Opposition Brief — Absentee Shawnee Tribe v. Citizen Band of Potawatomi Indian Tribe

ST Sites |

No. 98-281 _ SEP 1 4 1968

OTF'CE OF THE CLERK

In The SUPREME COURT, U.S.

Supreme Court of the United States

October Term, 1997

¢

ABSENTEE SHAWNEE TRIBE OF OKLAHOMA,

Petitioner,

VS.

CITIZEN BAND POTAWATOMI

INDIAN TRIBE OF OKLAHOMA

Respondent.

a

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

& a

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

¢

Micuaet Minnis

Counsel of Record

David McCullough

MicHaet Minnis & Associates, P.C.

100 N Broadway Ave Ste 3160

Oklahoma City, OK 73102-8816

(405) 235-7685 FAX (405) 232-5460

Attorneys For Respondent

Citizen Band Potawatomi Indian

Tribe of Oklahoma

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

PEGE BCP TS “CEM

QUESTION PRESENTED

Whether the opinion by the Tenth Circuit Court of

Appeals in Citizen Band Potawatomi Indian Tribe of Okla-

homa v. Collier, 142 F.3rd 1325 (10th Cir. Okla. 1998) has

been decided in a way that conflicts with Shoshone

United States, 299 U.S. 476 (1937).

v.

ii

TABLE OF CONTENTS

Page

Chesmebicn:. FP Rtts ovo. cnn 5 Gs och span gy tek boeaa babs i

TORO OC A UUOEIIUOE So iis 555 vicki ea eh oe iii

Statement of Ghe Cane. 55 ca oe eee ee ee 1

Reasons for Denying the Writ .. . i. 0... cisceeevscas 8

PTOWOOHION « 5 i's ovis cavny ctv rehash Vea See uae VReTR ES 12

Conclusion oo ssid eos k hae eb ieee ee eee 20

ill

TABLE OF AUTHORITIES

Page

Cases

Chevron U.S.A. Inc. v. Natural Resources Defense

ues, Ads ae UC AWED.. sos sk eh ce vad oc rckan 10

Citizen Band Potawatomi Indians of Oklahoma v.

United States, 6 Ind. Cl. Comm. 658 (1958) ..9, 13, 15

Citizen Band Potawatomi v. Collier, No.

CIV-92-2161, U.S.D.C. W.D. Okla. (1992).........3, 17

Citizen Band Potawatomi v. Collier, 17 F. 3d 1292, 28

Fed. R. Serv. 3d 677 (10th Cir. DER «sain de 9a 4,5, 14

Citizen Band Potawatomi Indian Tribe of Oklahoma v.

L.W. Collier, Nos. 96-6219 and 96-6259 (10th Cir.

Commodity Futures Trading Com’'n v. Schor, 478 U.S

ee cee Re PONS Ss co suk nde bs aw bade cans 10

Shoshone Tribe of Indians of Wind River Reservation

in Wyoming v. United States, 299 U.S. 476 (1937)

EE REP eee ae pene 10, 12, 15, 16, 17, 18

U.S. v. Santa Fe Pac. R. Co., 314 U.S. 339 (1941)..... 19

Walker v. Mather (In re Walker), 959 F.2d 894, (10th

a ees 18

Youakin v. Miller, 425 U.S. 231 (1976)................ 17

STATUTES

The Act of Mar. 3, 1891, 26 Stat. 989................ 16

Allotment Act of May 23, 1872, ch. 206, 17 Stat.

a NS cae ba eb been 3, 11

iv

TABLE OF AUTHORITIES - Continued

Page

Unitep States Cope

oP Se ce ee A eo os a Ea 14

OF Ga hs ek ee ee 2

oF UDR Ee 8 OM ae eee 14

Cope oF FEDERAL REGULATIONS

ae OO Soak = SOR et ee ee 2

et Sac I Gn Ss eV Ce 2, 4

oe CEO. OTB is osk seek oe ee ee

TREATIES

Treaty with the Creeks, Mar. 24, 1832, 7 Stat., 366.... 19

Treaty with the Potawatomi, Feb. 27, 1867, 15 Stat.

DOR G85 S55 VEwEVS ERS EA REOR TE ba eR es l

Treaty with the Seminole, Mar. 28, 1833, 7 Stat.,

NED Ke EG is cea sha ah EeNS Ips ER Oa Oe 19

FEDERAL REGISTER

62 Fed. Reg. 55270, 55271 4 oo: A 5 a. Fe aren )

RULES

Supp, $2: Baie 2s ee 8

Leciscative History

H.R. Rep. No. 51-3481 an. 36 TE oe 2, 18

Books

Feuix S. CoHeN HANDBOOK OF FEDERAL INDIAN Law

tat Rea pe ren eniMnt Shara od ey taniar at ER 18

STATEMENT OF THE CASE

The Petitioner, the Absentee Shawnee Tribe of Okla-

homa (hereafter “Absentee Shawnee”) is seeking review

of a decision by the Tenth Circuit Court of Appeals

affirming a declaratory judgment and mandatory injunc-

tion entered by the District Court.!

The Citizen Potawatomi Nation2 (“Potawatomi”) is a

federally recognized Indian tribe located on trust lands in

what is today Pottawatomie County, Oklahoma. The

Potawatomi came to this area in the late 1860s after

purchasing a reservation from the United States pursuant

to an 1867 Treaty reserving the land to their “exclusive

use and occupancy.” Despite these treaty obligations, the

Potawatomi have battled for over 100 years with federal

authorities who have pursued a policy that the

Potawatomi Reservation is held “in common” by the

Potawatomi with some members of the Shawnee Tribe

who wandered away from their Kansas reservation to

eventually squat on the Potawatomi lands.4

' The “Judgment Declaratory Judgment and Permanent

Injunction” was not included in the Petitioner’s Appendix. For

the Court’s convenience, the judgment is reproduced beginning

at Resp. App. 1.

* The Potawatomi are organized under a constitution

adopted pursuant to the Oklahoma Indian Welfare Act. Their

constitutional name was “Citizen Potawatomi Indian Tribe of

Oklahoma” until changed by an amendment adopted at a

February 29, 1996, Secretarial Election. See Pott #95-81 (May 23,

1995).

3 Treaty with the Potawatomi, 1867, 15 Stat. 531 (Feb. 27,

1867).

4 “As to the Absentee Shawnees, it seems that some time

about 1840 they left the main band then located upon the

The suit below arose when the Bureau of Indian

Affairs (“BIA”) refused to follow its own rules when

taking land into trust within the “former reservation” of

the Potawatomi. Federal statutes authorize the Secretary

of the Interior to take lands “in the name of the United

States into trust for Indians and Indian tribes.”5 Pursuant

to that statutory authority, the Secretary of the Interior

has promulgated regulations for taking land into trust.®

Among other things, these regulations provide that land

located within an Indian reservation may be taken into

trust only when the tribe having jurisdiction over the

reservation “consents in writing to the acquisition.”7 In

Oklahoma, “Indian reservation means that area of land

constituting the former reservation of the tribe as defined

by the Secretary.”® The Potawatomi have a former reser-

vation in Oklahoma. The Absentee Shawnee do not.

Upon hearing that the Absentee Shawnee may have

submitted an application to the BIA for the United States

to take land into trust within the former Potawatomi

Reservation, the Potawatomi asked the BIA if any such

Shawnee Reservation in Kansas, and after roaming and hunting

for some time, settled down upon some of the country embraced

within the limits of this [the Potawatomi] reservation, where

they have remained ever since. They were not there by any

treaty or Executive order, but the Government has long known

of their presence there.” H.R. Rep. No. 51-3481 (Jan. 16, 1891).

> See, e.g., 25 U.S.C. § 465.

® 25 C.F.R. §§ 151.1-151.14.

7 Id. § 151.8.

8 Id. § 151.2, ¥ (f).

actions were periding.® in response, the BIA, in a letter

dated September 17, 1992, refused to confirm or deny that

any Absentee Shawnee trust applications were pending

and announced that the Potawatomi and Absentee Shaw-

nee “share a common former reservation area”? citing as

authority an 1872 Allotment Act.!! When the BIA refused

to change this policy, the Potawatomi filed suit on Octo-

ber 30, 1992,!2 to prevent the BIA from taking land

within the Potawatomi Reservation into trust on behalf of

the Absentee Shawnee without first obtaining

Potawatomi written consent as required by 25 C.E.R.

® Letter from Barrett to Collier of 8/25/92. After an appeal of a

Freedom of Information Act (“FOIA”) request, the Potawatomi

learned that the Absentee Shawnee had three trust applications

pending for lands within the Potawatomi Reservation

boundaries. See Letter from Camacho to Minnis of 3/24/93. On

December 27, 1994, the Potawatomi received part of the record

of the administrative appeal and learned for the first time that

the Absentee Shawnee had six trust applications pending.

10 Letter from Collier to Barrett of 9/17/92. For the Court's

convenience, a copy of this letter is reproduced at Resp. App. 5.

This opinion was restated in a letter to the Absentee Shawnee

Governor. See Letter from Bruner to Nuckolls of 10/19/94.

11 Allotment Act of May 23, 1872, ch. 206, 17 Stat. 159.

12 Citizen Band Potawatomi Indian Tribe of Oklahoma v. Collier,

No. CIV-92-2161R (U.S.D.C. W.D. Okla. Oct. 30, 1992)

(complaint).

§ 151.8.13 Notice of the suit was given to the Absentee

Shawnee, who were invited to intervene.!*

The Potawatomi moved for and obtained a prelimi-

nary injunction. They also moved for summary judgment.

On January 4, 1993, the BIA filed a motion to dismiss for

lack of indispensable party and for failure to exhaust

administrative remedies.

On February 2, the District Court entered an order

granting the BIA’s motion to dismiss for failure to join an |

indispensable party, to-wit: the Absentee Shawnee who

did not accept the Potawatomi invitation to intervene.

On February 25, 1994, the Tenth Circuit Court of

Appeals found that “the BIA failed to sustain its burden”

to offer evidence “showing the nature of the Absentee-

Shawnee tribe’s interest in Potawatomi land,” reversed

the District Court’s order and remanded the case “for

further proceedings.” Citizen Band Potawatomi Indian Tribe

13 “An individual Indian or tribe may acquire land in trust

status on a reservation other than its own c ‘ly when the

governing body of the tribe having jurisdiction over such

reservation consents in writing to the acquisition; * * * ” (25

C.F.R. § 151.8 emphasis added). “[I]n the State of Oklahoma * * *

‘Indian reservation’ means that area of land constituting the

former reservation of the tribe as defined by the Secretary.” Id.

§ 151.2, ¥ (f).

14 Thus, the Absentee Shawnee description of how they

became involved in this litigation [Pet. at 1, n.1] is not entirely

accurate. The Potawatomi opposed the Absentee Shawnee’s

motion to intervene in 1996 because cf when it was filed, to-wit:

2.5 years after the Absentee Shawnee were invited to intervene,

and on the eve of a decision by the trial court after appeals to the

Tenth Circuit and the Interior Board of Indian Appeals (IBIA).

ee rn ne one Ne

of Oklahoma v. Collier, 17 F.3d 1292, 1294, 28 Fed. R. Serv.

3d 677 (10th Cir. 1994). The panel briefly mentioned the

1872 Act, the sole authority cited by the BIA for the

assertion of a “common reservation,” stating:

[T]o satisfy the BIA’s burden of demonstrating

the nature of the Absentee-Shawnee tribe’s

interest in the subject property * * * the BIA

offers a copy of the 1872 Act giving the Secre-

tary of the Interior the power to grant allot-

ments to members of the Absentee-Shawnee

tribe who fulfill certain requirements. This evi-

dence is irrelevant * * *

Id. at 1293-94 (emphasis added). Upon remand, the BIA

renewed its motion to dismiss on the basis that the

Potawatomi failed to exhaust administrative remedies. In

response, the District Court on August 5, 1994, reserved

ruling on the motion to dismiss and directed the

Potawatomi “to pursue the administrative remedies (if

any) from the September 17, 1992, letter from defendant

to the plaintiff’s Chairman.” When both parties expressed

uncertainty about what administrative remedies, if any,

were available to the Potawatomi, the Court directed the

BIA to inform the Potawatomi of the appropriate action

to be taken.

As soon as the District Court’s written order was

filed, the Potawatomi sent a letter to the BIA requesting

instructions on the administrative remedies available.!5

Two months later, in an October 12 letter, the BLA advised

the Potawatomi that the “decision” of September 17, 1992,

could be appealed to the Interior Board of Indian Appeals

1S Letter from Minnis to Griffith of 8/9/94.

(“IBIA”).© On October 28, 1994, the Potawatomi filed an

appeal with the IBIA.

On September, 12, 1995,!7 the IBIA “affirmed” the

BIA policy of recognizing a “common reservation area”

finding that “it is reasonable for the BIA to treat the

entire former Potawatomi Reservation as the reservation

of both tribes for purposes of 25 C.F.R. Part 151,” “and

neither is required to obtain consent of the other under 25

C.F.R. 151.8.”

On December 11, 1995, the Potawatomi submitted

these findings to the District Court and renewed their

motion for summary judgment. The BIA filed a cross

motion for summary judgment. On March 15, 1996, the

Absentee Shawnee were allowed to intervene as a third

party and filed a brief in support of the BIA’s motion for

summary judgment.

On May 22, the District Court entered an order deny-

ing the BIA motion for summary judgment and granting

summary judgment for the Potawatomi finding that the

BIA is precluded by a prior Indian Claims Commission

decision from asserting that prior to June 25, 1890, the

Absentee Shawnee “had an undivided ownership interest

in the [Potawatomi] reservation.” See App. 30. Because

“in privity with and represented by the United States in

proceedings before the ICC,” the Absentee Shawnee are

'e Letter from Deerinwater to Barrett of 10/12/1994.

'7 Two weeks after the briefing by all parties was

completed, the Absentee Shawnee sought permission to file an

amicus brief. This request was rejected as untimely. Compare Pet.

at 1l.n.l

also “precluded from re-litigating the issue of its owner-

ship interest in the Potawatomi Reservation, if any, as of

June 25, 1890.” Id. at 37-38, 49. As to the IBIA determina-

tion that the Absentee Shawnee have “present-day rights

in the Potawatomi Reservation which may be recognized

by the BIA for purposes of 25 C.FR.R. § 151.8,” the District

Court found this determination “contrary to law” and

entitled to no deference. App. 46-47. Further, “no evi-

dence” has been offered “of any treaty or agreement with

the A-S [Absentee Shawnee] Tribe, Act of Congress, Exec-

utive order, purchase or any other act setting apart land

within the boundaries of the Potawatomi Reservation for

the use of the A-S Tribe” before or after June 26, 1890.

App. 48-49 (emphasis in original).

The District Court entered a judgment declaring that

the Potawatomi had a reservation in Indian Territory

before it became the State of Oklahoma, that the reserva-

tion boundaries were those fixed by the survey of Orrin

T. Morrill, and that the Absentee Shawnee did not have a

reservation encompassing the land within the

Potawatomi Reservation. Resp. App. at 2. Further, the

Court also permanently enjoined the BIA from taking

land into trust for the Absentee Shawnee located within

the Potawatomi Reservation without first obtaining writ-

ten consent from the Potawatomi as required by federal

regulatory law.

From this judgment, the Federal Defendants and the

Absentee Shawnee appealed. The Federal Defendants

later dismissed their appeal.!® On May 5, 1998, the Tenth

18 See Potawatomi Indian Tribe of Oklahoma v. L.W. Collier, No.

96-6259 (10th Cir. Mar. 21, 1997).

Circuit entered an opinion affirming the judgment. The

Absentee Shawnee petitioned for rehearing which was

denied on June 29.

REASONS WHY THE WRIT SHOULD BE DENIED

A petition for writ of certiorari is granted “only when

there are special and important reasons therefor.”?9

19 Sup. Ct. Rule 10:

Review on a writ of certiorari is not a matter of

right, but of judicial discretion. A petition for a writ of

certiorari will be granted only for compelling reasons.

The following, although neither controlling nor fully

measuring the Court’s discretion, indicate the

character of the reasons the Court considers:

(a) a United States court of appeals has entered

a decision in conflict with the decision of another

United States court of appeals on the same important

matter; has decided an important federal question in

a way that conflicts with a decision by a state court of

last resort; or has so far departed from the accepted

and usual course of judicial proceedings, or

sanctioned such a departure by a lower court, as to

call for an exercise of this Court’s supervisory power;

(b) a state court of last resort has decided an

important federal question in a way that conflicts

with the decision of another state court of last resort

or of a United States court of appeals;

(c) a state court or a United States court of

appeals has decided an important question of federal

law that has not been, but should be, settled by this

Court, or has decided an important federal question

i

i

i

Because the Absentee Shawnee have not articulated any

“special and important reason” for granting certiorari,

the petition should be denied. Although four proposi-

tions are listed in the Petition, the Absentee Shawnee

have only posed a single question [Pet. at i.] and have

raised only one potentially valid reason for granting the

writ: an alleged conflict between a Supreme Court deci-

sion and the Tenth Circuit opinion. The other proposi-

tions argued by the Absentee Shawnee2° are not valid

reasons for granting certiorari.

The Absentee Shawnee arguments are a bit schizo-

phrenic. First, they imply that the Secretary has plenary

power to recognize a “former reservation” for a tribe that

never had a reservation.2) Then they imply that the

in a way that conflicts with relevant decisions of this

Court.

A petition for a writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.

20 These other arguments include the implication that the

Potawatomi is not a tribe. See Pet. at 12-13. As support for this

absurd position, the Absentee Shawnee cite from a letter. The

Absentee Shawnee fail to advise that the statements in their

letter were specifically rejected by the Indian Claims

Commission. Citizen Band of Potawatomi Indians of Oklahoma v.

United States, 6 Ind. Cl. Comm. at 663. The Potawatomi have

consistently been recognized by the federal government as an

Indian tribe. See, e.g., 62 Fed. Reg. 55270, 55271 (Oct. 23, 1997).

21 {T]he Secretary has discretionary authority to define

‘former reservation area’ for the purposes of the stated

regulations.” Pet. at 1. This is the Absentee Shawnee’s

Proposition II. Id. at 18. It is not a valid reason for granting

certiorari nor do the Absentee Shawnee have standing to assert

it. Virtually the only authority cited by the Absentee Shawnee in

10

Secretary's discretion must be informed by law citing the

Shoshone? case, a decision that has no application to the

dispute here.

By relying on the Shoshone case, the Absentee Shaw-

nee defeat their own argument (Proposition III) that the

IBIA decision is entitled to deference. Although agency

decisions construing statutes that it administers are enti-

tled to deference, no deference is due here where the IBIA

is construing a statute it does not administer and relies on

a judicial decision. Chevron U.S.A., Inc. v. Natural

Resources Defense Council, 467 U.S. 837, 843-44 n.9 (1984).24

No agency decision is entitled to deference when apply-

ing a particular case to thy facts. Cf. Commodity Futures

Trading Com'n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 3258

(1986) (“legal rulings of the CFTC, like the legal deter-

minations of the agency in Crowell, are subject to de novo

review.”).

The Absentee Shawnee’s Proposition IV concerns the

appropriateness of granting summary judgment. This

support of their Proposition II is a law review article by their

own attorney.

22 Shoshone Tribe of Indians of Wind River Reservation in

Wyoming v. United States, 299 U.S. 476 (1937).

23 Pet. at 19-24. Proposition III]. Whatever the validity of

this argument, it is not a reason for granting certiorari.

24 The Absentee Shawnee argue that courts cannot be relied

upon to correctly interpret the law and, therefore, must defer to

the IBIA’s superior expertise in this area to avoid “injustice.” !

Pet. at 18. On the contrary, this IBIA decision is indicative of

how far government agencies will stretch the law to uphold

agency decisions which is why administrative appeals are often

viewed as vain and futile exercises.

ee nee CREAT TT me Te A NET AN E eC Se ee OE EES a

11

claim is not a valid reason for granting certiorari and is

inconsistent with Absentee Shawnee position in the Dis-

trict Court where they supported the BIA motion for

summary judgment.

The Absentee Shawnee have abandoned the original

BIA contention that the Absentee Shawnee had a reserva-

tion based on an 1872 Allotment Act and argue instead

that the District Court erred in not deferring to the IBIA

conclusion that after 1890, the Absentee Shawnee some-

how acquired a “former reservation” with the same

boundaries as the Potawatomi. The Absentee Shawnee

have no standing to object to the injunctive relief granted

below nor to rely on the administrative ruling to which

they were not a party. In any event, the declarative and

injunctive relief entered below are entirely consistent

with treaties, statutes, and previous rulings by this and

other competent courts of record. Whatever discretion the

Secretary of the Interior may have to recognize a “former

reservation” for the purposes of taking land into trust,

that discretion cannot be exercised by a BIA area director

to recognize a “former reservation” for the Absentee

Shawnee synonymous with the Potawatomi Reservation

based on bureaucratic policy subsequent to the end of the

reservation era in Oklahoma. This legal conclusion is not

affected in any way by the IBIA decision. Because the

issue is purely a legal one, this matter should never have

been referred to an administrative law judge.

12

PROPOSITION: The Tenth Circuit has not decided the

case in a way that conflicts with the Supreme Court's

Shoshone decision.

In claiming that the Tenth Circuit decision is “in

direct conflict with” Shoshone,?5 the Absentee Shawnee

have, at best, engaged in misleading hyperbole and make

comparisons that distort the Shoshone holding and the

historical record. In Shoshone, a tribe submitted a damage

claim to the Court of Claims against the United States for

unlawfully taking a portion of the tribe’s reservation. The

claim was specifically authorized by an act of Congress?6

to make atonement to the Shoshone for taking a section of

their reservation. The only issues in dispute were the date

when the taking occurred and whether the tribe was

entitled to interest. The Court of Claims set the date as

August 13, 1891, when the Commissioner of Indian

Affairs announced his opinion that the Arapahos “were

entitled to enjoy the reservation equally with the Shos-

hone.” Shoshone, 299 U.S. at 491-492. The Shoshone

claimed the taking occurred “March 18, 1878, when the

unlawful occupancy [of the Arapahos] began.” The

United States argued that the date should be March 3,

1927, when Congress authorized the claim.

The Supreme Court held that the Court of Claims

erred in relying on the 1891 statement by the Commis-

sioner of Indian Affairs. The Supreme Court did not

sanction the arbitrary actions of the Commissioner of

Indian Affairs but found them illegal ab initio and con-

demned them.

25 Pet. at 7.

76 Act of March 3, 1927 (44 Stat. 1349, part 2).

13

[T]he Commissioner of Indian Affairs was not

empowered to fix the future policy of the gov-

ernment, still less to exercise in its behalf the

power of eminent domain. He made no such

attempt. All that his letter of August, 1891,

[declaring both tribes were entitled to enjoy the

reservation equally] expresses is an opinion as

to the meaning and operation of notorious and

accomplished facts. By deed as well as by word,

he had done his part for more than thirteen

years in shaping those facts to conform to his

opinion.

Id. at 494. This finding destroys the Absentee Shawnee

claim that the Secretary can arbitrarily create “reserva-

tion” rights. The Shoshone and Arapaho tribes today

share the Wind River Reservation. They do not share a

“former reservation.” Congress consistently treated the

Shoshone and Arapaho equally as to the Wind River

Reservation but has never treated the Potawatomi and

the Absentee Shawnee equally as to the Potawatomi Res-

ervation.?7

The Shoshone case involved a dispute between the

Shoshone Tribe and the Arapahos over the Wind River

Reservation in Wyoming involving entirely different

*? The Absentee Shawnee argue that they were equally

compensated under the 1890 agreements. Pet. at 17. This is

simply not accurate. The Absentee Shawnee tribal members

were paid $65,000 “for improvements on their said allotments”

but not for the land. 26 Stat., 1020 (art. IV). The tribe received

nothing. The Potawatomi were paid $160,000 for their

improvements to the land and $119,790.75 for their reservation.

Id. at 1018 (art. IV). See Citizen Band of Potawatomi Indians of

Oklahoma v. United States, 6 Ind. Cl. Comm. 658, 662 (1958).

14

tribes with different treaty rights and a different record of

Congressional action. Oklahoma tribes’ unique Indian

history is reflected in federal statutes that separate all

other Indian tribes from those in Oklahoma. All Indian

tribes are covered by the Indian Reorganization Act [25

U.S.C.A. § 452 et seq.] except those in Oklahoma. Tribes in

Oklahoma are covered by the Oklahoma Indian Welfare

Act. 25 U.S.C.A. § 501 et seq. Further, this dispute arises

over interpretation of a regulation provision that only

applies to Oklahoma tribes. Thus, cases resolving dis-

putes among tribes outside of Oklahoma have little value

when cited as authority for resolving a dispute among

Oklahoma Indian tribes, particularly a decision involving

non-Oklahoma tribes that predates a final adjudication of

an Oklahoma reservation claim.

The dispute here is not ownership per se of the lands

within the Potawatomi reservation, but the Federal

Defendants’ now-abandoned claim that the Potawatomi

and the Absentee Shawnee share the Potawatomi Reser-

vation in common. Though the Absentee Shawnee may

now own land within the former Potawatomi Reserva-

tion,?® they had no reservation in Oklahoma and certainly

none in common with the Potawatomi. Many persons

have acquired interest in lands within the Potawatomi

Reservation subsequent to 1890, but no one before or

since (including the Absentee Shawnee) has acquired a

28 Prior to 1890, individual Absentee Shawnee resided on

the Potawatomi Reservation and had allotments. However,

residence and allotments did not create a valid Absentee

Shawnee claim to having a reservation in common with the

Potawatomi. Citizen Band Potawatomi Indian Tribe of Oklahoma v.

Collier, 17 F.3d at 1293-94.

15

“reservation” or a “former reservation” that includes the

Potawatomi Reservation. The reservation era in Okla-

homa ended before 1890. The Absentee Shawnee are try-

ing to justify the impossible, i.e., recognition of a “former

reservation” for a tribe that never had a reservation.

How and when Shoshone was first cited in this case

shows how remote the holdings therein are to the issues

in this case. Shoshone was decided in 1937 and yet was

never cited by the United States in two subsequent cases

where the United States argued that the Absentee Shaw-

nee had an Oklahoma reservation in common with the

Potawatomi. The United States litigated this issue for

seven years before the Indian Claims Commission,?9 but

never cited Shoshone. The Commission rejected the United

States’ contention “that because the Absentee Shawnee

were in possession of certain northern portions of this

Oklahoma tract [the Potawatomi Reservation] for about

thirty years (since the 1840s) before the Citizen Band

came to Oklahoma that such possessory rights of the

Absentee Shawnee constituted notice of their prior rights

superior to the Potawatomi, to that portion of the Okla-

homa Reservation which was occupied by Absentee

Shawnee.”3°

29 The Potawatomi petition was filed February 19, 1951,

and assigned docket number 96. The United States’ claim of an

Absentee Shawnee reservation interest was rejected in an

opinion filed September 18, 1958.

3° Citizen Band of Potawatomi Indians of Oklahoma v. United

States, 6 Ind.Cl.Comm. 658, 660 (1958) (opinion of the

commission). In rejecting this claim, the Commissioners stated

that: “It is undisputed that the Absentee Shawnee’s possession

of such Oklahoma lands were not ‘locations made for them’ by

16

In the present case, the United States in support of its

claim of a shared reservation never cited Shoshone to the

District court, to the Tenth Circuit, or to the Interior

Board of Indian Appeals (“IBIA”) until after the IBIA

decision. The first mention of Shoshone in this litigation

was by an IBIA judge in an opinion dated September 12,

1995, nearly three years after suit had been filed. The

IBIA acknowledged that the Indian Claims Commission

decision “determine[d] ownership of the reservation

lands on June 25, 1890, immediately prior to the tak-

ing.”3! However, the IBIA said that this ownership “is not

determinative of rights in the reservation after that date.”

Id. at 69-70. The IBIA then attempted to justify Secretarial

recognition that a tribe had a “former reservation” even

though the tribe never had a reservation by citing Shos-

hone as an example of the Supreme Court’s analytical

approach to “reservation status cases.” Using the Shos-

hone example, the IBIA examined an 1891 Act*? and found

the Government. They were, as defendant states, ‘in the nature

of squatters’ * * * whose possession was neither from time

immemorial nor was their possession of lands within the

Oklahoma Reservation obtained under any color of title or

recognition of ownership by the Congress or the exclusive [sic]

branch of the Government or by the Citizen Band.” Id. at 664.

31 App. 69. “The Indian Claims Commission’s decision in

Docket 96 is binding on the Board as to the fact of a taking from

the Citizen Band and as to the date of taking ** * [but] does not

dictate the resolution of the issue here.” App. 72.

32 “The Act of Mar. 3, 1891, 26 Stat. 989 (1891 Act).” App.

64. This act confirmed an agreement by which the Absentee

Shawnee gave up any claim to the Potawatomi Reservation. The

IBIA claimed an Absentee Shawnee quit claim agreement to the

Potawatomi Reservation legally created a reservation in

common for the Absentee Shawnee.

ERP PONE cee oY CREAR

17

that Congress intended to recognize some rights of the

Absentee Shawnees in the Potawatomi Reservation.”

App. 79. This is utter nonsense*3 which is why no one

heretofore cited the Shoshone case as authority in support

of the “common reservation” claim.

The Absentee Shawnee are now arguing a position

broader than that adopted by the IBIA or heretofore

asserted by any party, to-wit: that “the Absentee Shawnee

had rights in the Potawatomi (Absentee Shawnee) [sic]

Reservation by virtue of the pre-existing actual posses-

sion of land within the same reservation which was con-

; firmed and recognized by Congress prior to and after

1891.” Pet. at 4. (emphasis added).34 Neither the Shoshone

case nor any other authority cited by the Absentee Shaw-

nee held that an Indian tribe acquires a reservation by

merely living on another tribe’s reservation for a period

of time. This is the Absentee Shawnee’s belated claim of

aboriginal title first raised in their petition for rehearing

filed with the Tenth Circuit.35 The Absentee Shawnee

33 See Citizen Band Potawatomi v. Collier, No. CIV-92-2161R.

App. 42-44.

*4 The Absentee Shawnee argue this case raises a question

“of great importance in the State of Oklahoma” because other

F tribes share reservation areas. Pet. at 5, n.5. These other

reservations are shared pursuant to lawful authority

(agreements or executive orders). The tribes sharing these

reservations have no interest in this litigation as reflected by the

lack of amici.

ib cats and WIR AL Me

oh Ss ASN gs a

*® In their opening brief to the Tenth Circuit, the Absentee

Shawnee list five issues, none asserted aboriginal title. See

“Appellant Absentee Shawnee Tribe of Oklahoma’s Opening

Brief,” 2, ¥ III (Apr. 4, 1997). Youakin v. Miller, 425 U.S. 231, 234

(1976) (“Ordinarily, this Court does not decide questions not

Wa cee hp bart pe a SIT een

18

argue that the 1891 Act was “a clear recognition of the

aboriginal right of occupancy of the Absentee Shawnee.”

Pet. at 16. This argument is made as part of the Shoshone

proposition even though Shoshone was a claim for dam-

ages, not an aboriginal land claim. Aboriginal title is a

reference to ancestral lands that the tribe “possessed”

when non-Indians first had contact with the tribe. See,

generally, Feuix S. ConEN HANDBOOK OF FEDERAL INDIAN LAw

473 (1982 ed.). The Absentee Shawnee contend that the

theory applies to Potawatomi Reservation lands even

though the Absentee Shawnee have no treaty with the

United States, were “squatters” on the Potawatomi Reser-

vation, and came through the reservation after wandering

away from their tribe (absentees) more than a century

after the Shawnees’ initial contact with non-Indians.

None of the cases cited by the Absentee Shawnee%*

remotely support their implication. For example, the

Absentee Shawnee assert that they were “located within

the subject area as early as 1840” and claim “possession

of the subject lands” citing H.R.Rep. No. 51-3481, at 2-3

(1891). The actual language in the cited report is:

As to the Absentee Shawnees, it seems that

some time about 1840 they left the main band

then located upon the Shawnee Reservation in

Kansas, and after roaming and hunting for some

time settled down upon some of the country

embraced within the limits of this [Potawatomi]

reservation where they have remained ever

raised or resolved in the lower court.”). See also, Walker v. Mather

(In re Walker), 959 F.2d 894, 896 (10th Cir. 1992) (holding issue

not raised in district court is waived on appeal).

36 See Pet. at 10, n.11.

19

since. They were not there by any treaty or

Executive order, but the Government has long

known of their presence there.

The Absentee Shawnee fail to advise the Court that

the Seminoles and Creeks had exclusive possession and

ownership of these lands under treaties from 1833 until

forced to cede the lands in 1866 to the United States who

in turn sold them to the Potawatomi under the Treaty of

1867. See Treaty with the Creeks, Mar. 24, 1832, 7 Stat.,

366; Treaty with the Seminole, Mar. 28, 1833, 7 Stat., 423.

The Absentee Shawnee twice cite37 U.S. v. Santa Fe Pac. R.

Co., 314 U.S. 339, 345, 62 S.Ct. 248, 251 (1941), but this

case shows that their aboriginal claim is untenable:

Occupancy necessary to establish aboriginal

possession is a question of fact to be determined

as any other question of fact. If it were estab-

lished as a fact that the lands in question were,

or were included in, the ancestral home of the

Walapais in the sense that they constituted

definable territory occupied exclusively by the

Walapais (as distinguished from lands wan-

dered over by many tribes), * ** .

The Absentee Shawnee had no ancestral claim to the land

and never had exclusive occupancy. The Potawatomi Res-

ervation in Oklahoma was never “the ancestral home of”

the Absentee Shawnee.

37 Pet. at 6, 10.

20

CONCLUSION

The petition should be denied.

MicHaet Minnis &

Associates, P.C.

MicHaet MInNNis,

Counsel of Record

David McCullough

100 N Broadway Ave Ste 3160

Oklahoma City, OK 73102-8816

(405) 235-7686 Fax (405) 232-5460

Attorneys For Respondent,

Citizen Potawatomi Nation

Resp. App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

CITIZEN BAND POTAWATOMI

INDIAN TRIBE OF OKLAHOMA,

Plaintiff,

No.

V. CIV-92-2161-R

L.W. COLLIER, Jr., in his

official capacity as the Area

Director of the Anadarko Area

Office of the Bureau of

Indian Affairs, Department of

the Interior, and ABSENTEE

SHAWNEE TRIBE OF

OKLAHOMA,

Defendants.

JUDGMENT

DECLARATORY JUDGMENT AND

PERMANENT INJUNCTION

(Filed Jul. 22, 1996)

Consistent with the court’s May 22 order on the

parties’ summary judgment motions, judgment is hereby

entered in favor of the plaintiff, the Citizen Band

Potawatomi Indian Tribe of Oklahoma, and against the

defendants, L.W. Collier, Jr. and the Absentee-Shawnee

Tribe of Oklahoma, as set forth hereafter.

Resp. App. 2

IT IS HEREBY ORDERED, ADJUDGED AND

DECLARED:

1. That pursuant to an 1867 treaty (15 Stat. 531), the

Citizen Band Potawatomi Indian Tribe of Oklahoma

(“Potawatomi”) purchased a reservation (“Potawatomi

Reservation”) in what was then Indian Territory and is

now within the borders of the State of Oklahoma.

2. That the lands reserved for the Potawatomi under

said treaty were subsequently surveyed by Orrin T. Mor-

rill who established the boundaries of the Potawatomi

Reservation as:

a. On the north, the North Fork of the Canadian

River;

b. On the east, the west boundary of what is

now Seminole County;

c. On the south, the Canadian River; and

d. On the west, a north-south line just west of

the Indian Meridian,

all as more particularly described in the plat of the survey

of township lines of the Potawatomi Reservation sur-

veyed by Orrin T. Morrill under his contract of September

3, 1872, examined, found correct and approved by the

Department of the Interior in 1873.

3. That the Absentee Shawnee Tribe of Oklahoma

does not share a common “former reservation” as that

phrase is used in 25 Code of Federal Regulations, Section

151.2(f), with the Citizen Band Potawatomi Indian Tribe

of Oklahoma that is co-extensive with the boundaries of

the Potawatomi Reservation described above.

Resp. App. 3

IT IS FURTHER ORDERED AND ADJUDGED that

L.W. Coilier, as Area Director of the Anadarko Area

Office of the Bureau of Indian Affairs, Department of

Interior, his successors, officers, agents, servants,

employees, attorneys and all those in active concert or

participation with him are hereby PERMANENTLY

ENJOINED from accepting lands located within the

boundaries of said Potawatomi Reservation into trust

status by the United States for the benefit of the Absentee

Shawnee Tribe of Indian [sic] without complying with the

terms of 25 Code of Federal Regulations, Section 151.8

(1992), including that regulations’ requirement of first

obtaining written consent from the Citizen Potawatomi

Nation.

/s/ David L. Russell

United States District Judge

~ [ENTERED ON JUDGMENT DOCKET ON 7-22-96]

APPROVED AS TO FORM:

Cimzen BaNp Potawatomi INDIAN TRIBE OF OKLAHOMA

By: /s/ Michael Minnis

Michael Minnis, OBA #6251

David McCullough, OBA #10898

Michael Minnis & Associates, P.C.

3160 Liberty Tower

100 North Broadway

Oklahoma City, OK 73102

(405) 235-7686

ATTORNEYS FOR PLAINTIFF

Resp. App. 4

L. W. Coxtuier, Jr.

By: /s/ Arvo Mikkanen

Arvo Mikkanen

Assistant U.S. Attorney

210 West Park Avenue, Ste. 400

Oklahoma City, OK 73102

ATTORNEY FOR DEFENDANT

L.W. COLLIER, JR

ABSENTEE SHAWNEE TRIBE OF OKLAHOMA

By: /s/ F. Browning Pipestem

F. Browning Pipestem

F. Browning Pipestem & Associates

111 North Peters, Suite 200

Norman, OK 73069

(405) 329-3840

ATTORNEY FOR DEFENDANT ABSENTEE

SHAWNEE TRIBE OF OKLAHOMA

Resp. App. 5

[LOGO] [LOGO]

United States Department of the Interior

BUREAU OF INDIAN AFFAIRS

Anadarko Area Office

P.O. Box 368

Anadarko, Oklahoma 73005

Sep 17, 1992

Mr. John A. Barrett, Jr.,

Chairman, Citizen Band Potawatomi

Indian Tribe of Oklahoma

1901 South Gordon Cooper Drive

Shawnee, Oklahoma 74801

Dear Mr. Barrett:

This correspondence regards your request for a written

response to your tribe’s opposition to the United States

taking in trust any lands on behalf of any Indian tribe,

including the Absentee Shawnee, within the designated

former reservation area of both the Absentee Shawnee

and Citizen Band Potawatomi tribes. 25 Code of Federal

Regulations part 151.8 states:

“An individual Indian or tribe may acquire land

in trust status on a reservation other than its

own only when the governing body of the tribe

having jurisdiction over such reservation con-

sents in writing to the acquisition; provided,

that such consent shall not be required if the

individual Indian or the tribe already owns an

undivided trust or restricted interest in the par-

cel of land to be acquired.”

Therefore, absent consent, fee simple acquisitions of land

within the former reservation area by nonmembers is

subject to tribal control.

Resp. App. 6

However, your correspondence states the Citizen

Potawatomi can provide citations and legal authorities to

support a contention that the Absentee Shawnee had no

lands in Oklahoma that were recognized as a reservation

and had no legal right to any of the lands that lie within

the area designated by Act of Congress to provide homes

for the Pottawatomie and Absentee Shawnee Indians in

the Indian Territory. By Act of Congress approved May

23, 1872 (17 Stat., 159) titled Chap. CCVI. - An Act to

provide Homes for the Pottawatomie and Absentee

Shawnee Indians in the Indian Territory, the Secretary of

the Interior was directed to issue certificates by which

allotments of land lying within the thirty-mile square

tract heretofore selected for the Pottawatomie Indians,

and lying next west of the Seminole reservation in the

Indian Territory, was to be made to each member of the

Pottawatomie band, known as the Pottawatomie citizen

band and to each Absenfee Shawnee Indian. The above

specifically provided the Absentee Shawnee and Pot-

tawatomie citizen band certificates include the same pro-

visions.

In the different pieces of legislation researched, a number

of designations were given the thirty mile square tract

lying west of the Seminole reservation in the Indian Terri-

tory: “lands selected for the Pottawatomie Indians”, “Pot-

tawatomie (and Absentee Shawnee) Reservations”,

“Pottawatomie Reservation”, however, we do not believe

any can be construed to be a declaration establishing a

former reservation area solely for the Citizen Band

Potawatomi Indian tribe of Oklahoma. Both tribes occu-

pied the area on the same terms prior to March 3, 1891,

wherein the Citizen Band of Pottawatomie Indians of the

Resp. App. 7

Indian Territory and the Absentee Shawnee Indians of the

Indian Territory simultaneously ceded and opened to

public settlement lands included in “Schedule of lands

within the Sac and Fox, Iowa, Pottawatomie (and

Absentee Shawnee) Reservations, in Oklahoma Terri-

tory.["]

Therefore, we believe the Citizen Band of Potawatomi

Indians and the Absentee Shawnee Indian Tribe of Okla-

homa share a common former reservation area for pur-

poses of fee simple acquisitions, and neither are required

to secure nonmember consents required by 25 Code of

Federal Regulations, 151.8. If further information or assis-

tance is needed, please advise.

Sincerely,

/s/ L. W. Collier, Jr.

Area Director

Attachments