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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 947

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1434%3A2. Public record. Not legal advice.