SHAWNEE TRIBE OF INDIANS OF OKLAHOMA, Daniel Little Axe, Governor, Plaintiff-Appellant, v. The STATE OF KANSAS, Defendant-Appellee.

No. 86-2600.

United States Court of Appeals, Tenth Circuit.

Dec. 2, 1988.

Rehearing Denied Dec. 23, 1988.

Alvin D. Shapiro (Martha A. Fagg, Law Office of Alvin D. Shapiro, Kansas City, Mo., with him on the brief), Law Office of Alvin D. Shapiro, Kansas City, Mo., for plaintiff-appellant.

Robert T. Stephan (John W. Campbell, Deputy Atty. Gen., Topeka, Kan., on the brief), Atty. Gen., Topeka, Kan., for defendant-appellee.

Before McKAY, TACHA, and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

The Absentee Shawnee Tribe of Indians of Oklahoma (Shawnees) appeal an order of summary judgment denying their claim to certain property located in Johnson County, Kansas. The issue on appeal is whether the Shawnees have superior title to this property under an 1854 treaty with the United States. We hold that they do not, and affirm.

The Shawnees seek possession and title to 11.97 acres of land located in Johnson County, Kansas, and known as the Shawnee Mission State Park. The State of Kansas (State), the current titleholder, derives its title to this land from a patent issued to the Rev. Thomas Johnson by the United States government in 1865. Prior to the issuance of the patent, the property in dispute was part of three sections of land granted to the Missionary Society of the Methodist Episcopal Church South in an 1854 treaty between the Shawnees and the United States. Treaty with the Shawnees, May 10-Sept. 28, 1854, United States-Shawnees, 10 Stat. 1053 [hereinafter 1854 Treaty].

The Shawnees contend that the patent through which the State claims title to the property is invalid because the Rev. Johnson, the original patentee, was dead at the time the patent was issued. At common law, a land patent to a deceased person is void. Davenport v. Lamb, 80 U.S. (13 Wall.) 418, 427, 20 L.Ed. 655 (1871). The Shawnees argue that, because of the invalidity of the patent, the 1854 Treaty makes them the rightful title holders of the property.

The district court granted summary judgment in favor of the State on the grounds that former 43 U.S.C. Sec. 1152 (repealed October 21, 1976), a remedial statute in effect from 1836 to 1976, applied in this case to validate the patent to the Rev. Johnson. Absentee Shawnee Tribe of Indians v. Kansas, 628 F.Supp. 1112, 1117 (D.Kan.1985). This statute provided:

Where patents for public lands have been or may be issued, in pursuance of any law of the United States, to a person who has died before the date of such patent, the title to the land designated therein shall inure to and become vested in the heirs, devisees, or assignees of such deceased patentee as if the patent had issued to the deceased person during life.

43 U.S.C. Sec. 1152 (emphasis added). The district court rejected the Shawnees' argument that the statute was inapplicable to this case because the land in question was "Indian land," rather than "public land," under the terms of the 1854 Treaty. The Shawnees claim on appeal that the district court erred in this respect.

When reviewing a grant of summary judgment, we determine whether any genuine issue of material fact remains, and if not, whether the district court correctly applied the law. Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986). The parties do not dispute that the Rev. Johnson, the original patentee, died prior to the date the patent was issued. The dispute in this case is whether now-repealed 43 U.S.C. Sec. 1152 operated to remove the patent from the normal common-law rule of invalidity, thereby validating the patent and preserving title in the State. The question presented here, therefore, is one of law: whether the disputed property constitutes "public land" under the remedial statute. We employ a de novo standard of review of this legal issue. Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir.1987).

I.

The meaning generally ascribed to "public lands" is "well settled." Union Pac. R.R. v. Harris, 215 U.S. 386, 388, 30 S.Ct. 138, 54 L.Ed. 246 (1910).

"The words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws." If it is claimed in any given case that they are used in a different meaning, it should be apparent either from the context or from the circumstances attending the legislation.

Id. (citations omitted) (emphasis added) (quoting Newhall v. Sanger, 92 U.S. 761 763, 23 L.Ed. 769 (1875)). This meaning is consistent with the usage Congress intended in the remedial statute. See Larkin v. Paugh, 276 U.S. 431, 438, 48 S.Ct. 366, 368, 72 L.Ed.2d 640 (1928).

In order to determine whether the disputed property in this case is "public land," we must interpret the 1854 Treaty, which established a reservation for the Shawnees. We are not confronted with construing an act of Congress that opens Indian lands to settlement by non-Indians. The difference between interpreting a treaty and an act of Congress in this context is important. When interpreting a statute, Congress' intent as expressed in the statute is determinative. When interpreting a treaty, the intention of the Indians and the intention of the government are both considered.

"A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations." Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 675, 99 S.Ct. 3055, 3069, 61 L.Ed.2d 823, modified sub nom. Washington v. United States, 444 U.S. 816, 100 S.Ct. 34, 62 L.Ed.2d 24 (1979). ¹ The Supreme Court has declared, however, that the Indians are not sovereign foreign nations in the truest sense of that term, but "domestic dependent nations." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831). "[T]he relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else." Id. 30 U.S. (5 Pet.) at 16. "Their relation to the United States resembles that of a ward to his guardian." Id. at 17; see also Choctaw Nation v. United States, 119 U.S. 1, 27, 7 S.Ct. 75, 90, 30 L.Ed. 306 (1886). The dependent status of Indians has in some circumstances resulted in treaties being forced upon them without their consent. See Choctaw Nation v. Oklahoma, 397 U.S. 620, 630-31, 90 S.Ct. 1328, 1334, 25 L.Ed.2d 615 (1970). The Supreme Court has noted, however, in regard to Indian treaties that "[w]hen the signatory nations have not been at war and neither is the vanquished, it is reasonable to assume that they negotiated as equals at arm's length." Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. at 675, 99 S.Ct. at 3069. The terms of the treaty in this case were the product of at least some negotiation. ² "Accordingly, it is the intention of the parties, and not solely that of the superior side, that must control any attempt to interpret the treaties." Id. (emphasis added).

With regard to acts of Congress subsequent to the establishment of the reservation, the courts adopt an interpretational policy against diminishing an Indian reservation. See, e.g., Solem v. Bartlett, 465 U.S. 463, 470, 104 S.Ct. 1161, 1166, 79 L.Ed.2d 443 (1984); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586, 97 S.Ct. 1361, 1362, 51 L.Ed.2d 660 (1977); Ute Indian Tribe v. Utah, 773 F.2d 1087, 1088 (10th Cir.1985), cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986). Although it was once thought that Indian consent was necessary to diminish a reservation, it has long been held that Congress has the power to diminish reservations unilaterally. Solem, 465 U.S. at 470 n. 11, 104 S.Ct. at 1166 n. 11 (citing Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903)). The "traditional solicitude for the Indian tribes," however, precludes the courts from diminishing Indian lands without "substantial and compelling evidence of a Congressional intention" to exercise its power to diminish Indian lands. Id. 465 U.S. at 472, 104 S.Ct. at 1167. As a general rule, "[o]nce a block of land is set aside for an Indian reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise." Solem, 465 U.S. at 470, 104 S.Ct. at 1166. "Diminishment ... will not be lightly inferred." Id. Instead, "Congress [must] clearly evince an 'intent ... to change ... boundaries' before diminishment will be found." Id. (quoting Rosebud Sioux Tribe v. Kneip, 430 U.S. at 615, 97 S.Ct. at 1377).

The diminishment policy recognizes the fact that the terms of an act of Congress are often unilaterally imposed, rather than the product of negotiation between the Indians and the United States. Congress possesses the power to abrogate the terms of a treaty, "though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so." Lone Wolf v. Hitchcock, 187 U.S. 553, 566, 23 S.Ct. 216, 221, 47 L.Ed. 299 (1903). Although the Indians might theoretically have been represented in Congress, the character of that representation is obviously different from having direct representation on one side of the negotiating table, and thereby having the opportunity to shape the specific terms or correct an ambiguous term of a treaty.

Treaties, being the product of joint agreement, do not implicate the diminishment policy expressed in Solem. We nevertheless afford similar protections to the interests of Indians through adopting deferential standards when interpreting treaties. The Supreme Court has held that "the United States, as the party with the presumptively superior negotiating...