And now:Ish <[EMAIL PROTECTED]> writes: Date: Tue, 22 Jun 1999 01:55:10 -0500 From: [EMAIL PROTECTED] Subject: To the 10th we go! The United Tribe of Shawnee Indians plans to appeal denial of its claims on the Sunflower Army Ammunitions Plant. http://www.ljworld.com/ Updated 12:32:26 AM Tuesday, June 22, 1999 The United Tribe of Shawnee plans to appeal denial of its claims on the Sunflower Army Ammunitions Plant. By Josh Funk Journal-World Writer DeSoto -- A federal judge Monday refused to honor demands of a purported American Indian tribe that claims to own the 9,065-acre Sunflower Army Ammunition Plant. The mothballed plant has been declared surplus by the federal government and is slated to be developed as the Land of Oz theme park. The United Tribe of Shawnee Indians, a tribe with eight members in Johnson County, had asked the court to halt any action on the pending land transfer while it considered the tribe's claim that the land was its under terms of an 1854 treaty. U.S. District Court Judge Thomas Van Bebber refused to grant the requested injunction and hinted that he would not rule on the merits of the tribe's claim to ownership because his court lacks jurisdiction in the matter. A complete written ruling from the judge is expected perhaps as soon as next week. "This issue is a hot potato and the judge doesn't want to hold it," said the tribe's chief, Jimmie Oyler of rural DeSoto. Sean Pickett, attorney for the tribe, said he plans to appeal the ruling when it becomes formal. "We are going to Denver" for the 10th Circuit Court of Appeals, Pickett said. The Bureau of Indian Affairs has removed the United Tribe of Shawnee from its list of recognized tribes, but Pickett and Oyler argue that the tribe has been recognized two other ways and that the BIA's refusal to recognize the tribe is meaningless. "No one can derecognize a tribe except Congress," Pickett said. "The BIA has been trying to act like Congress, and we're going to show them," Oyler said. As part of its claim to the land, the tribe alleged the government violated the National Environmental Policy Act in its handling of a cleanup of the munitions plant. But Blaine Hastings, spokesman for the General Services Administration, the federal agency handling the land transfer, said the cleanup has been in compliance with federal law. Hastings said that once the United Tribe of Shawnees' lawsuit is resolved, negotiations with the state for ownership and the environmental cleanup could be completed. The Land of Oz developers have agreed to complete the cleanup, recently estimated to cost $41, in exchange for the plant site. Plans call for development of a $770 million theme park and resort on a portion of the land. -- Josh Funk's phone message number is 832-7222. His e-mail is [EMAIL PROTECTED] The following shows how the Court failed in the ruling************* IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS UNITED TRIBE OF SHAWNEE INDIANS, a ) United States Treaty Tribe, on our ) behalf and on behalf of all ) individuals descended from all such ) members receiving allotments under ) the Treaty of 1854, ) Plaintiff, ) ) CASE NUMBER V. ) 99-2063-GTV ) THE UNITED STATES OF AMERICA; ) THE HONORABLE WILLIAM S. COHEN, ) SECRETARY, DEPARTMENT OF DEFENSE; ) THE HONORABLE, PAUL W. JOHNSON, ) DEPUTY ASSISTANT SECRETARY OF ) THE ARMY, DEPARTMENT OF THE ARMY; ) THE HONORABLE DAVID I. BARRAM, ) ADMINISTRATOR, U.S. GENERAL ) SERVICES ADMINISTRATION; MR. ) I. BLAINE HASTINGS, SENIOR REALITY ) OFFICER, THE HEARTLAND REGION, U.S. ) GENERAL SERVICES ADMINISTRATION; ) THE HONORABLE BRUCE BABBITT, ) SECRETARY, U.S. DEPARTMENT OF ) THE INTERIOR; THE HONORABLE ) KEVIN GOVER, ASSISTANT ) SECRETARY-INDIAN AFFAIRS; ) MS. NANCY L. JEMISON, ACTING, ) DIRECTOR, OFFICE OF MANAGEMENT ) AND ADMINISTRATION, BUREAU OF ) INDIAN AFFAIRS, ) ) Defendants. ) Proposed finding of fact and conclusions of law COMES NOW the plaintiff in the above-entitled action and sets forth the proposed finding of fact and conclusions of law. Proposed findings of fact 1) The Shawnee Treaties of 1825 and 1831 describe a land base of 1.6 million acres in eastern Kansas which includes present-day Sunflower Army Ammunition Plant (SFAAP). (7 Stat. 284 (Art 2); 7 Stat. 355 (Art II)) 2) The possession of and title to the land base were confirmed in the bands of Shawnee Indians formerly resident in Ohio and Missouri and thereafter referred to as "The now united tribe of said Shawnee Indians". (10 Stat. 1053). 3) The Treaty of 1854 with the "now united tribe of said Shawnee Indians" reconfirmed title and possession to 200,000 acres which were to be fixed by voluntary allotment and held individually and collectively. (10 Stat. 1053, Art 2). 4) Some of the lands confirmed and allotted under the treaty of 1854 are included in present-day Sunflower Army Ammunition Plant. (Defendants Environmental Assessment). 5) Jimmie D. Oyler is a direct descendant of Newton Mc Neer, an original allotment holder under the Treaty of 1854 and himself the direct descendant of "Peaghtucker or Mc Near," an individual signatory of the Treaty of 1831 (7 Stat. 355; See also Defendants proposed findings of fact and Oyler's testimony. 6) Jimmie D. Oyler has lived on a portion of the original Mc Neer allotment, known as Shawnee Reserve 206 since 1975 (See Defendants Proposed finding of fact No. 4) 7) Shawnee Reserve 206 is classified as Indian Country under 18 U.S.C. § 1151. (See Oyler v. Allenbrand 23 F.3d 292, 293 (10th Cir. 1994) 8) The United Tribe of Shawnee Indians, of which Jimmie D. Oyler is Principal Chief, asserts jurisdiction over both the portions of Shawnee Reserve 206 to which Oyler holds individual title and over the lands within the undiminished borders of the Shawnee Reservation established by the Treaty of 1854 and the subsequent allotments. 9) The United Tribe of Shawnee Indians asserts its jurisdiction as the direct successor of the "now United Tribe of said Shawnee Indians" identified in the Treaty of 1854. 10) No other group of Indians that is composed of descendants of the Shawnee signatories to the Treaty of 1825, 1831, and 1854 is located within the land base that was established by these treaties other than the United Tribe of Shawnee Indians. 11) The House of Representatives recently admonished the Department of the Interior's Bureau of Indian Affairs when it said "While the Department clearly has a role in extending recognition to previously unrecognized tribes, it does not have the authority to derecognize a tribe. However, the Department has shown a disturbing tendency in this direction." House Report 103-781, U.S. Code Cong. and Admin News 103rd Cong 2nd. Sessions 3769, (1994) 12) The Department of the Army has determined that Sunflower Army Ammunition Plant is excess government property and has given control of the property over to the General Service Administration (GSA) in preparing for disposal of the property (Stutz testimony). 13) On September 28, 1998, the Department of the Army issued a Finding of No Significant Impact (FONSI) concluding that the construction of a theme park complex to be built by Oz Entertainment on a portion of the Sunflower Army Ammunition Plant lands would not significantly impact the surrounding communities. (Exhibit 1, Plaintiff) 14) Oz Entertainment in fact now is present on SFAAP for the purpose of planning and developing the site into the Wonderful World of Oz theme park. (Stutz testimony). 15) GSA has issued a final environmental assessment (Exhibit 2, Plaintiff's) which included a Finding of No Significant Impact that the disposal of SFAAP to the State of Kansas would not significantly impact the surrounding community. (Id) 16) No contract exists for the sale of SFAAP to any third party as of the time of May 19th, 1999. (Hasting testimony, Palmer Testimony). 17) Any costs the Defendants may incur over the next few years for cleanup of the SFAAP site are costs previously contemplated and currently not contracted away to any third party. (Stutz testimony). 18) Regardless of whether SFAAP is sold, or retained by the United States, the United States remains ultimately libel for the clean up of any hazardous contaminates that may have been released into the environment. 19) The Defendants agree that the Environmental Assessment as published is inadequate and that it failed to adequately survey, study and evaluate the plant site in a manner which complies with the requirements of NEPA. (Hastings testimony, Plaintiff's Exhibit 2). 20) NEPA was enacted to protect the public from environmental problems that may arise from governmental agency actions. It contemplates a certain procedure of action by the government to assure a "hard look'" has been taken and that an agency is not acting capriciously. 21) Less than half of SFAAP has been surveyed (less than 4500 acres out of 9,000+) to determine what existed on, in and beneath the plant site. (Hastings testimony, Plaintiff's Exhibit 2) 22) With less than half of the entire site surveyed no reasonable government official could state that the requirements of NEPA have been met. Proposed Conclusions of Law 1) The creation or confirmation of a land base for an Indian tribe, by treaty or statute, is a means of extending Federal recognition. (Pub. L. 103-454 §103 (3)). 2) The Treaties of 1825, 1831 and 1854 confirmed a reservation for the Shawnee Indians, established a political relation with the United States and amounted to formal recognition. 3) The United States reconfirmed its recognition of the sovereignty, jurisdiction and ownership of the "now united tribe of said Shawnee Indians", as well as other Kansas Tribes, when it passed the Kansas Statehood Act and provided that territory under treaty with the Indians "was not to be included within the territorial limits or jurisdiction of any State or Territory." (12 Stat. 127) 4) The United States Supreme Court declared that there was a continuing political relationship between the Shawnee Tribe and the United States that precluded Kansas and its local governments from taxing the individually held allotments of tribal members. (The Kansas Indians, 72 US 737 (1866)). 5) Decisions by the United States courts are one means of tribal recognition. (Pub. L. 103-454 §103 (3)). 6) A political relationship between the United States and an Indian Tribe may be acknowledged by a court or administrative body, but it should not be set aside by either body. (Pub. L. 103-454 §103 (4); Brown v. Steele, 23 Kan. 672, 675-76 (1880); Kansas Indians, 72 US 737, 755-57 (1866). 7) A recognized tribe may not be terminated except by Act of Congress. (Pub L. 103-454 §103 (4)) 8) Factual presentations contesting the appropriateness of continued recognition are properly addressed to Congress and not to the court or agency. (Pub. L. 103-454 §103 (4)). 9) There have been no clear actions or statements by Congress that abrogate the treaties with the Shawnee or diminish the reservation. Brown v. Steele, 23 Kan 672, 675-76; (1880), Kansas Indians, 72 US 737; 755-57 (1866); Oyler v. Allenbrand, 23 F. 2d. 292, 294-95 (10th 1994). 10) Since the Shawnee reservation established by treaty of 1854 and ensuing allotments has not been diminished by congressional action, it continues to exist as a recognized jurisdictional entity. (Solem v. Bartlett, 465 US 463 (1984)). 11) The United Tribe of Shawnee Indians (UTSI) can properly assert the rights of the signatory tribe of Shawnee Indians because the principal officer of the UTSI is a direct descendant of an individual Shawnee signatory, because the principal officer and his family hold lands and live on portions of an original allotment within the bounds of the original reservation, and because the UTSI exercise governmental functions over the land and within the boundaries of the original reservation. (See eg. Green v. Babbitt 64 F.3rd. 1266, 1270-71 (9th Cir. 1995)). 12) There is a fundamental difference between the requirements for recognition as a political matter, and the requirements for standing to assert rights under treaty. (Green v. Babbitt 64 F.3rd 66, 1270-71 (9th Cir. 1995)). 13) Continuity of the exercise of governmental functions, the size of a tribe and the extent of the land base may be factors in the decision of Congress to recognize or terminate a tribe and may be factors in the administrative decision on whether to recognize tribes not previously acknowledged. Such factors are not however, decisive on the issue of standing to assert rights under treaty. The decisions from the Ninth Circuit state only that, in order to assert treaty rights, a party must have "descended from a treaty signatory and [have] maintained an organized tribal structure." See e.g. Green v Babbitt 64 F.3d 1266, 1270 (9th Cir. 1995). 14) The United Tribe of Shawnee Indians (UTSI) can properly assert the treaty rights of the signatory "now united tribe of said Shawnee Indians" because UTSI's principal officer is a direct descendant of an original Shawnee individual signatory, because UTSI's principal officer holds restricted Indian land within the original boundaries of the reservation established by Treaty of 1825, 1831 and 1854, because the UTSI asserts jurisdiction within the original boundaries of the reservation, and because the UTSI maintains an organized tribal structure within the original boundaries of the reservation. 15) The Department of Interior's Bureau of Indian Affairs, though generally authorized to deal with issues of recognition involving tribes not previously acknowledged, has no authority to apply its regulations so as to effectively terminate previously recognized Tribes or abrogate their Treaties. (PUB. L. 103-454 §103 (4)). 16) Congress has asserted that, under the Constitution, it has plenary authority over Indian Affairs and that a recognized tribe may not be terminated except by Act of Congress. (Pub. L. 103-454 § 103 (1,4)). 17) If a tribe is recognized, and such recognition is advanced by a proper party in a judicial proceeding it would then be inappropriate to compel the party to re-raise the issue of recognition before an agency under the doctrine of primary jurisdiction, as Congress has clearly held that an agency has no authority to terminate a recognized tribe and that a change in recognized status may only be done by an Act of Congress. (Pub. L. 103-454 § 103 (4)). 18) Whether there should be judicial forbearance in the form of primary jurisdiction depends on the authority that Congress has delegated to the agency in the legislative scheme. Golden Hill Paugussett Tribe v. Weicker 39 F.3d 51, 60 (2nd. Cir. 1994) Since Congress has not delegated authority to the Bureau of Indian Affairs to "derecognize" a tribe previously recognized, primary jurisdiction in such cases would be inappropriate. 19) Congress has asserted that recognition of an Indian tribe can be done in three (3) separate ways - by Congressional Act, by the decision of a United States Court, or, by the administrative procedures set forth in 25 CFR part 83. (Pub. L. 103-454 (3)). 20) The "now united tribe of said Shawnee Indians" was recognized by treaty, statute and Supreme Court decision, and this recognition is properly advanced by United Tribe of Shawnee Indians. 21) Congress has mandated that recognized tribes, including those recognized by congressional treaty or statute, federal judicial decisions or administrative action be added to the list of federally recognized tribes, and be maintained on such list unless or until terminated by an Act of Congress. (Pub. L. 103-454 § 103 (4-8)). 22) The United Tribe of Shawnee Indians, whose members are direct descendants of the Shawnee signatories to the unabrograted Treaties of 1825, 1831 and 1854, whose members hold land within the boundaries of the original reservation, which maintains a current governmental structure, and which asserts a sovereign jurisdictional presents should be added to the list of recognized tribes, unless or until terminated by Congress. 23) The portions of the Sunflower Army Ammunitions Plant that lie within the undiminished boundaries of the Shawnee Reservation as established by the Treaty of 1854 and ensuing allotments should be dealt with under 40 U.S.C. § 483(a). This issue is remanded to defendants, Department of Defense and General Services Administration, for such action in light of the statutory mandates and in light of the fact that the United Tribe of Shawnee Indians is to be regarded as a tribe "recognized and eligible for services by the Bureau of Indian Affairs". (40 U.S.C. § 483 (a)(2)) 24) Plaintiff's request for a declaration of existing recognition and request for a mandate of adherence to the express terms of Pub. L. 103-454 do not directly or indirectly involve monetary relief. Furthermore, the Plaintiff's requests, in effect, call on individual administrative officials to adhere to the law of the land as established by congressional acts and treaties. In these circumstances, doctrines of sovereign immunity and final agency action will not operate to bar Plaintiff claims. (5 U.S.C. § 402; Cobell v. Babbitt , 30 F. Supp. 2d. 24, 31-32 (D.D.C. 1998); Larson v. Domestic & Foreign Commerce Corp, 337 U.S. 682, 689 (1949). 25) Because the Plaintiff, United Tribe of Shawnee Indians is herein declared to be a previously recognized tribe and is to be added to the list maintained under 25 U.S.C. § 479a-1, and because the disposition of Sunflower Army Ammunition Plant is to be conducted in accord with procedures of 40 U.S.C. § 483 (a), the court finds it unnecessary to rule on the equitable issues of constructive trust. 26) The Defendant, Department of the Army actions have constituted final agency actions on NEPA processes that are contemplated to be used in the transfer of SFAAP site to non-governmental third parties. The publishing of the Finding of No Significant Impact by the Department of the Army, although perhaps withdrawn, nevertheless, was a final agency action and was in contemplation of development of the Sunflower site by Oz Entertainment and in violation of the NEPA process under the evidence presented to this court. Accordingly, this Court does have jurisdiction, under Administrative Procedures Act, and so finds that Plaintiff's NEPA claims are ripe for a court determination. 27) The Defendant, General Service Administration's actions have constituted final agency actions on NEPA processes that are contemplated to be used in the transfer of SFAAP site to non-governmental third parties. The publishing of the Finding of No Significant Impact in the Environmental Assessment by the General Services Administration was a final agency action. Accordingly, this Court does have jurisdiction, under Administrative Procedures Act, and so finds that Plaintiff's NEPA claims are ripe for a court determination. 28) Balancing the harms to Plaintiff group against the potential harm to the Defendants, and the public, the Court finds that the Defendants have not sufficiently complied with the safeguards proscribed by NEPA and that the public interest demands that this court grant petitioners preliminary injunction until such time as the Defendants publish an Environmental Impact Statement (EIS) as required under NEPA guidelines. Respectfully submitted, O'Connor, Weber, Pickett & Gale, L.L.C. By: ____________/S/______________ Sean W. Pickett #18936 405 E. 13th Street, Suite 100 Kansas City, Missouri 64106 (816) 472-1600 Fax (816) 472-0200 CERTIFICATE OF SERVICE I hereby certify that, on this __21st.__ day of June, 1999, a true and correct copy of the foregoing was served on the above named Defendants by United States Mail, first class postage prepaid at the following locations: The Honorable Janet Reno Attorney General Office of Attorney General 950 Pennsylvania Avenue, NW Room B-103 Washington, DC 20530 And, HAND DELIVERED TO: Ms. Jan Karlin Assistant U. S. Attorney Office of United States Attorney Robert Dole Courthouse Kansas City, KS The Honorable William S. Cohen, Secretary, Department of Defense Pentagon, Room 3E880 Washington, D.C. 20310-1155 The Honorable Paul W. Johnson, Deputy Assistant Secretary of the Army, Department of the Army Installations Logistics and Environment 110 Army Pentagon Washington, D.C. 20310-0110 The Honorable David I. Barram, Administrator, General Services Administration 18th and F Street, NW Washington, D.C. 20405 Mr. I. Blaine Hastings Senior Realty Officer Real Estate Disposal Division 7PE-6 1500 East Bannister Road Kansas City, Missouri 64131-3088 The Honorable Bruce Babbitt, Secretary Department of the Interior 1849 C Street NW Washington, D.C. 20240 The Honorable Kevin Gover Assistant Secretary-Indian Affairs U.S. Department of the Interior Office of the Secretary Washington, D.C. 20240 Ms. Nancy L. Jemison, Acting Director, Office of Management and Administration, Bureau of Indian Affairs Washington, D.C. 20240 _______________/S/____________ Sean W. Pickett, KS Bar 18936 Attorney for the Plaintiff *****http://home.att.net/~hdqrs Reprinted under the fair use http://www4.law.cornell.edu/uscode/17/107.html doctrine of international copyright law. &&&&&&&&&&&&&&&&&&&&&&&&&& Tsonkwadiyonrat (We are ONE Spirit) Unenh onhwa' Awayaton http://www.tdi.net/ishgooda/ &&&&&&&&&&&&&&&&&&&&&&&&&&
