Shawnee Tribe v. U.S.
| Decision Date | 15 September 2005 |
| Docket Number | No. 04-3256.,04-3256. |
| Citation | 423 F.3d 1204 |
| Parties | SHAWNEE TRIBE, a federally recognized Indian Tribe, and Shawnee Tribe, ex rel., Plaintiffs-Appellants, v. UNITED STATES of America; W. Leighton Waters, Acting Regional Administrator, United States General Services Administration; Stephen A. Perry, Administrator, United States General Services Administration; Donald Rumsfeld, Secretary, Department of Defense; I. Blaine Hastings, United States General Services Administration; Gail A. Norton, Secretary, United States Department of the Interior; Neal A. McCaleb, Assistant Secretary of Interior for Indian Affairs; and The Bureau of Indian Affairs, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
R. Scott Beeler (Alok Ahuja and Jennifer M. Hannah with him on the brief), Lathrop & Gage, L.C., Overland Park, KS, for Plaintiffs-Appellants.
David D. Zimmerman, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Kansas City, KS, for Defendants-Appellees.
Before EBEL, HOLLOWAY, and LUCERO, Circuit Judges.
Appellants' petition for rehearing is granted in part. A revised opinion is filed with this order. No judge having called for a poll, rehearing en banc is denied.
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 within 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 historic 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 consideration-free § 523 transfer they seek. Therefore, all of the Tribe's claims dependent on the availability of this relief are moot.
However, the Shawnee have preserved at least one claim that seeks retrospective relief, and that claim is unaffected by our inability to grant a § 523 transfer in the future. The district court never reached the merits of this claim, concluding instead that it was moot where the Shawnee's reservation had been terminated in 1854. Because we conclude the district court was correct that the 1854 Treaty terminated the Shawnee's reservation, we affirm.
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 people 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 ().3
The 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.
The United States Army has owned and operated the Sunflower Army Ammunition Plant since 1941. In the 1990s, the Army determined that it no longer needed the property, and requested that the General Services Administration ("GSA") dispose of it as "excess" property.4 See generally 40 U.S.C. §§ 101-611 ().
The GSA is required to transfer, without consideration, excess real property to the Department of Interior, in trust for an Indian tribe, whenever three requirements are met: (1) the property is within an Indian reservation, (2) the property is excess, and (3) the reservation belongs to a federally recognized Indian tribe. 40 U.S.C. § 523. On January 7, 1998, the GSA prepared a Notice of Availability for Excess Real Property. On February 10, 1998, the GSA submitted a Federal Screening Notice to the Bureau of Indian Affairs ("BIA"). The GSA asked the BIA to respond by March 13, 1998, if the Sunflower Property was eligible under § 523 to be transferred to the Department of Interior in trust for an Indian tribe. After the BIA failed to request a transfer of the Sunflower site, the GSA began its usual property disposal process.
While the Sunflower Property disposal was still pending, on December 27, 2000, Congress officially identified the Shawnee Tribe as a federally recognized Indian Tribe. 25 U.S.C. § 1041. In accordance with an agreement between the Cherokee and the Shawnee tribes, Congress restored the Shawnee Tribe's "current and historical...
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